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Common law helps you go global with your IP | | Print | |
Lightbulb (Dilanchian IP blog) | ||||||||||
Written by Noric Dilanchian | ||||||||||
Tuesday, 05 December 2006 | ||||||||||
International standardisation or at least harmonisation of law helps you go global with your intellectual property (IP).
One perspective on this is provided by an English invention - English common law. It has spread across the globe as a preferred legal system. With it intellectual property contracts have more and more adopted common law terms and references. U.S. contracting practices have played a central role here, eg in the preference for detailed provisions rather than a general statement of norms.
This is all noteworthy in an era when the "War on Terror" has put the very heritage of common law onto a butcher's chopping board.
But I have come to praise Caesar, not bury him. The Caesar I speak of is the English common law system and the countries that have nurtured it, most particularly England but also the United States and Australia, among others.
Here is a simple example of the usefulness of common law in business and IP contracting:
We reached this point through evolution in legal thinking. Legal history sheds light on that evolution. Skip the history if you like, but to make money from IP globally do read the last five paragraphs of this post.
The history of law is the history of civilisation
Anglo-Australian law is remarkably resilient and has an admirable heritage. Anglo-American law, a cousin of Australian law, has been spreading at a great pace globally in recent decades. This is noteworthy. English or American law become the dominant law for global trade many years ago. I don't think that is just because English is the modern (human language) lingua franca.
In recent years many legal commentators have remarked that poor political decisions during the "War on Terror" threaten English common law traditions (eg habeas corpus - relief from unlawful imprisonment) and potentially the economic and global future built on them. If we assume the common law is an English golden goose then it would be useful to keep it alive to lay more golden eggs, eg in places like China, India and Brazil.
It has been said that the history of law is, in a broad sense, the history of human civilisation. Landmarks in this history include Roman civil law, English common law and equity, Islamic Sharia law, and changes in law arising from thinkers who were republican, enlightened, socialist, communist, capitalist, or part of a civil rights movement.
Within this body of law, the doctrine of stare decisis, or precedent by courts, is the major innovation of English common law.
Pax Britannica
English common law spread throughout the former British Empire and Commonwealth over the last five centuries. The common law system rules Ireland, United Kingdom, Australia, New Zealand, South Africa, Canada (excluding Quebec), and the United States. Several other former regions of the British Empire have adapted the common law system into a mixed system, eg Pakistan, India and Nigeria. The common law system played a part in bringing about Pax Britannica (ie "the British Peace", modelled after Pax Romana) along with such things as sea power and gunboat diplomacy.
Wikipedia indicates that the phrase "Pax Britannica" was used first in 1897 by the British author James Morris as the title of the middle volume of his trilogy about the rise and fall of the British Empire. The accompanying map is also dated 1897 and shows the British Empire with the dominians in red. If you add the United States, this was roughly the extent of common law at the time. It has since expanded in its global presence or influence.
"Pax Common Law"
For this post I thought I'd coin a phrase - "Pax Common Law". This is because regions beyond the old British Empire have adopted the common law system. Common law elements extend to other countries. For example, the legal infrastructure of Taiwan reflects influences from its German-based law, the English-based common law of Hong Kong, Soviet-influenced Socialist law, United States-style banking and securities law, and traditional Chinese law.
This English common law heritage is impressive, but no more so than one earlier legal tradition.
The development of Roman law covers more than 1,000 years from the law of the 12 tables (from 449 BC) to the Corpus Juris Civilis of Emperor Justinian I (around 530 AD). The English common law system's history is almost as long. However Roman law wins out when you consider that Roman law preserved in Justinian's codes became the basis of legal practice in the Byzantine Empire and later in continental Europe and even in areas of English common law.
Pax Romana (27 BC - 180 AD) is Latin for "the Roman peace". It refers to the long period from about 27 BC to 180 AD of relative peace experienced in the Roman Empire. The term stems from the fact that Roman rule and its legal system dominated rivalry between areas and peoples within the Empire.
"The Five Good Emperors" who ruled from 96 BC to 180 AD in the Pax Romana period of the Empire's greatest prosperity were Nerva, Trajan, Hadrian, Antoninus Pius, and Marcus Aurelius (as played by Richard Harris in the film Gladiator). They make me wish for 2007 to be a year for not just the meek but also the mighty to respect the heritage of English common law.
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