A racial perspective on copyright

 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3591113

The privatisation of everything

My daily runs - interrupted by a chest infection in recent weeks, but now restarted - often take me past the Harwell Campus, which must be one of the most important concentrations of technology businesses in the country. During the pandemic, the government funded the building of a production facility for vaccines - then sold it off to a private company (as reported here by the BBC). The government denies that it sold it, claiming that it was never the government's property anyway, but it was certainly paid for with public money and the non-profit company that did actually own it should surely have been contractually prevented from selling it - to safeguard public investment. What an old-fashioned view I have of these things! As far as I know, it hasn't made any vaccine yet. 

More recently, Moderna has started - and now nearly finished - building another vaccine research, development and production facility on the Harwell Campus (read about it here). It's hardly necessary when there's an unused one only a mile away, and it's big and ugly and unsuited to the predominantly rural landscape - it's not within the existing built-up area, it occupies what were open green spaces including football pitches and the area where there used to be an annual bonfire night celebration, complete with a hugh bonfire that probably made a failry significant contribution to global warming. And all this in an area of outstanding natural beauty, which seems to count for nothing in planning terms. To build it, the contractors closed off the route I have been running for about 30 years and which was surely a customary right of way (though I have to admit I did not raise hell about this as I should have done). They also dug up and built over the historic runway from which the first airborne troops set off for Normandy on D-Day (more exactly, the previous evening, I think: and Montgomery himself must have been present, as a previous occupant of the farmhouse adjacent to our house remembers him staying the night with her family). There is still a war memorial at the end of the runway, and now also an interpretative board that, when erected, helped understand the landscape - no longer, as it's all under a huge building. They also destroyed the experimental catapult pit that contained the equipment that the RAF hoped would enable them to get aircraft airborne with heavier payloads than they could manage under their own power, but which never worked very well. What price history? And the Prime Minister at the time was a great fan of, biographer of, and in his own mind it sometimes seemed reincarnation of, Churchill. 

What was RAF Harwell during World War II became the Atomic Energy Research Establishment (and its two reactors, resembling giant baked beans tins and called Dido and Pluto (though I always thought it was Aeneas) remained local landmarks although not for much longer), and is now owned by the AERE's successor UKAEA, jointly with the Science and Technology Facilities Council and Public Health England. All very much in the public sector, surely. Which is why I am vexed when footpaths are closed, or when signs stating that the land is private appear. I accept that parts of the Campus are a licensed nuclear site, and regardless of ownership must be off-limits (patrolled by the only UK police force that can carry firearms at all times, though they tell me they don't do so in practice, and which has a right of hot pursuit - both facts that I picked up in my pre-reading before going to university to begin my legal studies, quite a few years ago), but the rest of it should be the property of the public. 

It seems to me that, as nature does with vacuums, the modern world - the post-capitalist world - abhors public property. And this is not only tangible property (I'm getting to the point at last): despite the success of initiatives such as Creative Commons and the open-source movement, the trend is towards more and more enclosure (to use another concept from the world of agricultural land) in the intellectual property world. It's a trend that looks closely related to the "technofeudalism" that Yannis Varoufakiswrites about in his new book, which I am sure contains a great deal of interest to intellectual property lawyers. I'll get into that sometime later, once I have read his work.

In the IP world, we can see many developments that expand the realm of private ownership. Patent offices continue to measure success by the number of patents granted, while critics of the patent system would regard this as a bad thing. Likewise with the number of trade marks registered: each one represents a diminution of the scope for free speech, further depletion of the stock of available trade marks, foreclosure of the market to businesses who can't find a suitable brand or can't use the one they have developed in their home country. The breadth of trade mark applications continues to make life difficult for smaller businesses, who are often bullied by big trade mark owners. And in the copyright field, big tech takes what it wants - using others' copyright works to train their AI engines, for example - without seeking permission from, still less remunerating, the copyright owner.

I am teaching a new cohort of University of London International Programme students, and getting to know a new group of students coming fresh to UK IP law always makes me reflect - their first experience of it is this, whereas mine 43 years ago was very different and I don't think the changes in the interim are altogether a good thing. Perhaps not at all a good thing.

Inferring access when establishing a copyright infringement case

Once, Silent Witness was one of the better crime dramas on television, but as some point a few years ago (after changes to the cast had already made it a shadow of its original self) it seemed to lose its connection to reality. I have not watched it for many years now, and the claim that an episode infringed copyright in an earlier screenplay made me wonder whether claiming even such an association with the show wouldn’t be detrimental to the purported author’s reputation. But there you are – that’s probably just me being a grumpy old man.

Molavi v Gilbert & Ors [2023] EWHC 646 (Ch) (23 March 2023) is an unusual case, in that it came before the court on an application by the defendants (which included the BBC and BBC Studios Production Ltd as well as Virginia Gilbert, the named writer of the accused episodes of Silent Witness) for summary judgment, on the grounds that the claimant had no real prospect of succeeding in her claim – Part 24.2 of the Civil Procedure Rules. And indeed it is hard to see, on the basis of the reported judgment, how the judge’s (Marcus Smith J’s) conclusion could have been otherwise.

The case is an important one because copyright infringement claims so often rely on inferences. Direct evidence of the defendant taking the claimant’s work is unlikely to present itself. The claimant’s job is to satisfy the court about three matters: first, that the work is their original work; second, that the defendant has engaged in copying (or some other infringing act); and third, that what has been taken is a substantial part of the work.

The second part of that list is the one that matters here. The defendants accepted that the claimant’s work was original, and that if there had been copying it was of a substantial part of it, so the judge did not have to worry about those issues. It all came down to whether there had been copying at all.

The defendants said that the claimant could not show that they had had access to the work, and without access copying would simply be impossible. The claimant could not say how her work had been copied, because of course she was not privy to the process by which the defendants’ screenplay had been written: she had to rely on the inferences that copyright law, recognising that it is unrealistic to expect the claimant to be able so show definitely what happened, allows to be drawn. There must be objective similarities between the original work and the accused copy, and the defendant must have had an opportunity to copy – if these conditions are satisfied, it is up to the defendant to explain away the similarities.

In the present case, it’s almost as if a further level of inference is brought in. The claimant had no evidence that the defendants had ever had an opportunity to copy her work, so pointed to the similarities and argued that their very presence in the defendants’ screenplay suggested that copying had taken place. The similarities could not, the claimant argued, be down to coincidence.

That reeks of desperation, though clearly there will be cases where the claimant is rightly desperate. If the alleged copying is literal, I can see that the court might be prepared to draw an inference – if the defendant has come with something that is word-for-word the same as the claimant’s work, it would be an extraordinary coincidence if there were no copying. Most cases, however, involve non-literal copying, and here it is plain from the judge’s analysis of the respective works that they weren’t very similar. The timeline also worked against the claimant (the basic premise of Silent Witness had been established long before the claimant wrote anything).

Of course in the field of non-literal copying we have to be wary of the idea-expression dichotomy, lest ideas be given copyright protection to which as a matter of policy they are not entitled. When considering an inference of copying, the court has to take great care to ensure it does not overstep this boundary, so when the allegation is of non-literal copying the claimant is going to have an uphill struggle to convince the judge to infer that copying has taken place.

It’s also very important to remember that you can’t break a copyright work down into its component parts and compare them against the elements of the alleged copy. In that great old case, Ladbroke (Football) Ltd v. William Hill (Football) Ltd [1964] 1 WLR 273 at 277, Lord Reid warned us that this approach can lead to the wrong result. UK copyright law tends to look at works as a whole (in the US, a rather different approach is taken) rather than chasing similarities in the components of the works.

Establishing that copying has taken place is never exactly easy, unless there is a smoking gun in the form of identical choices of words or something like that. We probably didn’t need this case to remind us of that, but it is always useful to be reminded of points like this that may determine the outcome of ligitigation.