sail-world.com -- ISAF and ILCA on thin ice? Intellectual Property Rights and Copyright
ISAF and ILCA on thin ice? Intellectual Property Rights and Copyright
Mon, 6 May 2013
Extracts from an article written for Scuttlebutt USA by Intellectual Property Rights lawyer John Harwood-Bee on the lawsuit between Laser designer Bruce Kirby, builder LaserPerformance and associated companies and International Sailing (ISAF) and the International Laser Class Association (ILCA).
'Having followed the saga that Bruce Kirby is being subjected to, there appears to be no dispute that Bruce is the absolute beneficial owner in the design rights and therefore IPR, in what has until now been known as the Laser. I can find no evidence or reference to him ever having assigned those design rights to any other entity, and therefore must assume that he has retained them. If this is the case, then ISAF and the Laser Class Association are skating on very thin ice in supporting any builder who is in breach of a design licence agreement.
'IPR infringement is considered by the courts to be a grave offence and punishments of transgressors can be severe. 'You have only to read recent archives to discover the serious financial penalties issued to those pirating copies of films, albums and videos or duplicating and distributing music without accounting. Million dollar lawsuits have closed down websites and bankrupted individuals.
'If design royalties are not being paid by the builders of the boats, under whatever name, then they will need some excellent argument to prevent a court from ordering seizure of moulds and all equipment, computers and tools used in the default.
'As LaserPerformance have carefully avoided answering your questions on this, it seems likely that they are in breach. I think it highly unlikely that Bruce and his lawyers have failed to issue ‘cease and desist’ notices against all parties and therefore there should be a standstill in approval and manufacture.
'How, under those circumstances, ISAF and International Laser Class Association (ILCA) can continue to issue plaques to LaserPerformance and any other builder in breach of Bruce Kirby’s rights is beyond comprehension.
'The ISAF statement says that plaques will be issued to any approved ISAF and ILCA builder. It does not state that those builders must be licensed by and in good standing with Kirby, and therefore I consider that both ISAF and ILCA need to check with some damn good IP lawyers to make certain that is it not just their normal arrogance that is driving this.
'Surely the fair and equitable solution would be to suspend the issue of plaques until this dispute is resolved. If Bruce is found to be in the right, as I sincerely hope he is, the ISAF and ILCA could face enormous penalties and damages for their support of anybody who has in effect pirated the design. '
As a matter of interest, we recently found this US Copyright registration
Registration Number / Date: TXu001362085 / 2007-06-21 Title: Laser construction manual. Copyright Claimant: Bruce Kirby, Inc. Date of Creation: 2005 Authorship on Application: Bruce Kirby, 1929- Copyright Note: Cataloged from appl. only. Names: Kirby, Bruce, 1929- Bruce Kirby, Inc.
There is an upcoming ISAF mid-year meeting in Copenhagen and we understand numbers of the ISAF Member Nations will be taking the opportunity to ask ISAF are they really sure they know what they are doing, with ISAF likely to be heavily exposed to significant damages claims if the ISAF decision making processes have not been as good as everyone would like.