Terrell on Patents
Ian Bowie: Because Terrell and Copinger, and The modern Law of Patents were associated with different sets of chambers over the years, the chambers didn’t own them but they were identified with them and so it would be very foolish to relinquish that relationship, and the problem was always that the people that had control over these books were the publishers. So there were always this, basically they would tell you what they were going to pay you, but you needed to do that book and generally when barristers write those books, is this time of year in August-September because its quieter in court work. So you could actually go away for a couple of months and do that work. But it was really the acclaimed books like the Terrell on Patents that were the ones you could not possibly release that from your grip because, as I say, so many people would buy that book, not only here, also in the Commonwealth and other jurisdictions and they would then look to see who the authors were and the editors were and that would be probably the first bit of marketing we were ever able to do, frankly. So you couldn’t let go. It was something we did in 3 New Square and previously 6 Pump Court. For us that [Terrell] was one publication we were not prepared to lose, it was the publication that we were involved in and if a publisher said, will if you can’t do it on time, we’ll take it elsewhere, that was something that we felt was connected with William Aldous and Douglas Falconer and other people before them. So we would have moved heaven and earth to ensure that the publication in particular stayed with those chambers. The two were connected for many, many years so we, we couldn’t let that relationship die. But it was really the acclaimed books like the Terrell on Patents that were the ones you could not possibly release that from your grip because, as I say, so many people would buy that book, not only here, also in the Commonwealth and other jurisdictions and they would then look to see who the authors were and the editors were and that would be probably the first bit of marketing we were ever able to do, frankly. So you couldn’t let go that association.

Chris Rycroft (formerly, Sweet & Maxwell) on editing Practitioners IP Books

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.
Terrell on Patents