The GS Media case: “He’s making it up as he goes along!”

The GS Media case: “He’s making it up as he goes along!”[1]

This is not a Brexit whinge, but when I reread the ECJ’s decision in the GS Media case[2], I do understand where 52% of my countrymen were coming from. Generally, the EU has (IMHO) been a force for good in IP law, by trying to keep the law up to date in a period of insane technological development and promoting consistency across the member states to reduce the number of local wrinkles that businesses have to deal with.

The price for this is accepting the jurisdiction of the ECJ, a body which was one of the key targets of the venom of the Brexiteers. But judicial interpretation and enforcement is part and parcel of any rational rule of law, so in many cases this enmity was unfounded. However, judges are there to interpret law, not to make it, and the ECJ has a nasty habit of making up law as it goes along. Sometimes (as in the Davidoff case relating to international exhaustion[3]) the court has had to choose a yes or no answer which the legislation was completely silent about, and I can understand that. But on a number of other occasions, the ECJ has simply made up a law to suit the purposes of the case before it. In the UK, we had this experience in the 1970s and 80s with a well-known judge called Lord Denning; usually with the best of intentions, he would ignore or twist established common law to produce a result that fitted the case before him to produce the fairest result on the facts. But that created a huge amount of uncertainty as to the law to apply to other cases on slightly different facts, and it took quite a while for a sensible balance to be restored.

Read more: http://www.ilnipinsider.com/2017/06/the-gs-media-case-hes-making-it-up-as-he-goes-along/