Dematerialization, Pragmatism and the European Copyright Revolution

Abstract

Over the last three centuries, a particular model of copyright law has evolved in the United Kingdom. Under this "dematerialised" model, the law’s attention is directed towards an immaterial, malleable essence (identified as, amongst other things, “originality”, “labour and skill” or creativity”). This immaterial essence has come to serve as a touchstone for the resolution of all fundamental questions concerning the scope and attribution of rights under copyright law - as the threshold for legal protection, as a marker of authorship and as the key concept in the assessment of infringement. Nevertheless, some aspects of copyright doctrine have, until very recently, appeared to remain incompatible with this dominant model. In some situations, rather than focusing purely on an abstract form of property that is capable of shifting from form to form, the law has continued to limit the scope of a copyright owner’s powers by reference to the boundaries of the material form with which the work is first recorded. It is argued here that the maintenance of these apparently incompatible aspects of copyright doctrine is not necessarily the product of theoretical incoherence. Rather, the law’s continued ability to regulate some forms of copyright dispute by reference to material form has served an important function in justifying judicial resistance to expansionist pressures.

Since 2009, however, this pragmatic, focus-shifting system has been destabilised by the copyright jurisprudence of the Court of Justice. The Court’s judgments in Infopaq International A/S v Danske Dagblades Forening and a series of subsequent cases have dramatically accelerated the pace of copyright harmonisation in the European Union. As a result, the United Kingdom may now be obliged to adopt a more consistently dematerialised system of copyright law than that which has previously applied and our courts may have been deprived of some of the tools they have employed to resist unduly broad claims to copyright protection. The article begins with an overview of the development of the dematerialised model in the United Kingdom and indicates, in particular, the strenuous efforts made to ensure consistency with the model in the ten years or so preceding Infopaq. It then goes on, first, to explain how, despite these efforts, the material, recorded boundaries of creative forms continued to hold legal significance in certain situations and, secondly, to highlight the important function served by these apparently inconsistent aspects of doctrine. The article concludes by exploring the ways in which the Court of Justice’s recent copyright jurisprudence threatens this pragmatic system.

Keywords: property law, intellectual property, copyright, subsistence, infringement, history, EU law, Court of Justice, CJEU, Infopaq

JEL Classification: K11