Caught in the act of balancing

Intellectual Property Law
December 29, 1995

Intellectual property has become a hot topic - its economic importance has grown remarkably in recent years and the explosion of information technology means that it will continue to grow. In the last few months, the United States has published a white paper, and the European Commission a green paper, on copyright and the information society. If you went to a Christmas party where the gossip was about Patricia and Phil Collins, it was not the latest from the tabloids but a debate on the coincidence of two legal judgments recently made in Europe and the Directive on the Duration of Copyright.

Intellectual Property Law is a textbook written primarily for final-year undergraduates, but in the hope that it will also be of interest to teachers, postgraduates, and "those in practice who also have to get to grips with the issues with which we deal". The authors' intention was to "make what is often seen as a forbiddingly difficult subject one to which the reader can relate". This they have achieved. They may not break much new ground, but the book does shed valuable light on this increasingly important area of law, showing how the various rights contrast and interact, and it also covers a substantial amount of the more detailed groundwork.

Jon Holyoak is a law lecturer at Leicester University and an experienced writer of legal texts and articles, and Paul Torremans studied law in Belgium and France and is currently lecturer in law and assistant director for postgraduate research in the law faculty of the University of Leicester. Until recently, copyright was excluded from law school syllabuses and so textbooks on the subject may be thin on the ground. While I am not in a position to compare it with the competition, it seems to me that this book, based on the courses the authors have taught and the feedback they have received from their students, should comfortably fit the bill - at least so long as it is not overtaken too rapidly by developments in multimedia and the law's attempts to keep pace.

The prose is refreshingly free from legalese and is not excessively scholarly in tone. It should be comfortably within the grasp of the general reader. Certainly, I found the sections on subjects with which I am not familiar to be comprehensible, comprehensive and readable. The work consists of sections on each of the main areas of intellectual property: patents, copyright, performers' rights, designs (registered and unregistered), and trade marks. Each section starts with a detailed account of the economic and, more often from continental Europe than the United Kingdom, the moral origins (many of these more ancient than one might have imagined, as the first real patent scheme evolved in Venice in 1474), followed by a concise but detailed discussion of how and why the right works as it does, rounded off with an overview.

These sections are followed by chapters on confidentiality, computer technology, character merchandising, franchising, and remedies in litigation. Each chapter stands alone and can be read in isolation. Where possible, the likely effects of European directives (most in draft form when the book was written) have been taken into account. There is an extensive case list and table of statutes.

The authors make a few astute comments on unsatisfactory aspects of the law as it stands. In a section on who is the author of a work, for instance, the usual case of Walter v Lane is described, but is followed by a more recent example. Pointing out that the term of copyright for films is the life of the author plus 70 years, which results in a never-ending copyright in films whose (co-) author is a production company, the authors suggest a solution whereby corporate bodies could not be the authors of a work, but their individual employees could be. "This change is less radical than it may seem I An example is that of a CNN news crew in Bosnia. The practical arrangements for the making of their coverage of the situation there are clearly not made by CNN's Atlanta headquarters due to the unpredictable nature of a war situation and the absence of readily available telephone lines."

However, such comments are disappointingly rare and are not elaborated upon. No doubt the expansion of these themes is (rightly) left to the discretion of lecturers and to exercise the minds of students, but these unobtrusive authorial nudges give an intriguing glimpse of the possible future.

Some practical reservations - the book is not well designed for random access (unless perhaps a CD-Rom is being planned). There is no real cross-referencing between the sections and the index is not particularly useful. It is disappointing that there is no bibliography - some guidance on further reading (at least a nod to the major texts, like the invaluable Copinger and Skone James on copyright, and the leading works on contract law) would have been a page well used.

How does this book reflect the sort of issues most likely to arise in practice? The view from the workface at the Society of Authors suggests that the questions most commonly asked about copyright issues are often the most fundamental: how does one register copyright? When is permission needed to quote? What is "fair dealing"? What is the situation with characters, sequels and spinoffs? How can ideas be protected? Can an editor claim copyright? What are moral rights? What is the situation with photographs? What about interviews? Is it reasonable for a newspaper or journal to seek an assignment of all rights from its writers? How does copyright apply to work on the Internet?

Most of these questions are answered, both as interpretations of the law and as they apply in practice. No: copyright does not have to be registered (with a footnote about the need for a ) copyright line in the ever-fewer countries which are signatories to the Universal Copyright Convention but not the Berne Convention). There is constructive discussion of the fact that copyright protects the way ideas are expressed, and the skill and labour that goes into that expression, rather than the ideas themselves, and what this means in practice. For example, "as only the particular expression of an idea is protected by copyright, a work expressing the same idea is not necessarily an infringement. . . no infringement will arise if the result is reached independently or if a common source is relied upon".

Some, including biographers and scholars of literature, may query the justification of the suggested quid pro quo given later in the book: "as copyright is rather a weak right that only protects the expression and not the idea, it offers as a form of compensation a rather long term of protection. In general this term is now 70 years from the death of the author."

When one has to obtain permission, and when not - including the elusive concept of a "substantial part" ("this is not determined on a quantitative basis") and the even vaguer term "fair dealing" - are discussed lucidly and succinctly. On fair dealing, for instance, under which one may quote a "substantial part" of a work for the purposes of criticism, review, research or private study, the authors list factors that should be taken into account: "For which purpose was a substantial part of the work copied? What is the proportion of the copied part in relation to the work as a whole? What motive led to the copying?. . . and finally, what is the status (is it unpublished, or confidential?) of the work from which a substantial part is copied?" The copyright status of revised/edited texts, and of recorded interviews or lectures, are discussed at least as clearly as in many other reference works on copyright. The more detailed sections on the protection of ideas, confidentiality, and character merchandising are particularly interesting. Like most of the subjects in this book, they could easily have taken up an entire work on their own, but have been distilled into clear, if sometimes inevitably terse chapters. Some areas are more sketchily covered, such as rights in photographs (eg, of artistic works owned by museums or picture libraries), and some have hardly been touched on.

Indeed this point is indicative of a problem which lurks at the edges of any work recently published about intellectual property law. The pace of change is alarming. Since this book went to press, probably only a year ago, in the field of copyright alone the Statutory Instrument implementing the European Directive on the Duration of Copyright has been laid before Parliament, on November 20 1995 to be precise (although that on Rental and Lending Rights, now badly behind schedule, is still loitering in the wings); a copyright prosecution has been brought in the criminal courts; the US has published a white paper on intellectual property and the national information infrastructure; it has also amended its copyright law, restoring copyright to some non-US originated works; and the European Commission has published a green paper on copyright and related rights in the information society.

Until recently, and as is the case in this instance, when considering the new media the focus tended to be on the protection of computer programs, and computer-generated work. Now, however, attention has shifted to the problems associated with copyright works in digitised form, ie reduced to a binary code and stored electronically, and readers of this book may search eagerly (and in vain) for a section devoted specifically to discussion of copyright and other intellectual property in the electronic age.

As academics will be well aware, electronic and multimedia developments mean that massive amounts of data (of all types: text, illustrations, sound) can be stored, extracts selected and manipulated with no degradation of the quality of the copies, and transmission, alteration and reproduction are considerably easier to do and harder to monitor. Networking alters the traditional means of creating, distributing and using existing and new subject matter.

This gives rise to questions such as: are CD-Roms akin to sound recordings, should they be defined as films, or are they to be protected, if at all, only as collections? While in general databases will be eligible for copyright protection, what happens where neither the database nor its contents are protected by copyright? Against what acts should the owners of databases and CD-Roms be protected: downloading, partial reproduction, extraction of data? What protection should be given to network and service providers - the major investors in the information superhighway? Should there be a new right to restrict access - or is there too great a risk that it might become a right to prevent use, which would be contrary to the spirit and intention of copyright law? The general view seems to be that existing intellectual property laws are capable of adapting to cover the new media, but that there are potential risks both of overprotection and underprotection unless at least some amendments are made - and enforcing the law is another matter altogether.

It would not be appropriate, and probably not particularly constructive, for this book to speculate too much on the future, and the problems associated with databases are briefly touched upon, but a more detailed discussion of how existing intellectual property laws affect the users and owners of copyright material in the new media, in particular online, and where the problems lie, would have been useful.

The book rightly takes an international view of intellectual property and points out that both the European Union and Gatt are helping the move towards internationally harmonised legislation, but a list of some of the other questions raised in the EC green paper highlights areas of significant concern: do the right to prevent copying and its exceptions, and the definition of "private use" need to be reviewed? Should there be a new digital transmission/diffusion right? Does the advent of digital broadcasting necessitate changes? How far can moral rights apply to work stored or transmitted digitally? How can digitally exploited rights be administered?

Even at the most basic level, these last two questions are already affecting the way publishers and writers relate. Many newspapers and journals (including The THES) now also publish online, and the recent tendency has been for contributors to be asked (in some cases told would be a better word) to assign all rights to the journal, along with a waiver of all moral rights, in return for the initial single fee. One can understand that for a publication to have to seek fresh permission individually from all contributors for each further use it wishes to make of an edition would be an unenviable chore (and the problem increases dramatically if one considers an all-singing, all-dancing encyclopedia on CD-Rom, for instance).

However, to go full circle, one of the main reasons for the existence of copyright and moral rights is "to restore the balance between the interests of commercial exploitation of the work and the interests of the creator of the work. This cannot be done through contractual negotiations in which the author or director quite often occupies a weak bargaining position."

Many authors would feel happier about giving more, or even all rights to a journal if they were reassured that they would be entitled to a share of any further income generated by the exploitation of their work, and/or that their moral right to be identified as its author (ie credited) would be recognised, and their moral right of integrity respected (the right not to have work subject to distortion or mutilation which is prejudicial to their honour or reputation).

Academics are understandably often more concerned that "copyright should not become a financial and practical obstructing factor for research" than they are about payment. Moral rights may be another matter, however. "It is submitted (by Holyoak and Torremans) that the possibility of waiving moral rights contradicts the essence of the concept of moral rights as essential safeguards for the author or director as the weaker party." Indeed, the importance of moral rights, particularly with work appearing in electronic formats where they are harder to enforce, goes further than that.

Unless a reader/user/browser can be confident of the integrity of material - and, often, the authority of its provenance - that material can become worthless. A photo of an ailing political leader beaming from a hospital bed, or of a hostage holding today's newspaper, is worthless if there is a suspicion that the photo could have been manipulated. And what value is there in details of medical treatments or scientific experiments unless one has faith in the accuracy of the facts and figures?

There is much wariness (though not, often, in the world of academia) about the Internet, which has been described as insecure, unregulated, slow and unreliable but there seems little doubt that its influence is here to stay, and is growing rapidly. Intellectual property lawyers ignore it at their peril. Writers of books about intellectual property are in much the same position as the Red Queen: running ever faster just to keep in the same place. While a more specifically directed discussion of material in electronic form would have been timely, its lack is not a fatal flaw.

Running through this book are constant reminders of the balancing acts that shape the law: between creators and users, national and international forces, the practicable and the ideal, the writer in his garret, the inventor in his tower, the creator of intellectual property on the one side, and the mega-corporation, investing great sums of money in the promotion and exploitation of that intellectual property, on the other.

Students and teachers of intellectual property law should find this a straightforward, comprehensive textbook. Others with an interest in intellectual property may well find the overview interesting but should probably look elsewhere for practical, day-to-day advice.

Kate Pool is deputy general secretary , Society of Authors.

Intellectual Property Law

Author - Jon Holyoak and Paul Torremans
ISBN - 0 406 05245 X
Publisher - Butterworths
Price - £24.95
Pages - 489

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