Back to the Future: Hinton v Donaldson, Wood and Meurose

Posted On: 23 March 2010

Author: Iain G. Mitchell QC

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This article originally appeared in the International Free and Open Software Law Review (IFOSS L.Rev., 1(2), 111-122, DOI 10.5033/ifosslr.v1i2.23) and is reproduced with the kind permission of the author.

Case Law Report - BACK TO THE FUTURE: Hinton v Donaldson, Wood and Meurose (Court of Session, Scotland, 28th July, 1773)

1. Introduction

Human nature does not change, but what new technology does achieve is to create a new milieu in which the battles of the past can come back to haunt us in new guise.  Because of the new technology, the issues can seem very new, but often what lies behind them is as old as the hills.

Take, for example, the battle which has raged for years over copyright term extensions, DRM as a means to try to control access to content which may, itself, have passed into the public domain, and the turf wars between copyright and copyleft.  What lies at the back of all of this is, arguably, a conflict of values.

On the one hand, there is the value that all knowledge, all ideas are the patrimony of mankind, and they can and should be free.  On the other hand there is the equally deeply held value of property: "what is mine is mine".

What sets up that conflict is the very idea of Intellectual Property itself: the trick of copyright was, in essence, to commoditise, if not ideas, then, at least, the expression of ideas. Section 1 of the Copyright, Designs and Patents Act 1988 provides:
"Copyright is a property right which subsists in accordance with this Part in the
following descriptions of work–
(a) original literary, dramatic, musical or artistic works,
(b) sound recordings, films, broadcasts or cable programmes, and
(c) the typographical arrangement of published editions."

That is the key to the whole concept of intellectual property: it is property.  Property is valuable: it can be rented out, it can be bought and sold, (or, to use the familiar term in the law of incorporeal movables, it can be assigned).  In short, it becomes a commodity.

And so, there is set up what can be a fundamental conflict of values: on the one hand, a common patrimony which should be free, and, on the other hand, private property which can be immensely valuable to its owner.

This battle is played out every day in a society where the IP owners try to persuade an increasingly deaf public that the downloading of file shared music and other copying of content is theft and, though, as the warnings on every DVD used to tell us:
"You wouldn't steal a car. You wouldn't steal a handbag. You wouldn't steal a television. You wouldn't steal a movie. Downloading pirated films is stealing. Stealing is against the law. Piracy: It's a crime",
the zeitgeist would seem to see nothing wrong in unrestricted copying and file sharing.

It was the genius of the invention of copyright and other forms of intellectual property that there is set up a Faustian bargain between the State and the author or creator (or, in any event, the first owner of the copyright, which, thanks to the essentially commercial nature of the concept, may well not actually be the author himself) that there is granted, in effect, a monopoly for a fixed term, during which the author can make his money, but at the end of that term, his work passes into the public domain and becomes part of the common patrimony.  But, no sooner is that bargain set up than people want to renegotiate it: on the one hand those who wish to see the enlargement of the public domain, and, on the other hand, those who want to go on exploiting their property.  In the middle, there may be a dispassionate debate about how best to balance these competing interests, but that should not blind us to the fundamental tension which lies beneath, which is there and
which will never go away.

In that tension, the rightsholders can often come off best.  It is relatively easy to demonstrate the value of the property on the basis of the income it generates – more difficult by far to ascribe a value to the public domain.  So, in a debate conducted on purely economic terms, the rightsholders have a clear advantage.  Thus, a proper debate requires also broader social and philosophical issues to be addressed. Yet, even in such a broader debate, the tension is still there: especially when the rightsholders see their property rights in absolute terms.

This has been played out before the United States Congress more than once.  Jack Valenti, President of the Motion Picture Association of America, giving testimony before a congressional committee in 1982, argued against limitations on intellectual property:
"Creative property owners must be accorded the same rights and protection resident in all other property owners in the nation."

There is, in the United States a problem with that: Article 1 §8 of the United States Constitution provides:
"he Congress shall have Power...To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Nothing daunted, in the hearings on the Sonny Bono Copyright Term Extension Act, Congresswoman Mary Bono stated:
"Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution.  I invite all of you to work with me to strengthen our copyright laws in all of the ways available to us.  As you know, there is also Jack Valenti's proposal for term to last forever less one day.  Perhaps the Committee may look at that next Congress."

And so the battle rages on, through WIPO Treaties, European Directives, the DMCA, all played out in the fora of politics, the courts, by campaigners, by industry lobbyists and by lawyers: the money battles the ideals.

We've never known anything like it before, or have we?