Abstract

A model of copyright protection under which the law’s attention is directed towards a dematerialized, malleable essence (‘originality’, ‘labour and skill’ or ‘creativity’) has gradually evolved in the UK. This model has come to regulate all fundamental questions concerning the scope and attribution of rights. Nevertheless, until very recently, some aspects of copyright doctrine have remained incompatible with this dominant model. In certain situations, rather than focusing purely on an abstract property, the law has continued to limit a copyright owner’s powers by reference to the boundaries of the material form within which a protected work is first recorded. It is argued here that, while apparently inconsistent, this approach has served an important function in justifying judicial resistance to expansionist pressures in the law. Since 2009, however, this pragmatic, focus-shifting system has been destabilized by the copyright jurisprudence of the Court of Justice. The Court’s judgments in Infopaq International A/S v Danske Dagblades Forening and subsequent cases have dramatically accelerated the pace of copyright harmonization. As a result, it is possible that UK courts may be obliged to adopt a more consistently dematerialized system of copyright law and our courts may have been deprived of tools previously employed to resist unduly broad claims to copyright protection. The consequences of this development are explored in this article