Book review (and discount code!): Copyright and the Court of Justice of the European Union

Day in, day out, the IPKat follows the tribulations of the CJEU regarding intellectual property. Readers will be pleased to find out that author and fellow Kat Eleonora Rosati has synthesized decades of the Court’s jurisprudence into one book: Copyright and the Court of Justice of the European Union.

This book opens with the unusual statement on what the book is not about. As such, it seems appropriate to do the same here…This book is not a guide to EU copyright. The book does not cover subjects at the periphery of copyright ‘proper’ (this Kat’s choice of words, not the author’s), such as collective rights management, database rights, software protection and technological protection measures. And the book does not review every copyright directive, choosing instead to focus on the main ones such as the InfoSoc Directive.

So now, what is the book about?

In a word, the book is about synthesizing 20 years’ worth of copyright jurisprudence produced by the CJEU to shed light on the institution’s activism in harmonizing EU copyright. In so doing, the book highlights the role and shape of the Court in shaping EU copyright. Going further, Rosati demonstrates that the CJEU has pushed the boundaries of copyright harmonisation, going “at times” “beyond the original intention of EU legislature” (p. 2). The author describes this judicial activism to have happened quickly, due to increased workload and the growing importance of rulings. She then adds that “when things happen fast, it is not always easy to make sense of them” (p. 2). But fear not, this book does the deciphering for you.

In this Kat’s opinion, the stars of the show are Chapter 1 and 2, for two main reasons. First, chapters 1 and 2 give a detailed outline of the European copyright ‘project’, by reviewing the introduction of directives alongside the impetus given by the various committee and policy papers preceding them. Here, Rosati emphasizes the extent to which the EC (European Community; later becoming the EU) aimed to harmonize and modernize copyright across Member States; a plan that was then carried out by the CJEU.

Chapter 1 focuses on the CJEU as an institution, whilst Chapter 2 digs deeper into its jurisprudence. Looking at the body of copyright case law as a whole, Rosati highlights the key “standards” that the Court has applied in its interpretation of EU copyright. “Standards” here refer to the broader policies or principles the CJEU has relied upon in its decisions. Rosati enumerates 11 key standards; including “high level of protection”, “autonomous concepts of EU law”, “effectiveness”, “proportionality”, “fair balance of different interests,” to name only a few (see p. 38 for the full list).

As for standards, Rosati explains that some stem from the content of EU copyright legislation itself, while others are the creation of the CJEU (p. 38). After defining the meaning of each standard, Chapter 2 tests their statistical distribution in case law. Through this exercise, Rosati is able to show that certain standards are relied upon more frequently, depending on the topic of the decision. [spoiler alert!] For example, in case law related to economic rights, the standards of “high protection” and “interpretation, in light of the objectives pursued by the piece of legislation,” are most frequently used. By contrast, the chief standard used by the Court in cases related to exceptions and limitations is the guarantee of a fair balance of interests.

This brings us to the second reason that makes Chapters 1 and 2 the ‘stars’ of the show. Rosati unveils in these chapters her statistical analysis of the Court’s case law, exploring a range of factors to do with the procedure of referrals or the content of decisions as mentioned above. For example, Rosati crunched the numbers on the state of origin of referrals to the CJEU, state interventions, and the distribution of cases across the Court’s Rapporteurs, also testing how often does the Court follow the AG’s Opinion.

[spoiler altert!] Readers will be interested to find out that Germany comes on top of all Member States for making referrals to the CJEU on copyright cases. Rosati also reveals that in the cases she examined, the Court agreed with the AG’s Opinion over 90% of the times (93.6% to be exact).

Rosati’s statistical angle on the copyright jurisprudence of the CJEU makes for an original and most welcome contribution to the scholarship on both copyright and the Court as an EU institution. To this Kat’s knowledge, it is the first time that empirical analysis of this kind has been brought to bear on the study of EU copyright jurisprudence to detect patterns of procedures or substance in referrals and decisions.

Now why should we care about patterns? This reviewer can identify at least two reasons. First, because it is the initial  step in gaining in-depth understanding of how the CJEU works and impacts on copyright law within the EU, which is essential to improve or reform the system in the future. On this, Advocate General Szpunar writes in his foreword that the analysis unveils “new information, perhaps never considered, even by members of the Courts like myself” (p. viii). Second, because this knowledge is also important in considering how proactive the CJEU has been in harmonizing EU copyright law, arguably going beyond what was mandated by legislators.

On a lighter note, the book also serves to debunk the myth that lawyers and numbers are forever foes. On this, Rosati acknowledges the contribution of her co-analyst [and brother] Carlo Maria Rosati (MD) from the University of Michigan, Ann Arbor.

Chapter by chapter

The book is divided into three parts, each focusing on a different aspect of the CJEU’s contribution to EU copyright. Part I focuses on the role of the CJEU as an institutional body within the EU framework. This part consists of Chapters 1 and 2, as described above.

Part II turns to the CJEU as a decision-making body. In Chapter 3, Rosati demonstrates that the CJEU’s jurisprudence has served to limit individual member states’ freedom of interpretation on copyright measures, thereby driving the EU harmonization agenda beyond what the instruments provide. This ‘activism’ is further developed in Chapters 4, 5 and 6, focusing on cases pertaining to economic rights, limitations and exceptions and enforcement respectively.

The third, last part of the book, considers the legacy of the CJEU. In Chapter 7, this legacy is measured through the lens of its jurisprudence’s impact on national copyright regimes. Here, this chapter refers to the UK as a case study Member State to test the strength of the CJEU’s legacy. The last chapter of the book (Chapter 8) considers the implementation of the recent Digital Single Market Directive.

An interesting follow-up on Rosati’s work would be to consider the legacy of the CJEU’s copyright activism in harmonizing copyright (beyond what EU texts require) in jurisdictions beyond the UK. This Kat wonders how the impact of the CJEU’s jurisprudence compares in Germany or France, e.g., or other countries within the EU that are not necessarily as active before the Court as these two countries have been.

This book will be relevant to two different species of lawyers: copyright enthusiasts and EU law specialists (academics and practitioners alike). For its detailed study of the role of the CJEU, this book will also be relevant to anyone interested in the broader questions of statutory interpretation and judicial activism. The clarity of writing makes this book an easy read, even when encountering very technical aspects of the law. Having said that, postgraduate and doctoral students might find the book more accessible than undergraduate students, as it addresses a very focused topic.

The book: Eleonora Rosati, Copyright and the Court of Justice of the European Union (Oxford University Press, 2019). 320 Pages. 9.2 x 6.1 inches. ISBN: 9780198837176. Also available as e-book. Also Available In: Oxford Scholarship Online. 

Price (via OUP website): £70. IPKAT reader discount code (30% OFF): ALAUTHC4. The discount code will give you 30% off for purchases via the OUP website. The discount code is valid until 29 February 2020.