10 th Annual Conference University of Glasgow UK 2 3 September 2015 RCUK Centre for Copyright and New Business Models in the Creative Economy wwwcreateacuk Is there a European Union copyright jurisprudence ID: 377030
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Slide1
European Policy for Intellectual Property10th Annual ConferenceUniversity of Glasgow, UK2 – 3 September 2015
RCUK Centre for Copyright and New Business Models in the Creative Economywww.create.ac.uk
Is there a European Union copyright jurisprudence?
An empirical analysis of the workings of the European Court of Justice
Marcella Favale, Martin Kretschmer, Paul TorremansSlide2
CJEU copyright jurisprudenceMarcella Favale CIPPM, CREATe
HYPOTHESESH1 CJEU lacks coherent copyright jurisprudence
(van Eechoud 2012; Griffiths 2013)
H2 CJEU pursues activist, upwardly harmonising agenda(Colin 1965; Rasmussen 1986, 1988; Weiler 1994; Stone Sweet and Brunell 2011; Conway 2014;
Leistner 2014. Against, Dehousse 1997; Conan 2002, Bell 2010; Beck 2012)Slide3
Marcella Favale CIPPM, CREATe
Methodology: content
analysis
Q1
Who
is
behind
the EU copyright jurisprudence?
Q2
Do
they
have a copyright background?
M:
analysis
of Court
Members
CVs
Q3
Are
there
recurrent
approaches
/patterns?
Q4
Are the
approach
/patterns
related
with
the background of the
Members
?
M: content
analysis
of
Rulings
and
OpinionsSlide4
Which chambers for copyright cases?
Marcella Favale CIPPM, CREATe
Sample: 49 casesSlide5
…Chambers by Year
Marcella Favale CIPPM, CREATe
Sample: 49 casesSlide6
Which Reporting Judge?
Marcella Favale CIPPM, CREATe
Sample: 49 casesSlide7
Which Advocate General?
Marcella Favale CIPPM, CREATe
Sample: 49 casesSlide8
Members on copyright cases: what specialist
background ?Marcella Favale CIPPM, CREATe
Sample
: 45
MembersSlide9
Which approach (topoi)?
Semantic ex. ‘Article 5(2)(a) of Directive 2001/29, as is clear from its wording… ’
Teleological ex. ‘the principal objective of Directive 2001/29 is to establish a high level of protection of authors’
European ex. ’any copyright must respect the principle of proportionality’
Systematic ex. ‘the meaning and scope of that concept must be defined in the light of the context in which it occurs’
Marcella Favale CIPPM, CREATeSlide10
Marcella Favale CIPPM, CREATe
Which approach (topoi)?Slide11
Marcella Favale CIPPM, CREATeSub
VariablesSlide12
Teleological argumentsMarcella Favale CIPPM, CREATeSlide13
Background vs. approaches?
Marcella Favale CIPPM, CREATeSlide14
Background vs. approaches?Marcella Favale CIPPM, CREATeSlide15
Findings
HypothesisMeasureData
Findings
ECJ lacks coherent copyright jurisprudence1) Judges and AGs do not have specialist expertise
Biographical background (descriptive statistics)
Confirmed: no prior domain expertise
2) There are no specialist chambers
Allocation of cases to Chambers, Reporting Judges and AGs (tested for significance)
Rejected: repeat allocations can only be explained by deliberate policy
3) Reasoning is unpredictable
Content analysis, linking judicial approaches to outcomes
Confirmed, but different approaches found for different judges (not conclusive: small sample limitation)
ECJ pursues activist, upwardly harmonising agenda
1) There is a prevalence of teleological topoi
Content analysis, identifying patterns of reasoning
Confirmed, but complex pattern of
cumulation
, often
combining
teleological, systematic and semantic
2) Outcome of judgements expand copyright protection
Content analysis of outcomes
Rejected
Marcella Favale CIPPM, CREATeSlide16
Conclusion‘Is there a EU copyright jurisprudence?’
attempts to create in effect specialist chambersrecurrent patterns of reasoning, but outcomes from that reasoning unpredictablethe Court’s jurisprudence is overall balanced, but
much could be done to improve its legitimacy.
Marcella Favale CIPPM, CREATeSlide17
Thank you
Marcella Favale CIPPM, CREATeMarcella Favale: mfavale@bournemouth.ac.ukMartin Kretschmer: Martin.Kretschmer@glasgow.ac.uk
Paul Torremans: Paul.Torremans@nottingham.ac.uk