Copyright

Case Note: Microsoft Corporation v Electro-Wide Ltd.

Jane Lambert
June 1997

This case first appeared on the Lancaster Buildings website

An irritating tactic that is often deployed by a defendant with a weak case is to put the plaintiff to strict proof that it owns the copyrights relied upon.  Ss 104 to 106 of the Copyright, Designs and Patents Act 1988 provide certain presumptions to apply in infringement proceedings.   One of these is that a statement on a computer program issued to the public in electronic form to the effect that

	a named person was the copyright owner at the first issue of the software;
	it was first published in a specified country; or
	copies were first issued to the public in a specified year

shall be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is stated.   In Microsoft Corporation v Electro-wide Limited an OEM which had been accused of supplying computers with infringing copies of Windows and MS-DOS put Microsoft to strict proof that it owned copyright in those operating systems. It contended on an Order 14 summons that Microsoft should be compelled to give discovery and submit to cross-examination.  

Noting that a court should be slow to deprive a defendant of an opportunity to test evidence at trial Laddie J gave judgment to the plaintiff. The remote possibility of uncovering a hitherto unknown defect in the plaintiff's title did not constitute a bona fide defence.     
 

Important