granting beneficial ownership of the copyright to Gestetner. Thus in that case, the
Copyright had two owners, one at law and one at equity, and Gestetner, as beneficial
owner, could deal with the work as it wished, Warner‟s legal interest in the Copyright
being of little practical significance (although infringement actions are much less
effective if brought by a beneficial owner without the legal owner being joined as a
party).
[Source: INTELLECTUAL PROPERTY by David Bainbridge, 5th Edn. at p.81].
The concept of two owners, one legal and the other beneficial, is used more commonly in
the law of real property. In Pyrali Shunji Ganji & 3 others vs Coffee Development
Authority Court of Appeal Civil Appeal No.37 of 1997 the appellants were registered
owners of the suit property. They agreed to sell it to a third party. The sale agreement
contained important stipulations, the salient one being that the sale was subject to the
appellants obtaining the requisite consent to transfer by the completion date. Consent to
transfer was obtained and a transfer deed was executed. However, the transaction was
not completed as by law required because of the expulsion of the appellants from the
country by the then Military Government. They had left the matter to their advocates to
complete but the advocates were also equally affected by the expulsion. The court held
that once the consent to transfer was obtained, the deal was through; that non-registration
was inconsequential; that once the transfer was in place it created a contract inter parties
since the time of registration was not of essence.
In Kalani vs Kaur Civil Appeal No.22 of 1995 (unreported), the Supreme Court held that
absence of registration of the instrument of surrender (or transfer as in that case) could
not affect the parties to the contract; they would be bound by the contract.
Now, does this principle have application to intellectual property law?
The answer is yes, as the decision in Warner vs Gestetner, supra, clearly shows.
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