Oct 2009 Financial News

GraceKennedy/Paymaster copyright case winds down

Oct 26, 2009

Lawyers in the suit brought against GraceKennedy Remittance Services Ltd (GKRS) and programme analyst Paul Lowe by bill payment company, Paymaster Jamaica Ltd, are expected to receive court transcripts this week in a copyright case which is being closely watched by many.

The legal teams will then have 14 days to submit written closing submissions to Supreme Court Judge, Justice Roy Jones, who is hearing the case.

Dr Lloyd Barnett and attorney-at-law Denise Kitson are representing Paymaster. GKRS is being represented by John Vassell, QC, Michael Hylton, QC, and attorney-at-law Courtney Bailey; while attorney-at-law Vincent Chen is representing Lowe.

Cross-examination of witnesses in the billion-dollar lawsuit ended last week Tuesday after six days, instead of the agreed 10, as the judge did not have to take copious notes because of real-time reporting which was done by the court reporting section of the Supreme Court.

Audrey Marks, the chief executive officer of Paymaster, has accused GKRS, operators of the bill payment firm BillExpress, of breaching the copyright of a software programme designed by computer programmer Paul Lowe.

Licensed to both companies

The programme was licensed both to Paymaster and GKRS. The Paymaster CEO is seeking to recover damages of $1.7 billion for alleged breach of copyright. GKRS has denied the allegations.

Lowe, who has counter-claimed for damages against Paymaster, said he had sole ownership of the software used by Paymaster to collect bill payments. He said that the multi-payment collection system software package was licensed to the two local bill payment agencies. However, BillExpress has not used the Lowe programme since 2000 as another software programme was purchased for the company.

Lowe said in court documents that any claim by Paymaster to proprietary right of the software was "repugnant to the relationship of licensee and a fundamental breach of the licence". He said GKRS did not induce him to breach his contract for services as Paymaster was alleging.

Lowe said the contract that existed between Paymaster and himself was for the maintenance and upkeep of his CSSRemit programme which was licensed to Paymaster but the copyright belonged to him.

He said from time to time CSSRemit had been adjusted and modified by him to perform functions for and meet the needs of various users. Lowe is contending that he was not provided with any Paymaster specifications for the software programme.

However, despite this, Paymaster has accused GKRS of using confidential information which, Marks said she shared with GKRS when she approached the company concerning a possible partnership in her bill payment business. GKRS began operating BillExpress in 2000 while Paymaster was launched in 1997. But this allegation has been denied by GKRS which noted that the concept of a multi-payment system was not unique or novel when Paymaster was launched.

Quick Pay

GKRS contended that it was fully aware of bill payment systems many years before Paymaster started, noting that it had acted as an agent on behalf of Western Union since 1990 when it offered the Quick Pay service which allowed local consumers to pay bills from some overseas providers.

Court documents noted that Paymaster was a Western Union agent from 1996 before Paymaster launched its bill payment business.

Notwithstanding, when Marks cross-examined at the start of the hearing on October 12, she denied suggestions that Paymaster did not own the rights for use of the software programme that enabled Paymaster to collect payments for utility bills.

Maurice McNaughton, a former consultant to Paymaster, said he had no discussion with Lowe in relation to the ownership of copyright for the software he designed for Paymaster. He said the software was based on Paymaster's instructions to Lowe and was distinctively Paymaster's.

McNaughton said Lowe wrote the programme but based on specifications that he gave to Lowe.

The GKRS legal team is contending that Jamaica's Copyright Act makes it clear that an idea cannot be protected by copyright. The team has argued that what can be protected are expressions of ideas and that the person entitled to protection is the one who creates that expression.

Therefore, in the current case, the computer programmer is entitled to the copyright.

Dr Patrick Dallas, a software development expert who was called by Paymaster, testified that both Paymaster and Lowe shared the source code.

He said the Paymaster software was a distinct and separate software from Lowe's CSSRemit software. He said in his opinion the ownership of the Paymaster software lies with Paymaster, since Paymaster commissioned and paid Lowe to write the software.

Multipayment business

Former general manager of GKRS, Brian Goldson said under cross-examination that in 1996, he spoke to Marks who was putting forward a proposal for GraceKennedy to finance the establishment of a multipayment business. He said he thought the proposal was interesting "but our interest in 1996 was appointing Paymaster as a Western Union agent".

Goldson said he did not think the proposal was one worth pursuing. He said he did not tell Marks that he had no interest in her proposal.

Another court date is expected to be set after Justice Jones receives written submissions from the legal teams in this case.


Source:
Jamaica Gleaner
Monday October 26, 2009

http://www.jamaica-gleaner.com/gleaner/20091026/business/business1.html#