October 18, 2016

Case reports and clarity

This issue of the magazine is dominated by case reports. Since recent issues have been overflowing, it was an opportunity to catch up with developments in the courts, especially judgments from the Court of Justice of the European Union.

Since I had the pleasure of trawling through many of these judgments, I was struck, not for the first time, by the contrast between the standard of the judgments given in the High Court, the Court of Appeal and the Scottish appeal courts, which make a genuine effort to clarify issues, and the mind-numbing, turgid and impenetrable judgments of the CJEU. If Brexit has a silver lining (which it probably doesn’t), it will be the blessed release from attempts to penetrate the thinking behind CJEU judgments. The difficulty is highlighted by the laudable efforts of those charged with producing comprehensible Curia press releases, who often find the task beyond them – and sometimes even get it slightly wrong.

Perhaps, like a lover leaving a long-term relationship telling the deserted one to pay attention to his weight, we can have a quiet word with the judges of the CJEU as we leave the EU and suggest that they clean up their act. It may not go down well but it is surely worth a try. After all, so long as Ireland remains in the EU they will have to produce English language versions of every judgment – it would be nice if that English was actually readable.


In the first article in this issue, Laurence Kaye suggests that the EU’s latest proposals on copyright will have to be respected in the UK post-Brexit. He knows far more about this area than I but I am not sure he is right and, given the bombast emanating from the Conservative Party Conference as I write this, he may even be reconsidering himself.

Copyright issues are obviously not respecters of borders in the digital age. I am not suggesting that the EU changes are to be ignored or irrelevant or that EU rulings can be overlooked, even though I would love to wipe away the judgments in GS Media and McFadden as they seem to be remarkably free from any understanding of practicalities. But US law on copyright is also of great importance – even if not quite as all-important as some US lawyers seem to think it is – and, post-Brexit, may even be of equal or greater interest to that in the EU. Nor can one ignore copyright regimes in other major trading countries or nations with substantial populations – everybody mentions China, India and Brazil but a quick look at the populations of many countries in Asia can be sobering (90 million in Vietnam and 100 million in the Phillipines).

I think it is actually possible for the UK to have its own copyright regime and for that regime to encourage innovation and to increase the appeal of the UK for those seeking to establish tech businesses here. I do not have any great expectation that we will establish such a regime but that is not a reason not to try.


Next month I will be sending out my usual call for prediction for 2017. The response to that call is always impressive. But I want to emphasise that I am always looking for contributions, especially from new authors and those who have not written for us for a long time. The value of this publication arises entirely from the insights of the many authors who contribute. Issues that we have been considering as worthy of in-depth articles are:

·        Smart contracts

·        Linking and copyright liability post-GS media and McFadden

·        Adtech

But old favourites like outsourcing and anything giving insight into a different jurisdiction, whether Finland or Fiji, will be welcomed.

The most welcome contributions will be those on topics and in categories that are relevant to tech lawyers but which we have not yet considered. I have faith in the membership’s ability to come up with the unexpected and rewarding.