Vagueness in the Scope of Copyright

Law Quarterly Review, Vol. 121, pp. 657-680, 2005

Oxford Legal Studies Research Paper

21 Pages Posted: 4 Jul 2008 Last revised: 11 Feb 2009

See all articles by Timothy A.O. Endicott

Timothy A.O. Endicott

University of Oxford - Faculty of Law

Michael J. Spence

University of Oxford - Faculty of Law

Abstract

The scope of copyright protection is inevitably vague, but its vagueness is not necessarily a defect in the law. We discuss the potential value of vagueness in law, and we explain the vagueness of the 'substantial part' doctrine in copyright law, through an analysis of the decision of the House of Lords in Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] 1 WLR 2416. Far from being a defect in the law, the vagueness of the doctrine is essential to the project of copyright. But the vagueness allocates a power to the courts, and it is a power that calls for control. That control ought to be found in the development of principled criteria for the application of the doctrine; criteria that reflect the justification for copyright as creating incentives, and the justification for copyright as enhancing the author's expressive autonomy. And that control ought to be imposed through a new approach to the grounds of appeal in copyright cases, which we outline. Controlled vagueness of this type would offer an appropriate balance of flexibility and predictability in the application of the standards. Copyright would be able better to achieve its purposes.

Keywords: vagueness, copyright

Suggested Citation

Endicott, Timothy A.O. and Spence, Michael J., Vagueness in the Scope of Copyright. Law Quarterly Review, Vol. 121, pp. 657-680, 2005; Oxford Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=1155025

Timothy A.O. Endicott (Contact Author)

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

Michael J. Spence

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

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