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