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Miscellaneous

Q: Recovering unsolicited material

I sent a cassette tape of my songs to a well-known publisher by recorded post. After several months without a response, I rang to demand its return. He denies ever having received the package. Do I have any redress, bearing in mind my tape was unsolicited?

A: I am pleased to note that you had the foresight to send the tape by recorded delivery. That should enable you, with the assistance of the Post Office, to establish whether or not it was received by the addressee, since the Post Office should have a signed acknowledgement of receipt. If the signatory is not identifiable as an employee of the publisher, it is, of course, possible that in a multi-occupant building the package may have been handed to a commissionaire or someone other than an employee of the addressee, in which case you may need to pursue enquiries about delivery at the address itself.

If you are unable to establish (on the balance of probabilities) that the publisher received the package, then you have no redress for his failure to return it on request. If you can establish that he received it and that you made it clear it was to remain your property and was to be returned to you, then you will be entitled to collect it from him. You cannot reasonably expect the publisher to return it unless you pay him the cost of postage in advance and even then he would not be obliged to do more than allow you to collect it.

It is possible that the circumstances fall within the provisions of the Unsolicited Goods and Services Act 1971, whereunder a person who receives unsolicited goods may, as between himself and the sender, use, deal with or dispose of them as if they were an unconditional gift to him, provided certain conditions are satisfied. These conditions are that the unsolicited goods were sent to the recipient with a view to his acquiring them (query whether this applies in your case), and the recipient has no reasonable cause to believe they were sent with a view to being acquired for the purpose of a trade or business, and that the recipient has neither agreed to acquire nor agreed to return them, and that either (a) within six months of receipt the sender did not take possession of them and the recipient did not unreasonably refuse to allow the sender to do so or (b) not less than 30 days before that six month period the recipient gave notice to the sender requiring the sender to take possession of them within 30 days and the recipient did not unreasonably refuse to allow the sender to do so. The expression "goods" is not defined in the Act but in my view would include your cassette tape. You should therefore ensure that within six months from the publisher's receipt of the package you (or someone on your behalf with a letter of authority from you) calls at the publisher's premises and formally demands return of the tape. That should at least prevent the publisher from taking advantage of the Act.

In any event, even if under the 1971 Act the publisher were entitled to use or dispose of the tape as if it was a gift to him, that would not entitle him or anyone else to breach your copyright in the material contained on the tape or make any further copies of the tape. I imagine that you have other copies of the tape, in which case your loss will be minimal, although clearly very annoying. Perhaps a formal warning letter to the publisher by you or your solicitor, making it clear to the publisher that, if any use is made of the material on the tape in breach of your copyright, legal action will be taken against him, might be a good idea. You should also quickly deposit another copy of your tape with your solicitor in order to establish the date of your copyright material in case it is misappropriated and published at a later date by a third party by someone else who claims copyright in it.

First published January 1997