Retrospective - Breach of Trust in Intellectual Property

Intellectual property, in essence, carries its worth and value in the knowledge or ingenuity of the inventor, or the creation of the author of a work, not necessarily in the tangible (or at times, intangible) property that is created from that. With this comes a great deal of risk, in modern days in terms of industrial espionage or the accidental or intentional leaking of details related to books etc, which renders the subsequent intellectual property much less valuable or even worthless. Through this one can understand that a great deal of trust is often placed on those with special access to particular information or details, which can be broken and cause potential damage to the creator. The modern doctrine of breach of trust is well-established, but it stems its roots from the mid-19th century.

One of the first cases that dealt with breach of trust in relation to intellectual property was Prince Albert v Strange all the way back in 1849. The case concerned a collection of etchings and drawings made by both Queen Victoria and Prince Albert of various domestic subjects for their own enjoyment, subsequently being commissioned to be printed as a collection. These etchings were made in a private press, due to their personal nature and thus Prince Albert's wish was for them to remain fully private. William Strange was a printer and publisher in London who somehow obtained copies of some of the etchings, allegedly through the aforementioned private press where the etchings were commissioned from. The prints made by Mr. Strange were made from plates held by Prince Albert and Her Majesty, thus bringing their acquisition into question. Mr. Strange (and the other defendants) wished to print a catalog of the etchings under the title of "A Descriptive Catalogue of the Royal Victoria and Albert Gallery of Etchings", which contained detailed descriptions of 63 etchings with additional critique of those works. Mr. Strange argued that he had the right to publish the works, even though disapproved by the Royal plaintiffs, and the Court of Chancery had to decide whether he was indeed entitled to do so, thus dissolving the initial injunction granted to the plaintiffs.

The case brought about the consideration of property and trust in relation to that property. This is best illustrated by the comments of Lord Chancellor Cottenham, where his Lordship stated that "[t]he property of an author or composer of any work, whether of literature, art or, science, in such work unpublished and kept for his private use or pleasure, cannot be disputed". What his Lordship is clearly saying is a property right of trust (or privacy in a sense) in personalty which is created by someone. This applied, prior to the case, for example to personal correspondence in the form of letters. The defendant did not contest the ownership of the property by the plaintiffs, but still argued that any person who obtains such property would still have the right to publish it. Even though the defendant merely intended to publish descriptions of the works, the Court saw that this would be akin to the publishing of the etchings themselves from imprints, which the defendant would not be entitled to do.

Lord Cottenham agreed that the right of privacy in property did exist and that the defendant would not have the right to use and publish them even if he had acquired copies of those works. Although an interesting notion, what is of importance for us in the case at hand is whether there would be a breach of trust should the defendant have published the catalog; this being the need for the injunction itself.

An artist's rendition of the Royals' etchings

The potential breach of trust related to the actual possession of the etchings, which were potentially obtained through illicit means. Mr. Strange's possession of the etchings, in his Lordship's mind, had to have originated in a breach of trust, confidence or contract on part of the printer's employees or the printing press' owner (one of the other defendants in the case). How the etchings were obtained remains unknown, but as his Lordship observed, this would not matter as mere possession by Mr. Strange was enough to establish that fact. This was further expanded on by his Lordship, demonstrating this very point, using the case of Tipping v Clarke: "If the Defendant has obtained copies of [artistic works], it would very probably be by means of some clerk or agent of the Plaintiff; and if he availed himself surreptitiously of that information, which he could not have had except from a person guilty of a breach of contract in communicating it, I think he could not be permitted to avail himself of that breach of contract". Mr. Strange was subsequently denied the dissolving of the injunction due to this breach of trust.

The Court's observations do match a common law notion of copyright in unpublished works (something which even exists today); however the Court's observations could potentially extend to a right of privacy over property of confidential nature, irrespective of it being copyrighted work or not. Although the case is of little relevance in the sphere of modern breach of trust or confidentiality, it goes to show the importance of certain types of works, especially in relation to intellectual property.