European Policy for Intellectual Property
10th Annual Conference
University of Glasgow, UK
2 – 3 September 2015
Is there a European Union copyright jurisprudence?
An empirical analysis of the workings of the
European Court of Justice
Marcella Favale, Martin Kretschmer, Paul Torremans
RCUK Centre for Copyright and New Business
Models in the Creative Economy
www.create.ac.uk
CJEU copyright jurisprudence
HYPOTHESES
H1 CJEU lacks coherent copyright jurisprudence
(van Eechoud 2012; Griffiths 2013)
H2 CJEU pursues activist, upwardly harmonising agenda
(Colin 1965; Rasmussen 1986, 1988; Weiler 1994; Stone
Sweet and Brunell 2011; Conway 2014; Leistner 2014.
Against, Dehousse 1997; Conan 2002, Bell 2010; Beck
2012)
Marcella Favale CIPPM, CREATe
Methodology: content analysis
Q1 Who is behind the EU copyright jurisprudence?
Q2 Do they have a copyright background?
M: analysis of Court Members CVs
Q3 Are there recurrent approaches/patterns?
Q4 Are the approach/patterns related with the
background of the Members?
M: content analysis of Rulings and Opinions
Marcella Favale CIPPM, CREATe
Which chambers for copyright cases?
Sample: 49 cases
Case assignment to Chambers
45%
41%
40%
Copyright
Cases % in
each
Chamber
35%
30%
25%
20%
20%
20%
20%
20%
18%
20%
15%
Total
Cases % in
each
Chamber
12%
9%
10%
4%
5%
2%
4%
0%
Grand
Second
Third
Fourth
Marcella Favale CIPPM, CREATe
Fifth
Sixth
…Chambers by Year
Sample: 49 cases
Marcella Favale CIPPM, CREATe
Which Reporting Judge?
Sample: 49 cases
Type of case for each Reporting Judge
25
1
20
15
DB
24
10
Software
Copyright
8
5
0
1
1
1
1
1
2
4
1
1
Marcella Favale CIPPM, CREATe
1
1
1
Which Advocate General?
Sample: 49 cases
Type of Case for each Advocate General
10
9
2
8
7
6
5
4
8
Software
2
3
4
2
1
DB
9
2
1
1
Copyright
4
2
2
2
2
2
2
0
Marcella Favale CIPPM, CREATe
1
1
1
Members on copyright cases: what
specialist background ?
Sample: 45 Members
Marcella Favale CIPPM, CREATe
Which approach (topoi)?
• Semantic ex. ‘Article 5(2)(a) of Directive
2001/29, as is clear from its wording… ’
• Teleological ex. ‘the principal objective of
Directive 2001/29 is to establish a high level of
protection of authors’ European ex. ’any copyright
must respect the principle of proportionality’
• Systematic ex. ‘the meaning and scope of that
concept must be defined in the light of the
context in which it occurs’
Marcella Favale CIPPM, CREATe
Which approach (topoi)?
Marcella Favale CIPPM, CREATe
Sub Variables
TELEOLOGICAL
Harmonization
Circulation of Culture
High protection for the Author
Fair Competition
Technological Development
Fair Balance of Rights
Overcome Legal Uncertainty
Adequate Compensation
SYSTEMATIC
Legal History
International Treaties
Other Directives
General Principles of Law
Human/Fundamental Rights
Citation of previous EU Case-law
No cited approach
Marcella Favale CIPPM, CREATe
Teleological arguments
Marcella Favale CIPPM, CREATe
Background vs. approaches?
Marcella Favale CIPPM, CREATe
Background vs. approaches?
Marcella Favale CIPPM, CREATe
Findings
Hypothesis
Measure
Data
Findings
ECJ lacks coherent
copyright jurisprudence
1) Judges and AGs do not
have specialist expertise
Biographical background
(descriptive statistics)
Confirmed: no prior
domain expertise
2) There are no specialist
chambers
Allocation of cases to
Chambers, Reporting
Judges and AGs (tested
for significance)
Rejected: repeat
allocations can only be
explained by deliberate
policy
3) Reasoning is
unpredictable
Content analysis, linking
judicial approaches to
outcomes
Confirmed, but different
approaches found for
different judges (not
conclusive: small sample
limitation)
ECJ pursues activist,
upwardly harmonising
agenda
1) There is a prevalence of Content analysis,
teleological topoi
identifying patterns of
reasoning
2) Outcome of
judgements expand
copyright protection
Content analysis of
outcomes
Marcella Favale CIPPM, CREATe
Confirmed, but complex
pattern of cumulation,
often combining
teleological, systematic
and semantic
Rejected
Conclusion
‘Is there a EU copyright jurisprudence?’
• attempts to create in effect specialist
chambers
• recurrent patterns of reasoning, but outcomes
from that reasoning unpredictable
• the Court’s jurisprudence is overall balanced,
but much could be done to improve its
legitimacy.
Marcella Favale CIPPM, CREATe
Thank you
Marcella Favale: [email protected]
Martin Kretschmer: [email protected]
Paul Torremans: [email protected]
Marcella Favale CIPPM, CREATe