Twentieth Century Fox Film Corporation v Harris
“The courts have always recognised a clear distinction betweenthe ordinary Mareva jurisdiction and proprietary claims. Theordinary Mareva injunction restricts a defendant from dealingwith his own assets. An injunction of the present kind, at leastin part, restrains the defendants from dealing with assets towhich the plaintiff asserts title. It is not designed merely to preserve the defendant's assets so as to be available to meet a judgment; it is designed to protect the plaintiff from having its property expended for the defendant's purposes”.8.To obtain proprietary injunctions, the Studios need to show that there is a seriousquestion to be tried as to whether they have proprietary rights in the assets over whichthey seek injunctive relief. That in turn depends on whether there is at least a seriousargument that a copyright owner has a proprietary claim to the proceeds of aninfringement of copyright.
The parties’ cases in summary
9.Mr Richard Spearman QC, who appeared for the Studios, argued that, where acopyright is infringed, the copyright owner has a proprietary claim to the whole proceeds of the infringement. Those proceeds, Mr Spearman submitted, are held onconstructive trust for the copyright owner, or at least it is seriously arguable that thatis the case. Passages in a variety of authorities point in that direction, so it is said.10.In contrast, Miss Jane Lambert, who appeared for Mr Harris and Kthxbai, disputedthat any proprietary claim exists. According to Miss Lambert, the Studios are arguingfor a remedy that has never been awarded by any Court in respect of any species of intellectual property. The owner of intellectual property whose rights have beeninfringed will often be entitled to an account of profits, but (so Miss Lambertsubmitted) there is no question of the fruits of infringement being subject to a trust.Were it otherwise, Miss Lambert said, there would be a chilling effect on innovationand creativity.
11.The remedies for infringement of copyright are dealt with in chapter VI of part I of the Copyright, Designs and Patents Act 1988. Section 96(2) of the Act, which is to befound in this chapter, states that, in an action for infringement of copyright, “all suchrelief by way of damages, injunctions, accounts or otherwise is available to the plaintiff as is available in respect of the infringement of any other property right”.12.Mr Spearman stressed the words “or otherwise”. These, it is true, are capable of encompassing a proprietary claim. On the other hand, section 96 does not specificallyrefer to the existence of such a claim.13.Textbooks and case law also make no direct reference to the availability of proprietary relief for breach of copyright. More specifically, I was not taken to anytextbook or case in which it had been suggested that a copyright owner can advance a proprietary claim to the fruits of a breach of copyright. That is the more striking since,given the potency of proprietary claims, they could be expected to be assertedroutinely in breach of copyright cases were they available.14.Mr Spearman cited authorities to show that a copyright can be the subject of aconstructive trust. That is doubtless correct. As, however, Miss Lambert pointed out,