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Dematerialization, Pragmatism and the European Copyright Revolution

Dematerialization, Pragmatism and the European Copyright Revolution A model of copyright protection under which the laws attention is directed towards a dematerialized, malleable essence (originality, labour and skill or creativity) has gradually evolved in the UK. This model has come to regulate all fundamental questions concerning the scope and attribution of rights. Nevertheless, until very recently, some aspects of copyright doctrine have remained incompatible with this dominant model. In certain situations, rather than focusing purely on an abstract property, the law has continued to limit a copyright owners powers by reference to the boundaries of the material form within which a protected work is first recorded. It is argued here that, while apparently inconsistent, this approach has served an important function in justifying judicial resistance to expansionist pressures in the law. Since 2009, however, this pragmatic, focus-shifting system has been destabilized by the copyright jurisprudence of the Court of Justice. The Courts judgments in Infopaq International A/S v Danske Dagblades Forening and subsequent cases have dramatically accelerated the pace of copyright harmonization. As a result, it is possible that UK courts may be obliged to adopt a more consistently dematerialized system of copyright law and our courts may have been deprived of tools previously employed to resist unduly broad claims to copyright protection. The consequences of this development are explored in this article. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Oxford Journal of Legal Studies Oxford University Press

Dematerialization, Pragmatism and the European Copyright Revolution

Griffiths, Jonathan
Oxford Journal of Legal Studies , Volume 33 (4) – Dec 27, 2013
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Publisher
Oxford University Press
Copyright
The Author 2013. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com
ISSN
0143-6503
eISSN
1464-3820
DOI
10.1093/ojls/gqt017
Publisher site
See Article on Publisher Site

Abstract

A model of copyright protection under which the laws attention is directed towards a dematerialized, malleable essence (originality, labour and skill or creativity) has gradually evolved in the UK. This model has come to regulate all fundamental questions concerning the scope and attribution of rights. Nevertheless, until very recently, some aspects of copyright doctrine have remained incompatible with this dominant model. In certain situations, rather than focusing purely on an abstract property, the law has continued to limit a copyright owners powers by reference to the boundaries of the material form within which a protected work is first recorded. It is argued here that, while apparently inconsistent, this approach has served an important function in justifying judicial resistance to expansionist pressures in the law. Since 2009, however, this pragmatic, focus-shifting system has been destabilized by the copyright jurisprudence of the Court of Justice. The Courts judgments in Infopaq International A/S v Danske Dagblades Forening and subsequent cases have dramatically accelerated the pace of copyright harmonization. As a result, it is possible that UK courts may be obliged to adopt a more consistently dematerialized system of copyright law and our courts may have been deprived of tools previously employed to resist unduly broad claims to copyright protection. The consequences of this development are explored in this article.

Journal

Oxford Journal of Legal Studies – Oxford University Press

Published: Dec 27, 2013

Keywords: copyright intellectual property law EU law

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