New paper: What does the European Commission make of the EU copyright acquis when it pleads before the CJEU? The Legal Service’s Observations in digital/online cases

What happens behind the scenes?

In the IP field, the role of the Court of Justice of the European Union (CJEU) has gained increasing centrality over time. In certain instances, the Court has even pushed harmonization beyond the very wording of relevant EU directives and contributed substantially to shaping and construing key concepts.

All this has certainly been true in the copyright field, where Opinions of Advocates General (AGs) and CJEU decisions in referrals for a preliminary ruling are keenly [yes!] awaited.

But what happens behind the scenes, not just when the judges of the CJEU decide on a case but even before that, when relevant parties and interveners participate in proceedings and submit their observations to the Court, proposing - similarly to what an AG does - their own responses to the questions referred by a national court?

Usually, this is just a big black box: regrettably, in fact, there is no requirement for observations filed in CJEU referrals to be public.

Article 23 of the CJEU Statute allows inter alia the European Commission (or rather: its Legal Service) to intervene. At times, reference to the content of the Legal Service’s observations is found in the Opinion of the appointed AG in a certain case and/or (sporadically) in the resulting judgment. 

From the references found in AG Opinions and CJEU judgments, the impression is that, rather than following the analysis proposed by the European Commission, the CJEU has actually disregarded it when answering the questions referred in a number of topical instances. In cases concerning digital and online issues, this has been notably so with regard to the construction of economic rights, in particular the right of communication to the public under Article 3 of the InfoSoc Directive. 

In this new paper of mine, which will be published in European Law Review soon, I have reviewed the observations filed by the European Commission in copyright referrals with a digital/online dimension, whereby 'digital’ refers to situations in which protected subject matter is, or the doing of relevant acts relates to subject matter, in a digital (intangible) format and ‘online’ refers to situations in which the doing of relevant acts relates to subject matter available on the internet.

The cases selected are those concerning: 

• the construction of economic rights in an online/digital context, with a particular emphasis on the rights of reproduction, distribution and communication to the public; 
• exceptions and limitations as applied in online/digital contexts; 
• enforcement, particularly with regard to injunctions against online intermediaries and jurisdiction in online cases. 

Other referrals have been also considered when the subject and/or the content of the observations would help place the Legal Service’s approach within a broader context. 

All observations were read in their original language version and analyzed both on their own and in parallel with relevant AG Opinions and resulting CJEU decisions. The analysis focuses, in particular on: (a) issues in respect of which the position endorsed by the European Commission substantially differs from the resulting CJEU decision; or (b) areas in which the CJEU has yet to rule substantially and for which the observations of the European Commission in past cases may prove particularly valuable.

A courtroom at the CJEU

The paper seeks to detect, first, whether there is any common thread in the Legal Service’s approach to the construction of copyright under EU law, in particular whether there has been a tendency towards adopting a certain, recurring reading of copyright provisions. 

Second, it considers the observations in light of international and EU provisions, as well as case law existing at the time of the relevant intervention, in order to assess the appropriateness of the conclusions reached therein, as well as whether a remark often made with regard to the CJEU – this being that the Court would pursue its own ‘agenda’ – can be also formulated in relation to the Legal Service of the European Commission. 

It answers the latter in the affirmative. 

It is maintained that, with particular regard to the rights of distribution and communication to the public, the observations presented by the European Commission have failed to take into proper account the existing legal framework, as interpreted by the CJEU in a number of earlier decisions. However, in other cases, eg exhaustion of the right of distribution, the Commission has provided articulated guidance. 

It can thus be concluded that policy considerations – occasionally, yet visibly, in contrast with initiatives taken in parallel by the European Commission’s own policy arm – appear to have informed the content of the observations of the Legal Service in a number of referrals.

You can download the paper from SSRN here. Any feedback is welcome!