Today's the 10-year anniversary of the CJEU judgment that changed EU copyright

Members of the Court of Justice in 2018

On this day 10 years ago, the Court of Justice of the European Union (CJEU) issued the judgment that set a new course for the development and construction of EU copyright law, a course in which the role of EU judiciary would become as important as and, in certain areas, even more important than that of EU legislature. 

That decision is the one in Infopaq, C-5/08. 

As readers know, the core of that referral concerned the notion of reproduction 'in part': is it an infringement of the right of reproduction in Article 2 of the InfoSoc Directive to reproduce short extracts of newspaper articles without a licence? To answer this, the CJEU said that there is reproduction 'in part' when what is being reproduced is sufficiently original. 

Fair enough: the Court could have stopped here - nothing too surprising.

In fact, unlike what is for subject matter like software, databases and photographs, the InfoSoc Directive does not contain a harmonized concept of originality. In this sense, it might have well been the case that individual EU Member States could have defined originality in accordance with their own national copyright traditions.

However, this is not what the CJEU decided. 

In fact, the Court held that the InfoSoc Directive is rooted within the same principles found in those directives that contain a harmonized notion of originality. 

Thus, also for subject matter falling within the scope of the InfoSoc Directive, protection arises when a sufficient degree of originality - to be intended as the 'author's own intellectual creation' - is found to subsist.

A Copernican Revolution had just begun and nothing could stay the same!

A new era

As far originality is directly concerned, the Court progressively refined its own understanding in subsequent case law, submitting that originality requires the making of 'free and creative choices', that the work carries the 'personal touch' of the author, and that 'significant labour and skill' are not enough. 

Although 10 years have passed since the Infopaq decision, we are still struggling with PTSD the full implications of all this: the referral in Cofemel (in progress) stands as a demonstration [Katpost here] and recent cases like Levola Hengelo [Katposts here and here] - concerning the notion of 'work' - also required the CJEU to tackle Infopaq and its progeny.

Overall, in the post-Infopaq years, the role of the Court has indeed acquired centrality, with commentators referring to this process as 'harmonization by stealth' or the Court's approach as a 'harmonising agenda'. 

A progressive development

Irrespective of the opinion that one might have of resulting case law, the Court has developed relevant copyright concepts progressively and - in my view - coherently, without any drastic departure from earlier decisions despite the lack of a formal system of binding precedent at the CJEU level. 

Lack of a formal system of binding precedent

The reason why no binding precedent was introduced at the CJEU level was the fear that a system of stare decisis would be inappropriate for an institution acting as court of first and last resort. Envisaging binding precedent would mean that, to challenge a certain decision, a review of the Treaties would be necessary. 

However, the very fact that the Court often uses the expression 'it is settled case law' or that it would issue an order, in lieu of a judgment, in cases that contain questions identical to those on which the Court has already ruled or the reply to which may be clearly deduced from existing case law is indicative that earlier decisions have in fact a value which, if not akin to that of a binding precedent, is at least one in which earlier decisions matter. 

According to authoritative commentators, this system, which is now codified but what first initiated by the Court in its seminal decision in Da Costa, may be regarded as akin to a system of precedent under EU law.

De facto specialization

In addition, as discussed at greater length here, although the Court does not have specialist chambers or specialist expertise, as a matter of fact specialization may be discerned in respect of various areas. 

This has been possible both through the appointment, each time, of a Judge-Rapporteur from a narrow pool (with Jiří Malenovský acting as Judge-Rapporteur in over 50% of the copyright referrals over the past twenty years) and that for certain issues, eg Advocate General (AG) Yves Bot in cases concerning the interpretation of the Software Directive or AG Maciej Szpunar in relation to cases concerning the interplay between copyright and other fundamental rights, the same AG has also been appointed. 

Expansive reading of copyright provisions

Further, the Court has shown a (statistically relevant) tendency towards endorsing the Opinion of the AG appointed in a certain case, when this proposed an expansive reading of the scope of copyright protection.

Autonomous concepts of EU law

In addition, the Court has relied on a certain number of standards to interpret the EU acquis, and has done so consistently. Of particular importance for the Court's 'harmonising agenda' is the fact that, when a certain provision in a EU directive makes no reference to national legislation, relevant concepts are not to be defined at the national level, but are rather to be intended as autonomous concepts of EU law. As such, they are to be given a uniform application throughout the EU. This is an expression of the principle of autonomy of EU law. 

The CJEU has often employed this standard in its copyright case law, with the practical effect of strengthening harmonization of copyright laws across the EU.  

In relation to its construction of economic rights, the CJEU referred to the need of considering the notion of ‘public’ within Article 3(1) of the InfoSoc Directive as an autonomous concept of EU law in its first decision on the right of communication to the public (SGAE). 

It achieved a similar conclusion with regard to the notions of ‘reproduction’ (FAPL) and ‘reproduction in part’ (Infopaq) within Article 2 of the InfoSoc Directive and the notions of ‘distribution’ (Donner, Dimensione Direct Sales and Labianca) within Article 4 of the same directive. With reference to the right of distribution, in UsedSoft, the Court clarified that also the notion of ‘sale’ within Article 4(2) of the Software Directive is to be regarded an autonomous concept of EU law. 

Recently, Levola Hengelo, the Court also held that ‘work’ under the InfoSoc Directive is an autonomous concept of EU law.

A similar pattern may be discerned with reference to exceptions and limitations. The CJEU has referred to the following as autonomous concepts of EU law: ‘fair compensation’ for private copying within Article 5(2)(b) of the InfoSoc Directive (Padawan, Hewlett-Packard Belgium, EGEDA and Others); the concept of ‘by means of its own facilities’ within Article 5(2)(d) of the InfoSoc Directive (DR and TV2 Danmark); and ‘parody’ under Article 5(3)(k) of the InfoSoc Directive (Deckmyn).

Waiting for the next CJEU copyright decision ...
You won't need to wait long though:
29 July is the date of 3 of them: Funke Medien,
Pelham and Spiegel Online!

Legacy of CJEU case law

In all this, the CJEU understanding and construction of economic rights has had a significant impact on both national copyright regimes and the development of EU policy in this area of the law.

With regard to the former, CJEU case law has helped shaping corresponding national economic rights, determining the subsistence of copyright protection (including the notion of ‘work’), and defining the standard of infringement. 

Turning to the latter, the recently adopted DSM Directive [Katposts here] shows how any review of EU copyright rules would not just need to consider the (formally rich but substantially relatively thin) existing legislative framework, but also – and possibly above all – the CJEU interpretation of existing sets of rules. 

In this sense, the discussion around certain provisions in the DSM Directive included the relationship with existing CJEU case law and whether and to what extent EU legislature should retain it. Examples in this sense are: Article 17 (as stated in Recital 64, that OCSSPs communicate to the public is a clarification of existing (case) law); Article 16 (which was meant to 'erase' Reprobel) and Article 8 (which was meant to remedy Soulier).

2009 was the year that changed EU copyright. There is no reason to think that the Court would cease having a central role in the clarification, construction and development of the copyright framework in the near future. Although doubts might remain regarding the role and actual competence of the Court in building, rather than just interpreting (but how do you draw the line?) the law around copyright, this trend appears bound to stay ... Happy Infopaqversary!