Fairy use. Column

In our continental jurisprudence we are very familiar with somebody, who does not exist. He was formerly called ”bonus paterfamilias”, good familyman. I am not aware, whether he has changed gender lately. In any case this criterion – the American would say ”test” – means the caution, measures and means used by someone, who exemplifies a sensible man. He might very well known, what is ”fair use” in copyright. In any case when quoting a protected work, his discrimination is invaluable. In continental laws quotation presupposes as well as copying a work for private use adherence to ”good practices”. That means what this sensible man would do.

Our hero is the second cousin of the average specialist well versed in arts as known in Patent Law. He knows everything that needs to be known, but he is a forlorn figure, because he is so stupid, he is not capable of inventing anything. It is so sad, but overcoming this shortcoming would be absolutely necessary that something fabricated by this specialist would take ”the inventive step” that is sometimes called non-obviousness.
Now, both of these persons are tooth-fairies for adults.

In Finnish jurisdiction the courts rather often argue that something was bound to happen or not happen ”according to common experience”. This seems to be a very serious issue. This was one of the arguments for dismissing claims in recent tobacco-cases. Huge amounts of evidence were piled about what was common knowledge about hazards of smoking. Here as in U.S.A. after these uniquely large and time-consuming cases arguments are however presented according to which the evidence has been biased, facts have been concealed and – you name it.

The problem, in criminal law, in torts, in intellectual property law, seems to be the same. Judges and at least a part of other lawyers still have a measure for human conduct. That measure was named in an unforgettable way by George Orwell as ”common decency”.

Let us assume that we should say good-bye to all that. What is common and what is decent are hotly contested topics. We might talk about fragmentation. There are many kinds of truths. In forma systems like mathematics true is what can be derived using the well-defined rules of the system. Deplorably this does not function even in math. Kurt Gödel gave long ago a proof: it can be proved that there are true theorems that cannot be proved.

There are good-enough truths, like Newton’s mechanics. The equations had to undergo major modifications hundred years ago but the rules are good enough for all non-scientific purposes. There are empirical truths that are so evident that they can be used for medical purposes. A person who sincerely believes that he or she is a fairy is worth a second look of white-coated people.

There are no such things as ”common experience” or even ”common decency”, if we do not spell out the references – who, in comparison with whom, where, what. This is by no way nihilistic point of view. It is almost a platitude. People in their daily chores want to be convinced. It is convincing that somebody with shiny buttons in her coat wants to see one’s metro ticket or driving-licence. The same tradition prevails in arts. A novel or a documentary movie are convincing or not. Because of the vagaries of language – allegories, similes etc. people accept as convincing things that simply cannot be true. Something represents another things. A cloth ornamented with weird symbols represents one’s country. Is that not very odd!

We are in no need to speak out about huge grievances. This modest writing was written to point out an obvious way (not non-obvious). IPR-law has very much to do with creativity. Judges and other lawyers might be well served trying to understand language and evidence brought forth using that language according to the tradition of literature. They should try to discern, what is intended, not what is said. It is rather silly to ponder, whether there was a prince called Hamlet in Denmark (there was), because the play clearly intends to express something important to many other people, besides princes of Denmark.