Candido's american dream
A: Unspecified damages from Ben, Emily and Erewhonian News for emotional distress and reputational damage; injunction to prevent further publication of the information and the photograph; order against Erewhonian News for deletion of the blog entry and associated comments: Erewhonian Code of Human Rights
1. It is submitted under s.30 and s.31 Erewhonian Code of Human Rights (hereafter ECHR), the Court of Appeal erred in law by awarding damages and granting an order against Erewhonian News(hereafter EN) for deletion of the blog entry and associated comments.
2. Counsel submits under s.11(2) Copyright, Designs and Patents Act 1988, EN own the copyright of the blog written by their employee, Frances. They have the right to use and exploit their authorial works as they see fit and s.15 Erewhonian Intellectual Property Code (EIPC) provides that ‘intellectual property shall be protected.’
B: Property Rights in the photograph:
3. It is submitted the Supreme Court should uphold the Court of Appeal judgment for Ben in finding against delivery up of the photograph.
4. Counsel submits under s.31 ECHR Ben ‘is entitled to the peaceful enjoyment of his possessions.’ He has the right to use and exploit his authorial works – the photograph – as he sees fit and s.15 EIPCprovides that ‘intellectual property shall be protected.’
5. It is submitted Ben has authorship of the photograph because he is the person who created it. It is common ground in jurisdictions worldwide that the person who creates a work is the author. Counsel refers to s.9 (1) of the UK Copyright, Designs and Patents Act 1988, ‘in this Part “author”, in relation to a work, means the person who creates it.’
6. Counsel also refers to s.101 of the USA Copyright Act 1976, ‘a work is “created” when it is fixed in a copy…for the first time.’
7. In addition, it is submitted Ben enjoys exclusive rights in his property. Counsel refers to the French Intellectual Property Code Part I Article L111-1, ‘the author of a work of the mind shall enjoy in that work, by the mere fact of its creation, an exclusive incorporeal property right which shall be enforceable against all persons.’
8. This is bolstered by Article 5 (1) Berne Convention for the Protection of Literary and Artistic Works: ‘Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.’ It is submitted that it does not matter in which jurisdiction the blog and photograph are viewed. Ben shall enjoy full protection ‘regardless of frontiers’ (s.32 ECHR).
9. Counsel submits the photograph is a protected work under Article 2 (1) Berne Convention for the Protection of Literary and Artistic Works, ‘the expression “literary and artistic works” shall include… photographic works.’
10. For the reasons stated Counsel asks that the Supreme Court uphold the appeal against Adam in relation to damages, the injunction and deletion of the blog entry and associated comments. Counsel also asks that the Supreme Court dismiss the claimant’s entire action.
Candido's american dream A: Unspecified damages from Ben, Emily and Erewhonian News for emotional distress and reputational damage; injunction to prevent further publication of […]