Copyright, Technology and the CJEU: An Empirical Study
49(2) IIC – International Review of Intellectual Property and Competition Law 153 (2018)
34 Pages Posted: 12 Oct 2017 Last revised: 16 Nov 2018
Date Written: October 12, 2017
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. Courts, however, occasionally refuse to abide by the framework’s interpretative constraints, in order to accommodate certain technology-enabled uses. In some cases, the CJEU has adopted flexible readings of the exceptions at stake. In other cases, national courts have openly construed the three-step test as an enabling standard, rather than as a restrictive one.
Using the relevant case law of the CJEU as its research sample, the article aims at empirically investigating the extent to which European courts are deciding in such a flexible manner and rendering technology-enabled uses non-infringing. The study reveals that the number of uses that the CJEU has deemed non-infringing exceeds those that have been held infringing. It shows, moreover, that the CJEU has been circumventing interpretative constraints in the majority of these cases.
These findings suggest that the existing framework is indeed unfit for times of accelerated technological change, but for a different reason than what is commonly thought. The main reason for introducing a greater degree of flexibility in EU copyright law is, somewhat paradoxically, related to legal certainty.
Keywords: EU Copyright Law, Technology, CJEU, Rights, Exceptions, Flexibility
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