Balancing competing interests in information products: A conceptual rethink

Abstract

The paper opens by reiterating the common views that incentives are necessary to make innovations worthwhile and that slavish copying of another's innovation is viewed as inherently wrong although copying elements of what went before to produce sufficient new is considered permissible. The author argues that judicial policy and legislative reasoning have attempted to tailor legal rules of intellectual property to specific cases in order to maintain a balance among the above propositions. Yet, this has rendered intellectual property law to be complex. The paper examines the need to rethink intellectual property law by citing examples from well known cases on digital and other information and suggests a form of misappropriation law as an alternative.

Notes

1 WIPO Copyright Treaty 1999.

2 This point is repeatedly made by prominent American academics, including Lawrence Lessig, Pamela Samuelson, Jessica Litman and James Boyle (Lindsay, 2003. European intellectual property review, Intellectual Property Quarterly, 36(3), pp. 4 -- 5).

3 Heide. T. (2001) The approach to innovation under the proposed copyright directive: time for mandatory exceptions? IPQ 3, 215 – 233, 221 – 222, 232 – 233.

4 Ginsburg was the first to articulate the existence of an ‘access right’, defined as ‘the right to control the manner in which members of the public apprehend the work’ (Ginsburg, J. (2000), From Having Copies to Experiencing Works: the Development of an Access Right in US Copyright Law. Columbia Law School Public Law & Legal Theory Working Paper Group Paper Number 8, 2000, pp. 1 – 17, 7 (http//papers.ssrn.com/paper.taf?abstract_id=222493).

5 Ginsburg, op. cit., p. 7.

6 The Committee notes that a session of the Association Littéraire et Artistique Internationale (ALAI) Congress on Adjuncts and Alternatives to Copyright, New York, 13 – 17 June 2001 (Colombia University School of Law) was devoted to the issue of the new or evolving ‘access right’. The session focused on discussing whether circumvention measures adopted in Australia, Japan, the US and the European Union create a new access right under (or over) copyright.

7 Koleman, op. cit., p 6.

8 CLRC Report on Copyright & Contract, Par 7.16.

9 Even vocabulary is stretched to describe in generic terms the subject matter of these claims to protection and this itself is part of the problem. Information related ‘products’ is one attempt but which may stretch language too far.

10 See Pasek, V. (1990) Is Copyright Capable of Protecting Sports Routines, Copyright World, Jan/Feb, 8.

11 Pendleton, M. (1985) Intellectual property, information based society and a new International economic order—the policy options?’, European Intellectual Property Review 7, 31. Some of the ideas in that paper are reiterated and developed below. The article was cited by Gummow, J. (1992), at p. 248 of his judgement in Hogan v pacific Dunlop (IPR, 3).

12 Cornish, R.W. (1981) Intellectual Property, Sweet & Maxwell, at p. 2.

13 Ricketson, S. (1990) Character merchandising in Australia: its benefits and burdens, Intellectual Property Journal 1, 191.

14 If the point is philosophical and refers to Hume's descriptivist/prescriptivist dichotomy many present day scholars would contend that natural law thinking does not necessarily offend Hume's principle in the light of such modern scholarly restatements of natural law such as that by John Finnis (1980) Natural Law and Natural Rights, Oxford: Clarendon Press.

15 If example is needed, Kimberly Clark Inc. has recently and apparently at great expense compiled a database of the names and addresses of America's 3.5 million new mothers in order to mount a direct mailing campaign. It maintains its database is more valuable than the raw materials which go to make its nappies/diapers (Economist, February 1990, at p. 78).

16 In, ‘The Development of the Natural Law Principle as one of the Principles Underlying the Recognition of Intellectual Property—a Historical Survey from Roman Law to Modern Day Law’ (1987) South African Law Journal 104, 480, Fredrick Mostert makes a convincing case that modern forms of intellectual property (which he seems to assume includies all valuable commercial information protected by new regimes in relation to computer software, silicon chip topography and the like) are ultimately based upon the Roman law interpretation of the natural law in terms of the four natural modes of acquisition of ownership namely: specificatio; scriptura; pictura; and occupatio (particularly in the light of further interpretation in the 17th and 18th centuries). But why, some may ask, is a person entitled to the fruits of his own intellectual effort? Apart from intuition one explanation is that his whole personal identity, dignity, worth, and self-respect as an individual can be expressed in the labour, skill, and effort he expends. To allow appropriation of the fruits of this labour, skill and effort would be to deny the individual's dignity and worth as a person.

17 As any observer of intellectual property will readily note, however, the notion of protection of labour, skill, effort and expenditure of time and money within conventional boundaries is often the essence of judicial reasoning about intellectual property. For example, it is probably fair to say the Australian Copyright Act 1968 and the British Copyright Act 1956 would be hollow of meaning without recourse to these notions.

18 Increasingly of late there have been a number of UK decisions in the area of intellectual property where the judges could be seen as concerned to emphasise the public right of access to information: the right of access to a spare parts industry through the unprecedented recourse to the doctrine of non-derogation from grant to negative a copyright claim in British Leyland v Armstrong [1983] FSR 50; concern to avoid duplication of protection from different intellectual property rights resulting in quasi-perpetual protection in Interlego v Tyco [1988] 3 WLR 678 and in Coco-Cola TM [1985] FSR 315; criticism and perhaps curtailment of rights which are impractical or fail to cohere with most people's conception of what is just or fair in CBS v Armstrad [1987] FSR 417.

19 Hogan v Pacific Dunlop above note 12, at p. 252.

20 For example, inadequate legal protection for character merchandising, in the writer's experience, is often buttressed by doctrinally groundless but practically effective threats of legal action.

21 Intellectual Property, at p. 6, underlining and words in brackets are added.

22 Trade Secrets and the Criminal Law in Canada (1988) EIPR 1, 15.

23 R. Grant Hammond (1981) Quantum physics, econometric models and property rights to information, McGill Law Journal 27, 53. At the time of publication of his article, Justice Hammond was a law professor in Canada.

24 R. Cotterell (1986) The Law of Property and Legal Theory, at p. 88 (underlining is added); in Twining, W. (ed.) (1986) Legal Theory and Common Law, Oxford: Basil Blackwell.

25 Information and Property (1988) University of Toronto Law Journal 38, 117, at p. 121.

26 Refer to British Leyland v Armstrong; Interlego v Tyco; Coco-Cola TM; and CBS v Armstrad cited at [1201] note 19.

27 The right to reverse engineer most forms of information attracting intellectual property protection is an example, though a far from comprehensive right.

28 [1978] 94 LQR 103.

29 Ibid., at p. 118.

30 But in this respect refer to the interesting Privy Council decision in Interlego v Tyco [1988] 3 WLR 678, on appeal from the Supreme Court of Hong Kong. There, redrawing, not mere tracing, of designs for the famous Lego children's building blocks in different dimensions and style plus the addition of explanatory material and dimensions was held not to attract artistic copyright protection as an original work.

31 As was suggested in the early seminal case on artistic copyright: Kenrick v Lawrence (1890) Queen's Bench Division 25, 99.

32 For example, the product ‘catseyes’; multiple, small, reflecting marble-like domes for marking unlit sections of road at night might well have been discovered by an individual who while driving at night on an unlit road catches the reflection from the eyes of a cat running across the road and reasons by analogy so as to envisage ‘catseyes’.

33 The catseyes in the example (see above) might well have been patentable.

34 Laddie Prescott and Vittoria Modern Law of Copyright and Copinger & Skone James Copyright have argued in their respective editions that copyright could not arise out of infringing copy as this was contrary to public policy. Ricketson, Intellectual Property, Cases & Materials par 4.2.44, 1994 edition, states after examining Warwick Film v Eisinger [1969] Ch 508: “According to this logic, the infringer will gain protection for any original contribution he or she makes to this infringing material—by, for example including it in a compilation or performing on it some act of authorship such as translation or abridgement.”

 And at 4.2.42 “Oddly enough this is not a question (3rd party copyright in an infringing copy) that has received much judicial consideration in Anglo-Australian jurisdictions, nor is it directly addressed in our legislation.”

35 Above note 19.

36 Ironically, only the comparatively recent advent of purposive construction has given the sentiments involved in non-textual approaches to interpretation real ‘teeth’.

37 (2002) IPR 3.