european policy for intellectual property 10 th annual conference university of glasgow, uk 2 – 3...
TRANSCRIPT
European Policy for Intellectual Property10th Annual ConferenceUniversity of Glasgow, UK2 – 3 September 2015
RCUK Centre for Copyright and New Business Models in the Creative Economy
www.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 Torremans
Marcella Favale CIPPM, CREATe
CJEU copyright jurisprudence
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)
Marcella Favale CIPPM, CREATe
Methodology: content analysisQ1 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 Opinions
Marcella Favale CIPPM, CREATe
Which chambers for copyright cases?
0%
5%
10%
15%
20%
25%
30%
35%
40%
45%
Grand Second Third Fourth Fifth Sixth
20%
4%
41%
20%
2%4%
9%
20% 20%
12%
20%
18%
Case assignment to Chambers
CopyrightCases % ineachChamber
TotalCases % ineachChamber
Sample: 49 cases
Marcella Favale CIPPM, CREATe
…Chambers by YearSample: 49 cases
Marcella Favale CIPPM, CREATe
Which Reporting Judge?
0
5
10
15
20
25
24
1 1 1 1 2 14
1 1 1
1
1
1
8
Type of case for each Reporting Judge
DB
Software
Copyright
Sample: 49 cases
Marcella Favale CIPPM, CREATe
Which Advocate General?
0
1
2
3
4
5
6
7
8
9
10
8
2
4
1
9
2 2 2 2 2 21 1 1
2
1
2
4
Type of Case for each Advocate General
DB
Software
Copyright
Sample: 49 cases
Marcella Favale CIPPM, CREATe
Members on copyright cases: what specialist background ?
Sample: 45 Members
Marcella Favale CIPPM, CREATe
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, CREATe
Which approach (topoi)?
Marcella Favale CIPPM, CREATe
Sub
Varia
bles
TELEOLOGICALHarmonizationCirculation of CultureHigh protection for the AuthorFair CompetitionTechnological DevelopmentFair Balance of RightsOvercome Legal UncertaintyAdequate Compensation
SYSTEMATICLegal HistoryInternational TreatiesOther DirectivesGeneral Principles of LawHuman/Fundamental RightsCitation of previous EU Case-lawNo cited approach
Marcella Favale CIPPM, CREATe
Teleological arguments
Marcella Favale CIPPM, CREATe
Background vs. approaches?
Marcella Favale CIPPM, CREATe
Background vs. approaches?
Marcella Favale CIPPM, CREATe
FindingsHypothesis Measure Data FindingsECJ lacks coherent copyright jurisprudence
1) 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, CREATe
Conclusion
‘Is there a EU copyright jurisprudence?’ • attempts to create in effect specialist
chambers• recurrent patterns of reasoning, but outcomes
from that reasoning unpredictable• the Court’s jurisprudence is overall balanced,
but much could be done to improve its legitimacy.
Marcella Favale CIPPM, CREATe
Thank youMarcella Favale: [email protected] Kretschmer: [email protected] Torremans: [email protected]