Intellectual Property in the Digital Age

AuthorMr Justice Birss
PositionJudge of the High Court of England and Wales
[2018] Irish Judicial Studies Journal Vol 2(1) 1
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

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