Is there an EU Copyright Jurisprudence? An Empirical Analysis of the Workings of the European Court of Justice
| Author | Marcella Favale,Paul C. Torremans,Martin Kretschmer |
| DOI | http://doi.org/10.1111/1468-2230.12166 |
| Date | 01 January 2016 |
| Published date | 01 January 2016 |
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Is there an EU Copyright Jurisprudence? An Empirical
Analysis of the Workings of the European Court
of Justice
Marcella Favale, Martin Kretschmer, and Paul C. Torremans∗
The Court of Justice of the European Union has seen a dramatic and controversial increase in
copyright cases during the last decade. This study investigates empirically two claims: (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). We analyse the
allocation of copyright and database right cases by Chambers of the Court, Advocate General
(AG) and Reporting Judge, and investigate the biographical background of the Judges and AGs
sitting. We trace patterns of reasoning in the Court’s approach through quantitative content
analysis. Legal topoi that are employed in the opinions and decisions are linked to the outcomes
of each case.
INTRODUCTION
This article explores the origin of copyright jur isprudence in the European
Union. The role of the Court of Justice of the European Union (ECJ, or the
Court)1in shaping this contested and heavily lobbied field of law is attracting
considerable attention. There has been a dramatic recent increase in references
to the Court, with six cases filed in the 10 years following the Phil Collins case
of 1992, six cases in the five years between2002 and 2006, and 28 cases between
2007 and 2012. Critiques of this emerging EU copyright jur isprudence range
from an alleged lack of judicial expertise in a technical and complex area of
∗Marcella Favale is Research Fellow, Centre for Intellectual Property Policy and Management
(CIPPM), Bournemouth University; Martin Kretschmer is Professor of Intellectual Property Law,
University of Glasgow and Director of the RCUK Centre for Copyright and New Business Mod-
els in the Creative Economy (CREATe); Paul Torremans is Professor of Intellectual Property Law,
University of Nottingham. We are grateful to Kris Er ickson, Andrew McHugh, Jaakko Miettinen
and Sukhpreet Singh at the CREATe centre for comments and assistance with the statistical analysis,
and to the anonymous reviewers for Modern Law Review and EPIP 2015 (the annual conference
of the European Policy for Intellectual Property Association). The research has been supported by
CREATe, AHRC Grant Number AH/K000179/1.
1 Throughout this article we use the abbreviation ECJ (European Court of Justice) to cover the
various instantiations of the Court, created in in 1952 as the Court of Justice of the European
Coal and Steel Communities, then Court of Justice of the European Communities, and since
1 December 2009 (when the Treaty of Lisbon entered into force) the Court of Justice of the
European Union (comprising the Court of Justice where all references for a preliminary ruling
investigated in this study were heard), the General Court (since 1988) and the Civil Service
Tribunal (since 2004).
C2016 The Authors. The Modern Law Review C2016 The Moder n LawReview Limited. (2016)79(1) MLR 31–75
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Is There EU Copyright Jurisprudence?
law to the pursuit of a barely veiled harmonising agenda, stepping in where the
European legislator failed.2
The ECJ has been said to interfere with established copyright concepts
(for example, now equating ‘work’ with ‘creativity’), and to introduce non-
copyright concepts from human rights law, thus removing tools from national
courts.3The lack of copyright specific reasoning has been attributed to a ‘lack
of experience’4as well as to deliberate judicial intervention ‘to achieve a single
market’5. Various harmonising techniques have been identified, including (i)
rephrasing the referred questions, (ii) assuming the principle of autonomous
interpretation as a default (forcing uniform EU-wide meaning where it was
not intended), and (iii) constructing harmonised criteria from international
sources.6In summary, the literature appears to suggest that the Court has f ailed
to develop a coherent copyright jur isprudence; and that the Court is pursuing
an activist, harmonising agenda.
This study takes the novel approach that such doctrinal claims about the
development of jurisprudence are in principle open to empirical investigation.
A cursory review of the judgments of the Court immediately reveals that
copyright decisions were mostly drafted by reporting judges Puissochet (until
2003) and then Malenovsk´
y (from 2004, often twinned with AGs Sharpston
or Trstenjak). All software copyright cases were prompted by opinions from
AG Bot, and Judge Lenaerts sat on all database right cases (see Appendix I for
full sample of cases). So an empirical approach to analysing the development of
the jurisprudence of the Court might star t with tracing the background of the
judges and advocates general, in order to understand whether they have specific
competences to address copyright issues. In addition, the Court’s processes, for
example for allocating cases to chambers, might also offer an empirical window.
Our second empirical strategy draws on recent work in the United States
that attempts to quantify the application of legal factors in judicial opinions
through quantitative content analysis.7In the context of the European Court
2 Leistner calls this ‘a result of the waning of the political (ie legislative) possibilities to achieve a
comprehensive copyright frameworkfor the use of protected subject matter in the single market,
in particular for digital and other pan-European networks’. M. Leistner, ‘Europe’s copyright law
decade: Recent case law of the European Court of Justice and policy perspectives’ (2014) 51
Common Market Law Review 559, 599.
3 J. Griffiths, ‘Dematerialization, Pragmatism and the European Copyright Revolution’ (2013) 33
Oxford Journal of Legal Studies 767: ‘The apparent equation of “work” with “creativity” in the
Court’s jurisprudence threatens the maintenance of the “hybrid” and shifting concept of the
“work” that has previously played a role in the law of this [UK] jurisdiction in the past. As a
consequence, courts in this jurisdiction may have lost an important conceptual tool for placing
limits on the scope of the powers granted under copyright law.’ Griffiths also argues that the
Court tends to refer in its rulings to the right to property based on human rights law. See J.
Griffith, ‘Constitutionalising or harmonising? The Court of Justice, the right to property and
European copyright law’ (2013) 3 ELR 65, 66.
4 L. Bently, ‘The return of industr ial copyright?’ (2012) 34 EIPR 654, 663.
5 Leistner, n 2 above, 598.
6 M. van Eechoud, ‘Along the Road to Uniformity – Diverse Readings of the Court of Justice
Judgments on Copyright Work’ (2012) JIPITEC 60, 83.
7 B. Beebe, ‘An Empirical Study of U.S. Copyright Fair Use Opinions’ (2008) 156 Pennsylvania
Law Review 549; B. Beebe, ‘An Empirical Study of the Multifactor Tests for Trademark In-
fringement’ (2006) 95 California Law Review 1581; M. Sag, ‘Predicting Fair Use’ (2012) 73 Ohio
State Law Journal 47.
32 C2016 The Authors. The Modern Law Review C2016 The Moder n LawReview Limited.
(2016) 79(1) MLR 31–75
Marcella Favale, Martin Kretschmer and Paul C. Torremans
of Justice, this method should allow both the identification of a harmonising
agenda (if, for example, teleological topoi of reasoning dominate over less dis-
cretionary semantic and systematic approaches), and may predict outcomes (if
more specific patterns that occur in the opinions and decisions can be linked
to the outcome of each case, for example widening or narrowing the scope of
protection).
From a wider perspective, this study is one of the first empirical attempts to
investigate for a specific subject domain (copyright and related rights) how a
court develops jurisprudence from an indeterminate and fragmentary star ting
point (as European Law has been characterised, for example by Beck and
Bengoetxea).8The findings therefore may be of wider theoretical interest for
explaining the nature of transnational jurisprudence.
The article is structured as follows. We begin by situating our investigation
in the intergovernmental and neo-functionalist integration theories of political
science. We then create a sample of all copyright decisions from the first explicit
copyright reference in 1992 in Collins et Patricia Im- und Export / Imtrat et EMI
Electrola (Phil Collins)9to the judgment in Svensson10 a case registered in 2012,
and delivered on 13 February 2014. This rendered a total of 40 cases filed over a
period of 20 years that refer to copyright and related rights (including software
protection), and 9 database right cases.
The next sections investigate the operations of the Court of Justice, starting
with the identification of the chambers and of the court members that examine
copyright cases. Then we investigatethe biog raphical background of judges and
advocates general, and attempt to establish if assignment to copyright cases may
be linked to expertise. The pattern in the assignment of cases is tested for
statistical significance (chi-square test).
The second half of the article reports the results of a quantitative content
analysis, analysing the reasoning of the Court of Justice for the use of semantic,
systematic, teleological approaches, and for broad and narrow interpretation of
concepts. Within the Court’s teleological reasoning we also identify a range
of arguments: (i) high level of protection for copyright holder s, (ii) fair com-
petition, (iii) circulation of culture, (iv) fair balance between the rights and
interests of authors and the rights of users, (v) harmonisation, (vi) adequate
compensation, (vii) resolving legal uncertainty and (viii) technological devel-
opment. The use of these rhetorical arguments is captured by reporting judge,
and linked to the outcome of each case, using descriptive statistics (the sample
of cases is too small to test for statistical significance). We then evaluate if the
8J.Bengoetxea,The Legal Reasoning of the European Cour t of Justice: Towards a European Jurisprudence
(Oxford/New York: Clarendon, 1993); G. Beck, The Legal Reasoning of the Court of Justice of the
EU (Oxford: Hart Publishing, 2012). The ambiguity of European law is produced bythe nature
of the legal instrument at hand (directives often provide frameworks rather than defined norms)
and by the multicultural nature of European legislators.
9 C-92/92 Collins et Patricia Im- und Export / Imtrat et EMI Electrola [1993] I-05145 (whether the
general principle of non-discrimination laid down in the EC Treaty applies to copyright and
related rights).
10 C-466/12 Svensson (ECLI:EU:C:2014:76) (whether hyperlinking constitutes an act of commu-
nication to the public).
C2016 The Authors. The Modern Law Review C2016 The Moder n LawReview Limited.
(2016) 79(1) MLR 31–75 33
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