I stand by what I say in the report of the SCL Annual Lecture. William Patry did make a stunning intellectual case and the large number of potential questioners was a testament to the stimulating nature of the lecture. Indeed, our taxi driver for the trip to Paddington was treated to an intellectual debate instead of the usual post-event mix of gossip and laughter. But I confess that I sat through most of it thinking it was truly brilliant and it ended with me thinking that it was just very good indeed.
Why the shift? I felt a little let down. We had the surprising but neat denial of the view that copyright is property, the polite and smoothly justified contempt for those who refuse to acknowledge the need for empirical evidence when debating copyright and a total demolition of the calls for extension of copyright. But something was missing. It was not until Jack Black asked his (too lengthy) question about the alternative to copyright as property that I knew what was missing. Wiliam Patry had come to the end of his Lecture without actually setting out his legal alternative, or at least not clearly enough to get through to me. Yes, we could see the point of determining copyright on empirical evidence, indeed I was persuaded of its overwhelming importance, but the audience was mainly made up of lawyers and we needed a legal basis too.
The strange thing is that the response to Jack Black’s question revealed that William Patry does have the legal meat that I felt was missing. His short references to tort and the origins of copyright in judicial attitudes which were rooted in tort left me intrigued. But I would have much preferred that to have been the closing part of his lecture and to have seen it expanded upon. It was generous of William Patry to allow so much time for questions but I regret the fact that he didn’t bolt on the references to a new legal basis to replace the one that he convincingly suggested should be swept away.
Incidentally my report does not credit the questioners by name. That’s a bit harsh because there were some great questions – the audience was clearly a learned lot. One reason for that is that I did not catch all the names and it seemed unfair to mention only those that I was sure of. But another is that William Patry did not engage fully with the especially insightful question from the man from Cripps Harries Hall (whose name I completely missed). He asked (and I paraphrase wildly) whether part of the problem with treating copyright as property, or indeed not so treating it, might arise from the fact that we have ‘intellectual {i}property{/i} rights’. If anybody has a proper answer, I’d love to hear it.
