CREATe Litigation Research: a Knowledge Exchange Workshop
13/14 April 2016, Queen Mary University of London
This workshop covers research on litigation of intellectual property rights in the UK. The main focus is on litigation of copyright and patent related cases. Presenters are associated with the RCUK Centre for Copyright and New Business Models in the Creative Economy (CREATe) and an ongoing Knowledge Exchange project Assessing the Unitary Patent and the Unified Patent Court. The workshop will consist of a mix of presentations and discussions of recent research on copyright and patent litigation as well as ongoing work to create a database of copyright litigation cases and a Wiki summarising copyright related evidence, both of which will be hosted on CREATe’s internet platform.
Download details of this workshop, including the full programme and venue information (PDF format, 552 KB).
On April 13th we will get together with the British Literary & Artistic Copyright Association (BLACA) to launch a CREATe study recently published in the Modern Law Review: “Is There a EU Copyright Jurisprudence? An Empirical Analysis of the Workings of the European Court of Justice” (details below).
Most of the workshop will be small and informal. Anyone interested in taking part should contact the organiser, Georg von Graevenitz at firstname.lastname@example.org beforehand.
The launch of the MLR paper will be a public event. Registration is now open via Eventbrite:
Public seminar: CREATe and BLACA
Old Library, Garrod Building, Whitechapel Campus, Queen Mary University of London
13 April, 18:00-19:30
Marcella Favale (Bournemouth University), Martin Kretschmer (Glasgow University), Paul Torremans (Nottingham University)
“Is There a EU Copyright Jurisprudence? An Empirical Analysis of the Workings of the European Court of Justice” [published in Modern Law Review (2016) 79(1)] MLR 31-75] http://onlinelibrary.wiley.com/doi/10.1111/mlr.2016.79.issue-1/issuetoc
The Court of Justice of the European Union (ECJ) has been suspected of carrying out a harmonising agenda over and beyond the conventional law-interpreting function of the judiciary. This study aims to investigate empirically two theories in relation to the development of EU copyright law: (i) that the Court has failed to develop a coherent copyright jurisprudence (lacking domain expertise, copyright specific reasoning, and predictability); (ii) that the Court has pursued an activist, harmonising agenda (resorting to teleological interpretation of European law rather than – less discretionary – semantic and systematic legal approaches).
We have collected two data sets relating to all ECJ copyright and database cases up to Svensson (February 2014): (1) Statistics about the allocation of cases to chambers, the composition of chambers, the Judge Rapporteur, and Advocate General (including coding of the professional background of the personnel); (2) Content analysis of argumentative patterns in the decisions themselves, using a qualitative coding technique. Studying the relationship between (1) and (2) allows us to identify links between certain Chambers/ Court members and legal approaches, over time, and by subject. These shed light on the internal workings of the court, and also enable us to explore theories about the nature of ECJ jurisprudence.
The analysis shows that private law and in particular intellectual property law expertise is almost entirely missing from the Court. However, we find that the Court has developed a mechanism for enabling judicial learning through the systematic assignment of cases to certain Judges and AGs. We also find that the Court has developed a “fair balance” topos linked to Judge Malenovský (rapporteur on 24 out of 40 copyright cases) that does not predict an agenda of upward harmonisation, with about half of judgments narrowing rather than widening the scope of copyright protection
(The project raised enormous interest among scholars, policy makers and practitioners at the Court. While the MLR study explored the way the Court works, a follow-on paper will investigate the directions taken by the Court and the impact of the submissions of the various parties on these directions. The central research question will be to what extent the jurisprudence of the ECJ is open to capture.)