Copyright infringement ruling disappoints Marks
PAYMASTER Jamaica Limited boss Audrey Marks left the Supreme Court a defeated woman Friday after losing her billion-dollar copyright infringement and breach of contract lawsuit against GraceKennedy Remittance Services (GKRS) Limited and software programmer Paul Lowe.
The news got even worse, as Paymaster will have to pay damages to Lowe for an injunction obtained a decade ago, blocking his marketing of the bill payment software at the heart of the dispute. Paymaster will also have to pay damages to GKRS as a result of the said injunction, barring its continued use of the multiple bill payment software, which was licensed to it by Lowe.
Damages will be assessed at a date to be announced.
Costs were also awarded against Paymaster, which means it will have to foot GKRS’ and Lowe’s legal bills that could be astronomical, given the length of the case and the calibre of the lawyers retained.
Following the landmark ruling, an application was made for it to be stayed for six weeks to allow for any possible appeal, to which Justice Roy Jones acceded.
The ruling brings to a close a chapter in the decade-old legal tussle, which started in 2000.
Queen’s Counsel Michael Hylton, one of the lawyers representing GKRS, said the ruling was significant in that it has established that software programmers own the rights to the finished product and not the person who contracted their service — unless there is a signing over of those rights.
The ruling came four months after Jones reserved his judgement.
Paymaster had filed suit against the defendants, seeking a five-point ruling against GraceKennedy and Lowe for copyright infringement, breach of contract, breach of confidence, inducing breach of contract, and passing off, in relation to the creation of Grace’s subsidiary Bill Express in 2000, and Lowe’s role in facilitating the launch by selling to the competitor, a software — the CSSREMIT/Paymaster Multi-Payment Software Head Office Programme — over which Paymaster claimed ownership rights.
The embattled bill payment company Friday failed on all points.
Paymaster had sought $1.7 billion in its suit, claiming that it had suffered heavy loss as a result of the defendants’ action.
Marks testified during the trial that she had instructed Lowe to develop the program and as such claimed ownership.
But Lowe had maintained that he owned the rights to the finished product as there was no agreement for the rights to be passed over to Paymaster.
Paymaster was the first to implement the bill payment model using the state-of-the-art technology back in 1997 before Grace entered the market.
Justice Jones found that:
* Paymaster did not own the copyright in the software.
* Lowe is the author and owner of the software and that he never intended to assign his ownership to Paymaster.
* GKRS did not use Paymaster’s business plan, but developed Bill Express from its own efforts.
* GKRS did not ‘pass off’ its Bill Express business as that of Paymaster’s. (“There is no evidence of any confusion or deceit and so the claim for passing off has not been proven on balance,” Justice Jones wrote.)
“As Paul Lowe is the owner of the copyright in the software and is entitled to license it to other persons, the cause of action for breach of contract and inducing breach of contract cannot succeed,” Jones added.
Decked in a white pants suit, Marks and her entourage left immediately after the ruling, while elated GraceKennedy officials and Lowe milled around the courtroom, chatting with their respective attorneys.
Marks later noted in a press release that “Paymaster Jamaica Ltd is disappointed by this morning’s adverse ruling by Mr Justice Jones in the lawsuit against GraceKennedy Remittance Services and software programmer Mr Paul Lowe.”
GraceKennedy chairman Douglas Orane, in his release, said: “We are pleased with the outcome of the judgement of the Court which has vindicated our position. This is a landmark judgement in the field of intellectual property law in Jamaica and is consistent with international precedents. We are particularly happy for the co-defendant Paul Lowe who has suffered from not being able to earn a living from the fruits of his creation for the last 10 years because of the injunction obtained by Paymaster in 2000 which has prevented him from marketing his software from then up to the present time.”
Reacting to the ruling, Lowe told the Observer: “Naturally I’m happy that the software I created and developed is still mine. At one point I was even wondering.”
GKRS was represented by Hylton and John Vassell, QC, instructed by Courtney Bailey and Teri-Ann Lawson of DunnCox. Attorneys Vincent Chen, Sylvan Edwards and Seyon Hanson instructed by Chen Green and Company appeared for Lowe. Dr Lloyd Barnett and Denise Kitson instructed by Grant Stewart Phillips appeared for Marks.