Vagueness in the Scope of Copyright
Law Quarterly Review, Vol. 121, pp. 657-680, 2005
21 Pages Posted: 4 Jul 2008 Last revised: 11 Feb 2009
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  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
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