Copyright, technology and the CJEU: an empirical study

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.