Matters of intellectual property (IP)—copyright, patents, trade marks—tend to be of high complexity and low political salience. This is a challenge for legislators, including at the European level, who may struggle to fully comprehend the technical details regarding e.g. the processes involved in hyperlinking, web streams and digital broadcasts. During the legislative process this confers a great deal of power on those with appropriate technocratic expertise—typically those working at the various Directorates-General (DGs) of the European Commission and invited experts to the European Parliament. For example, when I presented my research on patent law to the JURI committee of the European Parliament in 2019 I was struck by the respect afforded to my views, but also by questions from parliamentarians that revealed an understandable lack of technical knowledge about the subject at hand.
Expert guidance is essential to the process because it is at the legislative level that the key concepts of European intellectual property law are outlined. Yet, it is not until these concepts are challenged and interrogated at the judicial level that these notions truly come to life. As a recent article in the MLR by Favale, Kretschmer and Torremans demonstrates, the Court of Justice of the EU (CJEU) has been tasked with giving flesh to the bare bones of copyright concepts like ‘communication to the public’ and ‘parody’ (at 831). How does the Court go about this task? Do the same concerns over a lack of technical expertise at the legislative level also occur when judges at the CJEU do not possess prior experience of dealing with complex IP matters? Who, apart from the judges, has influence over the process? These questions—on the role of the CJEU in the juridification of EU copyright law—are of concern to Favale, Kretschmer and Torremans. Their article is an important intervention into the debate concerning European copyright jurisprudence. Key to the scope of their piece is the notion that there is a ‘normative void’ at the heart of EU copyright law and it is this which makes CJEU rulings of crucial significance (at 831). How true is this?
I Defining the boundaries of European copyright
There is little doubt that EU copyright law is less well integrated into the EU legal order than some other key areas of commercial law. Copyright went unmentioned in the Treaty of Rome, which was instead focused on eliminating barriers to competition; even today European IP law is harmonised unevenly—copyright law (and patent law) are much less integrated into EU law than trade mark law is.
In the case of copyright, rather than complete harmonisation there exists a scattered list of directives and regulations relevant to copyright—the most prominent include the Information Society Directive from 2001 (sometimes referred to as ‘InfoSoc’), and the recent Copyright in the Digital Single Market Directive, which was enacted in 2019.
When evaluating these Directives and associated case law there is a need to consider a broader question—one that is, in my view, not answered fully in the authors’ recent article (or in their 2016 article on EU copyright law): does EU legislation have an ‘intention’ in the field of copyright, and if so is it normative?
Looking at the 2001 Information Society Directive it is clear that ‘harmonisation’ is the overarching legislative intention—the Directive’s title states the aim is ‘harmonisation of certain aspects of copyright and related rights in the information society’. This is certainly evidence of intention, but the reference to ‘certain aspects’ makes clear that whatever is harmonised by the Directive, it will nevertheless leave a copyright system in place that is not legally ‘complete’.
The same Directive’s recital states that the economic goals include creating ‘an internal market for new products and services’ and to ‘foster substantial investment in creativity and innovation’. While calling for strong protection of IP rights in the online environment the recital nonetheless acknowledges there must be a fair ‘balance’ between rightholders and users. The recital (in paragraph 25) also acknowledges the ‘legal uncertainty’ involved in this field of rapid technological change, while also reverting to the need for harmonisation.
These aspects of the text show the legislative intention is (i) to further the goal of harmonisation and (ii) to provide rightholders with exclusivity over online transmissions (while respecting user rights). This intention is then made substantive by the provision of the exclusive right of ‘communication to the public’ (mentioned alongside the right of ‘making available to the public’) in Article 3 of the Directive (2001/29):
Article 3: Right of communication to the public of works and right of making available to the public other subject-matter
- Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
- Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them
(a) for performers, of fixations of their performances;
(b) for phonogram producers, of their phonograms;
(c) for the producers of the first fixations of films, of the original and copies of their films;
(d) for broadcasting organisations, of fixations of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite
3. The rights referred to in paragraphs 1 and 2 shall not be exhausted by any act of communication to the public or making available to the public as set out in this Article.
The cumulative effect of the above text does, therefore, show a normative intention—but one that is insufficiently detailed to provide adequate normative guidance to national courts. This is, of course, a deliberate strategy on the part of EU legislators. Directives are favoured (over Regulations) by EU institutions in complex areas precisely because they give normative flexibility, allowing diplomatic compromises between the EU institutions and Member States (MS) (no doubt also taking into account various lobbying efforts at all levels). Yet, can such compromises ever be stable within the EU legal system? The result is conceptual ‘openness’—a lot is left to interpretation at the judicial level.
So what actually happens at the CJEU in copyright cases? Favale, Kretschmer and Torremans argue that in applying EU legislation the CJEU often leads with—and then refers back to—its own case law norms. They argue this circularity is necessary precisely because the EU lacks an ‘exhaustive normative system’ in the field of copyright law. In other words, the normative meaning of EU copyright law is contested by case parties—and, crucially, as we shall see later on, by EU MS in their case observations submitted to the CJEU.
II In developing a normative approach does the CJEU go beyond the legislative intention?
Intellectual property law expertise has typically not been a strength of the majority of appointed CJEU judges. At times this has led to concerns that the CJEU may lack the appropriate knowledge and experience to interpret and apply copyright law in a measured fashion, and may—perhaps inadvertently—lead the Court to go beyond the legislative intention in its zeal to create harmonised norms.
Such fears have been heightened by the fact that core concepts like ‘originality’ have been interpreted at the CJEU in a way that goes beyond what legislators were likely to have intended. For example, there was nothing in the Information Society Directive, or other EU legislation, that suggested a uniform concept of originality for all copyright works was necessary to harmonise the relevant ‘certain aspects’ of EU copyright law. Yet when making its substantive ruling in the Infopaq case—a case decided under the terms of the Information Society Directive—the CJEU did in fact put forward a uniform concept for all works based on ‘intellectual creation’. This decision has had an impact on how originality is assessed by the national courts of MS. It has relevance in virtually any copyright case where originality is in dispute—even those that would have fallen outside of the scope of the Directive as originally conceived. One recent case that followed in the wake of the Infopaq decision concerned whether a new, ‘original’ taste of cheese could be protected by copyright—hardly a matter of interest to the ‘Information Society’.
Nonetheless, in their prior (2016) article Favale, Kretschmer and Torremans argue against the notion that the Court, due to gaps in the legislation, has routinely overstepped the mark and granted over-broad rights to copyright owners. The authors demonstrate that in general the Court has—as the EU legislators appear to have intended from the text of the 2001 InfoSoc Directive and their enactment of the EU Charter of Fundamental Rights—applied a ‘fair balance’ between the rights of copyright owners and users. Moreover, the CJEU’s approach has not led to upward harmonisation in all cases; the Court has not always taken advantage of an opportunity for harmonisation to expand copyright law in favour of rightholders. Overall, Favale, Kretschmer and Torremans show that about half of the CJEU rulings narrowed, rather than widened, copyright’s scope. This chimes with Husovec’s research on copyright norms—he notes that the CJEU ‘keeps an open mind with respect to their detailed execution and looks at markets and technological developments’. Is there anything else that might sway the CJEU?
Can EU Member States influence the development of copyright norms at the CJEU?
One factor not considered by the authors in their 2016 article was the question of who—apart from the main case parties—might try to influence the development of copyright norms at the CJEU level. This is the focus of their recently published MLR article. The authors open their piece by expressing the fear that the jurisprudence of the Court is ‘open to capture’ and that ‘national governments may be able to steer the Court to produce policy outcomes that were politically unachievable’ at the legislative stage (at 832).
This fear of a Court wide open to conceptual (and in effect regulatory) capture leads inevitably to other crucial questions: in whose interests are Governments acting when they make written observations—rightholders’ or users’? And to what extent are Member State submissions successful at achieving a preferred outcome?
In order to investigate these questions the authors examine empirically all 78 copyright cases that took place, via preliminary references, at the European level between 1998 and 2015. Of these they concentrate on 42 cases in which there was a ‘recurrence’ of the same legal issue (which the authors define as five or more references to the CJEU concerning the same concept).
For the 42 relevant cases, the authors studied 170 documents—in each case these included the Advocate General’s opinion, the CJEU ruling, and, as far as possible, the submissions by the EC and MS. However, EU member state written observations are not published as part of the official judicial documents. As a result the authors state that it was not always easy to obtain the documentation on these submissions—freedom of information requests and other methods were used to gather as much info as possible.
In analysing their dataset, the authors reveal the five most contested legal concepts in EU Copyright Law:
- Communication to the public
- Copyright exceptions
- Levies (fair compensation for private use)
- Distribution Right
- Liability of Intermediaries.
Of these five, the authors’ utilise the first—‘communication to the public’—as the major case study in their article. They do this in part because this is the concept that comes up most frequently and as such it provides the authors with the largest number of documentary materials to examine (judgments, AG opinions, observations by MS, etc.). But it is an interesting concept to consider as a case study for another reason—as we shall see the EU legislators did not provide a normatively rich definition of this concept in the legislation, so tracing how the CJEU has developed it over time allows the authors to track efforts by MS to influence the concept’s definition and application in a range of circumstances (at 839).
The main EU legislative provision covering the exclusive right of communication to the public is found in Article 3 of the 2001 InfoSoc Directive (full text given above). This short provision has led to a remarkable amount of case law and judicial analysis. The clear legislative intention is to require payment to authors/rightholders for uses of works in various fields of transmission, including via broadcast on TV/radio, cable/satellite or online. But what may not be apparent to non-copyright scholars is that such licence fee payments must be paid not just by e.g. the BBC when the broadcaster’s DJs play music over the radio, but also by commercial businesses such as gyms, bars and restaurants when they play these same radio broadcasts in the background while customers are enjoying the goods/services they provide.
It is in this context that the communication question arose in the mid-2000s concerning broadcasting and rebroadcasting. It was not clear under Article 3 of the Directive whether all activities of businesses that involve communications or broadcasts of copyright music or TV programmes would require payments to rightholders e.g. do hotels that distribute a TV signal to their guests/customers in their rooms need to pay a specific licence fee to cover this? Favale, Kretschmer and Torremans identify the key questions (at 841):
Do these activities involve a new act of communication to the public and is there a new authorisation that needs to be paid for? Or is there, in all or in some of these circumstances, merely one original communication to the public?
Here clearly is a normative gap. The Directive’s text in Article 3 does not explain whether the communication right should apply to every single ‘broadcast’ of copyright works that occurs at a business location or whether e.g. only music played openly in the hotel bar should require a licence (and consequently such licences should not apply to guests receiving a TV signal in the relative privacy of their hotel rooms).
Due to the fact the Directive does not give sufficient guidance, the CJEU has had to fill this normative gap, considering each case in light of each new technological challenge. This opens up a space for the parties and member states to make submissions that aim to push the law in one direction or another (and, crucially, to favour certain interests over others). The authors opine (at 841):
Broadcasters and hotel owners, if we refer only to these by way of example, have opposite interests on this point. A narrow definition of communication to the public would favour the hotels and with them the national government that wants primarily to encourage the tourism industry. Those in favour of the content-providing industry would on the other hand favour a broad interpretation.
Here the CJEU decided that where guests were receiving a signal in their hotel rooms, this did constitute a communication to a ‘new’ public and thus required a specific licence (since it went beyond the ‘initial’ public transmission made by the broadcasters to the hotel itself and involved the hotel making an intervention to allow access to the guests).
In the cases that followed the CJEU has emphasised that not all communications count for the purposes of copyright law—key are those that are ‘to a public’ (requiring a licence fee to be paid to the rightholders); and in the case of re-broadcasting/retransmission, only those to a ‘new public’ require an additional licence fee. Yet, the early CJEU rulings did not always give consistent guidance to national courts. Although in the above case the Court found that the activities of hotels did involve a communication to a ‘new public’, in a later case music played in a dentist’s waiting room was held not to do so. Favale, Kretschmer and Torremans state that MS have, via their submitted observations, tried to influence the CJEU in such contested matters. In the dentist waiting room case the authors suggest that the submission of the Italian state, which favoured the dentist (and similar business owners), was ultimately more convincing to the Court than the French one, which favoured broadcasters.
The above dispute is just one example of many considered by the authors: the key merit of the article lies in its empirical breadth, which illustrates how various MS have attempted to influence the CJEU on a consistent basis, often on specific repeated issues, in a number of cases. Due to the extent of their dataset, the authors are able to make clear and confident statements on precisely which MS have been most successful at influencing European copyright law.
Who is influencing the decisions of the CJEU—and why?
On the concept of communication to the public, the data show that France is the most influential Member State by some distance in the field of copyright law, tending to support rightholders’ interests (which tend to encompass both the interests of authors/composers and corporate entities such as broadcasters, record companies, film studios, etc.). The authors note (at 855):
France’s submissions produced 32 suggested answers (data points), of which 19 (59 per cent) match the Court’s ruling. Other frequently intervening countries, such as Germany (14 data points), Ireland (12), Italy (10), and the UK (10) have each produced less than half the number of submissions of France, and none exceed a match rate of 50 per cent with the Court’s ruling.
Though less so than France, Germany is also relatively successful at making convincing submissions to the Court—though they tend to be more balanced in their choice of whose interests to support (they do not always favour rightholders). In contrast, Austria and Greece seem to struggle for influence.
The authors emphasise that interventions by the governments of MS tend to be highly skewed towards specific copyright issues relevant to their own domestic policies. In my view, this is lobbying by another name. On this, the authors uncover a somewhat surprising point: the submissions by the democratically elected governments of MS often support rightholders i.e. large IP owners and their representatives, whereas the (unelected and allegedly ‘democratically deficient’) EU Commission tends to favour user interests, notably the interests of EU citizens, via concerns over competition and consumer protection. The Commission also shows concern about the rights of intermediaries such as the internet service providers (ISPs). Only a small number of EU MS—Portugal, Ireland and the United Kingdom—have regularly advanced the users’ (and intermediaries’) perspective in their observations.
Is there still a normative void at the heart of EU copyright law? Yes. Even where Directives provide a clear legislative intention—as in the case of the 2001 InfoSoc Directive—it remains too broad to provide answers to difficult questions that involve: (i) the use of copyright content in ever-changing technologies; and (ii) the need to weigh up the rights of copyright owners and users in a proportionate fashion. The dispersal of the macro-level intention of EU Directives into the laws of the various MS will always leave many micro-level questions that need to be answered via the preliminary reference procedure.
Can MS influence copyright jurisprudence when such cases arise? The authors’ answer is clear: ‘Yes’. Copyright is indeed vulnerable to strategic litigation because the tactic creates ‘room for alternative policy paths without introducing legislation’; thus, via written observations governments of MS can aim to ‘steer the Court towards rulings in line with their respective policies’ (at 859).
On the key case study—the development of the concept of ‘communication to the public’—the authors note that the CJEU has built up a distinctive body of jurisprudence which has been influenced profoundly by observations from Member State governments. MS have expressed different views on what a ‘public’ is—and although the CJEU sometimes goes its own way, deciding against both the submissions of MS and of the Commission, in several cases observations by MS have affected the outcome. France is the most ‘successful’ in this regard both in terms of the number of interventions (an ‘investment’ in policy-making?) and in terms of persuasive power (arguments adopted successfully by the CJEU). This is significant as to the final effect on the conceptualising of ‘communication to the public’ by the CJEU as France tends to be supportive of rightholders (who, we should remind ourselves, include not just authors but also powerful corporate entities), pushing the law in a direction that could be called ‘overprotective’.
In light of Brexit the authors argue that the loss of the UK from the EU project may disrupt the balance between the MS that tend to prioritise rightholders (eg, France) and those that tend to defend user rights and competition (including the UK) (at 860). A balanced system may require other MS to step up to fill the gap.
A pertinent question remains worth asking: should the MS be able to influence the CJEU in this way? Observations by MS arguably allow a form of lobbying to occur via the judicial ‘back door’ that is not always open to public scrutiny and which is, in the case of France, more favourable to IP owners than EU citizens as a whole. Yet perhaps the most plausible answer for why MS should be allowed to do so is provided by the authors with respect to their point about the CJEU’s legitimacy. Notably, the authors’ data show a correlation between the overall range and tone of Member State submissions and the final decisions taken by the CJEU. It may be that the CJEU is attempting to ‘walk a tightrope’, trying to stay on board with the views of its fellow EU institution (the Commission) while simultaneously maintaining respect for the opinions of MS (at 859):
Submissions by the Commission correlate highly with the Court’s rulings and the Commission appears to intervene particularly effectively on behalf of user interests. A second important finding is that, collectively, the submissions by Members States are above the influence line, correctly predicting the Court’s rulings. This aligns with arguments from the political science literature that the Court needs to maintain political legitimacy.
On this, the authors reveal that in redefining the notions of ‘communication’ and ‘public’ over time the CJEU has moved gradually in line with the tone of submissions by MS—perhaps reflecting the CJEU’s perceived need to stay ‘legitimate’ in the eyes of the national governments of MS. In light of recent debates about the constitutional role of the CJEU within the EU and national legal orders, the Member State observations system may be a pragmatic compromise allowing MS and CJEU to remain in dialogue, without resorting to direct challenges to the CJEU’s authority.
This brings up a further element of the EU law-making process—the link between judicial norm-making and subsequent legislative action. As the consequences of legal decisions become clear at the case level (e.g. based on the 2001 InfoSoc Directive), this then stimulates debates over new legislation (such as the 2019 Copyright in the Digital Single Market Directive)—which also opens the door to new legislative lobbying. This point can be linked back to the authors’ earlier article, whether they argue there are two ways to approach EU law-making:
According to the first, policy-making at the EU level is the exclusive domain of Member States which elaborate policies at intergovernmental level. Conversely, the latter theory argues that the difficulty in reaching consensus among EU Members prompts a ‘judicialisation’ of the EU governance, whereby the Court sets legal principles that induce policy reforms.
The author’s most recent article provides strong evidence that it is the second (latter) theory that is more accurate—the law-making ‘dialogue’ between the EU institutions does not end at the legislative stage: it continues into the judicial arena, which in a circular process eventually stimulates further legislation.
Finally, it is worth contemplating the fact that although copyright law can be highly technical, the widespread coverage of the tortuous debates at the European Parliament over the Copyright in the Digital Single Market Directive in 2019 demonstrates that some aspects of copyright law resonate clearly with the public. Fears over online freedom of speech (the ‘save our memes’ campaign) and concerns that the new Directive would raise costs for ISPs and search engines like Google penetrated the public discourse. Eventually, after much lobbying, drafting, and ‘horse-trading’ the Directive was enacted into law. But many of its concepts remain open to interpretation by the CJEU. We can expect the CJEU to interpret these principles in line with prior existing EU law including the Charter of Fundamental Rights. Favale, Kretschmer and Torremans demonstrate that the upcoming battles over defining the balance between the rights of copyright owners, web intermediaries and users of the internet will be fought not just between the parties in question, but will also be influenced by court submissions made by EU MS. Given that the EU currently lacks successful platforms like YouTube, Google News, Facebook and Twitter, it will be interesting to see which, if any, MS in their observations side with these US platform giants (and, perhaps more importantly, their users in the EU) and which MS will argue for strict enforcement of the rights of the news publishers and content providers (who are meant to benefit from the new Directive’s provision in Article 15 that even using small snippets of news articles should require payment by platforms).
The authors’ aim with their current piece has been to shine a light on how the law of European copyright comes into being. It is a worthwhile and necessary scholarly activity and is only likely to grow in importance; the significance of observations by MS will certainly not lessen in the coming years. One aspect that could prove important in this regard is the role of the public. As noted, debates over the 2019 Directive did resonate within civil society. In upcoming cases if Member State observations—most notably, those of France—continue to be skewed towards copyright owners rather than the public, we may see civil society activism at national and EU levels. The conversation over EU copyright law-making may yet become even more multi-faceted and complex.