Jonathan Hill appeared for the claimant in this application for transfer of proceedings from the High Court to the IPEC in proceedings for copyright infringement and passing off relating to an interactive theatrical dining experience based on the BBC sitcom “Only Fools And Horses” written by John Sullivan.
As well as conventional claims based on copying textual material from the scripts for the Sitcom, the copyright infringement claim raised issues as to whether copyright protection can extend to the characters, world and themes of the Sitcom, and the relatively new defences of fair dealing for the purposes of parody or pastiche under s.30A of the Copyright, Designs and Patents Act 1988.
Master Teverson considered the case law on transfer of proceedings to the IPEC, noting that the most important consideration is to ensure that the case can be tried fairly with all parties having access to justice. The value of injunctive relief to the claimant and the potential importance of the copyright claim to other cases were not of themselves reasons to decline to transfer the claim to the IPEC.
As the position stood after exchange of several rounds of evidence on their means, the Master concluded that the defendants would only be able to afford to defend the claim if it transferred to the IPEC, and it was not clear that the proceedings would be too long or complex to be suitable for trial at the IPEC. For those reasons Master Teverson ordered the claim to be transferred, but noted that there was a risk of the claim transferring back out of the IPEC if the defendants are not able to simplify the issues arising between themselves.