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Wednesday, 9 December 2015

The CJEU on copyright: clueless or activist? Or both?

The increasing importance of the CJEU's jurisprudence for the development of copyright doctrine and policy in Europe is hardly a secret (see, e.g., Eleonora Rosati's talk "A decade of random copyright (reform) in Europe"  at the recent JIPLP conference on 26 November 2015). The reactions to it have been mixed: some accuse the CJEU of lacking domain expertise, copyright specific reasoning, and predictability, and pursuing an activist, harmonising agenda. Some empirical analysis might shed some light on these rather harsh claims.

Turns out that three academics, Marcella Favale, Martin Kretschmer and Paul C. Torremans, have done exactly that in a paper forthcoming in the Modern Law Journal. Analysing all copyright decisions of the CJEU from the first explicit copyright reference in 1992 (Phil Collins) to the judgment in Svensson delivered on 13 February 2014, they conclude that the CJEU's judges indeed lack domain expertise in copyright law. However, the Court has developed a mechanism for enabling judicial learning through the systematic assignment of cases to certain Judges and AGs (namely Judge Malenowsky for copyright cases, and Judge Lenaertz for database right cases). The problem with this approach is that "there appears to be no procedure for passing on this expertise. The development of subject specific jurisprudence may be set back periodically, as members join the Court as non-experts, and leave the Court with their acquired expertise."

In a more ambitious second part of the analysis, the authors sought to examine whether the Court pursues an "activist agenda". For this, they perform a content analysis of all 40 copyright cases decided until Svensson, broadly dividing the arguments made into semantic, systematic and teleological arguments. They argue on theoretical grounds that a prevalence of teleological arguments is evidence for an activist agenda. Overall, the analysis reveals a prevalence of semantic and teleological approaches over contextual (systematic) approaches, more evident in the Judgments than in the Opinions.

However, teleological arguments were not primarily used to support one side of the dispute, giving a broad interpretation of the rights of the owners and a narrow interpretation of copyright exceptions and limitations. To quote:
[...] the analysis of our data reveals quite a different picture. Just over half of the examined judgments called to interpret the rights of the owner gave a broad interpretation, and only little more than half of the rulings involving copyright limits displayed a narrow construct. In essence, the analysis suggests that the high protection of the copyright owner, or the narrow construction of copyright limits, do not guide the copyright jurisprudence of the Court as one might have expected.

Namely Judge Jiri Malenovský, who was the reporting judge in 24 of the 40 cases relating to copyright and related subject-­matter (excluding database right), developed a “fair balance” topos not consistently favouring rights holders. To quote:
The comparison between the rulings of the Court where Judge Malenovský is the Reporting Judge and the rulings where the Reporting Judge is another Court Member offers some interesting insights. The large number of copyright cases reported by Judge Malenovský suggests the acquisition of subject-­specific experience in these matters. The content analysis of Malenovský decisions reveals the use of the teleological argument of the ‘high level of protection for the copyright holders’ required by the InfoSoc directive, also in cases (six per cent) whose outcome is not favourable to the rights holder; whereas all the other judges use this argument only in cases whose outcome favours the rights holder.
Also, the argument of the ‘fair balance of rights’, which is used by other judges solely to rule against the copyright holders, is employed by Malenovský both in cases whose outcome favours and disfavours the right holder. While the small size of the sample suggests caution in interpreting these data, Malenovský appears to see the balance between the rights and interests of copyright holders and users of protected subject matter as a more central issue than other judges. He also uses a greater range of copyright specific arguments rather than focussing on harmonization.

This pattern is not consistent with an agenda of upward harmonisation. So the short answer to the question posed in the title of this post might be "clueless, but working on it, and not activist". Go read the whole paper, it is really interesting.

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