not founded on the facts in dispute. Secondly he has not responded to the Plaintiff‘s submissions
on issue number one which therefore remains unchallenged.
On the issue that the Defendant chose to submit on, it is plainly and factually wrong because
firstly it is not true that the song was a commissioned work. The Defendant has not adduced any
evidence of commissioning. Secondly in dealing with subsequent issues he contradicts his
position when he states that it is the written evidence of commissioning and that under section 14
(3) a valid transfer of a Copyright on a third party has to be in writing to be effective. The
Defendant asserted that the song was produced as a commissioned work and therefore the
copyright thereof belonged to the Commissioner namely the British Council.
The Copyright and Neighbouring Rights Act does not define commissioning. From the wording
of section 8 (1) (b), the word "commission" is not used as a term of art or a legal term, but in its
ordinary English meaning. According to the Cambridge International Dictionary of English to
"commission" means to formally choose someone to do a special piece of work. The free
dictionary which is an online dictionary defines commissioning as the act of granting certain
powers or authority to carry out a particular task or duty. Counsel emphasises that
commissioning cannot be assumed because it is a formal process of instructing a person to
undertake a given task. The task is firstly undertaken in fulfilment or execution of the
commissioner‘s instructions. The instructions precede the work. Secondly the product or its legal
ownership would then be handed over to the Commissioner. It would therefore follows that,
because of its characteristics, the product would belong to the Commissioner. It is the
Commissioner's property, created upon his instructions and for his benefit. The wording of
section 8 (1) (b) suggests it. It provides that "where a person creates a walk on commission by
another…" It means that the commission precedes the creation of the work. Any party alleging
commissioning would have to prove the existence of a formal process. Mere payment as a token
of appreciation does not amount to commissioning and that is all that existed in the Plaintiffs
matter. The Plaintiff may have used the term during cross-examination but not much can be read
into that because she is a lay person. She testified that she was paid £3000 by the British Council
but that alone could not amount to "commission" because it is not anywhere claimed that the
British Council initiated the process that gave rise to the song. Secondly it is not suggested that
the British Council regarded itself as owner of the song and it cannot have commissioned it
unconsciously. From the evidence of PW1, it is clear that the British Council did not initiate but
only assisted in an ongoing process. Secondly, shortly after referring to the payment PW1 added
"I know that they put money into producing my work. I expected to be paid for its use." The
Plaintiff invested her own money into the production and that is clearly inconsistent with
commissioning. Fourthly it was not even suggested that the British Council give any directive as
to the content, name or particulars of the work. It only paid money and that was all. Even the
existence of a commission would not completely take away the authors cause of action. This is
because it will take away her economic rights under section 9 and her moral rights under section