I first attended the
Herchel Smith lecture on intellectual property law in about 1980 –
probably one of the first things I went to after I qualified. I have
no idea how many I have attended since, but this evening I had the
pleasure of hearing Sir Richard Arnold talking about copyright
reform, and in terms that I could relate to. That means that he went
right back to the Whitford Report, and indeed a great deal further
than that.
His thesis was that
copyright reform, which is long overdue (I thought there was a
30-year rule, with a bit of latitude to accommodate parliamentary
timetables: 1911, 1956, 1988 …, but on that basis we have a few
years to wait), ought to be holistic rather than incremental. Would
'iterative' be the right word for the way copyright law is
developing? I favour 'gestalt' instead of 'holistic', but I might be
missing something, or just trying to be pretentious. Anyway, root and
branch reform is called for.
Whitford was a root and
branch review of copyright law, and the 1988 Act a (or 'an'?)
holistic reform. So was Gregory, and the 1956 Act. I didn't know
about what had gone before, so I found Sir Richard's speech very
educational, but Whitford remains for me the essential starting point
of modern copyright law, simply because it was current when I first
came to the subject – followed by Nicholson and then green and
white papers. Copyright neophytes now presumably have the same
relationship with Hargreaves, or perhaps Gowers, or Gowreaves as it
suddenly occurred to me we should refer to the process of copyright
reform between 2005 and 2012.
Since Whitford and the
1988 Act which eventually put into law many of that committee's
suggestions (but not all of them, especially on designs, a subject on
which the Whitford Committee was split but the government hatched its
own ideas) reform has been piecemeal at best. Sir Richard suggested
that comparisons with a patchwork quilt were an insult to the art of
quilting, which I thought a nice turn of phrase, or an 'obsessively
reused palimpsest' which is something I need to think about (with a
big dictionary to help me appreciate the nuances). If palimpsest it
be, the over-writing must have been getting progressively smaller and
would now be barely legible.
Whitford, I remember,
compared the 1956 Act to an elegant Queen Anne house to which there
had been Georgian, Victorian, Edwardian and finally Elizabethan (the
second, that is) additions: an architectural hotchpotch, and a legal
one too. The 1988 Act, as it now stands, much amended, probably has
new wings which dominate the original building, including modernist,
brutalist, neo-classical and goodness knows what else: shards,
cheesegraters and gherkins grafted on to the modest 18th
century original. Sir Richard listed seven problems with the 1988
Act, which I neglected to note down, but if I were to say that one of
them was complexity that would not be far out. (Obsolescence, or
actually being obsolete, in the face of technological progress was
another,and a failure to conform to the structure of EU copyright
law, or what I was horrified to hear him call 'European legislation',
was another, and I guess we can work out what the others might be.)
Anyway, he made the important point that the seven problems had not
been addressed by Gowreaves, which is not surprising given their
terms of reference (and the fact that if you want IP law thoroughly
reviewed it would be a good idea to get an IP lawyer to do it, rather
than ex-editors of the FT, knowledgeable though such men no doubt
are). Hard to argue with that, I thought, though on the way to drinks
after the lecture (there being no question-and-answer session, to my
disappointment) I had precisely that argument with an acquaintance:
he was of the view that it will always require highly-trained
specialists to understand copyright, whereas I believe that unless
you can make the law comprehensible to non-specialists the urban
myths which already abound will just carry on growing. I don’t know
which of us is right, but root-and-branch reform could easily take
the rest of my lifetime, and that is perhaps sufficient argument
against the ‘holistic’ or ‘gestalt’ approach.
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