Sunday, 13 May 2018

Interpretation or truth?

Nex week there will be a Luxury Law summit in London, I discover. The concept of "luxury law" baffles me, but I guess I am looking at it wrongly - the law that applies to the luxury end of the goods and services market, not a particularly soft, comfortable, exclusive and expensive set of rules. Although come to think of it, the law is a luxury beyond the means of most people. The wonderful quote from Anatole France, 'The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread', doesn't quite say what I am getting at here but as it had come to mind I could not resist the temptation to repeat it. Mr Justice Darling's famous dictum, “The law courts of England are open to all men like the doors of the Ritz Hotel”, is more apposite but a bit of a cliché.

In an article on the Internet intended (I guess) to generate interest in the Luxury Law summit, Arrigo Cipriani, described as "one of the the elder statesmen of luxury" (what?), complains that intellectual property law no longer serves the "luxury industry" - an industry, presumably, that produces not luxury cars or clothes or perfumes or hotel accommodation or meals, but just inchoate luxury. The headline is even more alarming: "Interpretation is trumping truth in copyright law, says Arrigo Cipriani."

Mr Cipriani goes on: "The copyright world has become more and more complicated. The people who write the rules should be professors in mathematics problems rather than copyright law writers. There is too much space given to interpretation and very little space for the truth.”

First, what is his beef about copyright law? He's right that it has become more and more complicated, although I'd say that it's the world that became more complicated and copyright law, to do its job of maintaining a balance between the owners and users of copyright had to follow suit. But how does that affect luxury goods and services? Or is somebody getting copyright and trade marks mixed up? And does the criticism extend to patents and designs?

I should not, I suppose, get too excited about what is little more than a marketing puff (Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1) - an attention-grabbing but legally dubious proposition. Instead, I ask you to consider the point that too much emphasis is placed on interpretation and too little on the truth. (I don't think "space" was a particularly helpful concept in the piece.)

So, is there too much emphasis on interpretation? I think not. How can the need to interpret the law (or, for that matter, patent claims) be avoided? Copyright law, perhaps more than any other type of law, needs to develop, and it cannot keep pace with technology unless judges interpret it. In the common law system for certain, and in the civil law system to a lesser extent I guess, the law proceeds by a process of judicial interpretation. It is not the place to look for truth (unless, as I remarked elsewhere, you are reading the law in Exodus or the equivalent in another religion - perhaps a better example is the Golden Rule, found in much the same form in all major religions: "do unto others as you would have them do unto you" could be a satisfactory replacement for the whole of intellectual property law, although it would probably not remove the need for interpretation).

I hesitate to suggest that Mr Cipriani might have been influenced by his family's defeat in Hotel Cipriani Srl & Ors v Cipriani (Grosvenor Street) Ltd & Ors [2010] EWCA Civ 110 (24 February 2010). But that case turned on the court's conservative interpretation of the "own name" defence in trade mark law, and also of the protection by passing of a foreign reputation. It is hopeless to state that the law should not be interpreted, but applied as immutable truth: in the Cipriani case, it seems to me that a bit more in the way of interpretation would have helped the defendants - and perhaps made the decision accord a little better with commercial reality.

On the other hand, the case arose from dealings with names and trade marks which had effectively given a multinational corporation the right to use the family name. In the modern world, that's not uncommon, but isn't it a bit weird? An example, perhaps, of the sort of changing commercial practice that IP law has to keep up with.

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