Journal of Intellectual Property Law & Practice Advance Access originally published online on October 27, 2006
Journal of Intellectual Property Law & Practice 2006 1(13):813; doi:10.1093/jiplp/jpl178
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© The Author (2006). Published by Oxford University Press. All rights reserved
Editorial |
The spy who came in from the cold
Some words occur to us in pairs, often to the extent that we find it difficult to hear the one without recalling the other. Thus ‘Romeo’ suggests ‘Juliet’; ‘Anthony’ invokes ‘Cleopatra’; ‘Héloïse’ follows ‘Abélard’ and so on. Many further examples exist, particularly in the case of lovers.
In intellectual property circles the concepts of ‘author’ and ‘royalties’ are also closely linked—but their relationship is strained. While the author's love for royalties is sincere and undiminished by the vicissitudes of commerce, royalties are more fickle in their choice of destination. Some royalties remain an ideal, never to come to fruition. Other royalties remain imprisoned within the palace of the publisher, never to be handed over to their rightful suitor; some are claimed by the taxman as his due, whereas others again, secured in advance, must be surrendered following the failure of the author to comply with the terms of publication.
A rare and unusual fate befell the royalties to which George Blake was contractually entitled for the publication in 1990 of his autobiography No Other Choice. At the time he wrote the book and entered into the contract that promised him the disputed royalties, Blake was a former member of the British Secret Intelligence Service; a strong selling factor for his book, no doubt, was his notoriety as a spy for the USSR and the circumstances under which his spymasters reputedly procured his escape from the secure jail in which he was serving a 42-year sentence.
Blake clearly did not write his book in the course of the performance of his employment duties in the Secret Service. Nor could it be said that the circumstances of the book's creation and publication were such as to impose upon him the duties of a trustee. Accordingly, there was no basis under copyright law upon which the British Government could claim ownership of the copyright or a beneficial entitlement to the royalties resulting from the book's sale. Even if the author was disentitled to receive the royalties, there was no obvious ground of entitlement for the British Government either.
The Attorney General (an officer of the Crown whose roles include the protection of public interest) commenced civil proceedings to recover the benefit of any royalties earned by Blake on the basis that the book disclosed information of a confidential nature. Although the information was no longer confidential when Blake disclosed it, because it was known to the public as well as to the Russians, the Attorney General's argument was strengthened by the contention that, having acknowledged that he was bound by the terms of a criminal statute, the Official Secrets Act 1911, Blake was aware that any disclosure relating to his service duties was unlawful and should not have been made.
The Attorney General's claim was ultimately successful in that the decision of the Chancery Division of the High Court was upheld first by the Court of Appeal and later by the House of Lords. Blake was however distressed by two things. First, he had lost his royalties, through a complex web of legal reasoning that raised more than a small suspicion of judicial creativity. Second, it took him no less than nine years and two months to lose his royalties. This was a very long time to be kept in suspense, subjected to the stresses and anxieties that any individual litigant must suffer. Accordingly, Blake took his case to the European Court of Human Rights on a plea that the protracted litigation was incompatible with the requirement of Article 6(1) of the European Convention on Human Rights that legal proceedings take a reasonable length of time.
Blake's claim was upheld by the Court, which awarded him damages of 
5000. Although this was only a small fraction of the very large sums to which he was entitled by way of advance royalties, Blake must have obtained some personal satisfaction from his belated victory. The Court articulated the criteria that must be taken into account when considering unreasonable duration: the complexity of the issues involved, the scale or importance of the issue in contention, and the conduct of the parties.
This episode has many lessons for intellectual property lawyers and litigants. When choosing a jurisdiction in which to litigate, choose a country which has only one appellate tribunal. Consider arbitration or mediation, to which Article 6(1) does not apply. Keep your arguments simple and sue local corporations rather than individuals living abroad. Finally, do not underestimate the motivation of an author shorn of royalties.
Footnotes
*Editor, Journal of Intellectual Property Law & Practice 
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