From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Wednesday, 29 June 2016

Brexit and UK copyright: the story of a loss

On 23 June 2016 UK voters decided that their country would be better off outside the EU. 

To say the least, the historical outcome of the Brexit referendum will have a tremendously serious impact on the UK, the overall EU integration project, and the remaining Member States alike.

From an IP perspective, it is still very unclear what will happen, and what effects forthcoming developments will have on both UK law and the professional (and necessarily personal) lives of IP rightholders, practitioners, academics, students, civil servants, judges, and public affairs executives alike. 

Serious uncertainty surrounds the destiny of EU-wide registered rights, including trade marks and designs, and imminent EU-wide novelties, such as the Unitary Patent System [see here for an interesting take], in the UK. In the aftermath of the referendum outcome, the complexities of these rights  have seemingly overshadowed what will happen to copyright, an IP right that – it has now become apparent – is territorial only on paper.

During the CREATe Festival held in London last week, an understandably emotional Prof Lionel Bently (University of Cambridge) provided participants with thoughtful remarks regarding the fate of UK copyright. His conclusion? That, overall, Brexit 'freedom' will likely turn out to be an illusion, in the sense that UK copyright might become increasingly irrelevant on a global scale.

As both a non-UK, proudly Italian, citizen who has nonetheless found in the UK a fantastic place to learn, work and have fun in, and someone who has been an enthusiastic follower of EU copyright adventures since her PhD days, I am very concerned about the consequences of the Brexit referendum.

Here are my thoughts (to be hosted also on the Journal of Intellectual Property Law & Practice) on what the future of UK copyright in a post-Brexit world might look like.

UK courts and the CJEU?
What options for UK copyright?

Over the past few years, the copyright laws of EU Member States have increasingly become more similar, less alien to each other, less perched in the summa divisio common law’s copyright/French-style droit d’auteur

On the one hand, EU legislature has adopted several directives that have had the laudable objective of facilitating the free movement of goods and services based on or incorporating copyright works. 

On the other hand, the Court of Justice of the European Union (CJEU) – prompted by questions of national judges – has become a primary player in the EU copyright scene, acting in certain cases as de facto policy- and law-maker.

If and when Brexit happens, what will be the legacy of EU harmonisation in the area of copyright? The answer will depend on what route is eventually pursued.

If the UK leaves the EU but remains in the European Economic Area (possibly the most optimistic outlook in the very aftermath of the referendum), then the relevant body of EU copyright legislation will continue to apply in this country. 

The same could not be however true for CJEU case law, at least from a formal standpoint. Although the judgments rendered in the context of references for a preliminary ruling ex Article 267 of the Treaty on the Functioning of the European Union (ie the types of actions relevant in the area of copyright) would likely maintain a certain relevance for UK copyright, UK courts would arguably lose their power to make themselves references for a preliminary to ruling to the CJEU. In fact Article 267(2) reserves this possibility to the courts or tribunals of Member States. The result would be odd: the UK would still apply EU legislation but its judges would be no longer able to make queries on their correct interpretation (and application).

In any other scenario, the future relevance of EU copyright legislation and CJEU case law in the UK is extremely uncertain. Possibly bound to international copyright instruments only, the UK might decide to pursue routes that – so far – have appeared extremely unlikely to be followed at the EU level. For instance, it could decide to abandon a closed system of copyright defences and adopt an open norm instead, possibly modelled on US fair use.

... in a nutshell
The legacy of EU harmonisation

In times of profound confusion, what appears clear – yes – is that EU action in the area of copyright has BENEFITTED and IMPROVED UK law. 

First, it has created a harmonised space for 28 Member States that, albeit imperfect, is much better – for rightholders and users alike – than what, in a much more fragmented fashion, was the case 20-25 years ago. 

In addition, the harmonising, (possibly even undue in certain cases) efforts of the CJEU have brought increased uniformity and sometimes compelled Member States to either re-think/question certain approaches or meet the challenges facing technological advancement and digitisation of contents and their distribution channels. 

An example of the former is the impact of CJEU case law on the UK notion of originality and the (outdated, yet still formally in place) closed subject-matter categorisation envisaged by the Copyright, Designs and Patents Act (CDPA). 

An example of the latter is the availability of injunctions against intermediaries under s97A CDPA (introduced to implement into UK law ... an EU directive): the jurisprudence of UK courts, influenced by parallel developments at the CJEU level, has developed solidly and thoughtfully and has been looked at (whether with admiration or concern, but in any case regarded as IMPORTANT case law) in other Member States.

Will UK copyright be better off without EU copyright and the CJEU? 

No: the improvements to UK copyright over the past few years are in many instances greatly indebted to parallel developments at the EU level. 

Among other things, losing the dialogue between thoughtful UK judges and the CJEU will be one of the many other great losses for UK copyright.

33 comments:

Anonymous said...

Even as an in voter, it is sad to see that IPKat has clearly completely lost its sense of balance. I cannot help but wonder what Jeremy Phllips would make of this dire state of affairs.

Anonymous said...

If the UK were in the EEA, would not UK courts make reference to the EFTA court ?

Eleonora Rosati said...

@Anonymous at 19:01: Thanks for your comment, but I do not see how something as important as the UK deciding to leave the EU would not entitle me to comment and express my OWN opinion on the relevant copyright implications. IPKat is not just a repository of free case notes, but also a place where ideas are expressed, exchanged, and criticised.

@Anonymous at 19:07: You are indeed right, but if you look at the number of copyright cases decided you will be surprised (or depressed).

TreatyNotifier said...

Legally it is well possible for EEA-EFTA states to decide to allow their courts to ask questions to CJEU pursuant to EEA Agreement Protocol 34

Whether triggering such a protocol (and EFTA re-membership of EFTA) is politically probable is a whole different matter.

[EEA membership without EFTA or EU membership has also been discussed in the context of relationships with Andorra and other micro states; and may also be an option, but would require oversight mechanisms for the UK; so that is again a very complicated path]


Anonymous said...

I find this post very odd. The IPKAT and Lionel Bently have been very critical of the mere fact of EU action in the area of copyright.

The Commission was often singled out for criticism which bordered on the personal. As to the content of actual measures -hmm , praise has been sparse. Re-read the blog posts.

Judges at first instance in English Courts e.g. Arnold J have named and shamed individual judges in EU judgments that they do not agree with. He notably criticised their English language skills in the area of trade marks. Whereas very flawed English Court judgements -interpreting or applying EU law where it was apparent more training in EU constitutional law was necessary - were praised as signs of wit and intelligence. Not sure why.

It made this Anonymous who remains in the thick of all things EU very sad indeed and especially sad now for the UK.It was all a game poking fun at certain EU institutions e.g. the Commission and the Court of Justice on this blog on all sorts of things such as the absence of English language judgments in time for readers in the Far East -every minor slight was amplified . Funnily, Member States and the EP seemed to escape the brunt of it.

Anonymous said...

As both a non-UK, proudly Italian, citizen who has nonetheless found in the UK a fantastic place to learn, work and have fun in, and someone who has been an enthusiastic follower of EU copyright adventures since her PhD days, I am very concerned about the consequences of the Brexit referendum.


non Italian said,,
As we all know ,,,,its (Brexit) and the possibility of it has been out there for some time now. I don't live there any more and (even though I have a British passport and work for an infamous European institution) was not allowed to vote for what we all know is right.

I will presume you are not having 'UK fun' in places like Sunderland, Sheffield, Bradford or Wigan?

No point being concerned about Brexit anymore, its happened. Best thing you can do is roll your sleeves up and get on and make it right. If you are up for sticking around that is,,,,,it'll be hard work,,,maybe even some fun,,,,, No pain no gain as the saying goes.

People with 0 Contract hours were lied to by the kind of people who run the place where I work. What did you expect Italian person with a PhD? Grace and harmony? Dont run away,,,stick around,,,,maybe there is an opportunity here,,,,

ceipilitigation said...

@Anonymous 19:01

Who really has lost the balance you can read from the actual financial markets data. But never mind, Britain (not Great Britain) will no longer face the problems of the financial industry. They are already heading for Paris and Frankfurt.

Eleonora Rosati said...

@TreatyNotifier: Thanks for this clarification! Let's see what eventually happens.

@Anonymous at 23:03: Thanks for your comment Anonymous, but I fail to see your point. Analysis and criticism are perfectly legitimate. It is not that if one does not act as press room for Commission or CJEU, it means that it is better for a Member State to leave the EU altogether.

Jeremy said...

Post-retirement I have kept myself out of sight so as not to get in anyone's way. However, since yesterday's Anonymous at 19:01 has invoked my name and wonders what I would have made of what he or she calls a "dire state of affairs" in which the IPKat has "completely lost its sense of balance", I am happy to give an answer.

While I have never been slow to criticise those aspects of the EU that I find troubling or downright wrong, I am a committed supporter of the principles of community-building and working with others in order to improve our common lot. This is the basis on which I have based my professional career; it is the same basis upon which I have established my family. It is also the same basis on which, I believe, a community of European nations and communities will eventually mature. On this basis I have been saddened both by the fact of Brexit and by the course of events that led to it.

On a personal basis I thought Eleonora's blog post was a sane and sensible one -- a blogpost that is entitled to respect even if one disagrees with it and wishes to explain why. Her post is certainly entitled to more respect than the pathetic whinge a correspondent who hides under the cloak of anonymity in order to fuel the discussion with spite rather than with any sort of reasoned opinion.

Ashley Roughton said...

Eleonora

Your piece provoked thought and ideas in me, though not ones which are entirely congruent with what you said. That, I think, is the point of the IPKat. Would anybody want to think of a reply piece? I would, but time, work commitments, children's holidays, etc ...

Ashley

Eleonora Rosati said...

@Ashley: Thanks for your input. If you ever found the time, you would be of course welcome to share your thoughts on this blog

Cynic said...

As an outsider who has seen the vote explained (fairly or unfairly) partly by an educated/non educated divide, it is interesting to see the educated people here both divided and quickly somewhat emotional. No criticism of either points of view, just an observation about how binary the topic has become.

But may I just add that all views, eloquently expressed, are much appreciated. I suspect that soon we will move from black and white to the usual shades of grey.

Anonymous said...

It's hard to say what the impact will be on UK copyright law. We could see the UK changing it in ways that Brussels would not - they could be improvements or the opposite. Time will tell. Overall, I tend to think that the most important aspects of copyright law from a commercial perspective are enshrined in the treaties and the impact of any changes are likely to be marginal.

The value of harmonization in copyright is highly questionable in my view from a strictly commercial perspective, so I would anticipate that future divergences between UK and EU copyright law are unlikely to register in licensing and distribution markets.

Though I voted Remain and acknowledge that various risks come into the equation, plus ça change - risk and uncertainty is and always has been a part of life. I would caution against overstating the risks. Wise people will also be looking for opportunities.

My advice to readers: take a chill pill.

Anonymous said...

The way I saw it:
the copyright blog posts were sponsored by the Daily Mail (FEMAIL section)-political affiliation well known and fandom base as well;
the trade mark blog posts-the Lib Dems, London Labour;

the SPC blog posts-UKIP;

the patent blog posts -Tory Remain (deluded section)and London Labour

Sorry couldn't find a role for rest of the UK Labour party here -maybe they never read the blog (outside London)

Anonymous said...

Great post by Eleonora, I couldn't have said it better myself.

Aaron Wood said...

At the risk of becoming slightly "meta" and perhaps moving the debate off the topic of copyright reform, it is concerning that someone would be so disparaging as Anonymous @ 19.01. If there is any "dire state", it is that you should suggest that this blog is a front for anti EU statements, which your comment seems to imply.

Divergence in views is what strengthens the appreciation of any subject, law perhaps more than most. If all you have is a withering ad hominem attack then I am not sure you have any position to comment.

Surely one very important aspect of post-Brexit-vote comment is to discuss the potential effects on law and to perhaps give some suggestion as to how it might be resolved, giving the readers the opportunity to comment and shape debate. In trade mark law I see massive potential for divergence with harmonised law - there has been much gnashing of teeth about the "functions" of trade marks - and there is clear potential for issues in designs and copyright too. We must consider these issues without personal attacks.

If (for example) Community Registered Designs will be extended protection in the UK, will it then be possible to add a description (as with national designs) in such a way as to obviate some of the issues exposed in Trunki? In trade marks, what happens to oppositions against EUTMs based solely on UK rights - do they get decided but have ability to keep EUTM and no ability to "extend" application to UK, or does it fall away and opponent must then oppose extension to UK?

It is important that practitioners in all member states and beyond consider these questions and press for their interests to be represented by the appropriate bodies, either through their patent offices, national organisations or international organisations such as Marques/ECTA/INTA. It is also important to recall that the interests of professional advisers and inhouse counsel may not be aligned on some of these items.

Anonymous said...

This Anonymous poster would not read it for informed comment or analysis in the course of his/her EU IP work. This poster would read it really as a sort of tabloid or red top IP news before moving onto the broadsheets.

In its approach to EU law and institutions, it was definitely tabloid and my own view it seemed to take a stance for Leave but that may have been my perception.It also appeared to be anti-public service; anti UK civil service; and so being anti-Commission was just in keeping.

Anonymous said...

Jeremy, as you are reading this blog, I wonder what your thoughts are on the IPKat speaking for and apologising on behalf of he United Kingdon and the UK IP profession?

Personally speaking, I believe it was wholly inappropriate. My comment is anonymous, not because of cowardice, but for business reasons. I am not the anonymous who wrote:
"Anonymous Anonymous said...
Even as an in voter, it is sad to see that IPKat has clearly completely lost its sense of balance. I cannot help but wonder what Jeremy Phllips would make of this dire state of affairs.
"

However, I do not see justification for your accusation: "the pathetic whinge a correspondent who hides under the cloak of anonymity in order to fuel the discussion with spite rather than with any sort of reasoned opinion."

It wasn't a 'reasoned opinion' granted, but we all know the position of the 2 sides in these Brexit 'debates'.

Anonymous said...

I thought most of the blogs on here were anonymous "Kats"? A bit like the firing squads, where no-one knows who fired the fatal shot.

Lionel Bently said...

As I am mentioned by Anonymous, Wednesday, 29 June 2016 at 23:03:00 BST, let me associate myself with Jeremy's remarks at Thursday, 30 June 2016 at 08:44:00 BST. I have indeed been critical of the European Commission and the Court: most obviously I disapproved of the proposal to extend term of protection for sound recordings (and the woeful justifications that were offered), and the judicial decision in Flos to override the freedom left to MS by Art 17 of the Design Directive to regulate the copyright-design overlap. I am also on record as having strongly criticised the English and Welsh Court of Appeal's decision in Meltwater; and the UK Government's decision to implement that into law (ignoring the interests of many businesses). Criticism where criticism is due. However, I have long been on record as favouring further harmonization of copyright in Europe: as a member of the drafting committee of the Wittem Group (on a European Copyright Code) and a member (and for 2015-16) Chair of the European Copyright Society. I hope no-one thought I was a Brexiteer.

I agree with Eleonora's post to the effect that in so far as it severs ties with Europe British copyright will gradually become a strange regime, rather unique but mostly unimportant. The European copyright regime will also lose, particularly from the contributions of the British delegations to Working parties and from British MEPs in the European Parliament. Having reviewed the records of the Council Working Groups it is apparent that the views of the British delegation were always highly respected and influential. It may be that a European Copyright Code will come more quickly without the UK at the table (as Bernt Hugenholtz suggested on wednesday 29 June in a talk at the ATRIP conference in Krakow), but I suspect the norms adopted would be less well balanced (and less to his liking) than if the UK was still there. The Dutch and British have often been strong allies. Only time will tell.

Anonymous said...

I don't understand why British copyright will either become a strange regime or why it will become mostly unimportant.

Copyright law matters where it applies and is enforced. What matter in the UK is therefore the law that applies in the UK. Business remain global so their influence will contribute to harmonization to a great extent.

Anonymous said...

The IP academic axe to grind approach has alienated quite a few policy makers. This is unfortunate as it has made room for lobbyists who draft and present arguments with as much weight (as some of them are very very good lawyers) and made the academic community simply another group of stakeholders. The practice of competing opinions with the same academics signed up to both, the fact that some also wear more than one hat has not helped.It almost makes the trade associations the more transparent. This applies to both individual academics and some august research bodies.

In terms of individual MS, the Dutch are a very small player in this policy area even though their academics would have you believe otherwise.

Dutch law has taken on board much of the Franco-German law like small claims private copying without the weight of a far thinking judiciary to stop it. They have a similar rule on ownership to the UK but that will not survive now. The UK ensured that Computer Programs and Databases could be owned by employers. The French said never again after. Despite that rallying cry, the UK always ensured that rules on ownership were kept out of copyright even if it did not succeed in inserting one.This area of law will become more Franco-German without the UK to counter that as it did very effectively in the past.

Part of the problem with the UK at all levels (policy, academic), is that it lost the art of persuading other nationalities nicely with charm which they previously had in bucketfuls. There are still some successful proponents of this art especially at court. In its place, you have -well you have what you have now if you look at your politicians-they seem only capable of talking to each other.One often sees them in diplomatic meetings seeking out only the Irish or sitting by themselves. To be fair, the EU does this as a group at the UN where meetings are open to all-although the Spanish and Portuguese can speak to Latin America. The UK cannot even speak to India; and sidling up the US gets you nowhere (especially if it is an American with ethno-cultural roots in Europe or increasingly elsewhere such as Asia.)

Anonymous said...

Dear IPKAT

Re the following:
"No: the improvements to UK copyright over the past few years are in many instances greatly indebted to parallel developments at the EU level.

Among other things, losing the dialogue between thoughtful UK judges and the CJEU will be one of the many other great losses for UK copyright."
I can think of no improvement made to UK law by EU intervention. I can think of some bad additions; and I can think of good uniform rules but not really anything that was not there before; I can think of present uncertainties which flow from fair compensation arguments and unfortunately, that is because UK rightholders think that EU copyright law operates like a benefits system (private copying levies ) and would like to see more of that. The originality point is not one of them because despite what you write-UK law was not that different -it simply did not state the originality test is as pompous terms as the EU legislator (and I think the CJEU basically confirmed that (not the pompous part).

What dialogue? There have been far fewer cases from English Courts on copyright than trade marks or SPCs if one discounts databases . It is true that the Premier League judgment remains at the epicentre of CJEU case law and EU law making and will do so for years and for that you should feel proud. However, some very strange things happened to that judgment when it was sent back to the national court. The same for the SAS judgment.

Lionel Bently said...

This is not my Blog, so I don't want to bang on too long.

Re: UK copyright law becoming strange and mostly unimportant. The truth is, of course, that this depends on precisely what happens, and, right now, none of us know that. But one course will be that the UK leaves the EU, breaks up (at least losing Scotland), is not part of the EEA but has some sort of association agreement (eg on the lines of Bosnia-Herzogovina) and also enters bilateral and plurilaterals with the US and other countries on the AUS-US FTA and TPP models. If the Australian experience is a guide, the 'freedom' given by leaving the EU will quickly be eroded by the necessity to enter into trade agreements that are themselves highly prescriptive as to copyright norms. Why would UK law be "strange"? Because, absent radical reform, much UK law will be derived from EU secondary legislation (the multitude of directives), that are bneing interpreted by the CJEU, but no longer bound by that interpretation. There will be a lengthy period where CJEU judgments are persuasive as to interpretation of aspects of UK law that originated in, or had been thought consistent with, EU law. Gradually, through judicial decision and legislative action, UK (English and Welsh?) law will come to deviate from the law of the CJEU. Why would UK (English and Welsh) law be less significant. First, of course, the territorial application of what was UK law is diminished by the loss of Scotland. But what I really meant was "unimportance" as an influence in the development of norms applicable outside the narrow territory of the UK: and I think it likely, unless the UK remains bound to EU law through the EEA or a highly prescriptive Association Agreement, the relevance of UK precedents in other jurisdictions will also likely be reduced.

As for "the academic axe to grind" (Friday, 1 July 2016 at 14:01:00 BST), as I said when giving the Charles Clark Memorial Lecture in 2015, what makes academic opinions different is that they are underpinned by certain values, or at least, aspiration to certain values. According to Robert Merton these are ‘universalism’ (science seeking impersonal truths); ‘communism’ (the substantive findings of science should be open to all, the scientist left to enjoy esteem); ‘disinterestedness’ (no personal investment in the result); and ‘organised scepticism’ (the suspension of judgment until the fact are at hand. Nothing is sacred.) Those values mean that sometimes - possibly frequently - different academics often differ in their views. That may be inconvenient for policy-makers, but it is inevitable. It also means that academic views will rarely, if ever, align with those of any particular interest group or stakeholder.

THE US anon said...

Lionel,

I like your list of attributes, but after having personal experience in the academic world, I am more than skeptical that that list comes anywhere close to reality.

The factor that takes the most beating is:

‘disinterestedness’ (no personal investment in the result);

From the get-go, this is merely given lip-service, because human nature - being what it is - intrudes, and you have the "publish or perish" mentality very much alive. There is no "free lunch" and being an academic is simply not isolated from the realities that the lunch bill must be paid.

Of course, this necessarily bears on another facotr which comes nowhere close to being met:

‘organised scepticism’ (the suspension of judgment until the fact are at hand. Nothing is sacred.)

Since academia is NOT a meritocracy, and there are existing norms and values that new aspirants must adhere to, the idea that "Nothing is sacred" becomes "Nothing except the sacred is sacred." To think otherwise is beyond pollyanna.

So, what is this "except the sacred"...? Well your other factors provide clues, and at least here in the States, the number one clue (and something actually proven in the otherwise distasteful McCarthy era) goes along with the factor of:

‘communism’ (the substantive findings of science should be open to all, the scientist left to enjoy esteem);


This leaves the factor of

universalism’ (science seeking impersonal truths);

But as we have seen, there is no real "impersonal" as belief systems simply do not disappear.

Further, this last factor is at least partially co-opted by another - and somewhat opposite group. That group wants "universalism" but for different strategic reasons. That group is the Big Corp. let's have one new One World Order group.

As I have posted elsewhere, these factors align at times AGAINST the property aspects of Intellectual Property.

The academic (or generally Left) view tends to be against personal property for anyone, and the Global Big Corp (or generally Right) view tends to be against personal property for anyone else but themselves (thus disruptive innovation best protected by patents becomes the enemy).

Innovation and personal property thereof lies in the treacherous ground between the Right and the Left.

Lionel Bently said...

Quick response to US Anon (Saturday, 2 July 2016 at 12:58:00 BST): You are right: the picture is *much more complicated*, and there are some academics (as I said, we always reserve the right to disagree with one another) who contest the significance, perhaps even possible existence, of Merton's four values. At the most extreme in this respect, I think, are the postmodernists, who would probably contest them all. In my Charles Clark lecture, I sought to recognise those complications. However, I still find the statement a useful description of the values which I see my colleagues as *aspiring to,* at least sufficiently to constitute a meaningful distinction that can be drawn between our interventions and those of stakeholders. Take, for example, 'disinterestedness'. There are ways in which academics are invested in and interested in the copyright system: as a consumer of works, they want the best possible productions, and the cheapest prices; as academic authors, they want wide dissemination and can be assumed to want maximum royalties; and as educators, they want maximum access to educational materials for my students (indeed for all students). So they are "interested", and often in complex, contradictory ways. But when academics eg CREATe come to examine copyright issues they are genuinely trying to locate the optimal outcome for the system as a whole. They approach the question by being open-minded as to how the system could be different, and are trying to work out, as objectively as possible, which changes would improve the operation of the system, and which would not. In so doing, they are open about their methods, so as to make their reasoning open to critique and improvement.

If you wish, I am happy to continue the discussion away from this blog. My email address is lb329@cam.ac.uk

THE US anon said...

Lionel,

Part I of II:

Thank you for the pleasant reply – please take my own reply as not being geared to be based in any personal animosity, but is geared to a certain (self-appointed) community in context of the discussion.

However, I still find the statement a useful description of the values which I see my colleagues as *aspiring to,* at least sufficiently to constitute a meaningful distinction that can be drawn between our interventions and those of stakeholders.

ALL stakeholders view their own actions as “just,” “balanced,” and “equitable,” given their own set of aspirations.

I do not see what you want to see as any type of meaningful distinction. Academics ARE stakeholders, and to pretend otherwise is just a fiction of a different flavor.

In fact, as my first comment points out, the very notion of “we are different because we really want to be ‘objective’” is itself a form of NON-objective attempt to elevate a certain perspective. Often – especially in the IP world – this “objective” perspective is simply NOT objective and is infused with an “anti-personal property/everything should be in the commons” bias.


But when academics eg CREATe come to examine copyright issues they are genuinely trying to locate the optimal outcome for the system as a whole. They approach the question by being open-minded as to how the system could be different, and are trying to work out, as objectively as possible, which changes would improve the operation of the system, and which would not.

I posit that there is no such thing per se – The notion of “as a whole” and “objectively as possible” are simply mired in SOME type of value system as to a certain desired end value, with different weights on the implicated trade-offs to reach that “whole.” Much like if you want 15 different views on what is “best as a whole for the economy” one can ask ten economists, there is just no such thing as an objective academic view of what would constitute “improvement.” That very “improvement” cannot be separated from the underlying values.

THE US anon said...

Part II of II (hoping I did not omit a middle paragraph...):

In so doing, they are open about their methods, so as to make their reasoning open to critique and improvement.

Yes, one can attempt to be as open as possible, and to list one’s values as drivers, but this is not to say that any attempt of “ours is better because we really are being objective” while implicitly burying the chosen subjective values inherent in any trade-off as being “for” the “system as a whole” is pure chicanery.

Further (and again), ALL stakeholders view their own actions as “just,” “balanced,” and “equitable,” given their own set of aspirations. And ALL who venture forth what they view as best for the “system as a whole” can take steps to be open about their methods so as to make their reasoning open to critique and improvement.

However – and this is a huge caveat – one should NOT think that just because all may have a viewpoint that ALL viewpoints should have equal weight. There really are subject matter experts and just because a view is labeled “from an academic” most assuredly does NOT mean that that view is expert. The “ivory tower syndrome” is NOT a myth, and speaking as one with real world experience and expertise garnered from that experience while also following along the academic views, I will tell you that the area of IP is rife with the ivory tower syndrome.


If you wish, I am happy to continue the discussion away from this blog. My email address is lb329@cam.ac.uk

I recognize the generosity of your offer. I will decline though, as I believe that there is much to be gained by threshing this out in public view, and with anonymity such that less emphasis is placed on the “who” of what is said and more emphasis is placed on the “what” of what is said. Thank you though for the kind offer to continue an off-line development. I will say that you do appear to be approaching this topic with real earnestness and with at least some appreciation of the fact that in the real world, everyone has some agenda. I would just remind you that even those that proclaim “I have no agenda” often have an agenda, and that they may not recognize their own agenda.

My agenda here is to sprinkle a generous dose of cynicism on what I view as either Pollyanna or as a calculated ploy to place academic views in an inordinate place of authority. I want to actively question any such sense of authority.

Lionel Bently said...

Dear US Anon, thanks for your response. I understand that you want to discuss the issue publicly and (for you) anonymously.

I am pleased to hear that you are not a complete “subjectivist”, just treating all opinions as being as good as each other. So we agree that some assessments are better than others. That is idiomatic amongst (most) academics, too: some academics work is regarded as “better” than that of others. (In fact, much of our time is spent making these judgments, of students and colleagues, and this would be excruciatingly difficult if we didn’t believe that some accounts are better than others). At the bottom of the hierarchy that makes some work better than others, is work that might be said to be wrong. In the legal world, for example, the legal analysis may overlook some obvious contradictory authority. Or, if some other methodology is being utilised, there may be other methodological failures. But beyond cases of work being wrong, most of us accept that there are some accounts that are better in the sense that they are more proficient, more extensively researched, etc, than others.

Of course, good methodological practices are not the exclusive preserve of academics: in terms of legal doctrinal scholarship, not surprisingly, there is brilliant legal scholarship from the professions and the judiciary. Likewise, in the UK and the EU, governmental organs frequently commission reports and reviews from a whole range of consultancies outside the academic world - because as good work can often be done outside academia as within it. So I happily concede this: the *mere* fact that an opinion is an academic opinion does not mean it is *ipso facto* “better” than another (non-academic) assessment.

Lionel Bently said...

Dear US Anon (ctd)

But I maintain the position that much academic opinion *deserves special respect, though not "an inordinate place of authority"*. I have outlined “values” in my previous posts, and I am not convinced by your response that just because academics have some “interests” (so that a claim to being *entirely* disinterested in outcomes is difficult to sustain) that their opinions are no different from those whose opinions are motivated by an identifiable interest (e.g. the representative of a publisher or a search engine). A judge may have lots of identifiable personal “interests” in deciding a case, but for the most part we accept and trust that those interests don’t motivate the judgment. Rather like academics, at the moment of judgment they play a role in which their personal interests are put to one side, and instead they apply what they see to be the law in the way they see fit. Often there is room for difference between individual judges in their conclusions as to law and its application; but only very rarely would anyone say that personal interests come into it. This is to my mind quite like the approach that most academics take when investigating a topic: personal interests are put to one side. Both are quite different from when a particular person represents a particular stakeholder or group of stakeholders and marshalls arguments that seek to vindicate that stakeholder’s own interests. In that case, personal interests are directly to the fore.

But it is not just values (“disinterestedness,” “openness”, “universalism”, “scepticism”) that make academic opinions worth special attention. It is also because academia is designed to maintain research quality. Scholars who enter academia in most cases are trained – apprenticed if you like – in research methods for their particular disciplines. Once installed in post, the academic system has a bunch of mechanisms for identifying any failings. The most prevalent one is peer review – for book publications (especially university presses), for law review articles, for appointments, for promotion, and in academic audits (in the UK, the “REF” of Research Excellence Framework). You might be surprised, I think, quite how much of what academics produce is the subject of close scrutiny, mostly by other academics. More-or-less agreed best methodological practices thus come to be applied repeatedly. For sure, these processes are not perfect: we can all think of poor pieces of work that have been published in the most prestigious journals, and some excellent pieces of work that have been rejected. But the point is that academic opinion is persistently subject to policing.

Another respect in which academic work is different is because of the time and resources invested in it. In non-academic practice, such as legal practice, the quality of research is always subject to a price constraint: time is money. In the academic world, time is much, much cheaper. In part this is because academic pay is low compared with many professions; but also because many (most?) academics make it even cheaper, by turning a paid job into their life. The effect is that academic work is frequently distinguished from other research by the fact that there is no application of the economic principle of diminishing returns. This too can lend it a distinct quality from research conducted in non-academic contexts. Obviously, this is not necessarily the case; but often will be the case.

Anonymous said...

Out of interest: what is the relevant provision of the EEA treaty that means EEA members such as Norway are bound by the the Copyright Directive? I've had a quick look at the EEA treaty but can't immediately see it.

Anonymous said...

Assuming you mean Directive 2001/29/EC, I think the answer is Joint Committee Decision No 110/2004 at http://www.efta.int/sites/default/files/documents/legal-texts/eea/other-legal-documents/adopted-joint-committee-decisions/2004%20-%20English/110-2004.pdf

THE US anon said...

Ugh,

Now three deep on the back pages, I doubt this will generate any further discussion, but Lionel, you have managed to completely ignore every point that I offered.

Sorry - but my real world experience - including an intense look at a possible career in academia provides the exact opposite of the "respect" that you want to hold this general (and I say general, because clearly individuals IN ANY PROFESSION can be spectacular) profession to "merit."

Bottom line is that academia is NOT a meritocracy, and that expressly leads to a lower estimation of value of their (again) general output.

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