1. European Policy for Intellectual Property 10 th Annual Conference University of Glasgow, UK 2 – 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

2. CJEU copyright jurisprudence Marcella Favale CIPPM, CREATe HYPOTHESES H1 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)

3. 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 Opinions

4. Which chambers for copyright cases? Marcella Favale CIPPM, CREATe Sample: 49 cases

5. …Chambers by Year Marcella Favale CIPPM, CREATe Sample: 49 cases

6. Which Reporting Judge? Marcella Favale CIPPM, CREATe Sample: 49 cases

7. Which Advocate General? Marcella Favale CIPPM, CREATe Sample: 49 cases

8. Members on copyright cases: what specialist background ? Marcella Favale CIPPM, CREATe Sample: 45 Members

9. 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

10. Which approach (topoi)?

11. Marcella Favale CIPPM, CREATe Sub Variables

12. Teleological arguments Marcella Favale CIPPM, CREATe

13. Background vs. approaches? Marcella Favale CIPPM, CREATe

14. Background vs. approaches? Marcella Favale CIPPM, CREATe

15. Findings HypothesisMeasureDataFindings ECJ 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

16. 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

17. Thank you Marcella Favale CIPPM, CREATe Marcella Favale: mfavale@bournemouth.ac.uk Martin Kretschmer: Martin.Kretschmer@glasgow.ac.uk Paul Torremans: Paul.Torremans@nottingham.ac.uk