Papers by Marcella Favale
Zenodo (CERN European Organization for Nuclear Research), Aug 27, 2015
The Court of Justice of the European Union (ECJ) has been suspected of carrying out a harmonising... more The Court of Justice of the European Union (ECJ) has been suspected of carrying out a harmonising agenda over and beyond the conventional law-interpreting function of the judiciary. This study aims to investigate empirically two theories in relation to the development of EU copyright law: (i) that the Court has failed to develop a coherent copyright jurisprudence (lacking domain expertise, copyright specific reasoning, and predictability); (ii) that the Court has pursued an activist, harmonising agenda (resorting to teleological interpretation of European law rather than-less discretionary-semantic and systematic legal approaches). We have collected two data sets relating to all ECJ copyright and database cases up to Svensson (February 2014): (1) Statistics about the allocation of cases to chambers, the composition of chambers, the Judge Rapporteur, and Advocate General (including coding of the professional background of the personnel); (2) Content analysis of argumentative patterns in the decisions themselves, using a qualitative coding technique. Studying the relationship between (1) and (2) allows us to identify links between certain Chambers/ Court members and legal approaches, over time, and by subject. These shed light on the internal workings of the court, and also enable us to explore theories about the nature of ECJ jurisprudence. The analysis shows that private law and in particular intellectual property law expertise is almost entirely missing from the Court. However, we find that the Court has developed a mechanism for enabling judicial learning through the systematic assignment of cases to certain Judges and AGs. We also find that the Court has developed a "fair balance" topos linked to Judge Malenovský (rapporteur on 24 out of 40 copyright cases) that does not predict an agenda of upward harmonisation, with about half of judgments narrowing rather than widening the scope of copyright protection.
Modern Law Review, May 18, 2020
The juridification of the European policy process is increasingly fragile, and little understood.... more The juridification of the European policy process is increasingly fragile, and little understood. This study develops a novel methodology to investigate the influence of Member States on the rulings of the Court of Justice of the European Union (CJEU). The focus is on the domain of copyright law which has seen a dramatic escalation of preliminary references to the Court, indicating a normative void. Examining 170 documents relating to 42 cases registered between 1998 and 2015, we measure empirically the impact of submissions by Member States and the European Commission on the interpretation of copyright concepts. We show that France is the most influential country by some distance, both in terms of the number of interventions (an 'investment' in policy) and in terms of persuasive power (arguments adopted by the Court). The evidence also suggests that the departure of the UK from EU litigation will disturb the delicate balance of CJEU jurisprudence.
Zenodo (CERN European Organization for Nuclear Research), Jul 3, 2013
to the first wave of concerns. 2 Various studies had established that only a small number of work... more to the first wave of concerns. 2 Various studies had established that only a small number of works remained commercially available for the full term of copyright. 3 The second major wave of attention derived from the Google Book project that began in 2004, and demonstrated, controversially, the feasibility of mass digitisation projects. In 2006, the US Register of Copyright produced a landmark report, calling for specific legislation to permit the use of works where the owner cannot be identified and located after a reasonably diligent search. The EU followed with various reports stressing the importance of digitising Europe's 1 Study I was written by Marcella Favale, Martin Kretschmer and Dinusha Mendis. 2 The 1976 Copyright Act increased the term from a maximum of 56 years to "life of the author plus 50 years" (the standard of the Berne Convention). The Sonny Bono Copyright Extension Act (1998) extended the term by 20 years to life plus 70 years, or 95 years for "works for hire" (works created under employment by corporations, for example sound recordings). Cf. Report on Orphan Works by the US Register of Copyrights (2006, p. 16 and footnote 13): "During consideration of the 1976 Act, some users pointed out that the longer copyright term created by that revision might inhibit scholarly or academic uses of works where the copyright owner may no longer be actively exploiting the work commercially. [13] Congress summarised these concerns as follows: 'A point that has concerned some educational groups arose from the possibility that, since a large majority (now about 85 percent) of all copyrighted works are not renewed, a life-plus-50 year term would tie up a substantial body of material that is probably of no commercial interest, but that would be more readily available for scholarly use if free of copyright restrictions.' H.R. Rep. No. 94-1476, at 136 (1976)". 3 Mulligan and Schultz found that only 2.3% of in-copyright books and 6.
Handbook on the Digital Creative Economy
International Review of Intellectual Property and Competition Law, Apr 11, 2017
Digital technologies allow unprecedented preservation and sharing of worldwide cultural heritage.... more Digital technologies allow unprecedented preservation and sharing of worldwide cultural heritage. Public and private players are increasingly entering the scene with mass digitisation projects that will make this possible. In Europe, legislative action has been taken to allow cultural institutions to include in their online collections copyright works whose owners are either unknown or non-locatable (''orphan works''). However, according to the Orphan Works Directive, cultural institutions must attempt to locate the owner of a work before using it. This is the so-called ''diligent search'' requirement. This paper provides an empirical analysis of the conditions under which a diligent search can feasibly be carried out. The United Kingdom, the Netherlands, and Italy, all of which have implemented the Orphan Works Directive, have been selected as case studies. For each jurisdiction, this analysis determines what the requirements for a diligent search to locate copyright holders are, what the authoritative sources and databases to be consulted Research for this article has been carried out as part of EnDOW (''Enhancing access to twentieth century cultural heritage through Distributed Orphan Works clearance''), a project funded by the EU Joint Programming Initiative in Cultural Heritage and Global Change. Details on the project are available at: http://diligentsearch.eu.
Intellectual Property Office is an operating name of the Patent Office Providing Government with ... more Intellectual Property Office is an operating name of the Patent Office Providing Government with strategic, independent and evidence-based advice on intellectual property policy. Research commissioned by SABIP Providing Government with strategic, independent and evidence-based advice on intellectual property policy
EThOS - Electronic Theses Online ServiceGBUnited Kingdo
SSRN Electronic Journal, 2016
Digital technologies allow unprecedented preservation and sharing of worldwide cultural heritage.... more Digital technologies allow unprecedented preservation and sharing of worldwide cultural heritage. Public and private players are increasingly entering the scene with mass digitisation projects that will make this possible. In Europe, legislative action has been taken to allow cultural institutions to include in their online collections copyright works whose owners are either unknown or non-locatable (''orphan works''). However, according to the Orphan Works Directive, cultural institutions must attempt to locate the owner of a work before using it. This is the so-called ''diligent search'' requirement. This paper provides an empirical analysis of the conditions under which a diligent search can feasibly be carried out. The United Kingdom, the Netherlands, and Italy, all of which have implemented the Orphan Works Directive, have been selected as case studies. For each jurisdiction, this analysis determines what the requirements for a diligent search to locate copyright holders are, what the authoritative sources and databases to be consulted Research for this article has been carried out as part of EnDOW (''Enhancing access to twentieth century cultural heritage through Distributed Orphan Works clearance''), a project funded by the EU Joint Programming Initiative in Cultural Heritage and Global Change. Details on the project are available at: http://diligentsearch.eu.
The complex and elusive structure we call 'Europe' is the result of multiple cultural, ec... more The complex and elusive structure we call 'Europe' is the result of multiple cultural, economic, social and political conditions under which Law, and in particular the jurisprudence of the Court of Justice of the European Union (CJEU), is performing a unique integrating role. This working paper is a joint re-issue of two articles first published in the Modern Law Review in 2020. The core is a study I researched with my colleagues Marcella Favale and Paul Torremans, 'Who is steering the jurisprudence of the European Court of Justice? The influence of Member State submissions on copyright law'. This is a dense paper, presenting complex empirical findings from the examination of 170 documents relating to 42 copyright cases registered between 1998 and 2015, with the aim of assessing the impact of submissions by Member States and the European Commission on the legal interpretation of copyright concepts. We show that France is the most influential country by some distance,...
Research Handbook on the Future of EU Copyright, 2009
In highly anisotropic organic superconductor (TMTSF)2ClO4, superconducting (SC) phase coexists wi... more In highly anisotropic organic superconductor (TMTSF)2ClO4, superconducting (SC) phase coexists with metallic and spin density wave phases in the form of domains. Using the Maxwell-Garnett approximation (MGA), we provide a method to calculate the volume ratio and the shape of these embedded SC domains from resistivity data. Due to percolation of SC domains, the zero resistance can be achieved even when the SC volume ratio φ = φc ≪ 1. This percolation threshold φc depends on the shape and size of SC domains and of the sample, and may be anisotropic. Using our theory we find φ for various cooling rates of (TMTSF)2ClO4 samples. We also analyze the effect of disorder on the shape of SC domains. We found that the SC domains have oblate shape, being the shortest along the interlayer z-axis. This contradicts the widely assumed filamentary superconductivity along z-axis, used to explain the anisotropic superconductivity onset. We show that this anisotropic resistivity drop at the SC transition can be described by the analytical MGA theory with anisotropic background resistance, while the anisotropic Tc can be explained[1] by considering a finite size and flat shape of the samples. Due to a flat/needle sample shape, the probability of percolation via SC domains is the highest along the shortest sample dimension (z-axis), and the lowest along the sample length (x-axis). Our theory can be applied to other heterogeneous superconductors, where the size d of SC domains is much larger than the SC coherence length ξ, e.g. cuprates, iron based or organic superconductors. It is also applicable when the spin/charge-density wave domains are embedded inside a metallic background, or vice versa.
Information & Communications Technology Law, 2014
The paper reviews copyright philosophical, economic and social justification confronted by the de... more The paper reviews copyright philosophical, economic and social justification confronted by the dematerialization of creative outputs. Digital Rights Management (DRM) is the tool implemented by copyright owners to adjust to the advent of the Digital Era. The claim is that DRM effectively addresses digital threats and market failures. If this is true, what is left of the role of copyright law in the digital environment? This review suggests an argument for traditional copyright justifications to resist in the digital environment. As a consequence, digital tools as DRM need to be engineered according to these justifications, in order to preserve the balance between law and technology.
International Journal of Law and Information Technology, 2011
The following queries have arisen during the typesetting of your manuscript. Please answer these ... more The following queries have arisen during the typesetting of your manuscript. Please answer these queries by marking the required corrections at the appropriate point in the text. Failure to do so could result in delayed publication.
The importance and potential of mass digitization of cultural heritage institutions in Europe is ... more The importance and potential of mass digitization of cultural heritage institutions in Europe is well known, as also the stalemate created by the difficulty of clearing the rights of these works that are mostly out of commerce and whose right holder is not known or locatable. European legislators tried to address this stalemate by introducing a copyright exception for these so-called Orphan Works, which can be digitized and published after carrying out a Diligent Search. However, as the rules to implement this Diligent Search are quite demanding, and the sources to be consulted are largely inaccessible, cultural institutions struggle to get their collections out in the digital world, so that cay they can have a second life. Presumption of copyright ownership, moreover, make this picture even more blurry. After a work is created, it is delivered to a complex web of potential copyright transfers and attributions, which make the quest for rightsholders potentially endless. The reversio...
The influence of the Court of Justice of the European Union (CJEU) and in particular of this its ... more The influence of the Court of Justice of the European Union (CJEU) and in particular of this its higher Court, the European Court of Justice (ECJ) on all fields of European Law does not need to be demonstrated, as it has been extensively argued by legal doctrine. Divergence of opinion still persists on whether this influence is contained and prudent or innovative and activist, but it is widely accepted that rules produced, directly or indirectly, through interpretation of EU Law by the Court are mostly respected. Some political scientists argue that Member States elaborate European Policy at intergovernmental level, while other maintain that, given the difficulty in reaching consensus among EU Member States prompts a ‘judicialisation’ of the EU governance (neo-functionalism). According to the latter theory the Court sets legal principles that induce policy reforms, which in turn underpin further European jurisprudence, in a virtuous circle. Both these theories inform and enrich the ...
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Papers by Marcella Favale