Favale, Marcella and Kretschmer, Martin and Torremans, Paul L.C., Is There a EU Copyright Jurisprudence? An Empirical Analysis of the Workings of the European Court of Justice (August 13, 2015). Modern Law Review 79(1): 31-75 (January 2016). Available at SSRN:
The Court of Justice of the European Union has been suspected of carrying out a harmonising agenda (e.g. making EU law more homogeneous) instead of simply interpreting EU law. Two things have been reproached to the Court, in copyright matters: 1) that it has failed to develop a coherent copyright jurisprudence (lacking domain expertise, copyright specific reasoning, and predictability); 2) that the Court has pursued an activist, harmonising agenda by using teleological (the purpose of the law) interpretation of European law rather than – less discretionary – semantic (the letter of the law) and systematic (other legislation, e.g. international treaties) legal approaches.
Copyright scholars also have claimed repeatedly that the Court lacks copyright expertise. Therefore, we examined the professional and academic background of the EU court judges. We found that, indeed, they have no specific Intellectual Property or Copyright training. However, we also found that most copyright cases in the last decade (about 80%) were assigned to the same judge. We assume this was intended to allow ‘learning-on-the-job’. Well, according to our study, it worked. Most jurisprudence ‘produced’ with the help of this judge is more balanced than the rest. We found that reasoning from a ‘fair balance of interests’ between copyright owners and users was used in most cases, despite the ‘high level of protection’ required by the Copyright Directive. Most copyright academics, in fact, would argue that the ultimate purpose of copyright is the circulation of culture, and therefore the high (or, as it is, too high) protection for the Copyright owner is not the right goal.
In conclusion, this study found that the CJEU Copyright jurisprudence is more balanced than generally assumed. A training in Constitutional law, European law, or Human rights, seems to help the production of a balanced copyright jurisprudence. However, a number of incoherent copyright rulings suggest that, if not specialized courts, at least specialized legal clerks or judges might make drafting more predictable and understandable. In essence, some reforms will be required to steer the CJEU towards a European copyright jurisprudence.
Favale, Marcella and Kretschmer, Martin and Torremans, Paul L.C., Who Is Steering the Jurisprudence of the European Court of Justice? The Influence of Member State Submissions on Copyright Law (February 2, 2018). Available at SSRN: https://ssrn.com/abstract=3116703
The Court of Justice of the European Union (CJEU) interprets the meaning of EU legislation. The number of preliminary references (preliminary opinions referred to the Court by national tribunals) has dramatically increased.
This paper wonders whether EU member states have an influence on this production of jurisprudence (in the case study: copyright jurisprudence). We collected most written submissions (they are ‘confidential’) by Member States. We then assessed their impact on the ruling and their proximity to the submission of the copyright holder or user (which also includes intermediaries, such as Google, YouTube, Facebook, etc.).
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 right holders) are often adopted by the Court. Other rulings seem to follow the submissions by Finland, which argues equally pro copyright right holders and pro copyright users. Portugal and Czech Republic also perform relatively well, despite the low number of interventions. Other countries appear to have more specific interests, and may be influential despite lower overall 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.
In conclusion, this exciting study seems to reveal what EU Member States stand for before the European Court of justice, and with what percentage of success. This could be extended to other domains than copyright. The findings could also induce EU Member States to better direct and draft their litigation strategies, in order to shape a more convenient CJEU jurisprudence.