Arnold J on copyright law reform: the Herchel Smith lecture

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 18^th 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.