How flexible is the CJEU case law on copyright and technology?

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Featured here is a summary of an article written by Tito Rendas, lecturer and researcher in copyright law at Universidade Católica Portuguesa (Lisbon). The full article, with the title “Copyright, Technology and the CJEU: An empirical study”, is available for download here.

 The framework of rights and exceptions in EU copyright law is conventionally criticized for lacking the flexibility that is necessary in times of rampant technological change. Whereas economic rights have a broad scope, exceptions, which are part of a closed catalogue, are narrowly and precisely defined. To make things worse, the three-step test laid down in Article 5(5) of the InfoSoc Directive works as a further limit to the judicial application of exceptions.

These constraints acts as limits to the judges’ margin of discretion in adapting copyright law to a new technological paradigm. Judicial discretion is of the essence in the current context, since legislators cannot effectively handle the task of swiftly updating copyright law.

Nonetheless, it has been pointed out that courts occasionally decide cases in a rather flexible manner. National courts sometimes resort to external escape valves, such as implied consent and abuse of rights, in order to accommodate socially valuable uses of works. The CJEU too has rendered somewhat flexible judgments. In the Premier League judgment, in interpreting the exception for acts of temporary reproduction, it refrained from engaging in a strict interpretation of exceptions. Interpretation, the Court said, “must enable the effectiveness of the exception (…) to be safeguarded and permit observance of the exception’s purpose” (para. 63). And in Ulmer the CJEU seemingly bypassed the closed character of the catalogue, by enacting what it called an “ancillary right” of public libraries to digitise books from their collections with the purpose of making them available via dedicated terminals without the need for the rightholder’s authorisation.

But just how frequently is the CJEU deciding in such a flexible manner in order to render technological uses non-infringing?

Based on a sample of 22 cases – in which the lawfulness of a total of 29 technology-enabled uses was discussed – I analysed the relative prevalence of two conflicting outcomes (“infringing” vs. “non-infringing”) and forms of reasoning (“flexible” vs. “formalist”).

The analysis rendered an unexpected result, at least when confronted with the established scholarly view: the number of technology-enabled uses that the CJEU has deemed non-infringing (sixteen) exceeds those that have been held infringing (thirteen).

The study also shows that the CJEU adopted a flexible approach in 68% of the cases (fifteen out of twenty-two) that composed the research sample. Within these fifteen cases, in seven of them the Court engaged in a broad reading of the relevant exception(s); in six of them it engaged in a relatively narrow reading of the right of communication to the public; in three of them, it either dispensed with the analysis of the three-step test or engaged in a summary assessment thereof; and in one of them, it arguably created a new exception or users’ right. Only in seven cases (32%) did the Court follow a formalist approach, abiding by all the constraints that were relevant in that specific case.

It seems that the Court tends to adopt a formalist approach and to find for infringement where the use at stake has a profit-making nature and/or where it causes some form of market harm. Actual or potential market harm – one of the key factors in fair use case law – was present, e.g., in ITV Broadcasting, ACI Adam, Ranks & Vasilevics, and Filmspeler.

On the other hand, the Court seems to decide flexibly where concerns regarding freedom of expression, access to information and cultural promotion are strong enough to justify such a departure. It may be argued, for example, that market harm was present in Ulmer, since the derivative market of e-books can be affected as a result of the digitization of books in library collections. Nevertheless, the Court approached the case in a flexible manner, out of a desire to ensure the effectiveness of Art. 5(3)(n) and to promote cultural diffusion. This latter interest was expressly invoked by the CJEU in VOB, where it found that under certain conditions libraries may offer e-lending services to their patrons without obtaining a license.

But if courts (or at least the CJEU) are deciding flexibly, why should the lack of flexibility in the EU framework be a concern? Despite the existing inflexibility, courts seem to be willing to exercise discretion in many cases – a discretion that they supposedly do not have. Why, then, do we need a more flexible framework?

What the findings of the study indicate is that the main reason for reforming the EU framework is related to the predictability of case law. Arguably, having a significant proportion of decisions that treat the existing constraints as overridable is more detrimental to legal certainty than having decisions guided by transparently vague norms, such as the fair use standard. If this is so, then the main reason to change the current framework of rights and exceptions is related to what is commonly touted as being its main advantage: legal certainty.

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