Re: Re: Issaries publishing policy and the Whitewall wiki

From: donald_at_...
Date: Fri, 22 Apr 2005 00:21:40 GMT


In message <d48l5f+614j_at_...> "Jeff Richard" writes:

>I was thinking about the doctrine of adverse possession or
>prescription - which is an English legal doctrine. Even copyright
>runs the risk of equitable estoppel if you've clearly and knowingly
>been allowing use of the copyright without formal permission.

Adverse possession is the Statute of Limitations as applied to "real property" (some interests in land in ordinary language). It has no relevance to any other form of property. Even there it is becoming obsolete with the increasing use of the Land Registry.

While it's true that the Statute of Limitations can prevent someone taking a particular case to court it does not involve a change in ownership of IP. With physical property it effectively does simply because there is only one thing to be owned.

>You'd surprised - until the late nineteenth century, decisions of
>English courts interpreting "common law" were generally considereed
>precedents. For example, the Enabling Clause of my state's
>constitution adopts the interpretations of the common law by UK
>courts up to 1889 as the law of the state. Although English common
>law decisions appear to decline as cited precedents thoughout the
>nineteenth century (for example, folk like Cooley and Dillon started
>to develop independent municipal legal doctrines), it took Oliver
>Wendell Holmes to put the stake in that practice.

Common law hasn't changed since the Middle Ages, even Equity law stopped changing about the beginning of the 18th Century when Statute law replaced it as the primary means of changing law. Any interpretations established by English courts[1] in the 19th Century are going to be pretty obscure rulings.

IP law in the modern sense has always been statute law although I believe there were some "patents" issued by earlier monarchs. However I'm not sure that the word had the same meaning as the modern term.

  1. There are no UK courts, even the House of Lords is an English court when dealing with an English case, a Scottish court when dealing with a Scottish case and an Irish court when dealing with a Northern Ireland case, etc.
-- 
Donald Oddy
http://www.grove.demon.co.uk/

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