Towards a Purposive Copyright System
Towards a Purposive Copyright System
Review of the book of Daniel J. Gervais,
(Re)structuring Copyright, Edward Elgar, 2017
by Alain Strowel, Professor UCLouvain and Université Saint-Louis, KULeuven, Munich Intellectual Property Law
Centre – Avocat (Brussels).
© 2018 Alain Strowel
Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and
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Recommended citation: Ala in Strowel, Book Review: Towards a Purposive Copyr ight System – Review of the book of Daniel J.
Gervais, (Re)stru cturing Copyright, 9 (2018) JIPITEC 335 pa ra 1.
In his aptly titled book, (Re)structuring Copyright,
Professor Daniel Gervais aims to (re)design a
copyright system t for the information age and the
knowledge economy. This important and ambitious
task attempts to remedy “the decient structure
of copyright” and its “current lack of equilibrium”
(p. XII). It is to be achieved by bringing forward the
purpose of copyright, as the US Constitution does.
For Daniel Gervais, this purpose is nothing less than
“human progress, its emancipation through science
and the arts” (p. XIII). It is difcult not to agree with
this purposive view, but to put it into practice is
(Re)structuring Copyright is thus a policy-oriented
book on copyright. It is also a book very much
centered on the international developments in the
eld of copyright. While some books and academic
initiatives over the last years have tried to redene
copyright within the US or European context,1 this
book is unique by its amplitude as its aim is to reshape
copyright from an international and comparative
1 Some of those books and initiatives are mentioned or
discussed in Daniel Gervais’ book, such as the Copyright
Principles Project initiated by Prof. Pamela Samuelson
(see for example, p. 186-187), and among many others, the
book of Prof. Jessica Litman, Digital Copyright (Prometheus
books, 2006, 2nd ed.) (and its comment by Prof. J. Ginsburg;
see p. 211 ff.). (Re)structuring copyright also reviews some of
the proposals made in Europe such as the Wittem’s group’s
proposed European Copyright Code (for ex. on p. 181 ff).
law perspective. (For instance, a book edited in
2018 by Prof. Hugenholtz, Copyright Reconstructed,
Rethinking Copyright’s Economic Rights in a Time of
Highly Dynamic Technological and Economic Change
[Wolters Kluwer] also aims to redesign copyright,
but only its economic rights and in the EU context).
Although the book has a strong normative approach,
it also contains more descriptive chapters which shed
light on many recent developments. Part I of the book
presents the concepts and doctrines of international
copyright law in order to identify the structural
issues of copyright. Some chapters delve into the
history of copyright (Chapter 1 on the common law
tradition and Chapter 2 in the international context).
This permits to demonstrate that copyright, and
its complex fragmentation of the rights (p. 24),
was meant to deal with commercial exploitation
and was thus directed towards professionals. The
issue today is that copyright affects the users and
has become a system encroaching on their freedom
and, potentially, their creativity. In its review of
the exibility of the three-step test, Chapter 3
compares its application in many national systems,
and thus applies the comparative law method,
another red line of the book. Chapter 4 contains a
review of the protection thresholds (originality and
xation) in a comparative perspective, however,
2 The book edited by P. Bernt Hugenholtz is also reviewed in
this issue of JIPITEC.