Favale, Kretschmer and Torremans (2018)
|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|
|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|
|Key Related Studies:|
|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:|
|Cross Country Study?:||Yes|
|Government or policy study?:||No|
|Time Period(s) of Collection:||
“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.