IECL Seminar Series

Harmonisation of Copyright through Court of Justice of the European Union’s Common Denominators of Rules

This presentation deep dives in the interpretive technique of the Court of Justice of the European Union (CJEU) – the so-called Europeanisation of concepts (conceptual interpretive method) – with a focus on copyright law. The presentation puts forward an argument that – in copyright cases, as well as other intellectual property cases – there is a trend in the CJEU’s interpretation to use three different common denominators of rules (CDR) to decrease the differences in copyright protection within the EU and create equal treatment of all copyright holders/users. These differences are created by the EU’s copyright legislative framework which is based on (a) targeted and partial legislation (parts of the copyright field have been harmonised on the EU level), (b) vague terminology, and (c) predominant use of minimum standards – providing the EU Member States with a margin of discretion in the regulation of the copyright field. Here, the CJEU uses three different CDRs to achieve uniformity of rules. Concept CDR provides uniform meaning to concepts contained in one specific legislative measure. Autonomous legal concepts of EU law CDR provide an overarching rule of harmonisation when a concept can be found in different legislative measures in the same intellectual property (IP) law subcategory (for example in copyright) and/or the concept has no reference to the law of the EU Member State. General principle CDR provides meaning to concepts found across the IP field (for example exhaustion of IP rights). This way of methodological use of the CDRs – by the CJEU – when interpreting the EU’s copyright legislative framework, decreases the differences between different EU Member States and de facto harmonises copyright law on the EU level.