How should copyright exceptions be drafted? This is a question of ongoing concern in scholarly and law reform debates. In Drafting Copyright Exceptions, Emily Hudson assesses drafting options using insights from the standards and rules literature, and case studies from cultural institutions in Australia, Canada, the UK and the US. Drawing on thousands of hours of fieldwork conducted over fourteen years, the book describes how staff engage with and interpret the law. Whilst some practices are guided strongly by copyright doctrine, others are influenced by the factors such as ethical views, risk assessment, and prosaic matters related to collection management. This work should be read by anyone interested in a detailed account of interpretative practices related to the drafting of copyright exceptions, but it also speaks to broader debates about the relationship between the 'law in books' and the 'law in action'.

Drafting Copyright Exceptions: From the Law in Books to the Law in Action

This paper analyses how the Court of Justice of the European Union resolves conflicting situations surrounding intellectual property rights (IPR). More specifically, it looks into how it approaches clashes of IPR with other fundamental rights and economic freedoms and with what consequences. Building upon previous literature, I advance the argument that the resolution of the conflict, by means of the proportionality interest-balancing exercise, pursues a pro-harmonisation agenda not only in the obvious context of free movement, but also in the setting of fundamental rights. I show that the recent Coty Germany ruling is likely to accelerate this trend because of its recognition of positive obligations of the Member States in the context of fundamental rights. It is argued that this could also be used by national courts to improve an existing IPR framework, in particular by filing preliminary references that question legislators’ choices such as non-implementation of permissible exceptions and limitations. After highlighting the importance of maintaining a separation between different policy levels (secondary law vs Charter), I outline why Coty Germany is a very worrying reading of Article 17(2) of the EU Charter, and suggest that this could be remedied by synchronising its interpretation with the Court’s doctrine of ‘specific subject matter’ in the context of free movement.

Intellectual property rights and integration by conflict: The past, present and future

Fair Dealing’s Failures?

Copyright is territorial, but the same cannot be said of the internet, whose borderless nature has changed the way we consume copyright-protected material. Nevertheless, territorial segmentation of online content remains a reality in the 28 member states of the European Union. Licensing and access practices do not reflect this digital reality, in which end-users demand ubiquitous access to content. For this reason, the territorial nature of copyright and traditional business models based on national exploitation prevent the completion of the Digital Single Market. Sebastian Felix Schwemer provides a unique analysis of the dynamic licensing and access arrangements for audiovisual works and music and shows how they are being addressed by sector regulation and competition law in the Digital Single Market. His analysis, which includes case law of the Court of Justice, the Commission's competition proceedings, and various legislative tools, reveals the overlapping nature of legislative and non-legislative regulatory solutions.

Licensing and Access to Content in the European Union : Regulation Between Copyright and Competition Law

This paper investigates whether members of the European Court of Justice (ECJ), as is often assumed, behave in accordance with legalistic models of judge behavior. So far, different from courts in the U.S. and elsewhere, there is no conclusive evidence that the background of individual judges influence the decision-making of the Court. There are two possible explanations for this. First, it seems possible that the unique institutional culture at the Court has created an environment which minimizes the influence of such factors. Second, it seems possible that these effects exist, but that they have so far gone largely unnoticed, because the non-disclosure of individual votes and non-random case assignment pose great challenges to any attempt to identify them. This paper, drawing on recent work on U.S. courts, investigates the relationship between the political background of members of the ECJ and their citation behavior. It shows that judges appointed to the Court by an integration-friendly Member State government are more likely to cite judgments authored by judges from a similar political background? Just like in the context of U.S. courts, non-random opinion assignment potentially threatens the validity of these results. In order to mitigate these effects, I use an empirical strategy building on comparing the citations in two documents that were produced in the same case (i.e., the judgment and the opinion of the Advocate General). The intuition behind this strategy is that the Advocate General helps distinguish more legally relevant from less legally irrelevant citations: if we observe that, among the cases cited by the Advocate General, the Judge Rapporteur is more likely to cite cases written by authors that are ideologically close to his own position, this result cannot just be explained by case assignment and differences between more and less relevant decisions. The findings in this paper provide evidence for the hypothesis that the political preferences of Member State governments are reflected in the behavior of the members of the ECJ.

The Politics of Citations at the ECJ: Policy Preferences of EU Member State Governments and the Citation Behavior of Members of the European Court of Justice

The Court of Justice of the European Union (ECJ) has been suspected of carrying out a harmonising agenda over and beyond the conventional law-interpreting function of the judiciary. This study aims to investigate empirically two theories in relation to the development of EU copyright law: (i) that the Court has failed to develop a coherent copyright jurisprudence (lacking domain expertise, copyright specific reasoning, and predictability); (ii) that the Court has pursued an activist, harmonising agenda (resorting to teleological interpretation of European law rather than – less discretionary – semantic and systematic legal approaches).

We have collected two data sets relating to all ECJ copyright and database cases up to Svensson (February 2014): (1) Statistics about the allocation of cases to chambers, the composition of chambers, the Judge Rapporteur, and Advocate General (including coding of the professional background of the personnel); (2) Content analysis of argumentative patterns in the decisions themselves, using a qualitative coding technique. Studying the relationship between (1) and (2) allows us to identify links between certain Chambers/ Court members and legal approaches, over time, and by subject. These shed light on the internal workings of the court, and also enable us to explore theories about the nature of ECJ jurisprudence.

The analysis shows that private law and in particular intellectual property law expertise is almost entirely missing from the Court. However, we find that the Court has developed a mechanism for enabling judicial learning through the systematic assignment of cases to certain Judges and AGs. We also find that the Court has developed a “fair balance” topos linked to Judge Malenovský (rapporteur on 24 out of 40 copyright cases) that does not predict an agenda of upward harmonisation, with about half of judgments narrowing rather than widening the scope of copyright protection.

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Is There a EU Copyright Jurisprudence? An Empirical Analysis of the Workings of the European Court of Justice

We, the undersigned, urge the Intellectual Property Office to reconsider the decision not to recommend the introduction of an exception for parody as stated in Taking Forward the Gowers Review of Intellectual Property: Second Stage Consu tation on Copyright Exceptions (p.3, para.19, and p.46, para.330).

Paul Torremans

Papers

Is There a EU Copyright Jurisprudence? An Empirical Analysis of the Workings of the European Court of Justice