In another English authority, Ironside vs Attorney-General [1988] RPC 197, it was held
that an agreement for the design of the reverse face of coins gave rise to an assignment in
equity, or alternatively an implied licence.
[Source: INTELLECTUAL PROPERTY by D. Bainbridge, ibid, at p.82].
From the authorities, to be able to imply beneficial ownership, the creator of the work
should have been paid a fixed sum rather than a royalty, as the latter is inconsistent with a
transfer of ownership.
The two cases which I have cited above involved a lump sum payment. And so does the
instant one. Applying the same principles to the instant case, it is plain to me that upon
the defendant receiving the composition and adapting it to its own taste, it obtained an
equitable interest in the Copyright material. In other words, there is a legal owner of the
Copyright in our national anthem and an equitable owner. The legal owner is the
intended assignor, the plaintiff, and the equitable owner the intended assignee, the
defendant.
In view of this dual ownership of the Copyright, created as it were by the parties failure
to execute a formal assignment in favour of the defendant, the question of infringement
of the plaintiff‟s Copyright in the manner claimed by him does not arise because as
learned counsel for the defendant has correctly put it, one cannot infringe on one‟s own
property.
For reasons stated above, I would answer issue No.1 partly in the affirmative and partly
in the negative as in practical terms neither party has exclusive rights in the music
comprised in the national anthem and therefore none is infringing the copyright of the
other. This in my view also disposes of issue No.2 which, for the avoidance of the doubt,
I hereby answer in the negative.
What then is the way forward?
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