Favale, Kretschmer and Torremans (2018)

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 (2018)
Title: Who Is Steering the Jurisprudence of the European Court of Justice? The Influence of Member State Submissions on Copyright Law
Author(s): Marcella Favale, Martin Kretschmer, Paul L.C. Torremans
Year: 2018
Citation: Favale, M., Kretschmer, M., and Torremans, P.L.C. (2018) Who Is Steering the Jurisprudence of the European Court of Justice? The Influence of Member State Submissions on Copyright Law Available at SSRN: https://ssrn.com/abstract=3116703 or http://dx.doi.org/10.2139/ssrn.3116703
Link(s): Open Access
Key Related Studies:
Discipline:
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About the Data
Data Description: The research contains an analysis of 78 CJEU copyright cases registered between 1998 to 2015. 42 of these cases included clusters of “recurrence” of the same legal concept (defined as more than 5 references to the CJEU on the same concept). A total of 584 of court documents distilled from these cases form the observations of the research. The court documents are then assessed through content analysis to identify relevant arguments, and statistical analysis to quantify the occurrence of Member State submissions.
Data Type: Primary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: Yes
Comparative Study?: Yes
Literature review?: No
Government or policy study?: No
Time Period(s) of Collection:
  • 1998-2018
Funder(s):

Abstract

“The Court of Justice of the European Union (CJEU) interprets the meaning of EU legislation. Larger numbers of preliminary references to the Court on the same legal concepts suggest either a normative void, or greater attention from political forces, or both.

Taking the domain of copyright law, the paper examines all preliminary references to the CJEU registered between 1998 and 2015 regarding at least one of the directives of the copyright acquis. 170 documents relating to 42 cases were examined with a mixed research methodology including doctrinal, content (text), and statistical analysis, in order to measure empirically the impact of submissions by Member States and the European Commission on the legal interpretation of copyright concepts in the European Court.

We find that France is the most influential country, both because of the number of interventions (an ‘investment’ in policy) and because France’s arguments (69% in favour of rightholders) are often adopted by the Court. France is followed by Finland, which argues equally pro copyright rightholders and copyright users, Portugal, and Czech Republic. Other countries appear to have more specific interests, and may be influential despite lower participation. One of the most successful governments in arguing for the interests of copyright users is the United Kingdom. Our preliminary evidence suggests that the departure of the UK from EU copyright litigation has the potential to disturb the delicate balance of European copyright jurisprudence.”

Main Results of the Study

CJEU cases are dominated by five main legal concepts which form the main issue of the case, namely: (a) communication to the public, (b) copyright exceptions, (c) levies, (d) distribution rights, and (e) liability of intermediaries. The authors determine that these areas fall outwith the acquis communautaire, and are thus a fertile ground for competing views from Member States.

France, Italy, and the UK have submitted the highest number of written observations in preliminary references to the CJEU. Likelihood of submitting such written observations appears to be dependent on a Member States own domestic policy needs, and is apparently strategic in nature (particularly as governments are not compelled to intervene with these submissions, the optional expenditure suggests this). For example, France submits written observations primarily in respect of communication to the public and distribution rights, but submits nothing in respect of copyright exceptions or intermediary liability.

The court appears to be more readily influenced by Member States that (a) have submitted a high number of written observations on the given topic, and (b) have sound legal reasoning (e.g. the submitted answers often match the overall ruling outcome). For example, France appears to be very influential in its support of rightsholders (reflected in their high submissions regarding communication to the public and distribution rights).

Policy Implications as Stated By Author

Preliminary references appear to be influenced by Member States, who make strategic decisions to submit written observations in order to further specific national policy needs. By taking into account Member States observations, the CJEU maintains political legitimacy, which currently results in a delicate balance of represented interests. The authors note that with the departure of the UK from the EU, this balance may be disturbed, particularly as the UK advances the perspective of copyright users and intermediaries.



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)
Green-tick.png
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)

Datasets