[Guest post] Book review: ‘Developments and Directions in Intellectual Property Law: 20 Years of the IPKat’

As IPKat readers know, it was only a couple of months ago that The IPKat celebrated its first 20 years of activity. To mark this milestone, we organized an event in London in June 2023 [Katreports here, here, here and here] and Kats Hayleigh and Eleonora put together a collection of chapters authored by current and past IPKat Team Members, as well as some eminent Katfriends. The book, titled Developments and Directions in Intellectual Property Law. Twenty Years of The IPKat was published by Oxford University Press in spring 2023.

And, speaking of the book, we are happy to re-publish the review that Bill Patry (Mayer Brown) provided of it, as just published by the Journal of Intellectual Property Law & Practice. Here's what Bill writes:

Book review: ‘Developments and Directions in Intellectual Property Law: 20 Years of the IPKat’

by Bill Patry

The IPKat blog inspired my own copyright blog which I started in 2005, 2 years after the first meow from London. My blog ended ignominiously in 2008, whilst the Feline lives forever. Praise rightly goes to Jeremy Phillips and Ilanah Fhima for this death-defying feat, attributable, I believe, to their lack of hubris and commitment to encouraging stars like Professor Eleonora Rosati to first become contributors, then editors.

The book under review is a testament to the blog’s enduring ability to attract the best legal minds in IP to write for it and for free. I never wrote for the IPKat, so count me out of that august group, although my pay level is the same. The book’s 702 pages are chock full of the latest developments in IP law, along with the occasional assertion of 20–20 hindsight commemorating the 20 years of IPKat history. The organization is

• Part 1. ‘Developments in IP Law, Policy, and Practice: KatFriends’ Views’
• Part 2. ‘Developments in Copyright and Image/Publicity Rights’
• Part 3. ‘Developments in the Law of Trade Marks and Geographical Indicators’
• Part 4. ‘Developments in the Law of Patents and Trade Secrets’
• Part 5. ‘Developments in IP Policy, Practice, and Literature’

I am not sure what the difference between the titles of Parts 1 and 5 is since all the contributors are KatFriends, and only one essay in Part 5 deals with actual literature, which is Jane Austen’s controversial third novel ‘Mansfield Park’. Whether one considers Fanny Price to be, as Mrs Norris put it, ‘the daemon of the piece’, or a ‘creepmouse’, as her cousin Tom did, Neil Wilkof’s efforts to tie Ms Austen to IP through a discussion of circulating libraries and authorial reputation is a literary feast of its own.

What about the rest of the contributions? There are 43 essays in all, ranging alphabetically from the imposing and imposingly credentialed Rt. Hon. Lord Justice Richard Arnold through Eleanor Wilson, who only lacks an ‘o’ and the final letter ‘a’ in common with the esteemed Professor Eleonora Rosati, but who makes up for this nominal deficiency by her enthusiasm for swing dancing and cocktails. Is it any surprise I was never an IPKat contributor: I don’t dance, drink alcohol and am a vegetarian whose idea of fun is playing basset horn trios with my daughter and a friend.

Only two of the 43 areas deal with American copyright law (probably a correct percentage given the EU focus of IPKat), but this small number should have disqualified me from writing a book review where there are 41 out of 43 articles on topics I know nothing about, including the entire fields of trade mark and patent law. Yet, I decided to embrace my ignorance and run with it by focusing on two articles that cover an issue I improbably care about: the role of the Court of Justice of the European Union (CJEU) and EU directives. I am aided in this by the somewhat divergent views of the authors of the two articles. The first is by the afore lauded Professor Rosati, as perfect a scholar as one could find even in her second language of English. Hers is titled ‘Copyright at the CJEU: Back to the Start (Of Copyright Protection)’. Regular IPKat readers will be well acquainted with the good professor’s book ‘Copyright and the Court of Justice of the European Union’ (OUP 2019). Professor Rosati may be fairly described as a big fan of the CJEU, and if we are fortunate, a future Justice herself, assuming that Italy stays in the EU.

The second article is by Ms Maria Martin-Prat, ‘Twenty Years After – the State of EU Copyright Law’. Ms Martin-Prat is currently the Deputy Director General of Directorate Trade and previously served as the Head of Copyright Unit of the Commission’s Communications, Networks, Content and Technology DG, among other, earlier illustrious posts. Her parliamentary chops are excellent. As a creature of the legislative branch myself—a former copyright counsel to the US House of Representatives Committee on the Judiciary—I confess to a legislative bias where, as with copyright, the rights are statutory in origin. I am aware some on the other side of the Pond (and a few Europhiles on this side) love to wax fondly over copyright being a natural right, but it isn’t. No copyright law in the world is founded on natural law. Legislatures can give, and they can take away as they see fit, treaty obligations aside.

I don’t have hostility to courts—some of my best friends are judges, as the old saying goes. There is an enormous role for courts to play in copyright law, in both common law and civil law systems, for example, in determining who is an author (a monkey, and Artirficial Intelligence system, humans?), originality, what is idea and what is expression, what are the elements of and standards for substantial similarity and in the USA, fair use. These foundational issues have kept black robed people busy for centuries and will continue to do so. I am happy with that since it is the most efficient way such issues can be resolved.

However, when a legislature has spoken on an issue, to me that’s it. It shouldn’t matter whether courts like the policy or not. It shouldn’t matter if the legislature is slow in acting. That’s where my problem with the CJEU lies. My guess is that the CJEU, under the guise of aiding harmonization, has crossed the line from being honest interpreters of EU directives and lapsed into the role of policy maker. It’s not for nothing that Lord Acton’s comment in his 1887 letter to Bishop Creighton was ‘Power tends to corrupt, and absolute power corrupts absolutely’. Sure, aside from constitutional issues in the USA, highest courts on statutory issues can be reversed by legislatures, but that is rare, and in the case of the EU hardly practical. The most dangerous branch of any government is not elected officials, but unelected judges exercising absolute power.

Has the CJEU committed this cardinal sin? Professor Rosati thinks not. For her, the CJEU’s decisions ‘have contributed greatly to the overall EU harmonization project’. This would be a good thing if everything agreed on what that project is or at least its scope. One can, for example, agree that democracy should be the form of governance but still have serious conflicts about how it applies in practice. For our purposes, we can narrow the issues to harmonization as expressed in EU directives and Regulations, for in them we see the EU’s governing bodies manifesting their intention objectively.

Professor Rosati gives high marks to the CJEU in this respect for adapting to ‘new realities and norms’; adding ‘some “flesh” to thinly worded provisions’; by ‘build[ing] a truly internal market for copyright goods and copyright-based services’ and by the CJEU’s interpretive standard of creating an autonomous concept of EU law. That standard is said to have two goals, to ‘reduce, if not annul altogether, divergences between Member States’, and to ‘highlight the (mis-)perceived freedom of several Member States when transposing EU directives into law’.

If one is an unabashed fan of both the CJEU and the idea that the Common Market necessitates that all copyright laws be the same in that market down to every jot and tittle, then one would agree. By the way, for those who do not read Hebrew, this is what in English is called a jot but which in Hebrew is the tenth letter of the alphabet (yud):

What is called a tittle is a pen stroke that distinguishes a dalet (on the left) from a resh (on the right):

Dalet is letter D, resh letter R, so the tittle helps distinguish these two, much like minding your Ps and Qs This is all well and fine in writing alphabets, but what distinguishes the internal text of an EU Directive from having to be applied as written, or, as textually allowing for the CJEU adding a little ‘flesh’ to it, to adapt the text to ‘new realities and norms’, or using the text as a launching pad for building a ‘truly internal market’—as opposed to, one would assume, a less than true internal market—or, even more dramatically have the CJEU annul national law? That, I suspect, is in the eye of the beholder. As someone who drafted copyright laws for a living at one time, our approach was to try to express our intent as clearly and emphatically as possible. We did not draft laws with the idea that the courts would complete our work, we did not draft them to be narrowly or expansively interpreted, but instead applied as written. Anything short of that was regarded as a professional failure. I would add that very few judges have legislative experience, and so a healthy dose of modesty would suit them well before they find significant authorization to go beyond the text in front of them. A court may not like the way something was drafted or not like the policy it furthers, but too bad. Become a legislator yourself if you want to change things, don’t do so under the phony guise of ‘interpreting’ someone else’s work in a way contrary to what the words can reasonably signify. Surely don’t take upon yourself ‘building’ a vague, general policy, like a ‘truly’ internal market. Leave those things to those who have been authorized to do so, who have the experience in doing it, and who if they fail will, through elections, face the consequences.

Ms Martin-Prat is a different beholder than Professor Rosati. Ms Martin-Prat observes that there has been an ‘exceptionally high level of legislative activity’ in the EU in the last 20 years, from the 2001 InfoSoc Directive to the 2019 Digital Single Market: 11 Directives and Regulations in total. Section 5 of her article is titled ‘The Increasing Important Role of the CJEU’. I am not convinced she is convinced that this is entirely positive. For example, with respect to the Court’s 2014 Svensson opinion on the scope of the communication to the public right and its collapsing of the lines between primary and secondary liability, she states ‘One can only speculate about the reasoning behind the Court’s thinking’. Given that Court opinions are supposed to do just that, this is not a compliment. She gives one possibility for the Court’s action: a felt need on the Court’s part to harmonize EU law on secondary liability. Since such harmonization is a job for the other branches of EU government, one wishes the felt need was merely felt and not acted upon. But even assuming some justification for such usurpation of power, she criticizes the Court’s creation of the ‘new public’ criterion, which she considers ‘another example of how the CJEU has been ready to create and apply new legal concepts, seemingly to be able to justify the desired outcomes’.

Such steps are, she notes ‘[i]n the view of many, going beyond merely interpreting the EU acquis. One could say that, as the work of the legislator became more difficult and slower, the Court stepped in to fill the “legislative vacuum”’. This assuming of the role of legislator has come, she notes in ‘the definition and functioning of the core rights…’. As a legislative branch guy, this crosses a red line. In Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC, the US Supreme Court refused to ignore the plain words of the statute to allow suits to go forward without first registering due to administrative delay in the Copyright Office, Justice Ginsburg writing for the Court:

Delays in Copyright Office processing of applications, it appears, are attributable, in large measure, to staffing and budgetary shortages that Congress can alleviate, but courts cannot cure. See 5 W. Patry, Copyright § 17:83 (2019). Unfortunate as the current administrative lag may be, that factor does not allow us to revise § 411(a)’s congressionally composed text. 139 S.Ct. 881, 892 (2019).

Similar modesty would serve both the CJEU well along. There is no need for modesty about the IPKat commemorative book: it is an extraordinary collection of essays by extraordinary scholars. Order your copy now.