Virgin.net (was PIU report and human rights: e-commerce Bill)

[Nicholas Bohm]

I think a condition of a free internet service which attempted to exact a
transfer of all the copyright in the subscriber's material would be
outrageous.  I have't seen the virgin.net terms which have been mentioned,
and can't comment on their purpose or effect.  But some comments in this
list have been mistaken.

1	If an ISP offers a connection to the internet in return for a transfer of
the subscriber's existing or future copyright in materials submitted, that
is a commercial bargain in which each side gives a promise of value.  There
is no absence of "consideration" such as to make either party's promises
contractually unenforceable.  The absence of money is irrelevant (which
indeed is why a peppercorn rent is as good as a penny rent).

2	Assignments of copyright must be in writing, but the definition of
"writing" in section 178 of the Copyright, Designs and Patents Act 1988
provides that writing includes any form of notation or code, whether by
hand or otherwise, and regardless of the method by which, or medium in or
on which, it is recorded.  It is the one exception I know of where a
definition of writing is adopted different from that in the schedule to the
Interpretation Act 1978, which effectively requires paper.  So absence of
paper does not invalidate the assignment.

3	An agreement to assign future copyrights is effective to vest them in the
assignee when they come into existence.  As to existing copyrights, which
might be relevant, since a subscriber might well use the internet to
distribute material existing before taking out his subscription to the
service, an assignment is required.  As a transfer of property on sale it
would be subject to stamp duty on the value of the property transferred.  I
don't know what arrangements exist for paying stamp duty on stampable
electronic documents:  probably none.  But it would commonly be the case
that the value involved would fall below the relevant threshhold (I think
from memory GBP 60,000), in which case if the assignment contained the
appropriate certificate for value, no stamp duty would be payable.  (If
stamp duty is payable, either because the value is beyond the limit, or
because no certificate has been given, then the unstamped document is
inadmissible in evidence and effectively unenforceable.  It might be
possible to stamp it late, probably paying a penalty, to overcome this
problem.)

4	Perhaps more relevant than this digression, the right basis for an attack
on such a term must be the unfair contract terms legislation, both out
home-grown 1978 Act and the EU inspired regulations (with which I admit
less familiarity).  The term seems grossly unreasonable, without any
sensible commercial or legal justification.  I find it hard to believe it
would withstand any serious challenge.  Any victim would be well-advised to
raise the issue with the Office of Fair Trading.

Regards,

Nicholas Bohm

Salkyns, Great Canfield,
Takeley, Bishop's Stortford CM22 6SX, UK

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