Rendas (2017)

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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

Rendas (2017)
Title: Copyright, Technology and the CJEU: An Empirical Study
Author(s): Tito Rendas
Year: 2017
Citation: Rendas, T. (2017) Copyright, Technology and the CJEU: An Empirical Study. International Review of Intellectual Property and Competition Law (IIC), Forthcoming
Link(s): Open Access
Key Related Studies:
Discipline:
Linked by:
About the Data
Data Description: The study analyses a sample of 22 CJEU cases using content analysis (primarily qualitative but with quantitative elements also), thereafter applying relevant coding techniques, and a contextual analysis. Two main variables were assessed: firstly, whether each technology-enabled use was determined as either infringing or non-infringing, and; whether the CJEU’s approach in each decision was either flexible or formalist (e.g. whether the court followed the EU copyright framework strictly or not).
Data Type: Primary 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:
Funder(s):
  • Portuguese Foundation for Science and Technology (grant PD/BD/105903/2014)

Abstract

"The framework of rights and exceptions in EU copyright law is conventionally criticized for lacking the flexibility that is necessary in times of rampant technological change. Courts, however, occasionally refuse to abide by the framework’s interpretative constraints, in order to accommodate certain technology-enabled uses. In some cases, the CJEU has adopted flexible readings of the exceptions at stake. In other cases, national courts have openly construed the three-step test as an enabling standard, rather than as a restrictive one.

Using the relevant case law of the CJEU as its research sample, the article aims at empirically investigating the extent to which European courts are deciding in such a flexible manner and rendering technology-enabled uses non-infringing. The study reveals that the number of uses that the CJEU has deemed non-infringing exceeds those that have been held infringing. It shows, moreover, that the CJEU has been circumventing interpretative constraints in the majority of these cases.

These findings suggest that the existing framework is indeed unfit for times of accelerated technological change, but for a different reason than what is commonly thought. The main reason for introducing a greater degree of flexibility in EU copyright law is, somewhat paradoxically, related to legal certainty."

Main Results of the Study

The study finds that the CJEU is inclined to adopt a flexible approach in cases which question technology-enabled uses. An analysis of the sample case law demonstrates that, overall, the court was more inclined to find technology-enabled uses as non-infringing than infringing (by sixteen cases to thirteen). This suggests that some interpretative constraints have been bypassed by the court, resulting in narrow readings of exclusive rights (such as the right of reproduction) and broad readings of user exceptions.

This flexible approach is evident in 68% of the cases analysed (compared to 32% which demonstrated a formalist approach). The study suggests that a formalistic strict-reading approach is more likely where the potential infringement in question has the capacity to do market harm, or has a profit-making nature. Conversely, a flexible approach is more likely where freedom of expression, information, or cultural promotion is at risk.

Policy Implications as Stated By Author

The study concludes that the existing EU copyright law framework is “unsuitable for current times”. As the CJEU has a tendency to adopt a flexible approach, rather than a formalist strict-reading of the framework, this may reduce legal certainty (e.g. flexibility is demonstrated by deviating from or overriding existing frameworks, including case law). In order to improve this, a more flexible framework is required with vaguer provisions that can be balanced (akin to fair use); this in turn will increase legal certainty as the CJEU will be perceived to interpret suitably vague provisions (using a balanced approach), rather than deviating from existing frameworks.



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