Simon Howell asks whether the law should be changed to make positive covenants enforceable against subsequent owners of land.

A similar question could be asked about ownership of intellectual property. If I sell you my IP in return for royalties, and you sell on the IP, shouldn’t the new owner be bound to pay me the royalties? Not as the law now stands. In the leading copyright case of Barker v Stickney [1919] 1 KB 121 @ 132 (CA), Scrutton LJ commented on this issue, advising authors to ‘keep the copyright themselves, and assign no more than a right to publish conditional upon royalties being paid’.

Wise advice, but increasingly not followed in an era where publishers, investors and others demand assignments of IP rather than licences.

In my experience, most non-lawyers working in the IP field are surprised by this counter-intuitive legal position. The law in this area should be aligned with commercial ‘common sense’.

Mark Anderson, managing partner, Anderson Law, Shillingford