Is there a EU Copyright Jurispruence? An empirical analysis of the workings of the European Court of Justice.

Abstract

The Court of Justice of the European Union has seen a dramatic and controversial increase in copyright cases during the last decade. This study investigates empirically two claims: (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).We analyse the allocation of copyright and database right cases by Chambers of the Court, Advocate General (AG) and Reporting Judge, and investigate the biographical background of the Judges and AGs sitting. We trace patterns of reasoning in the Court’s approach through quantitative content analysis. We identify the legal topoi that are employed in the opinions and decisions, and then link the occurrence of these topoi to the outcome of each case. The results show 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 judgements narrowing rather than widening the scope of copyright protection.