Copinger on Copyright
Legal historians such as Ronan Deazley have studied the making and reception of Copinger’s Law of Copyright (1870). Although its first edition was an important milestone in the history of British copyright, the fact is that its different editions throughout the late nineteenth century and across the whole twentieth century were even more crucial for its emergence as the leading text on British copyright. Published consistently by Sweet & Maxwell, the treatise also became woven into the history of 5 New Square and its tenants, particularly two generations of barristers, Francis Edmund Skone James and his son, Edmund Purcell, who were responsible for seven editions in the twentieth century (1927-1991). Perhaps the most interesting editions were the twelfth (1980) and the thirteenth (1991) because they coincided with the struggle to deal with the success achieved by a rival publisher, Butterworths, after the publication of The Modern Law of Copyright, authored by barristers from a different set of chambers, Francis Taylor Building.
 
Further references:
 
Gerald Dworkin “Book review:Copinger and Skone James on Copyright” 14(9) European Intellectual Property Review, 1992, pp. 335-336.
 
Phillip Johnson “Book review: Copinger and Skone James on Copyright” 28 (2) European Intellectual Property Review, 2006, pp. 128-129.
Carol Tullo: I’m looking here at the 12th edition, 1980 and I am guessing that, as a younger editor, this is one of the ones I worked on and I would have worked on this as an editor. How these books are produced? I remember, 1980 is pre – it is almost pre word processing and so the way of producing these classic books going onto, this is the 12th edition and obviously, it has had multiple new editions, because I’ve got the 15th edition in front of me as well. The process has changed now but at that time, a copy of an edition would be broken up and the pages would be mounted. They would be stuck onto a big A3 sheet in the middle and those sheets would be sent to the author team for them to start planning. This could happen years and years in advance of getting a manuscript. One of the patterns, certainly in the 1980s of law publishing was that you were trying to buy the time of people who were either already very eminent and valued and had lucrative practices in the business or by virtue of the writing that they did, their reputation was growing and so finding the time to do updating editions was quite tough. So there was building rapport, working closely in partnership with the team and actually being the editorial teams and the publishing teams with Sweet & Maxwell, you got to know your authors very well. I mean they became friends, they were professional contacts and then you worked so closely with them on producing what was actually, another member of their family, their professional family. They often described it to me as having a baby, although the gestation period was much longer. So these mounted sheets as we call them, would be sent out to the team, they might be divided up because I mentioned earlier that often these classic reference works would be owned by a set of chambers traditionally, and so they would keep the writing and bring in younger members. But actually the work got so complex and the subject area got extremely sophisticated. So for parts of it , they might bring in an editor for a couple of chapters or to read or to review, so we might have duplicate sets that would go out very, very widely. They were all numbered and at the time and in the 1980s, literally the way of producing the work would have been to update those sheets so to cross out sections, to rewrite, retype and add-in as riders, there may be two hundred pages of rider if a chapter of legislation had changed this. I can remember the American Cyanamid case, absolutely classic that came in and changed so much. I mean, even I can remember that now and that caused massive, massive rewriting. So you’d have perhaps sheets where there would just be the odd change, perhaps some – a little bit of drafting could be improved. Perhaps, in the footnotes there might be some new cases added in or some quotes added in or an old case taken out that perhaps had gone on appeal to the House of Lords.
 
So you might actually have just a new paragraph put in. Good writing was when the authors reviewed all the text but it was really mammoth effort and it could take years and years. And then what would happen is that when they were satisfied or when we persuaded them to hand the material over, we would take the material in and in-house editors, increasingly expert, divided by the subject matter, very familiar with the subject matter and lawyers, legally qualified people and we would go through and we would so tighten it up, we would make sure it read properly, we would make sure there was consistency. We’d perhaps raise queries with them and say, “Well, this is now a little unbalanced or – and you know, you’ve covered this case in this area.” So we’d really help them just like any editor in publishing would do, but with a bit of specialist knowledge.
 
Facilitator: And the characteristics of the book numbers, paragraphs, the index I guess you were mentioning as a very important–
 
Carol Tullo: Yes. Indexes came later, I mean, books moved to paragraph numbers, purely because of ease of reference and obviously in court, [it is] much easy to refer to a paragraph number then to a page number, because it immediately identifies the section because obviously these books were very significant reference works, but also a part of the publishing process. So that, if for example, when all these sheets came back and they were all then typeset and proofed up, you were still just at the early stage of computer typesetting and so and it really was helpful to have the flexibility of paragraph numbers. So if the gestation period was perhaps very optimistic, say, it was 8 months from getting a completed manuscript to producing the finished book because the manuscript came in sections, there might be something between paragraphs 182 and paragraph 183, a new American Cyanamid for example that required four or five paragraphs worth of material. So it was easier to bring in the numbers because you could move the material around more easily. Footnotes on the page were very costly to do in typesetting, due to balancing the footnotes, especially if there were late changes to a manuscript because there is no point asking people to pay hundreds of pounds for a big reference book producing in it just as you know another case is coming along. So part of the scheduling and timetabling was also looking at what legislation was coming through, what big case law was coming through both in the UK and in Europe, increasingly and trying to find a window when you could produce the book and not immediately be reviewed by somebody saying, “what a shame they didn’t wait because of course, chapter 14 has to be completely reviewed because of X case or a piece of legislation.” So the paragraphing allowed the flexibility of movement, the way of keeping books cheaper and I’m guessing that this happened particularly in a lot of student books, although users didn’t like it, was to put all the footnote references at the end of a book. It was just a way of keeping the cost down so capturing all the references to statutes in cases and indexes was something that was done at the very end and you had the very final proofs to work on. You would have freelance experts who produced the tables and the index. Sometimes they were done in-house with smaller books. A lot of the tabling work would be done in-house, because there is a lot of work with paragraphed books that you could do as the manuscript was processing through publishing. So if you had a text was 75% complete we might make a decision to start tabling that and just because these are tasks that take a long time. Clearly, as time moved on, and also as authors, I mean, the best in the world, Skone James, and the Blanco Whites of this world where of a generation that did not grow up with laptops and computers or desktops, they literally would type it out themselves on typewriters or they might dictate it and have it typed for them or they would handwrite it. Interpreting handwriting was quite a skill at the time in the 1980s for certain authors and especially if they were using technical language.
 
But as time progressed, and certainly as you went through to the late 80s then it would be much more about providing the text on disk, so that the author could play around with the text themselves and also a lot more automation came in to enable the extracting of references automatically. But at the time of these classic books in the early ‘80s, where we got to then with editions that have gone back over many hundreds of years and have grown, we definitely were in a world of mounted sheets and paper.
Facilitator: What type of books were when you became Publishing Director related to Intellectual Property in the catalogue of Sweet & Maxwell?
 
Carol Tullo: I think I would divide the catalogue into two, because there were books that one inherited, classic works like Copinger (Copinger and Skone James on Copyright) and Terrell (Terrell on Patents), I remember. So generally, if you look along the list, any books that had a hard back with a cloth foil binding, those were the classic reference works. And I suppose, I would describe those as the –almost the Crown Jewels of Sweet & Maxwell at the time. It changed massively as a company, as did the rival Butterworths and lots of smaller companies came through as well, very innovative. But the two companies Sweet & Maxwell and Butterworths largely had these classic reference works, authored by generally sets of barristers in chambers, going back many, many decades, some of them into the nineteenth century and they had been refreshed over time because they were sort of owned by that set of chambers and whereas a young editor might come in and do the indexing and do some of the running around and the research, gradually over the years you would see their name move up and while the senior editor like a Copinger or Skone James handed over the general editorship, you would see this class of experts within a set of chambers taking over ownership of the product.
 
The Common Law Library was another one, the British Shipping Law library and, at the time, Intellectual Property didn’t have a ‘library’ concept but in the late seventies in the early eighties, when I started working with this office and these titles, of course, Europe became very important with European Patent regulation, and so there were lots of growth and opportunities for what was an expanding specialist area – specialist market, so that’s when loose-leaf works like the Patent Encyclopedia were created and I remember working on that. That must have been something like about ‘78, ‘79, 1980 something like that, literally, working with the office devising how it should be subdivided, how it should be organized. But the set of these classic works, and then you looked at not everybody could pay large sums of money for a reference work. My memory is that they would sell perhaps two, three, four thousand over their lives, so [they were] very successful products and the only revenue that you’ve got between editions would be by doing supplements, hardbound supplements. Again, quite costly, quite hard to find the time of these really senior editorial teams and so I suppose it was just a natural reaction: growing market, students starting to study in pockets in particular areas because of the interest of a lecturer or a professor or a tutor and innovation in the subject matter in the area, Europe, but also new types of actions starting like passing off and there was more interested infringement; the creative world was growing and so there was more concern about protecting designs and about maximizing the value of your physical assets.
 
All those really combined to say, this is a growing area and so we actively looked at what could you do with the classic books to develop those services and what could you do with new fast moving areas, , what could you do to keep lawyers up-to-date and so looking at case law, the cases in the area, where was the common theme going to come from in these new areas and that led to looking at and eventually acquiring ESC publishing because it had a very tailored range of Intellectual Property works that also carried the opportunity to have really expert articles from a wide geographical area, not just the UK but also remember, tactically and commercially it was an opportunity to expand one’s contact base to look at opportunities. And at the same time, student texts started growing and that was – I remember that was quite a risky business. I can remember quite a lot of discussions in planning meetings that Professor Cornish wanted to do a little book for his students and many people thought, not many people studied Intellectual Property in that way, but he was a very valued author and we did the book and it went on and developed as it did. So that’s how I would sort of describe the list as I recognized it.
Chris Rycroft: Well, I think one should draw a distinction between barristers and solicitors. I think traditionally in this country barristers have regarded writing a book as a very useful thing to do as a junior to make a name for themselves in a particular field. And if you look back through the history of legal publishing, particularly companies like Sweet & Maxwell and Butterworths and Green & Co in Scotland and so on, you find a lot of barristers involved in writing these sort of authoritative tomes on new pieces of legislation. Because clearly whenever a big new Act comes out, they regard that as an opportunity to launch themselves as the expert in an area which is new, whereas maybe in other areas they’re at a disadvantage to their more senior colleagues. When it comes to a new Act, they’ve got just a good a chance as anybody else of becoming an expert on it.
 
I think that tradition certainly continued in the 90’s, when I was joining Sweet & Maxwell. There were always young barristers who one could go and chat to, and either they came along with an idea for a book or one could go along and persuade them to write something. The more established texts, like Terell on Patents, Kerly on Trade marks, Copinger on Copyright, started out as being written by a barrister in exactly that way, but a hundred years ago. And they became the sort of property of a particular set of Chambers, who traditionally kept them up to date with new editions. So I worked on all three.
 
Copinger was 5 New Square, which became Hogarth Chambers. And the edition I worked on was one that Kevin Garnett QC kindly took on the role main editor for. He did a huge amount of work with a team of four or five other members of Chambers all playing a quite major role. John Mummery played a role but was by then getting far too busy as a judge, so he had to sort of hand over to the next generation. I introduced the idea of getting some external contributors in, and that proved very useful. So Gillian Davies, who was at the EPO, became involved, because she had been involved in international copyright organisations before and had a lot of expertise. She helped on the international stuff. We broadened some of the other coverage to make it bit more practical, and got some solicitors to contribute. So it became a bigger team, but it was still run from that chambers.
 
Terrell was traditionally run from 6 Pump Court and then they moved to 3 New Square. But it was very much a team of extremely experienced Silks. Simon Thorley was the lead editor on the editions I was responsible for and Antony Watson was involved. They also had more junior people like Guy Burkill and Colin Birss.
 
Kerly was again the Francis Taylor Building, 8 New square team. Particularly, the people I dealt with on Kerly were Robin Jacob, David Kitchin and James Mellor. They were the most active contributors. So we did a new edition with them and we did several supplements. The 1994 Act came in while I was in pole position at Sweet & Maxwell, so dealing with the 1994 Act was a major event.
 
I really enjoyed working with sets of barristers, yet your implied question about how they prioritise their time is entirely valid. We used to have some horrendous delays on delivery compared with the original time table that we might have set out. But in the end, they were pretty committed to them as chamber’s projects and knew that it was something they had to do, and that their chambers were being judged in the end on the quality of the books.
 
Facilitator: So was there any special treatment respecting the table of content, or keeping the book as much as possible as the real book, and then the updates were mainly footnotes? So how did you keep a title the same title without changes…
 
Chris Rycroft: Yes, it’s a good question.
 
Facilitator: Especially in those three Terrell, Kerly, Copinger: was there any room for creativity?
 
Chris Rycroft: Definitely, yes, definitely. I mean, there is a tension between creativity and some kind of reverence for the authoritative [nature of such books]. Because they were regarded as authoritative. They were definitely cited in the court – I mean, they have no binding precedent; and not quite like the continental system either. But still, those were the kinds of titles that the Courts would quote in intellectual property cases, giving them some weight, some serious consideration. If the learned authors of Copinger had said such and such, that was given some weight.
 

On Terrell, one particularly felt that the team felt that reverence to a certain extent. And unless absolutely necessary, they tended not to go in for wholesale rewriting of sections, because they regarded it often as words that had got court approval. When it came to Kerly though, you’d got a new Act based on an EC Directive, so that needed to be completely rewritten at that stage. Or large parts of it did. Copinger likewise. With the edition and supplements that I worked on, it was very clear that EC law and the various directives that were coming through were having a major impact and that the book needed to be rewritten.

 

The other thing you have to bear in mind is the competitive environment. Laddie, Prescott and Vitoria had come out in its first edition, and it was very clear that Copinger was regarded as a very old-fashioned book in comparison. So Kevin Garnett entirely agreed with me as editor in suggesting that it needed modernisation. But it was a gradual process. Laddie, Prescott and Vitoria was such a breath of fresh air. So much more opinionated and imaginative in comparison. I could certainly legitimately make the case to anyone operating in the copyright field that they needed to have both, because Laddie, Prescott and Vitoria was opinionated and argumentative and increasingly in further editions had all of these slightly off the wall arguments about EU Law. Whereas with Copinger, at least you could rely on it being fairly sort of straightforward and not doing anything crazy.
 
It wouldn’t necessarily give you new arguments, but actually you know, I think Copinger got better and better over the various editions, and it got bigger. It got a bit cumbersome perhaps, but I think we saved it by the work we did on it from being something that was completely old-fashioned to being something that was much more useful. And a lot of that was Kevin Garnett’s work sorting it out.
 
Facilitator: And stylistically, how would you describe some of these books?
 
Chris Rycroft: Stylistically?
 
Facilitator: Yes. They have a particular lack of narrative, and are more an accumulation of cases, numbered paragraphs and so on.
 
Chris Rycroft: The traditional practitioner law apparatus for a book was something that I enjoyed learning about at Sweet & Maxwell. Paragraph numbering because it is much better for pinpointing where you want to go from an index or from a table of cases. And from a publisher’s point of view, paragraph numbering is brilliant because it means that you can get your tables and index right from the beginning, and you can get them correct without having to worry about how the pagination works out when you flow these pages out. Whereas in other books, you may have to make lot of changes to the index if some corrections are made because all the page numbers get bumped on. If you’re using paragraph numbers, they don’t change unless you want them to. That was the advantage as well with the loose leafs. Using paragraph numbers, you could be quite creative with your updating. Other features of those books, I cannot remember now how consistent they were. If you compare the Kerly, Copinger, Terrell and the Russell-Clarke on Designs that I inherited when I arrived to Sweet & Maxwell I should not have thought that they were terribly consistent with each other. They would have had similarities, for sure. I think they all used paragraph numberings but when it comes to types of tables of contents, they might or might not have been similar.

Sweet & Maxwell
had some Libraries and Series of Books like the Shipping Library and the Tax Library when a lot of effort went into making sure that there was consistency. One of the things I did while I was in-charge of the IP list at Sweet & Maxwell, was to create an intellectual property library and obviously, Copinger, Terrell and Kerly went into that library. Wadlow on Passing Off was a book of enough stature to be put into that library in its second edition. Russell-Clarke, when Martin Howe did a new edition of it, went into the library. And at that point, yes, we were looking to make sure we had a consistency of approach. On the whole, the more headings, the better in a practitioner book, because it’s not like a student textbook or any other kind of narrative way of reading it in big chunks or the whole book. A practitioner on the whole will just be reading a few pages and they’ll want to be able to get the context from the heading structure, from the chapter structure, from the book structure and from all of the other apparatus. They’ll want to be able to use that small number of pages really efficiently. I used to put a lot of emphasis on getting the indexes as good as possible, because there was a huge amount of criticism of indexes of some books because they’ve just not been done in very intelligent way. So I put quite a lot of effort in to try and get those improved.
 
Facilitator: Was that [made] in-house?
 
Chris Rycroft: That was something that always traditionally had been done by freelancers. So Sweet & Maxwell had a certain number of really well established freelance indexers and preparers of tables of cases and legislation; things used to get routinely sent out to them. It was a mechanical process, to a certain extent.
 
Facilitator: So I guess the point of the indexes is that they are not so detailed that everything gets listed; they are grouped by families of words?
 
Chris Rycroft: To be honest, I don’t know. I mean, obviously, there’s the Society of Indexers, which has its own guidelines and most of the freelancers we would’ve used for an index probably would have been members. Whether we at Sweet & Maxwell had particular guidelines for our freelance indexers on how they were supposed to do it, I really don’t remember.
 
On the whole I tended to encourage people to have more rather than less. I think some indexes were far too short. The struggle that one always has with indexers if it’s a legal index is that although they will have some kind of legal background, they usually don’t have the specialist subject knowledge. So they won’t be intellectual property specialists or whatever. And therefore, as they are going through the book picking up terms for indexing, they will not necessarily know what key terms of art they should be putting in the index. So that was something that I used to help them with. I’d quite often have an index come in and then augment it myself.
 
Facilitator: So it’s like Stewart on International Copyright – I think they didn’t have further editions, they just… it was one of the book that never made it [into a new edition.].
 
Chris Rycroft: No. Well, that was a curious one because we were very aware of the fact that it existed and was a very well-regarded book.
 
Facilitator: It was Butterworths?
 
Chris Rycroft: Yes. Exactly. It was a competitor. I don’t know what the story was as to why it wasn’t updated, but one of the things we did during my time at Sweet & Maxwell was to commission Adrian Sterling to do the World Copyright Law book. He had previously done a book which had focused on his real area of specialisation, which was sound recordings. He was keen to enlarge it and to cover everything and we were really happy to encourage him to do that because Sweet & Maxwell wanted to have an international copyright law book to take on Stewart. And funnily enough, when I was at OUP I was able to acquire Sam Ricketson’s Berne Convention book and published the second edition of that. So it was nice then to have at OUP what’s probably the best book of all in academic terms on the subject. But you know Adrian’s World Copyright Law Book is different. It’s very analytical. I was pleased to see that there’s new team taking it forward into the new era.
 
Facilitator: I think Trevor Cook is involved.
 
Chris Rycroft: He is involved, I saw. Yes, yes, that’s good.
Copinger on Copyright