An Intentional View of the Copyright Work

Publication Date01 Jul 2008
AuthorJustine Pila
An Intentional View of the Copyright Work
Justine Pila
The questions atthe heart of copyright^ whatis a work, and the extent ofcopyright protection ^
are considered. Arguments are presented ¢rstly for an understanding of works oriented around
expressive intent, and secondly for a statutory test of infringement that pays closer attention to
issues of policyand the authorial acts thatcopyright rewards.The article revisits two central cases
of modern Englishcopyright law,WaltervLane and InterlegovTycoIndustries, and suggeststhat their
reasoning is problematic;Wa l t er vLane because the transcriptsof Lord Rosebery’sspeeches were not
books for copyright purposes, and Interlego becausethe technical speci¢cationswere part of the d raw-
ings, which were consequently new artistic works for copyright purposes. This is supported by
contemporary authority ^ including paradoxically Sawkins vHyperion Records, which recently
a⁄rmed thecorrectness of both cases ^ and has widerimplications forour copyrightregime.
While analytically separate,legal conceptions of copyright and its worksare frequently
con£ated. According to Yates J in Millar vTa y l or ,
the same was true of common law
copyright (literary prope rty). Indeed, in hi s Lordships view it was the majority Judges’
confusion of literary property with the exclusionary rights of copyright that led them
into error.
According to the majority, literary property derived from the theory of
Locke for whom property was the natural entitlement of a creator.
When we take
Fellow of St Catherine’s College, Oxford; Lecturer in Intellectual Property Law, University of
Oxford; Senior Research Associate (and Interim Director), Oxford Intellectual Property Research
Centre.This article is the revised version of a paperdelivered in Oxford as part of the Intellectual Prop-
erty in the New Millen nium seminar series on5 June2007. I am grateful to DavidVaver for organising
the seminar, and to David Brennan, Joshua Getzler, Michael Spence and the anonymousreferees for
their help with di¡erent partsof the article itself.Thanks also to Barbara Lauriat forthe C harlesReade
reference in n 7 below.
1 (1769) 4 Burr 2303,98 ER 201 (KB).The reportof Mill ar vTay l o r is not a verbatim transcript of the
Court’s judgment.
2Seeibid,233, 245 (describing the plainti¡ ’s claim to literary property comprising a right to copy,
which the majority accepted, as resting on the confusion of ‘a mere right of action’ ^ a right in
personam^ with a right of property ^ a right inrem). See alsoWa l t e r vLane [1900]AC 539,547 (Lord
Halsbury,suggesting confusion in the reasoning of the Court of Appeal ‘between two verydif-
ferent things: one, the proprietary right ofevery man in hi s own literary composition; and the
other the copyright,that is to say,the exclusive privilege of making copies createdby the statute’).
3 n 1 above, 2334^5; ibid, 218 (Willes J:‘It is certainly not agreeable to natural justicethat a stranger
should reap the bene¢cial pecu niary produce of another man’s work . . .’); ibid,2338;ibid, 220
(Aston J, quoting from Locke:‘[T]o deprive a man of the fruit of his own cares and sweat; and
to enter upon it . . . as if it was the e¡ect of the intruder’s pains and travel; is a most manifest
violation of truth: it is asserting, in fact, that tobe h is,which cannot be his’); ibid,2398;ibid,252
(Lord Mans¢eld:‘From whatsource, then, is the common law drawn,which is admitted tobe so
clear, in respect of the copy before publication? From this argument^ because it is just, that an
author should reap the pecuniary pro¢ts of his owningenuity and labour’).Cf ib id,2340;ibid,221
(Yates J in dissent, arguing that property at common law is con¢ned to corporeal objects capable
of exclusiveoccupation and clear identi¢cation).
r2008 The Author.Journal Compilation r2008 The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2008) 71 (4) 535 ^558
something from the common and mix it with our labour, Locke said, we create an
object of property the boundaries of which depend on the extent of our labour and
the conveniences of life.
In their own determinationof those boundar ies the majority
judges di¡ered. ForWilles and Aston JJ literary propertycomprised the shallow right
to reprint an expression.
For Lord Mans¢eld it was more expansive: a right to protect
a published express ion, extending to a right of withdrawal, a right of integrity, and a
right to object to false attr ibution.
As a theory of copyright, Locke’s view of proper ty ¢nds little support among
modern scholars.
While in one sense this is not surprising ^ since 1911 or earlier
copyright has derived exclusively from legislation
^ in another it is, for the the-
ory mapswell to contemporary cases.The reason is that while copyright atlaw is
a bundle of rights g rafted to certain expressive objects, it is ca st by the courts as
a duty of conscience not to reap from the skill and labour of authors.
4 John Locke,TwoTreatisesof Government(1690) ChapterV (‘OfProperty’) Section 36 (‘The measure
of property nature has well set by the extent of men’s labour and the conveniences of life . . .’).
5 n 1 above, 23 49; ibid, 226 (Willes J, describing literary property as ‘theright of the copy’);ibid,2342;
ibid, 222 (Aston J, describing literary property as ‘copy-right’).
6 n 1 above,2398^9; ibid, 252^3 (Lord Mans¢eld, de scribing literary property as the right‘toprotect
the copyafter publication’,derived fromthe natural right of an author (a) to‘[be] master of the use
of his own name’,‘co ntrol. . . the correctness of his own work’,‘prevent additions’,‘retract errors’,
and‘amend,or cancel a faulty edition’of his work (b) to ensure that others do not print, pirateand
perpetuate any imperfections, to the disgrace and against the will of the author’ or ‘propagate
sentiments under his name, which he disapproves, repents and is ashamed of’ and (c) generally
to reserve to him‘discretionas tothe manner in which,or the persons bywhom h is workshal l be
7 Compare the support it had among nineteenth century scholars and men of letters;an admittedly
extreme example being Charles Reade, who went so far as to describeYates J (for his views in
Millar vTa y l o r ) as a‘pettifogger’ and‘Satan’who had ‘founded a schoolof copyright sophists, rea-
soning a priori against a four-peaked mountain of evidence’: ‘I must undeceive mankind about
JudgeYates and his ¢tness to rule the Anglo-Saxon mind’ (Charles Reade, Readiana: Comments
on CurrentEvents (1883) Sixth Letter,171). For a recent scholarlyuse of Locke see B. G. Damstedt,
‘Limiting Locke:A Natural Law Justi¢cationfor the Fair Use Doctrine’ (2003)112 Yale LJ1179.
8 See Copyright Act 1911 (UK), s 31 (abrogating any literary property surviving DonaldsonvBeckett
(1774)2 Bro PC129,1 ER 837 (HL)).
9 See for example the frequency with whichcopyright infringement is described as plagiarism and
copyrightas protectingagainst the misappropriation of authorial labour and skill: John Richardson
Computers vFlanders[1993] FSR 497 (Ch) (Ferris J, describing copyright infringers as plagiarists
and copyright as protecting labour and skill); IbcosComputers Ltd vBarclays [1994] FSR 275(C h)
(JacobJ, suggesting as a good guide i n infringement enquiries the notionof an over-borrowingof
the author’s skill, labour and judgement); HarmanPictures vOsborne [1967] 1 WLR 723 (Ch) 732
(Go¡ J, describing as ‘the true principle’ in infringement enquiries that ‘the defendant is not at
liberty to use or avail himself of the labour which the plainti¡ has been at for the purpose of
producing his work,that is, in fact, merely to take away the result of another man’s labour, or, in
other words, his property’ (quoting from a decision of Hall VCapproved by Lord Atkinson in
MacMillan & CoLtd vCo oper (1923)4 0 TLR186(PC)); Elanco ProductsLtd vMand ops [1979]FSR 46
(CA) (suggesting thatthe defendant ought to have sourced the informationfor its work from the
public domain rathertha n fromthe applicant’swork); Ravenscroft vHerbert and NewEnglish Library
Limited[1980]RPC 193 (Brightman J,stating that a defendant must not appropriateto himself the
literary labours of an author); Designers Guild vRussellWilliamsTextiles Ltd [20 00] 1 W LR 2416
(HL) 2422,2422) (Lord Scott, describing as an underlying principle of copyrightlaw that a copier
is not at liberty to appropriatethe bene¢t of another’sski ll and labour); Baigent& L eighvRandom
House Group [2007]EWCACiv 247 (MummeryLJ, describing copyrighti nfringementas plagiar-
ism). Cf Navita ire veasyJet Airline Co [2004] EWHC1725 at [80](Pumfrey J: ‘It is not su⁄cient to
say that the purpose of the act is to protectoriginal skil l and labour’).
An IntentionalView of the CopyrightWork
536 r2008 The Author. Journal Compilation r2008 The Modern Law ReviewLimited.
(2008) 71(4) 535^558

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