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
of the proposed Directive on copyright harmonisation(2000)comes into force and is duly It is equally incontrovertible that much of the thinking behind the Directives, at least at a formal or structural level, is influenced by civilian notions of authors' rights (16) That comment should, however, be qualified by the caution that neither the common nor the civil law can be thought of as monolithic. German copyright law differs significantly in its approach from French law so too US law differs from the UK's. The familiar metaphor of points on a ectrum, with US copyright law representing strong common law tendencies at one end, French droits d'auteur representing strong civil law tendencies at the other, and the remaining states ranged along a continuum running from those ends, seems apt. The UK and Ireland may be found close to the common law side of midway on this scale That said. the ideas that protection should flow from an author's 'own intellectual creativity protection be automatic and not depend on registration or other formality. the rights extended to those who exercise intellectual creativity -authors- should be sharply distinguished from rights granted to other people adding value to or distributing the work(e.g performers, sound recorders, broadcasters, cablecasters and publishers) authors should have long-term, continuing and maximum control over their productions, are consistently reflected throughout the Directives. They are ideas common to a protective scheme that involves economic rights and 'moral rights'(droit moraux), the twin pillars of the authors right edifice (17) Under the civilian approach, economic rights- from reproduction, public performance and broadcast rights, to rental rights and rights to profit on the resale price of artworks(droit de suite provide the author with a seemingly never-ending menu of means to profit from his work. Moral rights, on the other hand, provide the author with continuing control over the work despite its exploitation. Under moral rights doctrine, the author alone decides when the work is ready for release and how it may be exploited; the work must be properly credited; it must not be modified contrary to the author's wishes, or at least in ways prejudicial to the author's honour or reputation The author can sometimes even recall the work if it no longer reflects his or her views In this scheme, the author is front and centre stage. Later exploiters and users of the work performers, recorders, broadcasters and cablecasters- are secondary players and stand in the wings. The rights they acquire through execution or distribution of the work are doctrinally treated as derivative and subsidiary. Such 'neighbouring or 'related rights( droits voisins), while powerful and substantial, are less intensive than authors' rights and typically run for shorter periods(15 to 50 years)than the author's right, which now lasts up to 70 years after the author's death
of the proposed Directive on copyright harmonisation (2000) comes into force and is duly implemented. It is equally incontrovertible that much of the thinking behind the Directives, at least at a formal or structural level, is influenced by civilian notions of authors' rights.(16) That comment should, however, be qualified by the caution that neither the common nor the civil law can be thought of as monolithic. German copyright law differs significantly in its approach from French law; so too US law differs from the UK's. The familiar metaphor of points on a spectrum, with US copyright law representing strong common law tendencies at one end, French droits d'auteur representing strong civil law tendencies at the other, and the remaining states ranged along a continuum running from those ends, seems apt. The UK and Ireland may be found close to the common law side of midway on this scale. That said, the ideas that - protection should flow from an author's 'own intellectual creativity', - protection be automatic and not depend on registration or other formality, - the rights extended to those who exercise intellectual creativity - authors - should be sharply distinguished from rights granted to other people adding value to or distributing the work (e.g., performers, sound recorders, broadcasters, cablecasters and publishers), - authors should have long-term, continuing and maximum control over their productions, are consistently reflected throughout the Directives. They are ideas common to a protective scheme that involves economic rights and 'moral rights' (droit moraux), the twin pillars of the authors' right edifice.(17) Under the civilian approach, economic rights - from reproduction, public performance and broadcast rights, to rental rights and rights to profit on the resale price of artworks (droit de suite) - provide the author with a seemingly never-ending menu of means to profit from his work. Moral rights, on the other hand, provide the author with continuing control over the work despite its exploitation. Under moral rights doctrine, the author alone decides when the work is ready for release and how it may be exploited; the work must be properly credited; it must not be modified contrary to the author's wishes, or at least in ways prejudicial to the author's honour or reputation. The author can sometimes even recall the work if it no longer reflects his or her views. In this scheme, the author is front and centre stage. Later exploiters and users of the work - performers, recorders, broadcasters and cablecasters - are secondary players and stand in the wings. The rights they acquire through execution or distribution of the work are doctrinally treated as derivative and subsidiary. Such 'neighbouring' or 'related' rights (droits voisins), while powerful and substantial, are less intensive than authors' rights and typically run for shorter periods (15 to 50 years) than the author's right, which now lasts up to 70 years after the author's death
The common law tradition views copyright more pragmatically. Copyright is there to help propel works into the market. It is overtly an instrument of commerce rather than of culture, a tool of the media entrepreneur rather than of the author. Common lawyers may formally distinguish between copyrig ghbouring rights and accord them different incidents, if they wish, but the label is, to them, of little importance. So Americans may call sound recorders Canadians may call the rights such recorders have copyrights, partly to ensure that the rights are firmly rooted in the copyright clauses of their respective constitutions. But even without any constitutional imperative, the UK and its Commonwealth imitators treat copyright as a capacious church that admits almost anyone- sound recorders, broadcasters, cablecasters, even printers-into ation of 'authors and anoints them all with a This degree of ecumenism lets copyright attach to productions of trivial creativity (e.g,trite correspondence, ordinary snapshots, simple drawings), since modest expenditures of time, labour or capital investment can satisfy the copyright requirement. The emphasis then is on economic ghts as instruments with which to recoup and profit from investment. Moral rights are often looked at suspiciously as interferences with the entrepreneur's liberty to exploit the work as he thinks best. So the legislation implementing them is often grudgingly drafted and interpreted, and (by contrast with civil law) the rights themselves may be easily and often informally waived Nor, despite lip service to the concept, does the common law view of copyright care much about authors or authorship. It has not, from the very beginning, insisted that the duration of copyright be tied to the author's life. Copyright can run for any term sufficient for the rightholder to recover his just reward: from the 28 years(14 years plus 14 years optional renewal) initially granted by the British law of 1710, to the 56 years(28 years plus 28 years optional renewal)maintained by the United States until 1976. If the cause seems worthy enough, the term may even be made perpetual as was the case with the ancient british universities until 1988. and is even now the case with the Hospital for Sick Children in London, which has a perpetual right of remuneration over James Barrie's play Peter Pan. (18) The foregoing features underline how any solicitude for authors is less a driving force in the copyright than th t, importing, as it does sentiments against unfair competition and against reaping where one has not so wn. The life of the law here is less logic or literature than lobbying On such an approach, for example, the United States can simultaneously hold with hardly a flicker of disquiet, (19)two impossibly inconsistent thoughts (1)that intellectual creativity is a constitutional (and thus indispensable) requirement for authorship and copyright, and (2)that a corporation-an artificial construct possessing no intellect whatever- can be an author simply by employing someone who is creative. (20)
The common law tradition views copyright more pragmatically. Copyright is there to help propel works into the market. It is overtly an instrument of commerce rather than of culture, a tool of the media entrepreneur rather than of the author. Common lawyers may formally distinguish between 'copyrights' and 'neighbouring rights' and accord them different incidents, if they wish; but the label is, to them, of little importance. So Americans may call sound recorders 'authors', and Canadians may call the rights such recorders have 'copyrights', partly to ensure that the rights are firmly rooted in the copyright clauses of their respective constitutions. But, even without any constitutional imperative, the UK and its Commonwealth imitators treat copyright as a capacious church that admits almost anyone - sound recorders, broadcasters, cablecasters, even printers - into its congregation of 'authors' and anoints them all with a 'copyright.' This degree of ecumenism lets copyright attach to productions of trivial creativity (e.g., trite correspondence, ordinary snapshots, simple drawings), since modest expenditures of time, labour or capital investment can satisfy the copyright requirement. The emphasis then is on economic rights as instruments with which to recoup and profit from investment. Moral rights are often looked at suspiciously as interferences with the entrepreneur's liberty to exploit the work as he thinks best. So the legislation implementing them is often grudgingly drafted and interpreted, and (by contrast with civil law) the rights themselves may be easily and often informally waived. Nor, despite lip service to the concept, does the common law view of copyright care much about authors or authorship. It has not, from the very beginning, insisted that the duration of copyright be tied to the author's life. Copyright can run for any term sufficient for the rightholder to recover his just reward: from the 28 years (14 years plus 14 years optional renewal) initially granted by the British law of 1710, to the 56 years (28 years plus 28 years optional renewal) maintained by the United States until 1976. If the cause seems worthy enough, the term may even be made perpetual, as was the case with the ancient British universities until 1988, and is even now the case with the Hospital for Sick Children in London, which has a perpetual right of remuneration over James Barrie's play Peter Pan.(18) The foregoing features underline how any solicitude for authors is less a driving force in the common law conception of copyright than the morality of the market, importing, as it does, sentiments against unfair competition and against reaping where one has not sown. The life of the law here is less logic or literature than lobbying. On such an approach, for example, the United States can simultaneously hold, with hardly a flicker of disquiet,(19) two impossibly inconsistent thoughts: (1) that intellectual creativity is a constitutional (and thus indispensable) requirement for authorship and copyright, and (2) that a corporation - an artificial construct possessing no intellect whatever - can be an author simply by employing someone who is creative.(20)
much for differences, what of similarities? There are rather more of the latter than the proponents of difference are sometimes willing to The similarities between civil and common law copyright start with history. Consider the parallel reactions of Scotland and England in the 18th century to the first great Question of Literary Property, whether copyright in a published work could exist at all outside specific legislation establishing it. That great Question climaxed in the 1770s in the battle between the London stationers-the book publishers of the day-and their nemeses, the Scottish reprinters. The London stationers claimed a perpetual copyright in their inventories, beyond the 28 years maximum protection granted by the Copyright Act of 1710. Both the Scottish and the English courts, looking to Roman law and beyond, ruled against them, dismissing any notion of a common law copyright in published works. An author might have a perpetual incorporeal property in an unpublished work and might prevent its publication or surreptitious copying without his consent. But once published with the owner's authority, the work could be freely copied unless a specific statute protected it (21)When the same point arose in the mid-19th century in the United States, the Supreme Court took the same line as the british courts had in the 1 8th century (22 There are also interesting parallels between the underlying philosophies of the first copyright law of both Britain and france, even though the background politics during the reign of Queen Anne could hardly have been more different those of revolutionary France. The British law, of course, reflects the orientation of the book publishers who pressed for its passage, while in Fran the authors themselves led the charge for reform, with the politically weakened publishers looking anxI The French publishers had earlier argued, through their hired hand Diderot, that a persons ideas were by nature his own since they sprang full-blown unaided from his mind. Some claim this hubristic theory inspired the French authors rights decrees of 1791 and 1793, but this is only partly true. Beaumarchais and his supporters managed to get laws passed that recognized these atural rights only for the author's life plus a short period-5 or 10 years after his death Significantly, not only were these the laws they got they were also the laws the authors and dramatists sought. Their view of authors rights was fundamentally at odds with the perpetual protection that a natural rights theory such as Diderot's implied A nuanced interpretation of these events is suggested by a historian of the period The authors represented themselves as servants of the public good of its enlightenment, in opposition to the private interests of publishers and theater directors. Thus the authors themselves rejected the Diderotist argument for unlimited and absolute claims upon their texts and presented themselves as contributors to 'public property and guardians of the public claim to the nations cultural commons. The author was now depicted as a hero of public enlightenment, rather
IV So much for differences; what of similarities? There are rather more of the latter than the proponents of difference are sometimes willing to admit. The similarities between civil and common law copyright start with history. Consider the parallel reactions of Scotland and England in the 18th century to the first great Question of Literary Property, whether copyright in a published work could exist at all outside specific legislation establishing it. That great Question climaxed in the 1770s in the battle between the London stationers - the book publishers of the day - and their nemeses, the Scottish reprinters. The London stationers claimed a perpetual copyright in their inventories, beyond the 28 years' maximum protection granted by the Copyright Act of 1710. Both the Scottish and the English courts, looking to Roman law and beyond, ruled against them, dismissing any notion of a common law copyright in published works. An author might have a perpetual incorporeal property in an unpublished work and might prevent its publication or surreptitious copying without his consent. But once published with the owner's authority, the work could be freely copied unless a specific statute protected it.(21) When the same point arose in the mid-19th century in the United States, the Supreme Court took the same line as the British courts had in the 18th century.(22) There are also interesting parallels between the underlying philosophies of the first copyright laws of both Britain and France, even though the background politics during the reign of Queen Anne could hardly have been more different from those of revolutionary France. The British law, of course, reflects the orientation of the book publishers who pressed for its passage, while in France, the authors themselves led the charge for reform, with the politically weakened publishers looking anxiously on. The French publishers had earlier argued, through their hired hand Diderot, that a person's ideas were by nature his own since they sprang full-blown unaided from his mind. Some claim this hubristic theory inspired the French authors' rights decrees of 1791 and 1793, but this is only partly true. Beaumarchais and his supporters managed to get laws passed that recognized these 'natural rights' only for the author's life plus a short period - 5 or 10 years after his death. Significantly, not only were these the laws they got, they were also the laws the authors and dramatists sought. Their view of authors' rights was fundamentally at odds with the perpetual protection that a natural rights theory such as Diderot's implied. A nuanced interpretation of these events is suggested by a historian of the period: The authors represented themselves as servants of the public good, of its enlightenment, in opposition to the private interests of publishers and theater directors. Thus the authors themselves rejected the Diderotist argument for unlimited and absolute claims upon their texts and . . . presented themselves as contributors to 'public property' and guardians of the public claim to the nation's cultural commons. The author was now depicted as a hero of public enlightenment, rather
than as a selfish property owner .. Authors' property rights were conceived as a recompense for the author's service as an agent of enlightenment through the publication of his ideas. (23) The notion that authorship merits encouragement and reward as a public service but that, shortly after the author's demise, his or her product belongs to the public, is one that is well within the range of ideologies on which copyright initially rested, and can continue to rest, under the common law tradition A recent typical judicial comment, that 'the legislation historically... had two purposes:to encourage disclosure of works for the"advancement of learning", and to protect and reward the intellectual effort of the author(for a limited period of time)in the work, (24) is telling. Delivered in 1986, it was intended as an explanation of a modern copyright law. It could with equal appropriateness, have been directed toward the French decree of 1793 and, indeed, later authors' rights laws So how do matters stand today? One might, in a cynical but straightforward application of the politics of numbers, say that UK copyright law ought to reflect the civilian tradition at least as much as, if not more than, the common law tradition After all, European Directives may be expected to reflect dominant continental European(civil law) interests, to the detriment of(UK)common law interests. This phenomenon would more than counterbalance the expected suppression of Scottish(civilian) interests within a dominant English(common law)domestic copyright law But the modern convergence of the two traditions has deeper and longer roots than this. The source lies in the international framework in which copyright laws have been set since the early 20th century. Their architecture has long been prescribed by the Berne Convention for the Protection of Literary and Artistic Works, the international treaty which was first concluded in 886 and which has periodically been revised throughout the 20th century. Its title is not now, nor copyright makes the occ in the English ly, the lan of the treaty creates a Union for the protection of the rights of authors in their literary and artistic works. The formula is repeated throughout the Convention. The French language version of the Convention, which prevails in any dispute on interpretation, naturally uses 'droit d'auteur'. The structure of the Convention reflects this french usage The standard story is that the Berne Convention, initially drafted and signed by the major European colonial powers, including Britain, vividly demonstrated then and over the course of the next century how common and civil lawyers could hammer out a comprehensive set of norms that bridged the gap between copyright and authors rights. There is, however, an alternative interpretation of the history of the Convention and its revisions, one that is supported by the actual texts rather than by any need to placate common law jingoist. That reading is that, from the very beginning, civilian concepts of authors' rights dominated the texts of the Berne Convention, and that this feature became ever more prominent with the passage of time and each successive revision
than as a selfish property owner. . . . Authors' property rights were conceived as a recompense for the author's service as an agent of enlightenment through the publication of his ideas.(23) The notion that authorship merits encouragement and reward as a public service but that, shortly after the author's demise, his or her product belongs to the public, is one that is well within the range of ideologies on which copyright initially rested, and can continue to rest, under the common law tradition. A recent typical judicial comment, that 'the legislation historically . . . had two purposes: to encourage disclosure of works for the "advancement of learning", and to protect and reward the intellectual effort of the author (for a limited period of time) in the work,'(24) is telling. Delivered in 1986, it was intended as an explanation of a modern copyright law. It could, with equal appropriateness, have been directed toward the French decree of 1793 and, indeed, later authors' rights laws. So how do matters stand today? One might, in a cynical but straightforward application of the politics of numbers, say that UK copyright law ought to reflect the civilian tradition at least as much as, if not more than, the common law tradition. After all, European Directives may be expected to reflect dominant continental European (civil law) interests, to the detriment of (UK) common law interests. This phenomenon would more than counterbalance the expected suppression of Scottish (civilian) interests within a dominant English (common law) domestic copyright law. But the modern convergence of the two traditions has deeper and longer roots than this. The source lies in the international framework in which copyright laws have been set since the early 20th century. Their architecture has long been prescribed by the Berne Convention for the Protection of Literary and Artistic Works, the international treaty which was first concluded in 1886 and which has periodically been revised throughout the 20th century. Its title is not now, nor has it ever been, the Berne Copyright Convention. The word 'copyright' makes the occasional cameo appearance in the English version of the text but, more significantly, the opening language of the treaty creates a Union for 'the protection of the rights of authors in their literary and artistic works'. The formula is repeated throughout the Convention. The French language version of the Convention, which prevails in any dispute on interpretation, naturally uses 'droit d'auteur'. The structure of the Convention reflects this French usage. The standard story is that the Berne Convention, initially drafted and signed by the major European colonial powers, including Britain, vividly demonstrated then and over the course of the next century how common and civil lawyers could hammer out a comprehensive set of norms that bridged the gap between copyright and authors' rights. There is, however, an alternative interpretation of the history of the Convention and its revisions, one that is supported by the actual texts rather than by any need to placate common law jingoists. That reading is that, from the very beginning, civilian concepts of authors' rights dominated the texts of the Berne Convention, and that this feature became ever more prominent with the passage of time and each successive revision
This suggestion can hardly come as any surprise given the fact that the large majority of the participants at both Conventions were 'author's rights countries, intent on ensuring that any compromises necessary to achieve agreement with the copyright countries did not undercut the basic philosophical underpinnings of their cherished notion of author s rights. It is equally unsurprising that the requirements of good diplomacy, intent on inducing more nations to join the Conventions and on ensuring the smooth operation of the instruments, have tended to minimize the differences while emphasizing the essential similarities of the two systems. The evidence of the texts and their history cannot however be rebutted by smooth talk alone. (25) From 1911, when the UK implemented the 1908 Berlin revision of the Berne Convention, the UK law has been structured to reflect the imperatives of that Convention and its periodic revisions Common law drafting style cannot obscure the substance of the law, which is in essence that of authors rights. Indeed, the Canadian Federal Court of Appeal(comprising, coincidentally, three civil law-trained judges) very recently said of Canada's current Copyright Act, which still bears the structural imprint of its former model, the Copyright Act 1911(UK), that Ithe use of the word 'copyright' in the English version of the Act has obscured the fact that what the Act fundamentally seeks to protect is'le droit d'auteur (26) The 'civilianising process has become even more evident and entrenched, now that TRIPs has incorporated the bulk of Berne and other Conventions negotiated in Bernes shadow. A civil lawyer today has certainly less trouble following and understanding the UK copyright law, than he or she has making head or he general law of property in the UK(whether north or south of the border) So any plaint that the UK copyright law has become too 'civilianised comes nearly a century too late. That process started irretrievably in 191 What, then, underlies the discontent in the outburst noted earlier in Part I? It lies, I suggest, in the notion espoused by the European Directives, made explicit in their recitals, that 'a high level of protection is needed for copyright and neighbouring rights to ensure the maintenance and development of creativity in the interests of authors, cultural industries consumers and society as a whole: (27)thatthat harmonisation up to the highest level within any member state should be the goal of European policy in this field This assertion, which logically leads to broad protection in perpetuity, lacks respectable empirical foundation, despite its instrumentalist claim. Indeed, the proposition that it is in the interests of consumers to continue to pay well above marginal cost for a product for perhaps 100 to 150 years after it was first produced, when the same product would have been produced under a regime with
This suggestion can hardly come as any surprise, given the fact that the large majority of the participants at both Conventions were 'author's rights' countries, intent on ensuring that any compromises necessary to achieve agreement with the 'copyright' countries did not undercut the basic philosophical underpinnings of their cherished notion of author's rights. It is equally unsurprising that the requirements of good diplomacy, intent on inducing more nations to join the Conventions and on ensuring the smooth operation of the instruments, have tended to minimize the differences while emphasizing the essential similarities of the two systems. The evidence of the texts and their history cannot however be rebutted by smooth talk alone.(25) From 1911, when the UK implemented the 1908 Berlin revision of the Berne Convention, the UK law has been structured to reflect the imperatives of that Convention and its periodic revisions. Common law drafting style cannot obscure the substance of the law, which is in essence that of authors' rights. Indeed, the Canadian Federal Court of Appeal (comprising, coincidentally, three civil law-trained judges) very recently said of Canada's current Copyright Act, which still bears the structural imprint of its former model, the Copyright Act 1911 (UK), that: [t]he use of the word 'copyright' in the English version of the Act has obscured the fact that what the Act fundamentally seeks to protect is 'le droit d'auteur'.(26) The 'civilianising' process has become even more evident and entrenched, now that TRIPs has incorporated the bulk of Berne and other Conventions negotiated in Berne's shadow. A civil lawyer today has certainly less trouble following and understanding the UK copyright law, than he or she has making head or tail of the general law of property in the UK (whether north or south of the border). So any plaint that the UK copyright law has become too 'civilianised' comes nearly a century too late. That process started irretrievably in 1911. V What, then, underlies the discontent in the outburst noted earlier in Part I? It lies, I suggest, in the notion espoused by the European Directives, made explicit in their recitals, that 'a high level of protection' is needed for copyright and neighbouring rights to ensure 'the maintenance and development of creativity in the interests of authors, cultural industries, consumers and society as a whole';(27) that that harmonisation up to the highest level within any member state should be the goal of European policy in this field. This assertion, which logically leads to broad protection in perpetuity, lacks respectable empirical foundation, despite its instrumentalist claim. Indeed, the proposition that it is in the interests of consumers to continue to pay well above marginal cost for a product for perhaps 100 to 150 years after it was first produced, when the same product would have been produced under a regime with
