cearta.ie – Page 10 – the Irish for rights

The EU Directive on Copyright in the Digital Single Market (the DSM Directive) was due to be transposed into national law by the EU’s Member States this week. Article 29(1) of the DSM Directive (Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC) provides:

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 7 June 2021. …

That was last Monday. Had it been Tuesday, it would have been an appropriate date for a copyright Directive to be brought into force in Ireland, as that was the anniversary of the death of St Columba (also known as St Colmcille) in 597 (I have marked this anniversary on a previous occasion on this blog). As Charleton J commented in EMI Records v Eircom Ltd [2010] 4 IR 349, [2010] IEHC 108 (16 April 2010) [28]:

There is fundamental right to copyright in Irish Law. This has existed as part of Irish legal tradition since the time of Saint Colmcille. He is often quoted in connection with the aphorism: le gach bó a buinín agus le gach leabhar a chóip (to each cow its calf and to every book its copy).

…

Incomplete copyright exceptions for public lectures in libraries, archives, and museums; but not – yet? – in galleries, educational establishments, or online. It’s all an unnecessary mess.

18 May, 202116 June, 2021

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| COIPLPA, Copyright, CRC12 / CRC13, Fair use

In a recent comment to my post from last year, on Coronavirus and copyright – or, the copyright concerns of the widespread move to online instruction, I was asked about copyright when giving online lectures for local historical societies. The answer became too long and convoluted for a comment reply, so I thought I’d sketch it here in a post. It should have been a short reply, to the effect that there would be no copyright issues in the way of giving such lectures, but the more I thought about it, and the more I looked at the relevant legislation, the more complicated the answer became. This is not a good position for the law – unnecessary complexity is to the law’s eternal discredit. Indeed, I’m not even sure I’ve got to the bottom of the issue here. If anyone can advance the analysis, please feel free to let me know, either in the comments below, or via the site’s contact form. Meanwhile, this is my first stab at the issue, concluding quite a circuitous analysis with a recommendation for a rather more straightforward reform.

The first question is always whether copyright attaches to the images – as the cartoon, above left, suggests, it often feels like copyright is perpetual – but it does eventually time out.…

Samsoondar v Capital Insurance and Surrey Co Co v NHS Lincolnshire CCG – Part 7 – Defences: Change of Position, and Enrichment Pursuant to Obligation

26 March, 202120 July, 2023

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| Restitution, Restitution

Thornton and Burrows This is the seventh and final post (see also parts I, II, III, IV, V and VI) discussing the opinion of Lord Burrows (pictured left, via here) giving the advice of the Privy Council in Samsoondar v Capital Insurance Company Ltd (Trinidad and Tobago) [2020] UKPC 33 (14 December 2020) (Samsoondar) and the decision of Thornton J (pictured far left, via here) in the Queen’s Bench Division in Surrey County Council v NHS Lincolnshire Clinical Commissioning Group [2020] EWHC 3550 (QB) (21 December 2020) (Surrey).

In my first post, I introduced the cases and issues. In my second post, I examined whether the defendants were enriched at the expense of the plaintiffs. In my third post, I considered whether compulsory discharge of the debt of another could have provided a cause of action in Samsoondar and Surrey, and whether Surrey could rely upon a policy-motivated cause of action, consisting in the unlawful obtaining or conferral of a benefit by a public authority. In my fourth post, I considered whether the mistaken discharge of the debt of another might have been available on the facts of both cases.…

Samsoondar v Capital Insurance and Surrey Co Co v NHS Lincolnshire CCG – Part 6 – Defences: Voluntariness, and Assumption of Risk

23 March, 20214 March, 2024

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| Restitution, Restitution

This is the sixth post (in a series of seven; see also parts I, II, III, IV, V and VII) discussing Samsoondar v Capital Insurance Company Ltd (Trinidad and Tobago) [2020] UKPC 33 (14 December 2020) (Samsoondar) and Surrey County Council v NHS Lincolnshire Clinical Commissioning Group [2020] EWHC 3550 (QB) (21 December 2020) (Surrey). In my first post, I introduced the cases and issues. In my second post, I examined whether the defendants were enriched at the expense of the plaintiffs. In my third post, I considered whether compulsory discharge of the debt of another could have provided a cause of action in Samsoondar and Surrey, and whether Surrey could rely upon a policy-motivated cause of action, consisting in the unlawful obtaining or conferral of a benefit by a public authority. In my fourth post, I considered whether the mistaken discharge of the debt of another might have been available on the facts of both cases. In my previous post, I considered some of the effects of voluntariness in the discharge cases. In this post, I want to put this issue of voluntariness in a larger context.…

Samsoondar v Capital Insurance and Surrey Co Co v NHS Lincolnshire CCG – Part 5 – Causes of Action: Compulsion, Mistake, and Voluntariness

22 March, 20214 March, 2024

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| Mistake, Restitution, Restitution

Surrey v NHS Lincs CCG This is the fifth post (in a series of seven; see also parts I, II, III, IV, VI and VII) discussing Samsoondar v Capital Insurance Company Ltd (Trinidad and Tobago) [2020] UKPC 33 (14 December 2020) (Samsoondar) and Surrey County Council v NHS Lincolnshire Clinical Commissioning Group [2020] EWHC 3550 (QB) (21 December 2020) (Surrey). In my first post, I introduced the cases and issues. A claim to restitution for unjust enrichment failed in the first but succeeded in the second. In my second post, I examined whether the defendants were enriched at the expense of the plaintiffs. In my third post, I considered whether compulsory discharge of the debt of another could have provided a cause of action in Samsoondar and Surrey, and whether Surrey could rely upon a policy-motivated cause of action, consisting in the unlawful obtaining or conferral of a benefit by a public authority. In my previous post, I considered whether the mistaken discharge of the debt of another might have been available on the facts of both cases. In this post, I want to consider the effect of voluntariness in the discharge cases.…

Samsoondar v Capital Insurance and Surrey Co Co v NHS Lincolnshire CCG – Part 4 – Causes of Action: Mistaken Discharge of the Debt of Another

19 March, 202129 July, 2024

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| Mistaken payments, Restitution, Restitution

This is the fourth post (in a series of seven; see also parts I, II, III, V, VI and VII) discussing Samsoondar v Capital Insurance Company Ltd (Trinidad and Tobago) [2020] UKPC 33 (14 December 2020) (Samsoondar) and Surrey County Council v NHS Lincolnshire Clinical Commissioning Group [2020] EWHC 3550 (QB) (21 December 2020) (Surrey). In my first post, I introduced the cases and issues. A claim to restitution for unjust enrichment failed in the first but succeeded in the second. In my second post, I examined whether the defendants were enriched at the expense of the plaintiffs.

In my previous post, I considered whether compulsory discharge of the debt of another could have provided a cause of action in Samsoondar and Surrey, concluding that it could not in the former but that it could in the latter; and I considered whether Surrey could rely upon a policy-motivated cause of action, consisting in the unlawful obtaining or conferral of a benefit by a public authority. With some difficulty, Thornton J held that Surrey could indeed rely upon it. In this post, I want to consider another – simpler, more straightforward – cause of action that may have been available on the facts of both cases, and that could, in particular, have alleviated the difficulties encountered by Thornton J in Surrey.…

Samsoondar v Capital Insurance and Surrey Co Co v NHS Lincolnshire CCG – Part 3 – Causes of Action: Compulsory Discharge of the Debt of Another; and Policy

18 March, 202120 July, 2023

| 6 Comments

| Restitution, Restitution

This is the third post (in a series of seven; see also parts I, II, IV, V, VI and VII) discussing Samsoondar v Capital Insurance Company Ltd (Trinidad and Tobago) [2020] UKPC 33 (14 December 2020) (Samsoondar) and Surrey County Council v NHS Lincolnshire Clinical Commissioning Group [2020] EWHC 3550 (QB) (21 December 2020) (Surrey). In my first post, I introduced the cases and issues. A claim to restitution for unjust enrichment failed in the first but succeeded in the second. In my second post, I examined whether the defendants were enriched at the expense of the plaintiffs. In this post, and the next two (see parts IV and V), I want to examine whether any such enrichment was unjust.

On the question of whether the enrichment was unjust – that is to say, on the question of whether there is a cause of action or ground for restitution – the same issue arose in both cases. A plaintiff who has been compelled to discharge the debt of another can have restitution from that other in the amount of that enrichment (Moule v Garrett (1872) LR 7 Exch 101; Brooks Wharf v Goodman [1937] 1 KB 543; East Cork Foods v O’Dwyer Steel [1978] IR 103 (SC); Goodman v Minister for Finance [1999] 3 IR 356, [1999] IEHC 197 (8 October 1999) (Laffoy J); Bell Lines v Waterford Multiport Ltd [2006] IEHC 188 (28 April 2006) (Dunne J), rvsd [2010] IESC 15 (18 March 2010) (noted here and here)).…