Kalimo, Meyer and Mylly (2018)

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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

Kalimo, Meyer and Mylly (2018)
Title: Of Values and Legitimacy – Discourse Analytical Insights on the Copyright Case Law of the Court of Justice of the European Union
Author(s): Harri Kalimo, Trisha Meyer, Tuomas Mylly
Year: 2018
Citation: Kalimo, H., Meyer, T., and Mylly, T. (2018) Of Values and Legitimacy – Discourse Analytical Insights on the Copyright Case Law of the Court of Justice of the European Union. The Modern Law Review, 81:2
Link(s): Definitive
Key Related Studies:
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About the Data
Data Description: The study involves a discourse analysis based on the six step technique developed by Johanna Niemi. CJEU cases were selected on seminal preliminary rulings which involved the interpretation of the exceptions and limitations as listed in articles 5 and 8 of the InfoSoc Directive, against the rightsholders reproduction right in article 2 of the InfoSoc Directive (a value reconciliation). The cases concerned are: Padawan v SGAE (C-467-08); SABAM v Netlog (C 360/10), and; Deckmyn v Vandersteen (C‐201/13).
Data Type: Primary data
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Cross Country Study?: Yes
Comparative Study?: No
Literature review?: No
Government or policy study?: No
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Abstract

“The Court of Justice of the European Union (CJEU) increasingly faces societal value‐conflicts in EU law disputes. For example, in EU copyright law, in the digital age, diverse fundamental values, as well as cultural and societal developments, are at stake. This article discusses the role of the CJEU in the European value discourse, using copyright law as a case study. The methodological approach used, critical discourse analysis, is seldom applied in jurisprudential studies, but is well suited for teasing out value‐related aspects of case law. Exploratory research of seminal copyright cases suggests that the CJEU's discourse of the various values seems unnecessarily one‐sided and shallow. A lack of discursiveness in the jurisprudence would diminish the legitimacy of the Court's decisions, and would not offer adequate guidance to national courts or private decision‐makers, to whom the Court at the same time may be leaving more of the task of value reconciliation.”

Main Results of the Study

The CJEU takes on a strictly institutional role, referring to themselves in the third-person, suggesting collectively, objectivity and authority. As the court takes a stance of authority, there is a demonstration of structural bias towards favouring arguments that resemble their own. Arguments are selected by the court based on whether they favour the desired outcome, and arguments against this outcome are supressed. For example, the authors note how in Deckmyn v Vandersteen, the voices of those who may be concerned about racial discrimination are supressed, despite being an overarching issue in the case.

This selectivity can cause a disjunction between the meaning chosen by the court, and the function it ultimately creates. For example in Padawan v SGAE the court relies heavily on the voice of the EU legislator to establish meaning (e.g. the right to fair remuneration as an autonomous concept of EU law, whereby users are not obliged to finance fair compensation), before inexplicably rejecting this to create the appropriate function (e.g. constructing private copying without levy as a harmful act).

Policy Implications as Stated By Author

The CJEU should adopt a more inclusive discourse in order to provide a more balanced view of copyright issues, including the voices of consumers, users, and dissenting opinions from other interested parties. The authors argue that by increasing the range of views, and provided that the CJEU could still justify this stance in a given case, this may in fact increase legitimacy by creating discursive accountability. Furthermore, by engaging with other arguments in a legitimate manner, this may also provide more solid guidance to Member States and digital intermediaries, who the authors note are increasingly given the task of regulation.



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