Report on Copyright and the Court of Justice of the European Union Event

Tossh and Eleonora (centre),
together with Max (L) and Kemi (R)

Tuesday 26th March was an eventful day for copyright in the European Union because the EU Parliament also adopted the Digital Single Market Directive (DSM Directive).

However, the main reason why it was an important day was because our own Kat Eleonora Rosati held the official book launch for her new book, Copyright and the Court of Justice of the European Union, at the London offices of Bird & Bird LLP.

The event consisted of a panel discussion on the same topic of Eleonora’s book. All in all it was an insightful event with many points of discussion raised – each of them could be a panel discussion on its own.

For those who were unable to make it to the event or those who attended and need a recap of the points that were made, this Kat is happy to provide the following breakdown of the event.

The event began with a warm introduction provided by Giovanni Galimberti, Managing Partner of Bird & Bird Italian offices, who provided a few insights onto Eleonora’s background, the most notable being the nickname given to her while she trained at Bird & Bird - “Flash”. Unsurprisingly, this was due to the speed at which she worked, as well as the speed at which she understood the law and aided seniors in understanding the minutiae of details.

The mic was then passed to the panel chair, Sophie Stalla-Boudillon, who outlined the agenda for the day.

Before the panel began Eleonora had a few words to say, first thanking for the opportunities given to her to learn and grow by the speakers and fellow panel members. She then briefed us on the way in which she came up with the idea for her book.

The book consists of 3 main parts:

1. The role of the CJEU and its system of referrals, including criticisms of the CJEU, eg lack of formal specialism (however, as Eleonora noted, Judge Malenovsky has been judge-rapporteur in over 50% of all copyright-related CJEU referrals);
2. The contribution of the Court to shaping economic rights, exceptions and limitations, and enforcement tools;
3. The final part discusses the legacy of the CJEU, also focusing on the scenario in which an (unnamed) EU Member State left the EU, and the policy discourse around the DSM Directive. 

Following Eleonora’s introduction, the panel discussion began. Despite needing no introduction, the panel consisted of the following household names in copyright law:

• Sir Richard Arnold (High Court of England and Wales - Chancery Division)
• Lionel Bently (University of Cambridge)
• Bill Patry (Google)
• Eleonora Rosati (University of Southampton, IPKat and Bird&Bird)
• Sophie Stalla-Boudillon (University of Southampton and Immuta) - Chair

The chair of the panel kicked off the discussion with this question to Sir Richard Arnold: What have been the contributions of the CJEU in shaping copyright law?

Sir Richard Arnold began by noting that the CJEU is a harmonising court and that has always been its raison d’etre. Its contribution as such can be summarised to 5 main points, the former 3 being issues and the latter 2 being concerns:

1. Like most courts, regardless of its mission or approach, the CJEU has had to tackle difficult legislation, and “put flesh” when interpreting “bare-bones legislation”. That has been the case for the right of communication to the public.
2. The next contribution has been “filling the gaps”, eg in the Infopaq decision it provided the EU Member States with an EU-wide interpretation of originality.
3. Pushing EU preemption, especially in the area of exceptions and limitations. 
4. A main concern is the coherence and consistency of CJEU case law – neither of which has the Court been particular good at maintaining.
5. The next concern is the possible collapse between primary and accessory liability.

Sophie prompted the next discussion asking whether the CJEU has gone too far.

Bill Patry answered this with a comment on the institutional role of the court, and whether a harmonised high level protection is too much. The distinction between an effective level and a highest level of protection was illustrated by a great analogy -

(paraphrased and emphasis added) 'when visiting a doctor, you don’t ask for the highest level of protection/medicine available, you ask for the most effective remedy available'.

Sir Richard Arnold and Eleonora, while agreeing with Bill, raised the counterpoint that the court is stuck with the language of the legislation. Eleonora suggested that ideally a regulation is a better tool to harmonise, in lieu of directives. The DSM Directive provides a current example of this: its provisions are so complex that in essence the “battlefield” has moved from Strasbourg and Brussels to the Member States that will need to transpose the directive.

Sophie then asked the panel a recap of the 3 best and worst contributions by the CJEU.

The best 3 contributions of the CJEU according to Eleonora were:

1. The dialogue between the CJEU and the national courts, which at times has been unavoidable (eg where the language of legislation is thin) and on other occasions has been necessary (eg in cases with a technological component);
2. The CJEU has increased harmonisation of Member States' copyright law;
3. The CJEU has, through its case law, invited reflection on the merits of harmonisation and the rationale, value, and achievements of such process.

The worst 3 contributions of the CJEU, according to Lionel, were:

1. Flos v Semeraro; 
2. PPL v Ireland; and
3. Dimensione v Knoll.

Other honourable mentions of worst contributions include the Allposters case, as raised by the audience.

The panel then moved to judicial activism showing mixed views, before Sophie changed to a more controversial topic with the question: How has the CJEU shaped UK copyright law and will Brexit change it?

Sir Richard Arnold pointed out to 3 areas that have been shaped by the CJEU:

1. Originality;
2. Communication to the public; and
3. Remedies.

While with regard to Brexit... "Who knows!?" The UK has unilaterally prepared for the event of a no-deal by enacting the Withdrawal Act 2018, which tackles the effect of EU law and CJEU case law post-Brexit.

Sophie's next question to the panel concerned the most urgent reform in EU Copyright law.

Lionel would like to see a full legislative code for EU copyright which covers all matters, from moral rights to originality. Sir Richard Arnold would like to see a mandatory list of copyright limitations. Eleonora would like to see public access granted for observations to the CJEU in copyright referrals, as well as harmonised language for exceptions and limitations.

Sophie then prompted the final question: What is the most ambitious copyright reform that the EU could undertake should the UK leave?

Sir Richard Arnold raised the UK's resistance to moral rights harmonisation. Lionel opined that the questions of authorship and ownership would be an ambitious reform. Eleonora raised that a useful reform would be one for private copying, and wondered whether there is still a need to distinguish between primary and secondary legislation distinction. Bill Patry built on this idea and raised that with accessory liability primary liability must come first but if the primary infringer falls under a private copying exception then how could secondary liability established?

This final remark ended the panel discussion and opened a drinks reception where conversations continued fuelled by the ideas presented by the panel. This Kat definitely needed the evening to process the amount of ideas consumed, but feels more knowledgeable in the field of copyright and the CJEU. Again a huge congratulations to the panel for an insightful discussion, Eleonora on her book, and thanks to Bird & Bird for hosting the event!