Fordham Focus 6: EU Copyright

Two Kats busy blogging

Being in New York not only to be updated on latest trends but also attend this year's Fordham IP Conference, this Kat is enjoying the company if IPKat blogmeister Jeremy and has just emerged from the session dealing with latest EU copyright developments. This panel, which was moderated by Prof Jane Ginsburg and composed of eminent European personalities, has just finished discussing recent case law of the Court of Justice of the European Union (CJEU).

The first panelist to speak was Julie Samnadda of the European Commission's Legal Service. After explaining what this service actually does (and has done since 1958), Ms Samnadda highlighted how copyright references for preliminary rulings have become increasingly frequent in the past few years (just think that in the past year only the Court has issued eleven decisions). The most active national courts have been German and UK ones, particularly in instances dealing with relevant commercial interests and pertaining to, among other things, broadcasting and software industry.

From what has been discussed by the panel there are three specific issues that this Kat has found particularly interesting.

Panelists busy panelising ...

First, the fact that, of all the sexy copyright cases decided lately, the sexiest of them all (and such as to attract a good deal of attention both during panel discussion and questions from the audience) has been last July's decision in Case C-128/11 UsedSoft (noted by the IPKat here). According to Trevor Cook, this decision shows, among other things, the shortcomings arising from patchwork copyright harmonisation. The particular outcome in this case was made in fact possible by the fact that the Software Directive is considered lex specialis. In relation to this last point, as noted by Silke von Lewinski, this does not rule out the possibility that different decisions are achieved in the future in relation to the principle of exhaustion when other types of works are considered.

Secondly, ongoing de facto harmonisation carried by the CJEU (which was discussed during last year's Fordham Conference here) appears to have made possible by two concurrent factors:

• the fact that (as has happened with the originality requirement), as the Court was asked to respond to some questions, this of course came with the necessity of doing so by articulating some text, and
• as highlighted by Christopher Stothers, sometimes national courts refer far too many questions, so that the CJEU tends to select which to answer.

The final point is increasing reliance on fundamental rights arguments even in copyright cases. Following the decisions in Promusicae, Netlog and Scarlet, it is apparent (also if you look at recent decisions of the European Court of Human Rights) that the potential overlaps between fundamental rights and copyright might become even more frequent in the future. This might result in problems of competence between the CJEU and the European Court of Human Rights.