Who Is Steering the Jurisprudence of the European Court of Justice? The Influence of Member State Submissions on Copyright Law

44 Pages Posted: 2 Feb 2018 Last revised: 30 Aug 2018

Date Written: February 2, 2018

Abstract

The Court of Justice of the European Union (CJEU) interprets the meaning of EU legislation. Larger numbers of preliminary references to the Court on the same legal concepts suggest either a normative void, or greater attention from political forces, or both.

Taking the domain of copyright law, the paper examines all preliminary references to the CJEU registered between 1998 and 2015 regarding at least one of the directives of the copyright acquis. 170 documents relating to 42 cases were examined with a mixed research methodology including doctrinal, content (text), and statistical analysis, in order to measure empirically the impact of submissions by Member States and the European Commission on the legal interpretation of copyright concepts in the European Court.

We find that France is the most influential country, both because of the number of interventions (an ‘investment’ in policy) and because France’s arguments (69% in favour of rightholders) are often adopted by the Court. France is followed by Finland, which argues equally pro copyright rightholders and copyright users, Portugal, and Czech Republic. Other countries appear to have more specific interests, and may be influential despite lower participation. One of the most successful governments in arguing for the interests of copyright users is the United Kingdom. Our preliminary evidence suggests that the departure of the UK from EU copyright litigation has the potential to disturb the delicate balance of European copyright jurisprudence.

Keywords: CJEU, Copyright Jurisprudence, ECJ case-law, Strategic litigation

JEL Classification: K00

Suggested Citation

Favale, Marcella and Kretschmer, Martin and Torremans, Paul L.C., Who Is Steering the Jurisprudence of the European Court of Justice? The Influence of Member State Submissions on Copyright Law (February 2, 2018). Available at SSRN: https://ssrn.com/abstract=3116703 or http://dx.doi.org/10.2139/ssrn.3116703

Marcella Favale (Contact Author)

Bournemouth University ( email )

Fern Barrow
Poole BH12 5BB, Dorset BH8 8EB
United Kingdom

Martin Kretschmer

University of Glasgow ( email )

10 The Square
Glasgow, G12 8QQ
United Kingdom

Paul L.C. Torremans

Independent ( email )

No Address Available

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