Intellectual Property Law

by Lionel Bently and Brad Sherman
 

Oxford University Press, 2001, 1051 pp,
ISBN 0 19 876343 3

Reviewed by:
Professor Charles Oppenheim
Dept of Information Science
Loughborough University
 

1. Introduction

This is a seriously heavyweight textbook. It covers all aspects of Intellectual Property Law, namely copyright, patents, designs, passing off, trade marks and confidential information.

It is aimed at practitioners and at law students. Although written in a readable style, it is not intended as a gripping read to be read cover to cover, but rather as an authoritative textbook with many citations to leading cases.

As with so many legal textbooks, it provides inadequate citations to journal articles (only providing the first, and not the last page of the article), but unlike so many legal textbooks, it does boast a good index.

The authors also wrote a fascinating history, 'The Making of Modern Intellectual Property Law' (Cambridge University Press, 1999). Bently is Reader in Law at King's College London, and Sherman is Professor of Law at Griffith University, Brisbane, Australia.

Despite being published in late 2001, the authors' introduction is dated 9 January 2000. It does appear that the most recent references are to 2000, so the book is already somewhat out of date. For example, no account is taken of the British Horseracing Bureau versus William Hill database right case, or of the passage of the Directive on Copyright and related Rights in the Information Society.

2. Authoritative Text

In the areas of law that I know best, the text was authoritative and helpful.

I was however surprised to find the categorical statement that copyright gives someone the right to reproduce the work, when in fact it gives the owner the right to authorise, or prevent copying (and other restricted acts) by third parties. There was also a curious statement that the 1988 Copyright Act 'abandoned the formal distinction between different categories of work', when the Act clearly distinguishes a number of different types of copyright work, such as Literary Works, Artistic Works, Sound Recordings, and so on.

3. Why Does Intellectual Property Exist?

There is an interesting attempt by the authors to justify the existence of intellectual property law. Most textbooks just accept that the law exists. A pity that they did not take the opportunity to examine some of the more radical approaches, such as of John Perry Barlow, into their discussions. However, on a similar vein, the authors simply accept that there are no provisions against unjustified threats to sue for copyright, passing off or breach of confidence, without explaining why those rights are so different from patents and trade marks to justify this lack of protection for users.

4. The Law and the Internet

As someone whose primary interest is in how the Internet interacts with the law, I was somewhat disappointed at the coverage of this topic. Thus, for example, issues of domain name disputes, the legality of linking (especially deep linking), and the application of database right to Web sites are all touched upon, but rather superficially. The discussion on implied licences in copyright surprisingly made no reference to the Internet and whether there is an implied licence to copy there. There was also a rather too short discussion of whether digitisation of a work creates a new copyright work, or whether it is simply a copy of the original and therefore does not get copyright. The authors quite rightly (in my view) expressed surprise at the interim decision in the Shetland Times versus Shetland News case, and warn against it being taken as any kind of precedent.

5. Look and Style

The book is attractively typeset, and I was aware of just two spelling errors, one where 'affect' was spelt 'effect', and another naming 'Salman Rushdie' as 'Salm o n Rushdie', which seemed a bit fishy to me? There were missing cross-references to other parts of the books in some places, and the discussion on library copying was too brief for my taste. The book includes a few curious photographs to highlight particular points.

6. Conclusion

Overall, this is an impressive work that deserves to be well used by practitioners and students alike. However, a second edition will be needed sooner or later. I hope the authors are willing to take the task on.

This is a Book Review published on 22 March 2002.

Citation: Oppenheim C, 'Intellectual Property Law, by Lionel Bently and Brad Sherman', Book Review, The Journal of Information, Law and Technology (JILT) 2002 (1) <http://elj.warwick.ac.uk/jilt/02-1/oppenheim.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2002_1/oppenheim/>.