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Help needed David v Goliath type

 
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oshea55
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PostPosted: Mon Jul 05, 2010 10:01 pm    Post subject: Help needed David v Goliath type Reply with quote

How glad I am to come across this forum - hope you can help me.
I need help urgently: five years ago I was commissioned by a local authority to implement our training and development programme. I devised this programme 15 years ago, it has been commissioned by 15 local authorities so far and the specific framework is entirely our own, which is why it is unique under tender regulations.

At the time of the implementation, the council in question signed a contract to agree that all reports and evaluations that arose from the success or otherwise of the project we developed would credit the name of my programme and my name as author and contact as it could be obtained by other councils. Historically this is how we are further engaged by other councils: they see the success in both practice and budgetary gains and, guided by central government initiatives, investigate how they achieved that success . The paperwork given out to the Council also clearly states that the content cannot be copied or reproduced without my permission.

Five years later, it became clear that this Council not only achieved the success as planned but made applications for awards for Good Practice and had visits from other local authorities and central government dignitaries to look at the success. Nowhere in the reports, evaluations, award applications, in the reports to the other local authorities – was I mentioned as the author of the programme. Instead, the Council insinuated that the approach was theirs and, in one report, referred to a specific part of the programme as their own.

I initially instructed solicitors to instigate proceedings for their “breach of contract” but even though they assured me that they were experts, I have compiled the letters to the Council myself for them just to copy and paste on to their headed paper. However, after several letters to the Council, they responded by saying that they apologised if they had breached copyright but that my “loss of income” complaint could not be proved. I would have earned a substantial amount had they passed my details on to the other authorities who specifically visited the Council. Combine this with the publicity I would have utilized on my website about the targets that the programme had achieved, and you can clearly see why my anger mounts each time I think of it.

After losing confidence in the solicitors who charged an exorbitant sum and to be frank I reached a point where I could no longer afford their fees, I informed them that I did not wish them to continue and have since tried to liaise on my own, talking to senior committee members about this and asking them to intervene.
This morning I received a phone call from the new Director of the Social Services asking me how I intended to proceed and that their legal department had informed them that they would not be compensating me financially but that she would write a letter of apology (I already have one from the previous Director when I first complained last year before I instigate solicitors).

I advised the Director that I would not be deterred and that I would be seeking justice but she repeated her “legal departments decision”.
I expressed surprise that she had not invited me to a meeting and she replied that she would meet me and so I invited her to a meeting at my home on Friday.

I have a problem in that although the member of senior staff who signed the contract acknowledged that she signed it – I cannot find the actual contract and am searching the storage area for it (it was signed five years ago) – the Council do not know that I do not have it to hand as I only sent them a copy of the blank copy I sent her by email to sign when I sent the original paperwork through the solicitors (along with a copy of the actual email)

I wonder if you would be kind enough to advise me whether I should go ahead with this meeting? What should I say? What should I not say? Should I meet her at all? The truth of it is that I simply cannot afford solicitors fees anymore but I just can not let such a huge breach of copyright on my work pass like this.
I would appreciate any help or advice you could offer.
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AndyJ
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PostPosted: Tue Jul 06, 2010 12:18 am    Post subject: Reply with quote

I am hesitant to advise you on this as your previous solicitors seemed to have made no headway. My instinct is that you do need qualified legal advice. But clearly you cannot afford it after the money you have spent on legal fees to date. Unless you can find someone who is prepared to take this on a conditional fee (so-called no-win, no-fee) basis, then I fear you may have to deal with this yourself as best you can.
Let's be clear, this is not a copyright issue, but a breach of contract matter. I assume that in the missing contract and in other correspondence, the council acknowledge that you own the copyright in this piece of software. In turn you signed a contract which allowed them to use the software. Thus they are licensed and because they have not entirely complied with the terms of the contract, I believe your way forward lies with an action for breach of contact, not the council's failure to give you a credit as the author of the software. The reason I say this is that Section 79 of the Copyright, Designs and Patents Act 1988 specifically excludes computer programs from the list of works which an originator has the moral right to be credited as the author. In other words the missing contract actually gives you something which copyright law denies you.
So the fact that you cannot find the contract does rather cause a problem. You need to be able to quote it and produce copies to a court if it gets that far. I assume that the council are not disputing the fact that the clause was in the contract, which is why they have issued an apology.
The normal course of events where a breach of contract is concerned is for the court to attempt to put things back on track to achieve the original aim of the contract, or if that cannot be done then it may be necessary to set the contract (or part of it) aside, and the defaulting party would be ordered to compensate the other party so as to put them back to where they started. Clearly, that is not much help here. The court cannot reasonably order the Council to retrospectively give the credit you should have had, and in any case that would not benefit you as the additional sales you believe you would have had will not materialise retrospectively. It would seem therefore that you should be compensated, but here you have to be able to demonstrate how you think you have lost out financially. Presumably you could use the payment you received from the council as a yardstick as to the value of any later sales, assuming that the other sales would have been similar (same size of organisation, number of terminals running the software etc). I am not quite clear from your post whether the 15 local authorities you say are using your program obtained it from you, or via the council who originally commissioned the work. This is where the specifics of the missing contract will be important. Was the original council licensed to distribute your software to these other councils, or did you sign over exploitation rights to them? If the answer is yes, I don't see how you can argue that you have lost out on sales. If the answer is no, then it would appear that the original council weren't entitled to distribute your software, and you have much more substantial grounds for suing them. If this is the case, obviously you can arrive at a value of your losses by multiplying your original fee by 15 (or is it the original council + 14 others?), and this figure, together with your costs to date in trying resolve this matter, is what you should be seeking from the council.
As I am not qualified to advise you in a legal capacity on the breach of contract issue - and this is clearly a complicated issue - I suggest that either you go to the Citizen's Advice Bureau or approach a law firm that deals in commercial law and see if they would take the case on a conditional fee basis. Most firms will give you a free 30 minute consultation. However, with the conditional fee method you need to be aware that this could mean that even if you win, you may not gain financially because the court may not award costs to you. Hopefully, once the council see that you have a valid case and that you are determined to take the matter forward, they will seek to settle the matter out of court as it is cheaper for them not to have to fight it.
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oshea55
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PostPosted: Tue Jul 06, 2010 7:59 am    Post subject: Reply with quote

Andy,
Thank you so much for this comprehensive reply. Can I just clarify that it is not a software programme but an actual written training programme implemented directly to staff, accompanied by a Manual. The staff followed the framework that I trained them in and achieved the results that the previous 15 councils had achieved.
It is the Manual that was the breach of copyright - they quoted huge chunks of it in their reports and applications for awards, using it to explain what it is "they" had done. They broke contract by not crediting me or passing on my details to two councils who came to view the work achieved or to a central government official who was invited to view the project as an "example of good practice".
Once I realised that the solicitor's bill was just growing without any actual progression, I cancelled their services and contacted the Leader of the Council who said he would talk to the Director about it. This is a new Director who wasn't in place when the programme was implemented but the staff are still working to it and have achieved fantastic results with it (as is historically the case with the other councils who have come to me after "visiting other councils who achieved great results.......")
The Director called me to say that the council have no intention of compensating me for loss of income and that their legal department maintain that I would have to prove loss of income. Their way of dealing with the "breach of copyright" is to apologise and say it won't happen again but of course that doesn't bring me the work that I would have got when all these people visited to get information and I can not now use all these plaudits on my website (which would have brought more work in).
I hope I have clarified Andy and I am very grateful to you for your help on this
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AndyJ
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PostPosted: Tue Jul 06, 2010 1:52 pm    Post subject: Reply with quote

Thanks for the clarification. The fact that there is a manual (a 'literary' work as far as the CDPA is concerned) does make a big difference. A training course on its own would have been problematic because you can only copyright things, not ideas, so having the manual and any supporting teaching aids establishes the copyright. Looking at the copyright aspect, the council would be entitled to quote small bits from the manual under the fair dealing rules, but not 'significant' parts of it. If as you say the contract prevented them from making further copies of the manual and you have grounds for believing they have made copies (as opposed to merely quoting extracts) that would certainly constitute an infringement of copyright. With regard to any quoting of the manual, a court would be the only place to decide what 'significant' meant in this particular case. But irrespective of that aspect, even under the fair dealing exemption, they are required to credit you as the author. Ideally somewhere in the manual you wrote, there should be a copyright notice and an assertion of your moral rights to be credited as the author. Neither is totally essential in this case because UK law does not require there to be a copyright notice, and although normally you do need to assert your moral rights, in this instance you have the clause in the contract which effectively does the same thing. So looking just at the possible infringement of your moral rights, the remedy provided by the CDPA 1988 is to be found in Section 103:
"103.
Remedies for infringement of moral rights.
— (1) An infringement of a right conferred by Chapter IV (moral rights) is actionable as a breach of statutory duty owed to the person entitled to the right."
In other words this an actionable tort. The problem with that is that the courts tend not to deal with economic loss (as opposed to injuries or damage to property) in tort cases, prefering that this should be dealt with under contract law. Your claim would consist entirely of an economic loss (however it is arrived at) so I still consider that the breach of contract route may be the more advantageous one to follow, unless you can provide clear evidence of an infringement of copyright by copying the whole manual or at least a significant part of it.
Turning now to the fact that the council failed to give you a credit when dealing with other authorities. This is not the same as failing to give you a credit when quoting your manual, and entirely depends on exact wording used in the contract to say what they were required to do. A badly worded clause in the contract could allow the council to argue that they were not required specifically to pass on your details to other bodies etc. Obviously without being able to see the wording, it is hard to go further with this aspect.
I'm sorry not to be specific, but the minute you move into contract disputes, having the exact wording becomes essential. Regretably this is not an easy area for a layman to conduct litigation in person. Once again I suggest you try Citizens Advice. In the meantime, I believe that any meeting with a representative of the council would not be helpful, until you have better legal advice.
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oshea55
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PostPosted: Tue Jul 06, 2010 3:00 pm    Post subject: Reply with quote

Andy,
Thanks again for this. I have copied the contract below - it is quite short and has always been enough with other councils.

Agreement between....... and ...... agrees that the .......will be acknowledged as being the copyright of .........and all paperwork provided by ........ in the implementation of the training will be provided with the strict proviso that it is not used for training purposes outside of the designated ............Team trained by the Consultancy within the Authority/Organisation and those joining it at a later date.
We further agree to acknowledge .......... involvement in the implementation of the ............ when any Evaluations and/or Reports pertaining to the within the Authority/Organisation are created for view within the Authority/Organisation or for public consumption.
This agreement extends to the staff and employees of

Your comments about the amount of the materials used has led me to look again at what they used and they lifted about five paragraphs in one slot and gave the impression that it was the Council's view rather than my writing. It was to support their application for an award for Good Practice (the results of my programme). They also refer to a specific tool within the document as "our...." both of which break the contract and contravened copyright rules I thought.
I hear what you are saying about Citizens Advice but I wont have time now before Friday and figured that, now that you have clarified things for me, I will try one of those "no win no fee" solicitors with copyright expertise that I have found.
I cant thank you enough for your help Andy. If anything else occurs to you at all, I would be grateful to hear it but thank you so much for all your advice.
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AndyJ
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PostPosted: Tue Jul 06, 2010 3:38 pm    Post subject: Reply with quote

I'm glad you are going to seek some professional advice on this. I wish you the best of luck.
Andy
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