The EU copyright reform and the legacy of CJEU case law: lip service?

I am attending what every year is a great conference in one of the greatest cities: the Fordham IP Conference in New York City. Now in its 26^th edition, every year this event gathers IP enthusiasts from all over the world to “Learn. Debate. Have Fun.” [official hashtag: #fordhamip]

Yesterday I was part of a panel moderated by Ted Shapiro (Wiggin) and composed of Shira Perlmutter (USPTO), Giuseppe Mazziotti (TCD), and Jerker Rydén (National Library of Sweden). The session was devoted to discussing the state of the EU copyright reform debate.

My short talk [slides here] focused on three main points: 

(1) the progress of the EU reform debate and where we stand now at both the Council and European Parliament levels; 

(2) whether what are being called ‘compromise’ proposals may be actually said to be compromises, given that that the discussion remains extremely polarized and such as not to focus really – or just – on the details of the various draft provisions but also the very merits of certain initiatives; and 

(3) whether we are really going towards a Digital Single Market (DSM) and – if so – what kind of  DSM we are paving the way to. In this respect, the points to consider are identifying:

(a) the beneficiaries of the EU proposals, and 

(b) the goals that the EU is trying to achieve with its copyright reform (if we take the case of the press publishers’ right, over the past few months so many different justifications have been advanced for its necessity – ranging from recouping revenue lost to the web, to preserving press freedom and cultural diversity in Europe, to – now with the latest from MEP Voss [see Recital 31] – contrasting fake news).

It's CJEU orders

There is however an aspect of the discussion – that was explored yesterday during the session – that has remained a bit in the background over the past few months. 

What I am referring to is the idea that EU legislature has been attempting to realize a ‘codification’ of the case law of the Court of Justice of the European Union (CJEU), particularly with regard to the proposals for a press publishers’ right (for instance, in its latest compromise proposal the Bulgarian Council presidency refers to Infopaq and its progeny [Recital 34a], while in his proposal MEP Voss recalls GS Media [Recital 33 - Katposts here]) and the value gap proposal (here the reference is to the CJEU case law on the right of communication to the public, including the most recent decision in The Pirate Bay case [Katposts here]).

What has been a bit less at the centre of attention is those instances in which EU policy- and law-makers are not justifying their own choices by saying ‘it’s what the CJEU said’, but are rather departing from – and in doing so attempting to erase - CJEU case law.

I have two examples in mind, both of which likely contrast with the interests of those ‘authors and creators’ that the EU has been saying to want to protect further with its own initiatives, notably through Articles 15, 16 and 16a [see Bulgarian version].

First – and this is no surprise, since the Commission included it in its original 2016 proposal - is Article 12 of the directive, which substantially says that the CJEU decision in Reprobel [Katposts here] regarding the beneficiaries of the fair compensation for private copying was a bad move. The provision, that has not been really discussed with the same intensity as other proposals, basically says – unlike what the CJEU had decided by relying on the author principle as enshrined in the InfoSoc Directive – that it is OK that subjects other than reproduction rightholders are entitled ab initio to receive part of the fair compensation for private copying.

Rescuing the authors?

The second example, which may be found also in the latest Bulgarian compromise proposal, relates to what looks like a ‘weaponized’ extended collective licensing which substantially makes it clear that the CJEU decision in Soulier and Doke [Katposts here] should not be considered too relevant. 

In that case the Court held that a law like the French law on out-of-commerce books might be contrary to EU law in that EU law (InfoSoc Directive) requires that any reproduction or communication to the public of a work by a third party requires the prior consent of its author. Recital 23 of the proposal (Bulgarian version) states that “Member States should, within the framework provided for in this Directive, have flexibility in choosing the specific type of mechanism, such as extended collective licensing or presumption of representation, allowing for licences for out-of-commerce works to extend to the rights of rightholders that have not mandated a representative collective management organisation, in accordance with their legal traditions, practices or circumstances.”

All this to say what? That sometimes references to CJEU case law are used to justify choices in certain areas (making them look like non-choices), while in other cases policy- and law-makers do not appear too reluctant to re-assess – and 'correct' – the legacy of certain decisions.