Thursday 8 August 2019

BOOK REVIEW: Copyright and the Court of Justice of the European Union by Eleonora Rosati

Copyright and the Court of Justice of the European Union by Eleonora Rosati [Oxford University Press, 2019, ISBN: 9780198837176, #pp273, £70.00, h/bk]

This title focuses on the Court of Justice of the European Union (CJEU), primarily its role, action, and its legacy in the area of copyright law. In light of the fact that copyright policy and legislative initiatives have intensified over the past few years, the book provides a thorough overview of the existing copyright framework, together with an exclusive survey that covers two decades of CJEU decisions in this area of the law – up to August 2018. In doing so, it explores all the key and controversial issues in EU copyright from EU reform proposals (value gap, press publishers' right, fair compensation for private copying, and out-of-commerce works) to the impact of Brexit. 


As such, the book is presented in three main parts. The first part is looks at the role of the CJEU as an EU institution, the second considers the action of the CJEU and the third part focuses on the CJEU legacy. 

A. Part One: EU harmonization and the functioning of the CJEU 

Chapter one provides an overview of the history of EU harmonisation from the adoption of the 1991 Software Directive and explains the structure, composition and work of the CJEU. It also looks at the references for preliminary ruling, including data on areas of the cases referred to, the referring Member State Courts, intervening Member States, Judges-Rapporteur and Attorney Generals (AG). The research demonstrates the expansive approach to copyright protection, whereby the CJEU tended to agree with the AG opinion when it favoured copyright holders. 

Chapter two focuses on the standards consistently applied in copyright rulings using a data-based case law analysis to demonstrate the principles and policies the CJEU have utilised in the development of EU copyright law. The second part of this chapter provides novel statistical analysis that illustrates the relations between such standards. 

B. Part Two: CJEU Action 

The second part looks at how the underlying principles discussed in Part One play out in specific cases relation to: 1) the construction of economic rights [chapter four], 2) limitations and exceptions [chapter five], 3) enforcement [chapter six]. It delves into the question of whether the CJEU action, which has decreased flexibility at national level and expanded harmonisation, exceeds its competence as an interpreter of EU copyright law. 

This part is made up of four chapters. Chapter three demonstrates the CJEU activity that has extended the boundaries of harmonisation further than the legislation alone, building substantially those areas of law beyond the legislative framework. The conclusions drawn show the common patterns of the CJEU in constructing a copyright system based on high-protection, harmonisation and the development of the internal-market. 

C. Part Three: The Legacy of the CJEU 

The third part focuses on the legacy of the CJEU, specifically from the perspective of the impact on national copyright laws [chapter seven] and of existing case law in the context of current policy discourse around EU copyright reform [chapter eight].

Chapter seven considers the legacy of the CJEU in view of Brexit, tackling the consequences of leaving the EU and EEA. It argues that even in the event of complete departure, the impact of the CJEU case law would remain relevant, highlighted by the reliance of the UK Courts on the EU Courts and amending domestic concepts accordingly. 

Part three concludes with chapter eight highlighting the polarization of the discourse around EU copyright reform. It argues, for example, that the proposals made in the Digital Single Market Directive went against the legislative framework and the interpretations of the CJEU, which need to be taken into account in the discourse of EU copyright reform. 


The goal of the book is to provide readers with a sense of direction of EU copyright cases by rationalising the large number of references to the CJEU and portray an underlying CJEU action in copyright. This is achieved with robust and novel research that sets out the power of the CJEU in shaping EU copyright law to a degree of harmonisation, impact and significance of the decisions. Importantly, it is convincingly argued that harmonisation as and end is not the guiding force of CJEU action, instead it has developed a principle approach to copyright protection. The guarantee of a high level of protection for copyright has allowed the CJEU to develop an expansive protection for copyright and a narrow scope for exceptions and limitations. The need for a fair balance between conflicting interests has also guided the Court to rely on standards such as proportionality and effectiveness, as well as the EU Charter playing an increasingly prevalent role. 

A. Appeal and Audience 

This book makes an important contribution to the literature, as Advocate General Maciej Szpunar (CJEU) explains in the forward: ‘This extremely profound analysis by Professor Rosati of EU copyright protection and relevant Court of Justice decisions constitute uncharted territory, unveiling new information, perhaps never considered, event by members of the Court like myself.’ As such, this book would appeal to anyone interested in European Copyright law, including practitioners, judges, policy makers, academics, researchers and students. The writing style enables the complexities of EU Copyright issues to be understood, providing clarity to a challenging area of law with rigour and ease. 

THERE IS A 20% DISCOUNT AVAILABLE for individual purchases from the OUP website - Quote promotional code ALFLY5F to claim your 20% discount and with the price of this book discounted to £56 (terms apply). 

Reviewed by Hayleigh Bosher

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