Do judges at the CJEU have any
prior experience of copyright law? Why do some member states
file far more submissions to the Court than others, and does
this kind of strategic litigation help parties win? Who sues in
the small claims track in London’s IPEC and what
is their chance of winning?
These were some of the questions raised at a CREATe
litigation workshop organised in London last week, as academics
from across the UK outlined their latest research on copyright
Marcella Favale and Martin Kretschmer introduced their work
on copyright jurisprudence at the Court of Justice of the EU,
recently published in the
Modern Law Review. They, along with Paul
Torremans, have studied data on copyright and database cases
brought before the CJEU, including analysing the allocation of
cases to chambers within the courts, the composition of those
chambers, and the judgments themselves.
One judge, Jiří
Malenovský, has served as rapporteur on 24 out of the 40
copyright cases the researchers studied.
They concluded that no judge had any specialism in copyright
law before joining the Court, instead learning "on the job". To
compensate for a lack of prior expertise, the Court appears to
allocate copyright cases to particular chambers and judges. One
judge, Jiří Malenovský, has served as
rapporteur on 24 out of the 40 copyright cases the researchers
studied. Malenovský is less likely than other judges at
the Court to broaden the rights of copyright owners because he
is more likely to interpret copyright narrowly and copyright
law exceptions broadly.
Steering judicial policy
Now the researchers have turned their attention to the way
in which member states try to reverse or shape copyright law by
filing written submissions in cases referred to the CJEU by the
national courts. By looking at documents in more than 70
copyright and database law cases, the academics have
established that some countries, including Italy, France, the
UK, Spain, Poland and Germany, file far more written
observations than others.
Some countries, including Italy, France,
the UK, Spain, Poland and Germany, file far more written
observations than others.
This is not a simple case of governments supporting
litigants from their own countries. Many of their submissions
relate to disputes originating in other member states,
involving parties from other countries. In contrast,
Scandinavian countries are far less likely to intervene: they
submit fewer written observations to the CJEU than their
national courts make preliminary references to it.
"Some member states use strategic litigation such as
preliminary references to steer judicial policy," said Favale.
"They also use good written observations to try to reverse
legislation that they unsuccessfully opposed in the European
Now the researchers are trying to assess the importance of
submissions made by member states and by the European
Commission. So far, they have found the greatest correlation
between the arguments submitted by the European Commission and
the decision issued by the Court.
IPEC small claims track
In a session focused on the UK, Sheona Burrow outlined her
research on cases brought before the Intellectual Property
Enterprise Court using its small claims track. The procedure is
supposed to be relatively quick and informal. Claims are
limited to £10,000 and the costs the successful party can
claim are limited.
Photographers are heavy users of the small
claims track, representing almost half of claimants and nearly
three-quarters of repeat claimants.
Burrow – like many of the researchers at the
workshop – recounted the difficulties of accessing
court data, explaining that files are stored in different parts
of buildings without a cohesive electronic filing system.
Claimants, many of whom are unrepresented, are often
uncertain about the detail of the law applicable to their case,
requiring researchers who want to classify them to digest the
details of the dispute rather than relying on the claim forms
submitted in the case. Nearly 80% of claims specify copyright
law, although the small claims track can also be used for trade
mark, passing off and unregistered design cases.
Burrow’s data suggests that photographers are
heavy users of the small claims track, representing almost half
of claimants and nearly three-quarters of repeat claimants.
Although photographers whose copyright is infringed often face
a more straightforward evidentiary hurdle than other IP owners,
there is still scope for those in other parts of the creative
industries to make better use of the small claims track to
enforce their rights, she said.
Most disputes are resolved in favour of the claimant, but
their chances of prevailing are not significantly affected by
having legal representation. There is better news for lawyers
looking for work when it comes to defendants, however.
Burrow’s data shows that a defendant with legal
representation is more likely to win his or her case than one
In a session on IP litigation in Scotland, Jane Cornwell
explained that a relatively large number of copyright cases
heard in the Scottish courts are brought by parties outside the
creative industries, reminding policymakers that businesses in
the oil and gas and the professional services sectors are just
as likely to have rights in copyright material as textile
producers in the Highlands or musicians in Edinburgh.
Research projects in CREATe’s litigation
streams have been designed to offer an empirical picture of
copyright litigation at all levels in the UK. The findings will
be presented at the CREATe
Festival in June.
Emma Barraclough is an Industry Fellow with CREATe