The framework of rights and exceptions in EU copyright law is often criticised 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 in question. 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, this article aims to empirically investigate the extent to which European courts are deciding in such a flexible manner and rendering technology-enabled uses to be non-infringing. This 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 circumvented 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 that commonly thought. The main reason for introducing a greater degree of flexibility in EU copyright law is, somewhat paradoxically, related to legal certainty.
This is a preview of subscription content, access via your institution.
Buy single article
Instant access to the full article PDF.
Price excludes VAT (USA)
Tax calculation will be finalised during checkout.
See infra Sect. 2.2 for a description of this critique.
As with C-117/13, Ulmer, as explained in detail in the classification examples provided in Appendix 2.
A relatively recent judgment in which the deciding court did so in a surprisingly candid fashion is Megakini.com v. Google Spain, Spanish Supreme Court, No. 172/2012, 3 April 2012. See infra Sect. 2.3 for a description of the judgment.
For operational definitions of flexible and formalist decision-making for purposes of this study, see Appendix 2.
The “Court of Justice of the European Union” is the collective term for the EU’s judicial institutions. The CJEU is composed of three separate courts: the Court of Justice, formerly known as the European Court of Justice (ECJ); the General Court, formerly known as the Court of First Instance (CFI); and the specialised Civil Service Tribunal. I will follow the common practice of using the acronym “CJEU” (or, simply, “the Court”) to refer to the Court of Justice.
This article draws on a recent empirical study of CJEU copyright case law by Favale et al. (2016). Although also focusing on CJEU case law and employing a similar methodology, those scholars aimed at answering different research questions. Whereas I am concerned with the issue of technology-enabled uses, Favale et al. sought to empirically test the claims that the CJEU has failed to develop a coherent body of case law and that it has been pursuing an activist agenda. Consequently, the sample of cases they examined was also different.
Note, however, that preliminary references on the interpretation of Art. 3 of the InfoSoc Directive vastly outnumber those on Art. 2.
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.
Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (codified version).
The 1991 version of the Software Directive already included the temporary reproduction of computer programs in the list of restricted acts. In the Green Paper of 27 July 1995 on Copyright and Related Rights in the Information Society, COM(95) 382 final, pp. 51–52, the Commission recommended the adoption of a general reproduction right, moulded after the one provided in the Software Directive. According to the Commission, “the digitisation of works or other protected matter should generally fall under the reproduction right, as should such things as loading on to the central memory of a computer” (p. 52). Accordingly, in 2001, the EU legislature expressly included temporary copies within the coverage of the general reproduction right laid down in Art. 2 of the InfoSoc Directive. According to that provision, “Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part” (emphasis added). Nonetheless, scholars and policymakers widely agreed that acts of temporary reproduction, on which the operation of a number of digital technologies relies, should not give rise to copyright liability. An exception covering these acts of usage was thus included in Art. 5(1) of the InfoSoc Directive.
To be sure, it was the 1996 WIPO Copyright Treaty, through its Art. 8, that led the expansion of the right of communication to the public, by including within its scope the act of making available online. The EU legislature followed suit in Art. 3(1) of the InfoSoc Directive, one of the declared purposes of which, according to Recital 15, was to implement the WIPO Internet Treaties.
I borrow this expression from Fernández-Díez (2003), p. 57.
See Recitals 21 (reproduction) and 23 (communication to the public).
See, e.g. C-5/08, Infopaq, paras. 41–47 (reproduction); and C-325/14, SBS Belgium, para. 14 (communication to the public).
Art. 5(2)(a) of the InfoSoc Directive.
Art. 5(2)(d) of the InfoSoc Directive.
Sec. 107 of the US Copyright Act reads as follows:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Art. 5, it ought to be noted, uses the term “fair” on four occasions: three of them to refer to the “fair compensation” that rightholders should receive in the case of certain exceptions and the other to refer to the “fair practice” requirement that is part of the quotation exception.
C-5/08, Infopaq, para. 56.
See, e.g. C-348/87, Stichting Uitvoering Financiële Acties, para. 13; C-476/01, Kapper, para. 72; C-53/05, Commission v. Portugal, para. 22; C-36/05, Commission v. Spain, para. 31; and C-40/15, Aspiro SA, para. 20.
Let us take the exception laid down in Art. 5(2)(d) of the InfoSoc Directive as an example. This provision exempts “ephemeral recordings of works made by broadcasting organisations by means of their own facilities and for their own broadcasts”. In C-510/10, TV2 Danmark, the CJEU was asked whether this exception covered ephemeral reproductions commissioned by broadcasting organisations but made by legally independent external television production companies. If the exception were strictly interpreted, the answer would have to be in the negative; the exception would only cover recordings actually made by broadcasting organisations by means of their own facilities. The Court, however, opted for a broad reading of Art. 5(2)(d), answering the question in the affirmative.
Of the 21 exceptions set out in Art. 5, only the one for acts of temporary reproduction is mandatory. The optional character of exceptions has generated significant scholarly criticism, because it impairs the achieving of one of the Directive’s main goals: the harmonisation of copyright and related rights. Criticising the fact that Member States can pick and choose the exceptions they wish to implement in their national legal orders, see e.g. Guibault (2010).
Art. 5(3)(o) of the InfoSoc Directive (what is referred to as the “grandfather clause”), by allowing Member States to preserve already existing national exceptions opens up an otherwise absolutely closed catalogue. However, the scope of this clause is rather narrow, being limited to analogue uses that do not affect the free circulation of goods and services in the EU. As such, it is irrelevant for purposes of adapting EU copyright law to new digital uses.
The test has its origins in Art. 9(2) of the Berne Convention, which was added to the Convention’s text during the Stockholm revision, in 1967. Pursuant to Art. 9(2), “[i]t shall be a matter for legislation in the countries of the [Berne] Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author”. In its Berne version, therefore, the three-step test appears as a general criterion for the permissibility of exceptions to the reproduction right enacted by Contracting States, its purpose being to restrict the options of national legislators. The rule was later introduced in the TRIPS Agreement (Art. 13) and in the WCT (Art. 10), being applicable to the exceptions to all exclusive rights, and not just to the reproduction right. For a detailed analysis of the historical evolution of the three-step test, see Senftleben (2004).
See e.g. Guibault (2003), p. 571 (“non seulement le “test en trois étapes” forme-t-il un mandat au législateur, mais il doit également servir de règle d’interprétation pour le juge”), and Koelman (2006), p. 408 (“The three-step test has evolved from an intentionally vague criterion that would never really need interpretation, to a test that actually has to be applied by the judiciary”). Arnold and Rosati (2015) argue that the InfoSoc test, unlike its international counterpart, is also addressed at national courts, independently of whether the test’s language has been expressly transposed into national law.
This is particularly clear in Member States – such as France, Italy, and Portugal – that have expressly implemented the three-step test into their national laws.
The CJEU confirmed the restrictive character of Art. 5(5) in C-5/08, Infopaq, para. 58: “the exemption [of temporary acts of reproduction] must be interpreted in the light of Art. 5(5) of Directive 2001/29, under which that exemption is to be applied only in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder”.
Ohly (2009), p. 236.
Hugenholtz (2017), p. 276.
Leistner (2011), p. 426.
Xalabarder (2012a), p. 164.
Patry (2011), p. 214.
Guibault (2010), p. 57.
Senftleben (2010), p. 69, describing this as the “worst case scenario”.
Predictions regarding technology more often than not prove to be mistaken some years down the line. Among the most quoted (and ridiculed) predictions are those of Ken Olson, founder of Digital Equipment Corp., who, in 1977, said that “[t]here is no reason anyone would want a computer in their home”, and of IBM executives who turned down a deal with the eventual founders of Xerox under the argument that “[t]he world potential market for copying machines is 5,000 at most”. On the topic of failed predictions of technological change, see Toffler (1970), p. 191; and Volokh (1995), pp. 1375–1376.
Senftleben (2010), p. 69.
See Griffiths (2010).
The proposed Art. 5(5) of the Wittem Group’s European Copyright Code enables the analogical application of posited exceptions to comparable uses, subject to the fulfilment of the three-step test requirements – see http://copyrightcode.eu.
See Hugenholtz and Senftleben (2011).
Hugenholtz and Senftleben (2011), p. 9.
Dreier (2015), p. 141.
Vorschaubilder I, German Federal Supreme Court, I ZR 69/08, 29 April 2010, para. 27.
See Westkamp (2012), p. 61.
Truyens and van Eecke (2016), p. 4.
Leistner (2011), p. 430.
Megakini.com v. Google Spain, Spanish Supreme Court, No. 172/2012, 3 April 2012.
The exception covers acts of reproduction, but not acts of making available such as that under consideration in the Megakini case. The German Federal Supreme Court had also concluded against the applicability of the temporary reproductions exception (Vorschaubilder I, German Federal Supreme Court, I ZR 69/08, 29 April 2010, para. 24).
C-403/08 and C-429/08, Premier League, para. 63.
The consequentialist character of the CJEU’s reading is made evident in para. 179 of the judgment: “[i]f the acts at issue were not considered to comply with the conditions set by Art. 5(1) of the Copyright Directive, all television viewers using modern sets which, in order to work, need those acts of reproduction to be carried out would be prevented from receiving broadcasts containing broadcast works, in the absence of an authorisation from copyright holders. That would impede, and even paralyse, the actual spread and contribution of new technologies, in disregard of the will of the European Union legislature as expressed in recital 31 in the preamble to the Copyright Directive.”
C-160/15, GS Media, paras. 44–45.
Martin Senftleben compares this knowledge requirement to the assessment that must be conducted under an unfair competition standard – see Senftleben (2016), p. 132.
See Quintais (2015).
The CJEU’s jurisdiction to give preliminary rulings is established in Art. 267 of the TFEU.
As a general rule, Member State courts are free to decide whether to refer a question or not [Art. 267(2) TFEU]. However, exceptionally, when a question is raised in a case pending before a court of last instance, that court is under the obligation to refer that question to the CJEU [Art. 267(3) TFEU]. For a thorough analysis of this exceptional rule, including the exceptions thereto, see Broberg and Fenger (2010), pp. 223–272.
The procedure not only allows Member State courts to seek guidance on interpreting EU law, it also enables the CJEU to promote the uniform interpretation of EU law throughout the Member States. Importantly, it has also allowed the CJEU to develop fundamental principles of EU law, such as the principles of primacy and direct effect of EU law.
Broberg and Fenger (2010), p. 2.
See Broberg and Fenger (2010), p. 421. The authors cite former Advocate General Jacobs 1994, p. 29, according to whom the preliminary ruling resolves the dispute before the referring court “in an extremely high proportion of cases”. As to hard empirical data, Broberg and Fenger refer to a report of 4 June 2008 by the European Parliament’s Committee on Legal Affairs on the role of the national judge in the European judicial system (A6-0224/2008), available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A6-2008-0224+0+DOC+XML+V0//EN, according to which 89% of 123 judges that have made at least one reference for a preliminary ruling over the course of their career “found the ECJ’s ruling readily applicable to the facts of the case”. The Court’s application of the legal norm to the facts of the case is typically signalled by references to the compatibility with EU law of “a situation such as that at issue in the main proceedings”.
Mancini (1989), p. 606.
C-160/15, GS Media, para. 54: “As regards the case in the main proceedings, it is undisputed that GS Media operates the GeenStijl website and that it provided the hyperlinks to the files containing the photos at issue (…) for profit. It is also undisputed that Sanoma had not authorised the publication of those photos on the internet. Moreover, it appears to follow from the presentation of the facts, as they result from the order for reference, that GS Media was aware of that latter fact and that it cannot therefore rebut the presumption that the posting of those links occurred in full knowledge of the illegal nature of that publication. In those circumstances, it appears that, subject to the checks to be made by the referring court, by posting those links, GS Media effected a ‘communication to the public’, within the meaning of Art. 3(1) of Directive 2001/29”.
C-435/12, ACI Adam, para. 58: “EU law, in particular Art. 5(2)(b) of Directive 2001/29, read in conjunction with paragraph 5 of that article, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which does not distinguish the situation in which the source from which a reproduction for private use is made is lawful from that in which that source is unlawful”.
C-463/12, Copydan Båndkopi.
See e.g. C-306/05, SGAE (hotel rooms); C-135/10, SCF (dental clinics); and C-117/15, Reha Training (rehabilitation centres).
Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (codified version).
See, e.g., T-19/07, Systran, para. 225; AG Bot’s Opinion in C-406/10, SAS Institute, para. 85; and C-174/15, VOB, para. 50.
Making this argument, see Ramalho (2016), p. 196.
C-406/10, SAS Institute.
C-166/15, Ranks & Vasilevics.
In some cases the CJEU clarified the permissibility of more than one use, either because the question(s) raised by the national court prompted it to do so, such as in C-138/16, AKM, or because in answering the referred question(s) the CJEU ended up making a distinction, more or less explicitly, between two different uses within the same broader technology-enabled use, such as in C-457/11 to C-460/11, VG Wort and C-160/15, GS Media.
The sampled decisions and respective uses are listed in Appendix 1.
C-117/13, Ulmer, C-301/15, Soulier & Doke, and C-527/15, Filmspeler are counted in both categories, for they deal both with acts of reproduction and acts of communication.
Krippendorff (2012), p. 18. Focusing on the content analysis of judicial decisions, Hall and Wright (2008), p. 64, have defined it as an empirical research method through which “a scholar collects a set of documents, such as judicial opinions on a particular subject, and systematically reads them, recording consistent features of each and drawing inferences about their use and meaning”.
As asserted by Auerbach and Silverstein (2003), p. 22, “qualitative and quantitative research are complementary, equally valid research strategies”.
See infra Appendix 2.
E.g. in C-607/11, ITV Broadcasting, the Court determined that retransmission via streaming of works included in a terrestrial television broadcast to subscribers of the television service fell within the scope of the right of communication to the public as laid down in Art. 3(1) of the InfoSoc Directive.
E.g. in C-5/08, Infopaq, the Court determined that a data capture process for news clipping purposes, which included the printing out of text files, failed to meet the requirements of the exception for acts of temporary reproductions provided in Art. 5(1) of the InfoSoc Directive. This second criterion also includes cases in which the exception that covered the use under national law was deemed to be incompatible with EU law. For instance, in C-435/12, ACI Adam, the CJEU held that a national private copying exception that makes no distinction between lawful and unlawful sources of copies is not compatible with EU law, namely with Arts. 5(2)(b) and 5(5) of the InfoSoc Directive.
E.g. in C-466/12, Svensson, the Court decided that the act of hyperlinking to freely accessible authorised works fell outside of the scope of the right of communication to the public set out in Art. 3(1) of the InfoSoc Directive.
E.g. in C-457/11 to C-460/11, VG Wort, the Court held that reproductions made by a printer linked to a personal computer, when the various elements or non-autonomous stages of the process are carried out under the control of the same person, were covered by the reprography exception as provided in Art. 5(2)(a) of the InfoSoc Directive.
The result is, however, in line with the findings of the empirical study by Favale et al. (2016), p. 69, according to which CJEU judgments do not systematically expand copyright protection.
See supra Sect. 2.3.
See C-403/08 and C-429/08, Premier League, para. 162.
C-403/08 and C-429/08, Premier League, para. 163.
The expression is by Hugenholtz (2017), p. 286.
C-360/13, PRCA, para. 23.
C-174/15, VOB, para. 50.
See infra Appendix 2.
E.g.in C-607/11, ITV Broadcasting, the Court introduced the “new technical means” requirement so as to avoid having to go through the “new public” analysis, giving the right of communication to the public a broad scope.
E.g. in C-435/12, ACI Adam, and C-527/15, Filmspeler, the Court not only made reference to the canon of strict interpretation, but it also drew the necessary consequences therefrom.
In C-301/15, Soulier & Doke, and C-275/15, ITV Broadcasting II, the Court acknowledged that rendering the use under consideration non-infringing would amount to opening up the catalogue of exceptions, having refused to do so.
E.g.in C-435/12, ACI Adam, and C-527/15, Filmspeler, the Court did take the three-step test qua restrictive standard seriously.
E.g.in C-160/15, GS Media, by devising a profit-based presumption of knowledge of illegality and keeping some acts of hyperlinking to unauthorised works outside the scope of the right of communication to the public, the Court failed to engage in the broadest available interpretation of Art. 3(1) of the InfoSoc Directive.
Copyright scholars have noted that the CJEU has been moving away from the canon of strict interpretation of exceptions in recent cases, such as C-403/08 and C-429/08, Premier League, and cases not related to technology C-145/10, Painer, and C-201/13, Deckmyn, – see, most notably, European Copyright Society 2014, paras. 15–22. This, however, seems to be somewhat of a copyright-specific trend. As mentioned supra in section 1.1, the canon of strict interpretation has been invoked in CJEU case law for decades and in connection to widely diverse legal issues, such as tax exemptions (see e.g. C-40/15, Aspiro SA, para. 20) and access to documents (see T-437/08, CDC Hydrogene Peroxide, paras. 36, 63 and 71). The canon thus seems to be an established interpretative constraint in EU judicial decision-making. Accordingly, any deviations therefrom were read as instances of flexibility.
As explained in more detail in the codebook, this was arguably what the CJEU did in C-117/13, Ulmer.
For instance, in C-403/08 and C-429/08, Premier League, the Court simply assumed that the fulfilment of the requirements in Art. 5(1) of the InfoSoc Directive meant that the use at hand necessarily satisfied the conditions of the three-step test.
Before describing the findings, a clarification about the classification process is in order. In CJEU case law when the immediately applicable legal materials do not produce a reasonable outcome judges rarely resort to doctrines external to copyright law, in the same way as the German Federal Supreme Court did with simple consent in Vorschaubilder I. Even when they do, they integrate the analysis of those external doctrines into the interpretation of existing EU law provisions – such as in GS Media, where mens rea was considered relevant to determine whether a communication to the public under Art. 3 had occurred. Therefore – and because preliminary readings of the decisions helped define the classifications that were used in the content analysis – Vorschaubilder I would be classified as a “formalist” decision, in that the German Federal Supreme Court actually construed the making available right broadly and the relevant exceptions strictly. If the sample were to include national court decisions, however, a preliminary reading of such decisions would dictate that the classification “flexible” would also apply to the type of reasoning in Vorschaubilder I.
In some cases contrasting the reasoning of the CJEU with that of the Advocate General was of value in classifying a decision one way or the other. For instance, although in C-128/11, UsedSoft, the Court’s interpretation of the exception laid down in Art. 5(1) of the Software Directive seemed fairly literal, the Advocate General’s reading showed that a stricter reading was available, and was actually proposed, to the Court.
C-5/08, Infopaq; C-607/11, ITV Broadcasting; C-435/12, ACI Adam; C-166/15, Ranks & Vasilevics; C-301/15, Soulier & Doke; C-275/15, ITV Broadcasting II; and C-527/15, Filmspeler.
See C-527/15, Filmspeler, para. 27.
See C-435/12, ACI Adam, para. 39, and C-527/15, Filmspeler, para. 70.
See C-160/15, GS Media, para. 51, and C-527/15, Filmspeler, para. 51.
See C-174/15, VOB, paras. 51 and 60.
For an analysis of the Advocate General’s opinion in this case, see Rendas (2016).
C-160/15, GS Media, paras. 44–45.
See Rendas (2017), pp. 14–15.
Arezzo E (2014) Hyperlinks and making available right in the European Union—what future for the internet after Svensson? IIC 45(5):524
Arnold R, Rosati E (2015) Are national courts the addressees of the InfoSoc three-step test? JIPLP 10(10):741
Auerbach C, Silverstein L (2003) Qualitative data: an introduction to coding and analysis. NYU Press, New York
Broberg M, Fenger N (2010) Preliminary references to the European Court of Justice. Oxford University Press, New York
Clark B (2010) Copyright: Google Image Search does not infringe copyright, says Bundesgerichtshof. JIPLP 5(8):553
Derclaye E (2010) Infopaq International A/S v Danske Dagblades Forening (C-5/08): wonderful or worrisome? The impact of the ECJ ruling in Infopaq on UK copyright law. EIPR 32(5):247
Dreier T (2015) Thoughts on revising the limitations on copyright under Directive 2001/29. JIPLP 11(2):138
European Copyright Society (2014) Limitations and exceptions as key elements of the legal framework for copyright in the European Union: opinion on the judgment of the CJEU in case C-201/13 Deckmyn. https://europeancopyrightsociety.org/. Accessed 9 Aug 2017
Favale M et al (2016) Is there a EU copyright jurisprudence? An empirical analysis of the workings of the European Court of Justice. Mod Law Rev 79(1):31
Fernández-Díez IG (2003) El derecho de autor en internet: Los Tratados de la OMPI de 1996 y la incorporación al Derecho Español de la Directiva 2001/29/CE, 2nd edn. Granada, Comares
Geiger C et al (2010) Declaration: a balanced interpretation of the “three-step test” in copyright law. JIPITEC 1:119
Geiger C et al (2014) The three-step test revisited: how to use the test’s flexibility in national copyright law. Am Univ Int Law Rev 29(3):581
Griffiths J (2010) Unsticking the centre-piece—the liberation of European copyright law? JIPITEC 1:87
Griffiths J (2011) Infopaq, BSA and the ‘Europeanisation’ of UK copyright law. Media Arts Law Rev 16:59
Griffiths J (2014) The role of the court of justice in the development of european union copyright law. In: Stamatoudi I, Torremans P (eds) EU copyright law: a commentary. Edward Elgar, Cheltenham, p 1098
Guibault L (2003) Le tir manqué de la Directive européenne sur le droit d’auteur dans la société de l’information. Cahiers the Propriété Intellectuelle 15:537
Guibault L (2010) Why cherry-picking never leads to harmonisation: the case of the limitations on copyright under Directive 2001/29/EC. JIPITEC 1:55
Guibault L, Quintais JP (2014) Copyright, technology and the exploitation of audiovisual works in the EU. IRIS Plus 4:7
Hall M, Wright R (2008) Systematic content analysis of judicial opinions. Calif Law Rev 96:63
Headdon T (2014) An epilogue to Svensson: the same old new public and the worms that didn’t turn. JIPLP 9(8):662
Hugenholtz PB (2017) Flexible copyright: can the EU author’s rights accommodate fair use? In: Okediji R (ed) Copyright law in an age of limitations and exceptions. Cambridge University Press, New York, p 275
Hugenholtz PB, Senftleben M (2011) Fair use in Europe: In search of flexibilities. Amsterdam Law School Research paper no. 2012-39, Institute for Information Law Research Paper no. 2012-33. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1959554
Jacobs F (1994) The effect of preliminary rulings in the national legal order. In: Andenas M (ed) Article 177 references to the european court—policy and practice. Butterworths, London, p 29
Kaplow L (1992) Rules versus standards: an economic analysis. Duke Law J 42:557
Kennedy D (1976) Form and substance in private law adjudication. Harv Law Rev 89:1685
Koelman K (2006) Fixing the three-step test. EIPR 8:407
Krippendorff K (2012) Content analysis: an introduction to its methodology, 3rd edn. SAGE, Thousand Oaks
Leistner M (2011) The German Federal Supreme Court’s judgment on Google’s image search—a topical example of the “limitations” of the European approach to exceptions and limitations. IIC 42:417
Lucas A (2010) For a reasonable interpretation of the three-step test. EIPR 6:277
Mancini F (1989) The making of a constitution for Europe. Common Market Law Rev 26(4):595
Ohly A (2009) Economic rights. In: Derclaye E (ed) Research handbook on the future of EU copyright. Edward Elgar, Cheltenham, p 212
Patry W (2011) How to fix copyright. Oxford University Press, New York
Peguera M (2012) Copyright issues regarding Google images and Google cache. In: Lopez-Tarruella A (ed) Google and the law: empirical approaches to legal aspects of knowledge-economy business models. T.M.C. Asser Press, The Hague, p 169
Quintais JP (2015) Private copying and downloading from unlawful sources. IIC 46(1):66
Ramalho A (2016) The competence of the european union in copyright lawmaking: a normative perspective of EU powers for copyright harmonization. Springer, Cham
Rendas T (2016) Does ‘lending’ include e-lending? Yes, says Advocate General Szpunar. JIPLP 11(10):730
Rendas T (2017) How playboy photos compromised EU copyright law: the GS Media judgment. J Internet Law 20(11):11
Rosati E (2013) Originality in EU copyright: full harmonization through case law. Edward Elgar, Cheltenham
Rosati E (2016) (Liberal) CJEU says that linking to unauthorised content is NOT a communication to the public unless one seeks financial gain and has knowledge of illegality. http://ipkitten.blogspot.de/2016/09/super-breaking-liberal-cjeu-says-that.html. Accessed 9 Aug 2017
Rosati E (2017) GS Media and its implications for the construction of the right of communication to the public within EU copyright architecture. Common Mark Law Rev 54(4):1221
Savola P (2014) Blocking injunctions and website operators’ liability for copyright infringement for user-generated links. EIPR 36(5):279
Schauer F (2009) Thinking Like a lawyer: a new introduction to legal reasoning. Harvard University Press, Cambridge
Schlag P (1985) Rules and standards. UCLA Law Rev 33:379
Senftleben M (2004) Copyright, limitations and the three-step test: an analysis of the three-step test in international and EC copyright law. Kluwer Law International, The Hague
Senftleben M (2010) The international three-step test: a model provision for EC fair use legislation. JIPITEC 1:67
Senftleben M (2016) Copyright reform, GS Media and innovation climate in the EU—euphonious chord or dissonant cacophony? Tijdschrift voor auteurs-, media- en informatierecht 5:130
Toffler A (1970) Future shock. Bantam Books, New York
Truyens M, van Eecke P (2016) Surprised by embedded assumptions: the online sector’s troubled relationship with EU case law: the difficult relation of the online sector with EU copyright, data protection and ecommerce legislation. CRi Comput Law Rev Int 1:1
van Eechoud M (2012) Along the road to uniformity—diverse readings of the court of justice judgments on copyright work. JIPITEC 3(1):60
Volokh E (1995) Technology and the future of law. Stanf Law Rev 47(6):1375
Vousden S (2010) Infopaq and the Europeanisation of copyright law. WIPO J 1(2):197
Westkamp G (2012) Emerging escape clauses? Online exhaustion, consent and European copyright law. In: Rosén J (ed) Intellectual property at the crossroads of trade. Edward Elgar, Cheltenham, p 38
Xalabarder R (2012a) Google News and copyright. In: Lopez-Tarruella A (ed) Google and the law: empirical approaches to legal aspects of knowledge-economy business models. T.M.C. Asser Press, The Hague, p 113
Xalabarder R (2012b) Spanish Supreme Court rules in favour of Google search engine… and a flexible reading of copyright statutes? JIPITEC 3:162
I am grateful to Ana Ramalho, Bernt Hugenholtz, Cédric Manara, Dário Moura Vicente, Deborah Hensler, Giovanni Sartor, Henrique Sousa Antunes, João Pedro Quintais, Patrícia Akester, Sofia Oliveira Pais, the persons who took part in the Católica Graduate Legal Research Conference 2017 (in Lisbon), TILTing Perspectives 2017 (in Tilburg) and CopyCamp 2016 (in Warsaw), and two anonymous reviewers for helpful suggestions and comments. The usual disclaimer applies. I would like to acknowledge the Portuguese Foundation for Science and Technology and thank them for the financial support they provided (Grant PD/BD/105903/2014).
Appendix 1: Sampled Decisions and Technology-Enabled Uses
The table below lists the preliminary rulings that make up this study’s sample and the technology-enabled uses the lawfulness of which was assessed by the CJEU in those rulings.
Data capture for news clipping purposes, with printing of text files
TV broadcasting of GUIs
C-403/08 & 429/08
Reproduction via satellite decoders and televisions
Data capture for news clipping purposes, without printing of text files
Ephemeral reproductions made by independent TV production companies but commissioned by broadcasting organisations
Reproduction of the functionality of a computer program by means of studying, observing and testing the program, a licence for which was lawfully acquired
Downloading of a copy of a computer program purchased from the rightholder’s website
Retransmission via streaming of the works included in a terrestrial television broadcast to subscribers to a television service
C-457/11 to 460/11
Reproductions made by a printer linked to a PC, when the various elements or non-autonomous stages of the process are carried out under the control of the same person
Reproductions made by a printer linked to a PC, when the various elements or non-autonomous stages of the process are not carried out under the control of the same person
Hyperlinking to freely accessible authorised works
Hyperlinking to authorised works that makes possible the circumvention of access restrictions
Downloading from unlawful sources
Reproductions on a computer screen and in a web cache
Digitisation of works contained in library collections in order to make them available for use by library patrons via dedicated terminals (where the terminals do not allow for a greater number of copies of the given work to be consulted at any one time than the number thereof owned by the library)
Making works available to library patrons via dedicated terminals which permit the printing out of those works on paper or the storage thereof on a USB stick
Embedding freely accessible authorised works
Transmission of program-carrying signals to signal distributors via direct injection
Hyperlinking to unauthorised works with knowledge of the illegality of the initial upload
Hyperlinking to unauthorised works without knowledge of the illegality of the initial upload
Ranks & Vasilevics
Making of back-up copies of computer programs for resale purposes
Lending of digital copies of books (where the lending is carried out by placing the copy on the server of a public library and allowing a user to reproduce that copy by downloading it onto his/her own computer, bearing in mind that only one copy may be downloaded during the lending period and that, after that period has expired, the downloaded copy can no longer be used by that user)
Lending of digital copies of books with the copies having been obtained from unlawful sources
Soulier & Doke
Digital exploitation of out-of-print books (made by collective management organisations)
ITV Broadcasting II
Immediate retransmission by cable – including, where relevant, via the Internet – in the area of the given initial broadcast of works broadcast on television channels
Simultaneous, full and unaltered transmission of programs broadcast by a national broadcasting corporation by means of cables in the national territory
Broadcast by means of a communal antenna installation where the number of subscribers connected to that antenna does not exceed 500
Sale of a multimedia player with pre-installed add-ons containing hyperlinks to freely accessible websites where unauthorised works have been made available
Streaming copies of unauthorised works made on a multimedia player
Appendix 2: Classification Examples
For transparency and replicability purposes, I have defined and given examples with regard to the classifications used in examining the sampled decisions.
The first two classifications – “infringing use” and “non-infringing use” – were essential for the answering of the first research question. Detailed knowledge of EU copyright law was sometimes needed in order to understand whether the technology-enabled use in question in a given preliminary ruling was found by the CJEU to be infringing or non-infringing. An inexperienced reader would arguably have trouble extracting that information from the text of some of the sampled rulings. The selected preliminary questions and answers aim to exemplify the classification definitions articulated beforehand.
The second research question turned on the third and fourth classifications: “formalist decision” and “flexible decision”. Context-sensitivity was needed when classifying the CJEU’s approach as formalist or flexible. In some cases, for instance, the Court made reference to the need for a strict interpretation of the relevant exception but ended up doing the exact opposite. A strictly quantitative and non-contextual approach to the decisions would have thus proven unhelpful in answering the question of whether the CJEU is actually abiding by the constraints. For that reason, in addition to giving a definition of each classification and excerpts from decisions that provide relevant examples, I have included an explanation of why I take that decision, in general, and the selected excerpt, in particular, to be an instance of either approach.
2.1 Infringing Versus Non-infringing Use
2.1.1 Infringing Use
A technology-enabled use was classified as infringing when: (i) the use in question was considered to fall within the scope of an EU law provision laying down an exclusive right; and/or (ii) the use in question was considered to fall outside of the scope of an EU law provision laying down an exception (including cases where the national exception that covered the use was deemed to be incompatible with EU law).
C-607/11, ITV Broadcasting
Question: Should Art. 3(1) be interpreted as meaning that it covers a retransmission of the works included in a terrestrial television broadcast:
where the retransmission is made by an organisation other than the original broadcaster;
by means of an internet stream made available to the subscribers of that other organisation who may receive the retransmission by logging on to its server;
on the assumption that those subscribers are within the area of reception of the terrestrial television broadcast and may lawfully receive the broadcast on a television receiver?
The CJEU’s Answer: “… the concept of ‘communication to the public’, within the meaning of Art. 3(1) of Directive 2001/29, must be interpreted as meaning that it covers a retransmission of the works included in a terrestrial television broadcast:
where the retransmission is made by an organisation other than the original broadcaster,
by means of an internet stream made available to the subscribers of that other organisation who may receive that retransmission by logging on to its server,
even though those subscribers are within the area of reception of that terrestrial television broadcast and may lawfully receive the broadcast on a television receiver” (para. 40).
C-435/12, ACI Adam
Question: Should Art. 5(2)(b), read in conjunction with Art. 5(5), be interpreted as precluding national legislation that does not distinguish a situation in which the source from which a reproduction for private use is made is lawful from that in which the source is unlawful?
The CJEU’s Answer: “Article 5(2)(b) of Directive 2001/29 must be interpreted as not covering the case of private copies made from an unlawful source” (para. 41).
“EU law, in particular Art. 5(2)(b) of Directive 2001/29, read in conjunction with paragraph 5 of that article, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which does not distinguish a situation in which the source from which a reproduction for private use is made is lawful from that in which the source is unlawful” (para. 58).
2.1.2 Non-Infringing Use
A technology-enabled use was classified as non-infringing when: (i) the use in question was considered to fall outside of the scope of an EU law provision laying down an exclusive right; or (ii) the use in question was considered to fall within the scope of an EU law provision laying down an exception (including cases where the national exception that covered the use was deemed compatible with EU law)
Question: Should Art. 3(1) be interpreted as meaning that the provision, on a website, of clickable links to protected works available on another website constitutes an act of communication to the public, where, on that other site, the works concerned are freely accessible?
The CJEU’s Answer: “Article 3(1) of Directive 2001/29 must be interpreted as meaning that the provision on a website of clickable links to works freely available on another website does not constitute an act of communication to the public as referred to in that provision” (para. 32).
Question: Should Art. 5 be interpreted as meaning that the on-screen copies and the cached copies made by an end-user in the course of viewing a website satisfy the conditions that those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process?
The CJEU’s Answer: “Article 5 of Directive 2001/29 must be interpreted as meaning that the on-screen copies and the cached copies made by an end-user in the course of viewing a website satisfy the conditions that those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process, as well as the conditions laid down in Art. 5(5) of that directive, and that they may therefore be made without the authorisation of the copyright holders” (para. 63).
2.2 Formalist Versus Flexible Decision
2.2.1 Formalist Decision
A decision was classified as formalist when the CJEU abided by the constraints that form the EU framework of rights and exceptions, namely when: (i) it interpreted the relevant right(s) broadly; and/or (ii) it interpreted the relevant exception(s) strictly; and/or (iii) it treated the catalogue of exceptions as exhaustive; and/or (iv) it applied the three-step test as a restrictive standard.
C-435/12, ACI Adam
Excerpt: “As regards the scope of those exceptions and limitations, it must be pointed out that, according to the settled case-law of the Court, the provisions of a directive which derogate from a general principle established by that directive must be interpreted strictly (…).
It follows that the different exceptions and limitations provided for in Art. 5(2) of Directive 2001/29 must be interpreted strictly. (…)
Such an interpretation requires Art. 5(2)(b) of Directive 2001/29 to be understood as meaning that the private copying exception admittedly prohibits copyright holders from relying on their exclusive right to authorise or prohibit reproductions with regard to persons who make private copies of their works; however, it precludes that provision from being understood as requiring, beyond that limitation which is provided for expressly, copyright holders to tolerate infringements of their rights which may accompany the making of private copies.” (paras. 22–23 and 31).
“Furthermore, when it is applied, national legislation, such as that at issue in the main proceedings, which does not draw a distinction according to whether the source from which a reproduction for private use is made is lawful or unlawful may infringe certain conditions laid down by Art. 5(5) of Directive 2001/29.
Firstly, to accept that such reproductions may be made from an unlawful source would encourage the circulation of counterfeited or pirated works, thus inevitably reducing the volume of sales or of other lawful transactions relating to protected works, with the result that a normal exploitation of those works would be adversely affected.
Secondly, the application of such national legislation may, having regard to the finding made in paragraph 31 of the present judgment, unreasonably prejudice copyright holders.
It is apparent from the foregoing considerations that Art. 5(2)(b) of Directive 2001/29 must be interpreted as not covering the case of private copies made from an unlawful source.” (paras. 38–41).
Explanation: The CJEU did not merely pay lip service to the canon of strict interpretation. As paragraph 31 shows, in the context of the question it was asked to answer the Court construed the exception laid down in Art. 5(2)(b) in the strictest possible manner. Moreover, the three-step test was understood and actually applied as a restrictive standard.
C-275/15, ITV Broadcasting II
Excerpt: “… in the absence of the consent of the author concerned, such a retransmission is not, as a rule, permitted, unless it falls within the scope of Art. 5 of Directive 2001/29, which sets out an exhaustive list of exceptions and limitations to the right of communication to the public established in Art. 3 of that directive, as recital 32 thereof confirms.
In the present case it is common ground that the retransmission in question in the main proceedings does not fall within the scope of any of the exceptions and limitations set out exhaustively in Art. 5 of Directive 2001/29.
As regards Art. 9 of Directive 2001/29, as the Advocate General noted in points 37 and 38 of his Opinion, it is apparent from that provision, read in light of recital 60 of that directive, that Art. 9 is intended to maintain the provisions applicable in areas other than that harmonised by the directive.
Indeed, an interpretation of Art. 9 of Directive 2001/29 to the effect that it permits a retransmission, such as that at issue in the main proceedings, without the consent of the authors, in cases other than those provided for in Art. 5 of that directive, would run counter not only to the objective of Art. 9, but also to the exhaustive nature of Art. 5, and, consequently, would be detrimental to the achievement of the principal objective of that directive which is to establish a high level of protection of authors.” (paras. 24–27)
Explanation: The CJEU took the closed character of the list of exceptions in Art. 5 rigorously. It refused to interpret Art. 9 of the InfoSoc Directive in a way that would, in practice, amount to the creation of a non-listed exception.
2.2.2 Flexible Decision
A decision was classified as flexible when the CJEU circumvented at least one of the constraints that form the EU framework of rights and exceptions, namely when: (i) it did not interpret the relevant right(s) in the broadest possible manner; or (ii) it did not interpret the relevant exception(s) in the strictest possible manner; or (iii) it created a new exception or “users’ right”; or (iv) it either dispensed with analysis of the three-step test or engaged in a summary assessment thereof.
Excerpt: “…in order to be covered by the concept of ‘communication to the public’, within the meaning of Art. 3(1) of Directive 2001/29, a communication, such as that at issue in the main proceedings, concerning the same works as those covered by the initial communication and made, as in the case of the initial communication, on the Internet, and therefore by the same technical means, must also be directed at a new public, that is to say at a public that was not taken into account by the copyright holders when they authorised the initial communication to the public (see, by analogy, SGAE, paragraphs 40 and 42; order of 18 March 2010 in Case C-136/09 Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon, paragraph 38; and ITV Broadcasting and Others, paragraph 39).
In the circumstances of this case, it must be observed that making available the works concerned by means of a clickable link, such as that in the main proceedings, does not lead to the works in question being communicated to a new public.
The public targeted by the initial communication consisted of all potential visitors to the site concerned, since, given that access to the works on that site was not subject to any restrictive measures, all Internet users could therefore have free access to them.
In those circumstances, it must be held that, where all the users of another site to whom the works at issue have been communicated by means of a clickable link could access those works directly on the site on which they were initially communicated, without the involvement of the manager of that other site, the users of the site managed by the latter must be deemed to be potential recipients of the initial communication and, therefore, as being part of the public taken into account by the copyright holders when they authorised the initial communication.
Therefore, since there is no new public, the authorisation of the copyright holders is not required for a communication to the public such as that in the main proceedings.” (paras. 24–28)
Explanation: The CJEU extended the “new public” requirement – a requirement that acts as a limitation on the scope of the right of communication to the public – to secondary acts of making available. As the case law cited by the Court attests, before Svensson the requirement had only been applied in cases regarding secondary transmissions of broadcasts. In applying, by analogy, the requirement to cases on making available the Court narrowed down the scope of the right of communication to the public in this domain as well. Arguably, the Court’s intention in extending the “new public” requirement was to find an argumentative pathway to exclude hyperlinking to authorised works from the scope of the right of communication to the public.
Excerpt: “… Article 5(3)(n) of the directive limits the use of works, within the meaning of that provision, to the ‘communication or making available’ of those works and thus to acts which fall under the sole exclusive right of communication to the public of works referred to in Art. 3 of that directive. (…)
Such a right of communication of works enjoyed by establishments such as publicly accessible libraries covered by Art. 5(3)(n) of Directive 2001/29, within the limits of the conditions provided for by that provision, would risk being rendered largely meaningless, or indeed ineffective, if those establishments did not have an ancillary right to digitise the works in question.
Those establishments are recognised as having such a right pursuant to Art. 5(2)(c) of Directive 2001/29, provided that ‘specific acts of reproduction’ are involved.
That condition of specificity must be understood as meaning that, as a general rule, the establishments in question may not digitise their entire collections.
However, that condition is, in principle, observed where the digitisation of some of the works of a collection is necessary for the purpose of the ‘use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals’, as provided in Art. 5(3)(n) of Directive 2001/29.” (paras. 40 and 43–46)
Explanation: By construing Art. 5(3)(n) in conjunction with Art. 5(2)(c), the CJEU enacted 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. Although the Court was cautious in delineating the scope of this “right” – clarifying that libraries cannot digitise their entire collections – it clearly deviated from the interpretative constraints. The Court’s construction can either be read as: (i) a broad interpretation of the requirement of “specific acts of reproduction” in Art. 5(2)(c), in order to ensure the effectiveness of Art. 5(3)(n), thus ignoring the canon of strict interpretation; or (ii) an outright creation of an autonomous exception, arising from the combination of these two separate exceptions, thus bypassing the exhaustive character of the list.
Rights and permissions
About this article
Cite this article
Rendas, T. Copyright, Technology and the CJEU: An Empirical Study. IIC 49, 153–184 (2018). https://doi.org/10.1007/s40319-017-0664-0
- EU copyright law