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→Where it will work and isn’t needed
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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. | ||