Favale, Kretschmer and Torremans (2016)

From Copyright EVIDENCE

Advertising Architectural Publishing of books, periodicals and other publishing Programming and broadcasting Computer programming Computer consultancy Creative, arts and entertainment Cultural education

Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing (including video games) Specialised design Television programmes Translation and interpretation

1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Favale, Kretschmer and Torremans (2016)
Title: Is there an EU copyright jurisprudence? An empirical analysis of the workings of the European Court of Justice
Author(s): Marcella Favale, Martin Kretschmer, Paul C. Torremans
Year: 2016
Citation: Favale, M., Krestschmer, M., and Torremans, P.C. (2016) Is there an EU copyright jurisprudence? An empirical analysis of the workings of the European Court of Justice. Modern Law Review, 79(1): 31-75 (January 2016)
Link(s): Open Access
Key Related Studies:
Discipline:
Linked by: Favale, Kretschmer and Torremans (2018), Kalimo, Meyer and Mylly (2018), Sag (2017)
About the Data
Data Description: The study involves an analysis of the judgements of CJEU references which involve copyright or related rights from 1992 to 2014 (totalling 40 cases over 20 years). Thereafter, quantitative content analysis is employed to identify eight broad categories evident in the CJEU judgements (based on semantic, systematic or teleological approaches to wording interpretation) .
Data Type: Primary and Secondary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: No
Comparative Study?: No
Literature review?: No
Government or policy study?: No
Time Period(s) of Collection:
  • 1992-2014
Funder(s):
  • CREATe, AHRC Grant Number AH/K000179/1

Abstract

The Court of Justice of the European Union (ECJ) has been suspected of carrying out a harmonising agenda over and beyond the conventional law - interpreting function of the judiciary. This study aims to investigate empirically two theories in relation to the development of EU copyright law: (i) that the Court has failed to develop a coherent copyright jurisprudence (lacking domain expertise, copyright specific reasoning, and predictability); (ii) that the Court has pursued an activist, harmonising agenda (resorting to teleological interpretation of European law rather than – less discretionary – semantic and systematic legal approaches).

We have collected two data sets relating to all ECJ copyright and database cases up to Svensson (February 2014): (1) Statistics about the allocation of cases to chambers, the composition of chambers, the Judge Rapporteur, and Advocate General (including coding of the professional background of the personnel); (2) Content analysis of argumentative patterns in the decisions themselves, using a qualitative coding technique. Studying the relationship between (1) and (2) allows us to identify links between certain Chambers/ Court members and legal approaches, over time, and by subject. These shed light on the internal workings of the court, and also enable us to explore theories about the nature of ECJ jurisprudence.

The analysis shows that private law and in particular intellectual property law expertise is almost entirely missing from the Court. However, we find that the Court has developed a mechanism for enabling judicial learning through the systematic assignment of cases to certain Judges and AGs. We also find that the Court has developed a “fair balance” topos linked to Judge Malenovský (rapporteur on 24 out of 40 copyright cases) that does not predict an agenda of upward harmonisation, with about half of judgments narrowing rather than widening the scope of copyright protection."

Main Results of the Study

Nine judges represent 80% of the total presences in the court of copyright cases, presumably because of their subject matter expertise. Judge J. Malenovský is the most prominent Judge Rapporteur in cases of copyright and related rights, with database rights cases largely being assigned to Judge Lenaertz.

Of the 45 judges who appeared in the copyright cases examined, most hold EU and Public law specialisms or backgrounds, usually in an academic capacity. Due to this EU/Public law specialisation (and not subject-matter specific specialisation, e.g. copyright), the authors conclude that the CJEU relies on a process of judicial learning instead.

Systematic (e.g. contextual, by reference to international legislatures or philosophy) arguments are made most often by Advocates General. Teleological (e.g. purposeful, goal-based) approaches were also evident, with 87% of judgements referring to the overall aim of the legislator when interpreting relevant Directives. In half of the cases examined, concepts (such as exhaustion, or the reproduction right) are interpreted narrowly (suggesting that the “high protection” afforded to the author may not be a guiding principle of the court). The reasoning of the most prominent judge, Judge Malenovský, appears to differ from other judges, often citing teleological aspects of copyright interpretation (e.g. “high protection for the copyright holder”) even in cases that do not favour the rightsholder. Again, this may be indicative of a top-down judicial learning process.

Policy Implications as Stated By Author

The authors suggest that subject-matter specialists should be introduced into the European court system in order to fill the identified “gaps” in judicial knowledge. The CJEU are advised to also make their reasoning behind case assignations more explicit (e.g. factoring for expertise/inexpertise and capacity for judicial learning).



Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Green-tick.png
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)
Green-tick.png

Datasets