Intellectual Property in the Digital Age

• Author: Mr Justice Birss
• Position: Judge of the High Court of England and Wales
• Pages: 1-10

IRISH JUDICIAL STUDIES JOURNAL

[2018] Irish Judicial Studies Journal Vol 2(1) 1

INTELLECTUAL PROPERTY IN THE DIGITAL AGE

Mr Justice Birss

Judge of the High Court of England and Wales

As a judge born in Scotland but trained in English law presenting a paper on

intellectual property in Ireland to a group of judges from the nations in which the

Celtic languages were and, in some cases, are still spoken, the only place to start

must be to refer to one of the earliest known copyright judgments in any

language or any country. It was given in the old Irish tongue in the sixth century

when a dispute arose between monks about copying the Gospels. It is the

famous judgment of the High King of Tara, Diarmuid Mac Cearbhaill.

One of the monks was Columba Ó Néill. He later became Saint Columcille or

Saint Columba, one of the three patron saints of Ireland, also credited with

founding the abbey on Iona and spreading Christianity to Scotland. The other

monk was Finnian. Finnian had lent the book to Columba and Columba had

copied it without permission. Finnian alleged this amounted to theft and that the

copy belonged to him. Columba said that Finnian's book was none the worse for

his copying from it. The High King ruled in favour of Finnian, holding: ‘le gach

bó a buinin agus le gach leabhar a chóip’ or ‘To every cow its calf, and to every

book its copy’

So the arguments about intellectual property have not changed much in a

millennium and a half. Just as they did in the sixth century, claimants today use

the language of property crime to characterise the act of copying. The copying is

routinely said to be an act of theft. On the other hand Columba no doubt did

what he did in order to help disseminate important information more widely.

That is a familiar justification used before IP courts today (see for example the

long running Meltwater litigation about copying news on the internet which

included judgments from the UK Supreme Court, the CJEU and the UK

Copyright Tribunal ).

The need to strike a proper balance between these competing points of view -

between freedom and monopoly - is inherent in all intellectual property. It comes

up time and again. There is no simple answer to the question of where the

balance lies. The appropriate balance may well shift over time as society changes.

It is something which almost certainly will need to be reconsidered as technology

advances.