THE COPYRIGHT MIXTURE IN A MIXED LEGAL SYSTEM Fit for Human Consumption? (1) David vaver(2 Readers are reminded that this work is protected by copyright While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use Contents IV Notes I propose to examine some aspects of the interaction of common law and civil law systems in the field of intellectual property law, particularly copyright and authors' rights My primary focus will be on the United Kingdom as a member of the European Community, although the discussion will inevitably range beyond those confines. (3)In Europe, of course, the subject is inextricably bound up in the European Commission,s project to harmonize intellectual property law, so that national differences do not 'impede the free movement of goods and freedom to provide services, and distort competition of the internal market [and the smooth operation of the internal market (4) A useful starting-point is the following outburst in a leading specialist text on the 'modern law of copyright, co-authored by an eminent high court judge and two equally eminent silks We are alarmed by the stream of copyright-related legislation which has begun to flow from Europe. Sometimes poorly drafted, seldom properly vetted, it is difficult to say where it is all going to end. The Term Directive, with its disgraceful reasoning, may serve as an example. Life of the author plus 70 years is simply too long, and unnecessary. It would be something if it benefitted authors, but of course it will not. Those who gain will be the lazy and inefficient. The public will be the losers. In our view one can have too much intellectual property protection. The Victorians had a better attitude. But then, they lived in a society which knew that survival depends on people making things, not granting each other monopolies. 5)
THE COPYRIGHT MIXTURE IN A MIXED LEGAL SYSTEM: Fit for Human Consumption?(1) David Vaver(2) Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. Contents I II III IV V Notes I propose to examine some aspects of the interaction of common law and civil law systems in the field of intellectual property law, particularly copyright and authors' rights. My primary focus will be on the United Kingdom as a member of the European Community, although the discussion will inevitably range beyond those confines.(3) In Europe, of course, the subject is inextricably bound up in the European Commission's project to harmonize intellectual property law, so that national differences do not 'impede the free movement of goods and freedom to provide services, and . . . distort competition of the internal market [and] the smooth operation of the internal market'.(4) I A useful starting-point is the following outburst in a leading specialist text on the 'modern' law of copyright, co-authored by an eminent high court judge and two equally eminent silks: We are alarmed by the stream of copyright-related legislation which has begun to flow from Europe. Sometimes poorly drafted, seldom properly vetted, it is difficult to say where it is all going to end. The Term Directive, with its disgraceful reasoning, may serve as an example. Life of the author plus 70 years is simply too long, and unnecessary. It would be something if it benefitted authors, but of course it will not. Those who gain will be the lazy and inefficient. The public will be the losers. In our view one can have too much intellectual property protection. The Victorians had a better attitude. But then, they lived in a society which knew that survival depends on people making things, not granting each other monopolies.(5)
One may sympathize with the general sentiment about over-protection and the particular example of the Term Directive. The subtext of this passage is, however, more contentious. It echoes a common plaint heard when British intellectual property lawyers talk shop among themselves. The charge boils down to 1. The UK's common-law based copyright law is becoming eclipsed by, or subsumed mass(or mess) of European Directives based on civilian theories of copyright; and 2. This process is, on the whole, a Bad Thing The remainder of this paper is largely devoted to examining these Propositions (6) Proposition No. 2 may conveniently be considered first. It rests on a number of assumptions of arying degrees of plausibility, namely That before the European directives appeared, UK copyright law had attained, or was on the way to attaining, a sort of legal nirvana, and that therefore the law should not have been, and nould not in the future be, deflected from this state or trajectory The claim is, of course, a delusion. The suggestion that UK copyright law had reached its apogee during Victoria's reign is refuted by the Victorians themselves. The pronouncement of the royal Commission on Copyright of 1897 is typical. The Commissioners said of the law of copyright, then found in 14 statutes stretching from 1735 to 1875. that it was wholly destitute of any sort of arrangement, incomplete, often obscure, and even when it intelligible upon long study, it is in many parts so ill-expressed that no one who does not give such study to it can expect to understand it. (7) The Copyright Act 1911(UK) supposedly cured all that, but the wheel seems now to have come circle. The metamorphosis of the 51 sections of the Copyright Act 1956(UK) into some 270 equivalent sections in the Copyright, Designs and Patents Act 1988(UK)(CDPA,) produced the following comment from the editors of Copinger Skone James on Copyright, in words depressingly reminiscent of the 1897 Royal Commissioners [t is perhaps unfortunate that a branch of the law, which was already complex enough, will now, with the coming into force of the 1988 Act, become even more complex. Apart from the size of the Act, its change of format and its new provisions, it does not help that some comparatively simple matters have been made more difficult.. The 1988 Act... may, therefore, well prove to be a nightmare for copyright users and a minefield for copyright practitioners ( 8) Significantly, this comment came at a time when only a single European Directive, on semiconductor topographies(1986), had intruded on UK copyright laws pristine purity So, at worst, the amendments inspired by the Directives may have added more nightmares and minefields to the law, but the sorry state of the initial CDPa cannot be attributed to any new exogenous influences. Indeed, the trend of UK copyright law over the course of the last century to
One may sympathize with the general sentiment about over-protection and the particular example of the Term Directive. The subtext of this passage is, however, more contentious. It echoes a common plaint heard when British intellectual property lawyers talk shop among themselves. The charge boils down to: 1. The UK's common-law based copyright law is becoming eclipsed by, or subsumed under, a mass (or mess) of European Directives based on civilian theories of copyright; and 2. This process is, on the whole, a Bad Thing. The remainder of this paper is largely devoted to examining these Propositions.(6) II Proposition No. 2 may conveniently be considered first. It rests on a number of assumptions of varying degrees of plausibility, namely: • That before the European directives appeared, UK copyright law had attained, or was on the way to attaining, a sort of legal nirvana; and that therefore the law should not have been, and should not in the future be, deflected from this state or trajectory. The claim is, of course, a delusion. The suggestion that UK copyright law had reached its apogee during Victoria's reign is refuted by the Victorians themselves. The pronouncement of the Royal Commission on Copyright of 1897 is typical. The Commissioners said of the law of copyright, then found in 14 statutes stretching from 1735 to 1875, that it was: wholly destitute of any sort of arrangement, incomplete, often obscure, and even when it is intelligible upon long study, it is in many parts so ill-expressed that no one who does not give such study to it can expect to understand it.(7) The Copyright Act 1911 (UK) supposedly cured all that, but the wheel seems now to have come full circle. The metamorphosis of the 51 sections of the Copyright Act 1956 (UK) into some 270 equivalent sections in the Copyright, Designs and Patents Act 1988 (UK) ('CDPA') produced the following comment from the editors of Copinger & Skone James on Copyright, in words depressingly reminiscent of the 1897 Royal Commissioners: [I]t is perhaps unfortunate that a branch of the law, which was already complex enough, will now, with the coming into force of the 1988 Act, become even more complex. Apart from the size of the Act, its change of format and its new provisions, it does not help that some comparatively simple matters have been made more difficult. . . . The 1988 Act . . . may, therefore, well prove to be a nightmare for copyright users and a minefield for copyright practitioners.(8) Significantly, this comment came at a time when only a single European Directive, on semiconductor topographies (1986), had intruded on UK copyright law's pristine purity. So, at worst, the amendments inspired by the Directives may have added more nightmares and minefields to the law, but the sorry state of the initial CDPA cannot be attributed to any new exogenous influences. Indeed, the trend of UK copyright law over the course of the last century to
get longer, without becoming correspondingly any clearer or more comprehensible may, to some seem a damning indictment of the common law drafter's fixation on detail and the single instance over general ization and broad principle That the Directives have imposed, or are imposing, substa This assumption presupposes that UK law was previously r at least passably tolerable, and that the Directives have changed, and are continuing to change, all that. All aspects of that assumption are debatable, but there are certainly instances, as the Term Directive(1993)and other Directives suggest, where the argument that UK law has been improved by their imposition is hard to sustain. But, of course, whether the law or some change to it is good or bad is itself a highly contentious issue, for goodness or badness depends very much on ones viewpoint In any event, a more general response is that bad law is bad law, whatever its origin or basis. If UK copyright law is in some respects bad(as the editors of Copinger fairly contend), then improvement should be welcomed and embraced. The fact that the improvement may originate from Brussels, Westminster, Berne or Marrakesh, or that its inspiration may trace back to Kant Locke, Diderot or the US Trade Commissioner, is interesting geographically and genealogically but seems otherwise irrelevant That good law is being imported but is being badly integrated into UK law. At its simplest level, this contention points the finger less at the content of the European law than at how that law has been locally implemented. The point is graphically underscored by the UK implementation of the European Patent Convention 1973 through the Patents Act 1977(UK). The result has been thought sufficiently unsatisfactory for the Uk patent judges to have decided to esort wherever possible, for this and for reasons of European uniformity, to the language and layout of the Convention in preference to that of the Patent Act itself.(9) That apart, the sentiment engages other less obvious ideas: among them, aesthetics, the rule of law structural awkwardness, and legal complexity. On examination, only the last of these issues suggests any serious difficulty in integrating civilian and common law approaches Aesthetics. It may be aesthetically displeasing and time-consuming-not to mention intellectually unsettling-to wade through the mass of accretions made by EU-implementing legislation and regulation to the CDPa if the objective is to gain an understanding of the current state of the law. Commercial compilations and commentaries make access easier but do not entirely undermine the point that the primary law is fast becoming less and less coherent and comprehensible to both professional users and the public That point, however, has less to do with the nature of the law imported than with the means taken y drafters to implement the law, and with the lag time in issuing regular comprehensive consolidated up-to-date versions of the law. Rule of Law. The last point leads to a more serious constitutional issue involving the rule of law The public, especially that part to which a law is particularly addressed, is entitled to clear
get longer, without becoming correspondingly any clearer or more comprehensible may, to some, seem a damning indictment of the common law drafter's fixation on detail and the single instance over generalization and broad principle. • That the Directives have imposed, or are imposing, substantively bad law. This assumption presupposes that UK law was previously good or at least passably tolerable, and that the Directives have changed, and are continuing to change, all that. All aspects of that assumption are debatable, but there are certainly instances, as the Term Directive (1993) and other Directives suggest, where the argument that UK law has been improved by their imposition is hard to sustain. But, of course, whether the law or some change to it is good or bad is itself a highly contentious issue, for goodness or badness depends very much on one's viewpoint. In any event, a more general response is that bad law is bad law, whatever its origin or basis. If UK copyright law is in some respects bad (as the editors of Copinger fairly contend), then improvement should be welcomed and embraced. The fact that the improvement may originate from Brussels, Westminster, Berne or Marrakesh, or that its inspiration may trace back to Kant, Locke, Diderot or the US Trade Commissioner, is interesting geographically and genealogically, but seems otherwise irrelevant. • That good law is being imported but is being badly integrated into UK law. At its simplest level, this contention points the finger less at the content of the European law than at how that law has been locally implemented. The point is graphically underscored by the UK implementation of the European Patent Convention 1973 through the Patents Act 1977 (UK). The result has been thought sufficiently unsatisfactory for the UK patent judges to have decided to resort wherever possible, for this and for reasons of European uniformity, to the language and layout of the Convention in preference to that of the Patent Act itself.(9) That apart, the sentiment engages other less obvious ideas: among them, aesthetics, the rule of law, structural awkwardness, and legal complexity. On examination, only the last of these issues suggests any serious difficulty in integrating civilian and common law approaches: Aesthetics. It may be aesthetically displeasing and time-consuming - not to mention intellectually unsettling - to wade through the mass of accretions made by EU-implementing legislation and regulation to the CDPA if the objective is to gain an understanding of the current state of the law. Commercial compilations and commentaries make access easier but do not entirely undermine the point that the primary law is fast becoming less and less coherent and comprehensible to both professional users and the public. That point, however, has less to do with the nature of the law imported than with the means taken by drafters to implement the law, and with the lag time in issuing regular comprehensive consolidated up-to-date versions of the law. Rule of Law. The last point leads to a more serious constitutional issue involving the rule of law. The public, especially that part to which a law is particularly addressed, is entitled to clear
statements of what may or may not be done. Laws that fail this test are failures overall. UK copyright law may fast be going down this route, but again this has little to do with the inspiration for or nature of the law being implemented Structural awkwardness. Conceivably, the injection of civilian notions into a common law statute may create structural difficulties, so that, like oil and water, the two elements do not mix but just Australias Copyright Law Review Committee took this view in 1988 when a majority of its members recommended against the introduction of authors' moral rights for a number of reasons including that such rights were alien to 'a common law system. The proposition was demonstrably nonsensical since India, Israel and Canada had lived with statutory moral rights for some time without most of their common lawyers suffering any undue mental disturbance (10) The argument totally collapsed after the UK in 1988, copied by New Zealand in 1994, introduced some, albeit insipid, moral rights provisions into the copyright law. Australia more recently has ad a change of heart and now too is falling in line with its moral right obligations under the Berne Convention That the Australians were wrong, and that common law and civilian traditions may co-exist practicably in a single law is demonstrated in various jurisdictions. One such case is Canada Canada's copyright law has been amended over the last dozen years in a way that is deliberately intended to accommodate Canadas civilian and common law traditions as well as bilingual lawyers operating in either mode. Like other federal laws, the Copyright Act is drafted in both French and English, with the respective versions reflecting civilian and common law drafting conventions. Both texts are equally authentic and are commonly compared to resolve ambiguity Both common law- and civil law-trained judges sitting in provincial and federal courts cite and rely on precedents from either tradition in interpreting the Act, although with sometimes surprising results (11) But then the surprises are no greater than, or different from, those sometimes caused piece of legislation In principle, therefore, no cogent reason exists to prevent a single, even unilingual, law from accommodating both common and civil law traditions without creating undue strain on either Legal complexity. The implementation of some European Directives may nevertheless involve complexities arising from the attempted imposition of civilian notions on to a common law template. The Database Directive(1996)may provide such an example. (12) The Directive's purpose was to harmonise different standards of protection for electronic databases The UK's and Ireland's low common law standard of originality allowed prosaic databases(e.g telephone directories)to gain the standard long-term protection granted to literary works. The same item might be protected elsewhere in Europe under principles of unfair competition but not copyright, at least in the majority of states that demanded either some, or some substantial intellectual creativity for copyright to arise
statements of what may or may not be done. Laws that fail this test are failures overall. UK copyright law may fast be going down this route, but again this has little to do with the inspiration for or nature of the law being implemented. Structural awkwardness. Conceivably, the injection of civilian notions into a common law statute may create structural difficulties, so that, like oil and water, the two elements do not mix but just co-exist uneasily. Australia's Copyright Law Review Committee took this view in 1988 when a majority of its members recommended against the introduction of authors' moral rights for a number of reasons, including that such rights were 'alien' to 'a common law system'. The proposition was demonstrably nonsensical since India, Israel and Canada had lived with statutory moral rights for some time without most of their common lawyers suffering any undue mental disturbance.(10) The argument totally collapsed after the UK in 1988, copied by New Zealand in 1994, introduced some, albeit insipid, moral rights provisions into the copyright law. Australia more recently has had a change of heart and now too is falling in line with its moral right obligations under the Berne Convention. That the Australians were wrong, and that common law and civilian traditions may co-exist practicably in a single law is demonstrated in various jurisdictions. One such case is Canada. Canada's copyright law has been amended over the last dozen years in a way that is deliberately intended to accommodate Canada's civilian and common law traditions, as well as bilingual lawyers operating in either mode. Like other federal laws, the Copyright Act is drafted in both French and English, with the respective versions reflecting civilian and common law drafting conventions. Both texts are equally authentic and are commonly compared to resolve ambiguity. Both common law- and civil law-trained judges sitting in provincial and federal courts cite and rely on precedents from either tradition in interpreting the Act, although with sometimes surprising results.(11) But then the surprises are no greater than, or different from, those sometimes caused by judges interpreting any piece of legislation. In principle, therefore, no cogent reason exists to prevent a single, even unilingual, law from accommodating both common and civil law traditions without creating undue strain on either. Legal complexity. The implementation of some European Directives may nevertheless involve complexities arising from the attempted imposition of civilian notions on to a common law template. The Database Directive (1996) may provide such an example.(12) The Directive's purpose was to harmonise different standards of protection for electronic databases. The UK's and Ireland's low common law standard of originality allowed prosaic databases (e.g., telephone directories) to gain the standard long-term protection granted to literary works. The same item might be protected elsewhere in Europe under principles of unfair competition but not copyright, at least in the majority of states that demanded either some, or some substantial, intellectual creativity for copyright to arise
So the Directive proposed different levels of protection for databases, depending on whether they were prosaic or creative. Given the need to protect vested rights, however, the scheme as implemented in the UK, has created a differential set of rights of unnecessary, almost unworkable complexI ity. Th Databases which by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation are protected by ordinary copyright for the author's life-plus-70 years. (13 Databases which are not such intellectual creations have a 15-year sui generis right against copying, but new 15-year terms (without limit) may run afresh each time the database is quantitatively or qualitatively updated substantially (14) Pre-1998 databases that were protected by copyright in countries with low thresholds of originality(e.g, the United Kingdom and Ireland) may continue with that protection Database-like works that do not technically qualify as a database under the Directives definition, may(or may not)be protected by copyright as compilations under ordinary unharmonised national copyright principles. (15) A single database may comprise some or all of the above classes of database, and thus different parts will be differently protected These protections are on top of the copyrights that may exist in the contents of the database or in the computer programs that drive it, even though these elements may be mechanically integrated into a database. The functionally integrated and seamless product that comprises a database is not matched by similarly integrated and seamless legal protection like this owners and users to agree their own terms of engagement; the alternative of deciphering the terms fixed by the law may be just too costly to be worth the effort. It is at least arguable, however, that the complexity here is as much attributable to faulty law-making tout simple as to faulty civilian-inspired law-making Let us return to Proposition No. I set out earlier in Part I, namely, that The UKs common-law based copyright law is becoming eclipsed by, or subsumed under, a mass (or mess)of European Directives based on civilian theories of copyright That European Directives have reshaped highly significant areas of UK copyright law over the last decade is incontrovertible. That process has not yet ended. Many of the gaps left by the Directives on computer programs(1991), rental rights(1992), satellite broadcasting and cable retransmission (1993), term and related rights (1993), and databases(1996)will be filled when the final iteration
So the Directive proposed different levels of protection for databases, depending on whether they were prosaic or creative. Given the need to protect vested rights, however, the scheme as implemented in the UK, has created a differential set of rights of unnecessary, almost unworkable, complexity. Thus: - Databases which 'by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation' are protected by ordinary copyright for the author's life-plus-70 years.(13) - Databases which are not such 'intellectual creations' have a 15-year sui generis right against copying, but new 15-year terms (without limit) may run afresh each time the database is quantitatively or qualitatively updated substantially.(14) - Pre-1998 databases that were protected by copyright in countries with low thresholds of originality (e.g., the United Kingdom and Ireland) may continue with that protection. - Database-like works that do not technically qualify as a 'database' under the Directive's definition, may (or may not) be protected by copyright as compilations under ordinary unharmonised national copyright principles.(15) - A single database may comprise some or all of the above classes of database, and thus different parts will be differently protected. - These protections are on top of the copyrights that may exist in the contents of the database or in the computer programs that drive it, even though these elements may be mechanically integrated into a database. The functionally integrated and seamless product that comprises a database is not matched by similarly integrated and seamless legal protection. A 'scheme' like this is hardly an improvement on the pre-Directive situation. At best, it encourages owners and users to agree their own terms of engagement; the alternative of deciphering the terms fixed by the law may be just too costly to be worth the effort. It is at least arguable, however, that the complexity here is as much attributable to faulty law-making tout simple as to faulty civilian-inspired law-making. III Let us return to Proposition No. 1 set out earlier in Part I, namely, that: The UK's common-law based copyright law is becoming eclipsed by, or subsumed under, a mass (or mess) of European Directives based on civilian theories of copyright. That European Directives have reshaped highly significant areas of UK copyright law over the last decade is incontrovertible. That process has not yet ended. Many of the gaps left by the Directives on computer programs (1991), rental rights (1992), satellite broadcasting and cable retransmission (1993), term and related rights (1993), and databases (1996) will be filled when the final iteration