Rights cumulative: Difference between revisions
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Where it ''will'' work it goes without saying, and isn’t needed. | Where it ''will'' work it goes without saying, and isn’t needed. | ||
===Where it will work | ===Where it ''will'' work, it isn’t needed=== | ||
I might pass you my manuscript under a [[confidentiality agreement]]: your publication of it in breach of that agreement may entitle me [[contractual damages]], but my direct losses as a result — the traditional measure of damages — might add up to a lot less than your resulting profits as a result. No matter: because I hold the copyright in the manuscript, I can exercise my ''statutory'' right to have you [[Account for profits|account to me for those profits]] too — but where my damages and your profits coincide, I can only recover once. | I might pass you my manuscript under a [[confidentiality agreement]]: your publication of it in breach of that agreement may entitle me [[contractual damages]], but my direct losses as a result — the traditional measure of contractual damages, of course — might add up to a lot less than your resulting profits — which the [[common law]] might regarded as unreasonably speculative losses beyond the reach of an aggreeived contracting party — as a result. | ||
No matter: because I hold the [[copyright]] in the manuscript, I can exercise my ''statutory'' right to have you [[Account for profits|account to me for those profits]] too — but where my [[contractual damages]] and your profits coincide, I can only recover once.<ref>There is an arid intellectual discussion to be had about which prevails in a time of conflict. Nothing hinges on it, but it seems to the [[JC]] that ones proprietary statutory rights under a copyright pre-exist any rights you might have under this or that [[contract]], so a claim for lost profits through [[breach of copyright]] always comes first. This means the contractual damages under a [[confidentiality agreement]] are likely to be meagre: this is a perennial problem with confidentiality agreements.</ref> | |||
There is no suggestion that a fellow waives her [[copyright]] by signing a [[contract]] (except on with that express intent), so she should hardly need a [[rights cumulative]] clause to satisfy herself of that fact. | There is no suggestion that a fellow waives her [[copyright]] by signing a [[contract]] (except on with that express intent), so she should hardly need a [[rights cumulative]] clause to satisfy herself of that fact. | ||
Revision as of 09:48, 1 July 2020
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Boilerplate Anatomy™
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Somewhere, once upon a time, one of our learned friends must have had a near-death experience, psychotic episode, or somehow hit on the paranoid thought that a cause of action conferred by contract might inadvertently squish an analogous one arising at common law or under statute.
It might, but only where the theory of the game suggests it should, and here, your rights cumulative clause isn’t needed, and won’t work anyway.
Where it will work it goes without saying, and isn’t needed.
Where it will work, it isn’t needed
I might pass you my manuscript under a confidentiality agreement: your publication of it in breach of that agreement may entitle me contractual damages, but my direct losses as a result — the traditional measure of contractual damages, of course — might add up to a lot less than your resulting profits — which the common law might regarded as unreasonably speculative losses beyond the reach of an aggreeived contracting party — as a result.
No matter: because I hold the copyright in the manuscript, I can exercise my statutory right to have you account to me for those profits too — but where my contractual damages and your profits coincide, I can only recover once.[1]
There is no suggestion that a fellow waives her copyright by signing a contract (except on with that express intent), so she should hardly need a rights cumulative clause to satisfy herself of that fact.
Where it won’t work and isn’t wanted
Simetimes rights are not cumulative: that is inevitable, you should embrace it, and a hastily injected rights cumulative clause is a chocolate teapot anyway. There is no concurrent liability, for example, in contract and tort, because they are the yin and yang of civil liabilities: tort is the system of rights and obligations that are presumed to exist between otherwise unconnected people whose existences interfere with each other — who are neighbours, in Lord Atkin’s well-oiled phrase, but not lovers (in mine) — who haven’t directly agreed what the rights and obligations between should be. Tort is the delicate business of describing the illusive point at which strangers become neighbours, and articulating a practical public morality between them of the sort that the hateful ordinary fellow on the Clapham Omnibus might contrive. Those presumptive, “when all else fails” rules fall away when neighbours become intimate enough to personally agree the rules of engagement between them. Then they are contracting counterparties, and their specific rights and duties they work out for themselves.
- ↑ There is an arid intellectual discussion to be had about which prevails in a time of conflict. Nothing hinges on it, but it seems to the JC that ones proprietary statutory rights under a copyright pre-exist any rights you might have under this or that contract, so a claim for lost profits through breach of copyright always comes first. This means the contractual damages under a confidentiality agreement are likely to be meagre: this is a perennial problem with confidentiality agreements.