| Background | | | | work overseas. Classic FM was prevented from |
| Mr Ray was a highly respected expert in classical | | | | exploiting their database abroad without the |
| music in England, reputed to have an | | | | consent of Mr Ray, which would require payment |
| encyclopaedic knowledge of classical music. He | | | | of license fees. |
| was engaged by Classic FM in the United Kingdom | | | | When implying licences in this way, a court will |
| in 1991 to compile the radio station's repertoire, | | | | only go so far as is necessary in the |
| compile playlists, categorising tracks for play lists, | | | | circumstances to give effect to the intention of |
| and rate their popularity under each of the | | | | the parties. If a grant of a licence is required, the |
| categories. The contract did not deal with | | | | ambit of the licence will be the minimum required |
| intellectual property rights. The consultancy | | | | to give effect to the intention of the parties at |
| agreement was originally for 11 months, however | | | | the time of the contract. An implied term that |
| the work of Mr Ray proved beneficial for Classic | | | | copyright would be assigned to a client will be |
| FM, and his services were extended until 1997. | | | | exceptionally rare, as most often an exclusive |
| Some 50,000 tracks were eventually categorised. | | | | licence will have the same effect in law. |
| The results of the work were incorporated into a | | | | The judge held that the contractor retains the |
| database that was used to select music on a | | | | copyright in default of some express or implied |
| rotational basis, and prevent overplaying. | | | | term to the contrary effect. The contract may |
| The project was success. After internal use for | | | | expressly state which party is entitled to the |
| about 5 years, Classic FM proposed to licence the | | | | copyright, and the mere fact that the contractor |
| database to overseas companies. Mr Ray | | | | has been commissioned - performed by a |
| objected and commenced proceedings to prevent | | | | contractor - is insufficient to grant rights in the |
| Classic FM licensing the use outside the UK without | | | | copyright to the client. In the absence of express |
| his permission, on the basis that he was the | | | | rights, the client is left to establish an entitlement |
| author of documents that were incorporated into | | | | under the express or implied term of the |
| the database. | | | | contract. |
| The Decision of the High Court | | | | Conclusion |
| Mr Justice Lightman in the High Court ruled that in | | | | The decision means that contractors retain the |
| the case of a consultancy, the author retained the | | | | copyright in the absence of an implied or express |
| copyright in the absence of an express or implied | | | | term. An implied licence must be reasonable and |
| term to the contrary effect. Where services by a | | | | equitable; necessary to give business efficacy to |
| consultant are performed for an express purpose, | | | | the contract, capable of clear expression and not |
| a court will readily imply a term into a contract | | | | contrary to any express term of the contract, |
| for services that a client is entitled to use it for | | | | and so obvious that it goes without saying. This |
| that purpose. In this case, Classic FM always | | | | means that a licence will be implied for the client |
| intended to utilise the Mr Ray's work in the UK. It | | | | to use the work for the stated purposes at the |
| was not until 1996 that Classic FM intended to | | | | outset of the engagement. It is important to |
| exploit Mr Ray's work overseas. The court was | | | | document the purposes of the engagement and |
| not prepared to imply a licence into the contract | | | | the intended use for the copyright work created |
| that Classic FM would be entitled to exploit his | | | | during the course of the engagement. |