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  • Mar 27th, 2014 @ 4:21am

    copyright is property

    The whole "copyright isn't property" is a very US argument and not really applicable in English law. Let's not re-invent history.

    Patents have been a form of property since long before they were awarded for "inventions". Forms of Royal monopoly - such as market, fair and harbourage rights - were forms of property long ago. English law has recognised some very odd things as property. Eg, an advowson (a right to nominate a Church of England priest to a benefice) is one of the oldest forms of real property and they are still owned and inheritable.

    So: the idea of "intellectual property" wasn't invented to make life for law tutors easier.

    Copyright is property: (a) because the 1988 Act says it is - and if Parliament says it is property it is; (b) it quacks like property.

    If you don't like copyright much (and I don't) this is a stilly place to have the fight. English law doesn't recognise things as property because they are morally or naturally good things for people to own, it does so because law says so usually (but not always) because powerful people have lobbied to make it so.

    Copyright isn't a possessory form of property - it is a chose in action not a chose in possession as we would technically say. So you can't steal it - just as you can't steal money in a bank account which is another example of a chose in action (see R v Preddy where the House of Lords nailed this point down). Anyone who suggests you can steal copyright or that copyright infringement is a bit like theft, is legally ignorant at best.

    In this case the main question was whether there could be a lien over the information in a database. A lien is a possessory right so of course you can't. Stupid thing to argue. The court also thought there were no property rights in information per se, which may be true but it isn't all that helpful.

    Eg, in the EU we do recognise a property right in collection of information of certain kinds (known as databases). While you can't own it, if someone extracts data from your protected database you may well be able to sue them. If they say "well you can't own information" your response could be "just so". Your claim is to ownership of a right not the data, but that distinction is rather too nice for most people.

    This case seems to me to be a straightforward one of the Court of Appeal refusing to stray from well understood principles of property law.

    Those principles do also make "ownership" of ebooks problematic and that is a serious issue but this is not a case that really has much impact on that.