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European Policy for Intellectual Property European Policy for Intellectual Property

European Policy for Intellectual Property - PowerPoint Presentation

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European Policy for Intellectual Property - PPT Presentation

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

favale create cippm marcella create favale marcella cippm copyright analysis cases background jurisprudence sample approaches members reasoning european teleological

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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