Exxon Corpn and Others v Exxon Insurance Consultants International Ltd
[1982] CH 119(Judgment by: Oliver LJ)
Exxon Corpn and Others
vExxon Insurance Consultants International Ltd
Judges:
Stephenson LJ
Oliver LJSir David Cairns
Legislative References:
Copyright Act 1956 - s 2; s 2(1)
Copyright Act 1911 - s 1(1)
Trade Marks Act 1938 - The Act; s 9(1)(c)
Case References:
University of London Press Ltd v University Tutorial Press Ltd - [1916] 2 Ch 601
Ladbrooke (Football) Ltd v William Hill (Football) Ltd - [1964] 1 All ER 465; [1964] 1 WLR 273
D P Anderson
&
Co Ltd v Lieber Code Co - [1917] 2 KB 469
British Northrop Ltd v Texteam Blackburn Ltd - [1974] RPC 57
Burberry's v J C Cording
&
Co Ltd - (1909) 26 RPC 693
Tavener Rutledge Ltd v Trexapalm Ltd - [1977] RPC 275
Hollinrake v Truswell - [1894] 3 Ch 420
D P Anderson
&
Co Ltd v Lieber Code Co - [1917] 2 KB 469
Judgment date: 12 June 1981
Judgment by:
Oliver LJ
I entirely agree.
Section 2 of the 1956 Act provides that copyright should subsist in every original literary work, and in essence counsel for the plaintiffs submissions are very simple. First, he says that the name Exxon is undoubtedly original; it had not been thought of before or, so far as is known, used before; it is an artifical word, which does not appear in any known language. It is, he says, literary; it is composed of letters and it is written, typed or printed. It is a 'work' because work or effort went into its invention and its selection as a suitable name for the plaintiff group which had no meaning, offensive or otherwise, in any other language.
But 'original literary work' as used in the 1956 Act is a composite expression, and for my part I do not think the right way to apply a composite expression is, or at any rate is necessarily, to ascertain whether a particular subject matter falls within the meaning of each of the constituent parts, and then to say that the whole expression is merely the sum total of the constituent parts. In my judgment it is not necessary, in construing a statutory expression, to take leave of one's common sense, and the result to which counsel seeks to drive us is one which, to my mind, involves doing just that.
Stephenson LJ has already referred to the judgment of Davey LJ in Hollinrake v Truswell [ 1894] 3 Ch 420 at 428 where he said: 'Now, a literary work is intended to afford either information and instruction, or pleasure, in the form of literary enjoyment'. Admittedly, that was said in relation to the preamble to the Copyright Act 1842, which referred to affording 'greater encouragement to the production of literary works of lasting benefit to the world'. But it does seem to me, as it seems to Stephenson LJ, that what Davey LJ said was a fair summary of what the expression means in ordinary language.
We have been referred to a number of cases in which copyright has been successfully claimed in, for instance, examination papers, football coupons and tables of ciphers; but all these (and I do not exclude the case of the telegraphic code in D P Anderson & Co Ltd v Lieber Code Co [ 1917] 2 KB 469) seem to me to fall fairly within Davey LJ's commonsense formulation.
But that for which protection is sought in the instant case does not appear to me to have any of the qualities which common sense would demand. It conveys no information; it provides no instruction; it gives no pleasure that I can conceive; it is simply an artificial combination of four letters of the alphabet which serves a purpose only when it is used in juxtaposition with other English words, to identify one or other of the companies in the plaintiff group. Whether, as might perhaps be the case if one followed up the suggestion made in the judgment of Graham J, the insertion of the extra 'x' was to avoid the risk of involving the Bishop of Exeter in proceedings for infringement every time he wrote to The Times newspaper I do not pause to inquire.
I am clearly of the opinion that Graham J arrived at the correct conclusion when he held that this was not an original literary work in which copyright subsists, and I agree that the appeal should be dismissed.