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Guest post: Why the CJEU is learning on the job

Emma Barraclough

In a guest blog post, Emma Barraclough reports on some of the academic research presented at the recent CREATe litigation workshop in London

create_primary_logo_160Do 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 law.

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 Council."

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 without.


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



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