Is there a EU copyright jurisprudence?: an empirical analysis of the workings of the European Court of Justice

Favale, Marcella; Kretschmer, Martin; Torremans, Paul

Abstract

The Court of Justice of the European Union (CJEU) has been suspected of carrying out a harmonising agenda over and beyond the conventional law-interpreting function of the judiciary. In relation to the development of a EU copyright law, the Court has seen a dramatic increase in activity, with 6 cases filed in the 10 years following the Phil Collins case of 1992, 6 cases filed in the 5 years between 2002 and 2006, and 26 cases in the 5 years between 2007 and 2011. 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). The findings of the study confirm the former, and qualify the latter.

Citation

Favale, M., Kretschmer, M., & Torremans, P. (2016). Is there a EU copyright jurisprudence?: an empirical analysis of the workings of the European Court of Justice. Modern Law Review, 79(1), 31-75. https://doi.org/10.1111/1468-2230.12166

• Journal Article Type: Article
• Publication Date: Jan 15, 2016
• Deposit Date: Jan 14, 2016
• Publicly Available Date: Jan 15, 2016
• Journal: Modern Law Review
• Print ISSN: 0026-7961
• Electronic ISSN: 1468-2230
• Publisher: Wiley
• Peer Reviewed: Peer Reviewed
• Volume: 79
• Issue: 1
• Pages: 31-75
• DOI: https://doi.org/10.1111/1468-2230.12166
• Keywords: Court of Justice of the European Union, CJEU, Copyright, European jurisprudence, Advocate General, Harmonization, European Union
• Public URL: https://nottingham-repository.worktribe.com/output/772573
• Publisher URL: http://onlinelibrary.wiley.com/doi/10.1111/1468-2230.12166/abstract
• Additional Information: This is the peer reviewed version of the following article: Favale, M., Kretschmer, M. and Torremans, P. C. (2016), Is there an EU Copyright Jurisprudence? An Empirical Analysis of the Workings of the European Court of Justice. The Modern Law Review, 79: 31–75. doi: 10.1111/1468-2230.12166, which has been published in final form at http://onlinelibrary.wiley.com/doi/10.1111/1468-2230.12166/abstract. This article may be used for non-commercial purposes in accordance with Wiley Terms and Conditions for Self-Archiving.