Of Values and Legitimacy – Discourse Analytical Insights on the Copyright Case Law of the Court of Justice of the European Union

Date01 March 2018
Published date01 March 2018
AuthorHarri Kalimo,Trisha Meyer,Tuomas Mylly
DOIhttp://doi.org/10.1111/1468-2230.12329
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Of Values and Legitimacy – Discourse Analytical
Insights on the Copyright Case Law of the Court
of Justice of the European Union
Harri Kalimo, Trisha Meyer and Tuomas Mylly
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 unnec-
essarily one-sided and shallow.A lack of discur siveness 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.
INTRODUCTION
The legitimacy of the European Union, and Western democracies at large,
has been seriously questioned in the past years. Central to the challenge is
the sentiment that decisions involving important societal values are not taken
sufficiently transparently and inclusively. One of the institutions participating
in such societal decision-making is the Court of Justice of the European Union
(CJEU), which must increasingly decide upon value-conflicts in the EU law
disputes brought before it. EU copyright law is an example of a field where,
in the digital age, values fundamental to individuals, diverse economic actors
and cultural and societal developments are at stake. The objective of this article
is to contribute to the discussion on the institutional role of the CJEU in the
European value discourse, using European copyright law as an exploratory case
study.1We do so using a methodological approach that is seldom applied in
Harri Kalimo is a Professor and Jean Monnet Chair at the Vrije Universiteit Brussel, Institute for
European Studies, Belgium; Trisha Meyer is a Postdoctoral Researcher at the Vrije Universiteit
Brussel, Institute for European Studies, Belgium, and an Assistant Professor at Vesalius College,
Belgium; Tuomas Mylly is a Professor of Commercial Law at the University of Turku, Faculty of
Law, Finland. We are grateful to the comments of Claire Dupont, Jonathan Griffiths, Max S. Jansson,
Stephan Klose, Klaudia Majcher, JohannaNiemi, Jukka Snell, Filip Sedefov and Marie Tuley. We also
wish to thank the anonymous reviewers of the Modern Law Review. This article has been prepared
with the funding of the Academy of Finland projects eCoherence (all) and Constitutional Hedges of
Intellectual Property (Mylly) and EACEA Jean Monnet Chair rECOnciliation (575718-EPP-1-2016-1-
BE-EPPJMO-CHAIR) (Kalimo).
1 For a general introduction to EU copyright law, see, for example, T. Dreier and P.B. Hugenholtz,
Concise European Copyright Law (Alphen aan den Rijn: Kluwer, 2016). On the reconciliation of
C2018 The Author.The Moder n Law Review C2018 The Modern Law Review Limited. (2018) 81(2) MLR 282–307
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Harri Kalimo, Trisha Meyer and Tuomas Mylly
jurisprudential studies, but that is in our view well suited for teasing out value-
related aspects of the cases: critical discourse analysis. Combining substantive,
institutional and methodological narratives, our exploratory research leads us to
suggest that the CJEU’sd iscourse of the various values in the copyright cases we
analyse may be unnecessarily one-sided and shallow. A lack of discursiveness
in the jurisprudence at large would diminish the legitimacy of the Court’s
decisions, and would not offer adequate guidance for the national courts, and
even for private decision-makers, to whom the Court at the same time may
be leaving more of the task of value reconciliation. Pending confirmation
by a more elaborate selection of cases, there would seem to be scope for
increasing the discursive elements of CJEU judgments, and thereby improving
the legitimacy of this central institution.
The substantive, institutional and methodological issues examined in our
analysis are significant. First, as a matter of substantive law, our analysis focuses on
copyright. Copyright has been a central but controversial part of the EU’s digital
agenda from the outset two decades ago. A thriving digital sector is essential
to steer the crisis-fatigued Union out of the economic slump. Copyright as
intellectual property (IP) obviously has economic value to its holders: authors,
composers, artists, film-makers and other creators receive recognition, payment
and protection for their works. Copyright also affects the economic interests of
people using copyrighted works, such as consumers accessing content online,
potentially in different EU countries. The individualist values protected by
copyright are also a part of a broader social bargain. The societal intention
is to stimulate creativity and innovation by protecting the development and
marketing of new goods and services, yet also to ensure that fundamental
rights such as freedom of expression or protection of personal data are not
impinged upon. The values inherent in the protection of cultural diversity,
education, research and equal access of people with disabilities must also be
duly preserved.2Overall, the EU’s copyright agenda thus strives towards a fair
reconciliation of a plurality of values.
The central piece of legislation currently dealing with copyright in the EU
is the Information Society Directive (InfoSoc Directive).3The Directive took
over three years to legislate, as the diverging interests and values of the societal
stakeholders noted above intersected in this law in controversial ways. For this
reason, the Information Society Directive also offers an interesting case study
on the reconciliation of diverse values in EU law.
Second, institutionally, this article focuses on the CJEU. Through its copy-
right decisions, the CJEU, as the authoritative interpreter of EU law, is an
active and influential actor in defining how Europe’s digital future evolves.
economic and non-economic values in EU economic law, and the CJEU’s role in it, see for
example, H. Kalimo and M. Jansson, ‘Conclusions – A Wasted Crisis?’ in H. Kalimo and M.
Jansson (eds), EU Economic Law in a Time of Crisis (Cheltenham: Edward Elgar Publishing, 2016)
176-185.
2 European Commission (2015) 626 Communication from the European Commission ‘Towards
a modern, more European Copyright Framework’ 9 December 2015.
3 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the
Harmonisation of Certain Aspects of Copyright and Related Rights in the Infor mation Society
OJ L 167, 22 June 2001, 10-19 (InfoSoc Directive).
C2018 The Author. The Modern Law Review C2018 The Modern Law Review Limited.
(2018) 81(2) MLR 282–307 283

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