Wednesday 15 October 2014

Arnold J calls for a holistic review of copyright

On a very damp Monday night, the great and good of the London copyright scene, from the Bench to the IPO and from the Bar to University Chairs (and some, like this blogger, tipped off to the existence of the event by our sister IPKat blog) crammed a lecture theatre somewhere between Smithfield and the Barbican to hear Mr Justice Arnold deliver the 2014 Herchel Smith lecture. 

The title of the lecture was "The Need for a New Copyright Act: A Case Study in Law Reform".  In case anyone has not guessed the answer after reading the title of this post, it is "yes", there is such a need; a point which was argued clearly and cogently by the speaker, who elucidated no fewer than 7 reasons why a new Act is needed, including technological change and wrong implementation of Directives.

As he explained, there were three United Kingdom Copyright Acts in the twentieth century, each preceded by a deep and holistic analysis of the then-current legislation. However, in the 26 years since the Copyright, Designs and Patents Act 1988 was passed, we have seen endless tinkering, involving over 70 separate amending instruments; even the so-called major reviews, by Gowers and most recently Hargreaves, did not fully explore the impact of specific changes which were advocated on the copyright system as a whole.

Arnold J also called for a re-think of our approach to copyright law reform - in essence a return to the measured analysis by a well-qualified and properly supported committee, which is reflected in the reports which led to the Acts in 1911, 1956 and 1988.  

This blogger welcomes the idea in theory, but has reservations about whether, in a world where the EU copyright consultation received 9500 responses, such a review is possible within a realistic timeframe and before changes in Brussels will lead to the need for such a committee to re-commence proverbially painting the Forth Bridge

The event's chair, Professor Johanna Gibson of Queen Mary, University of London, who holds the Herchel Smith chair in IP law, promised that the full text will be published in due course in the QM Journal of IP - in the meantime, any failure of this piece accurately to reflect the opinions expressed during the lecture is entirely mine.


Andy J said...

Thank you for the write-up, John.
I too attended the lecture and although I found background details on how the earlier Acts came about fascinating, I think most people in the room did not need much convincing of the premise that the CDPA is much in need of renewal.
The unstated subtext of the lecture seemed to be that, given the constraints of our international treaty commitments and European Directives, all that could be achieved would be a tidying up exercise, making the black letter legislation clearer and better structured, and reflecting recent caselaw. If the lecturer also thought that the emphasis of the law needed amendment, he did not share this with us. Perhaps this is because realistically, there seems to be little scope for any wholesale review of such fundamentals as the copyright term (say compared to the term for patents and designs) or some of the more detailed ways in which the law might be best implemented (s. 97A comes to mind). And what about a suggestion mooted by Richard Arnold QC, as he then was, in the EIPR that maybe we should consider that at least some photographs were not eligible for copyright protection due to their inherent lack of creativity? (EIPR Vol 27 Issue 9 Sept 2005)
Overall, I am sceptical about the hinted-at suggestion that tidying up the legislation would make it easier for the average (non-legal) person to understand the law - something that lay behind the intentions of the earlier committees which looked at the law back in the nineteenth and twentieth centuries.

John Enser said...

Thanks for the comments Andy. I agree that (for as long as the UK remains a member of the EU, at least) there is little scope for a wholesale review of the core principles of copyright law (along the lines once suggested by my firm's founding partner in pre-WIPO Copyright Treaty/WPPT days "Accessright: an evolutionary path for copyright in the digital era" - 1995 EIPR 215).
I am also hugely sceptical about a new copyright law accessible to the lay masses; the world we live in today is sufficiently complex that this is utterly inconceivable.
On photographs, however, to be fair to the former and present Richard Arnold, I think he did suggest in the lecture that this was one area where the current law was not consistent with the Directives, but we will have to wait for the full text to check if that is right.