The CJEU’s Strict and Effective Interpretations of the Exceptions and Limitations of the InfoSoc Directive: Origin Over Flexibility

Abstract

The Court of Justice of the European Union (CJEU) maintains strict interpretation and effective interpretation to guide its harmonisation of the exceptions and limitations (E&Ls) in Art. 5 of Directive 2001/29/EC (the InfoSoc Directive). Its application of the two discourses is often regarded as enabling flexibility in copyright at different levels. This article rejects this argument and posits that the CJEU maintains them to harmonise the InfoSoc E&Ls with different origins. To verify the hypothesis, it categorises the discourses guiding the CJEU’s harmonisation by their defining features and the E&Ls of the InfoSoc Directive based on whether they have their origins in the Berne Convention. Based on the categorisations, it empirically examines the distribution of strict interpretation and effective interpretation in different categories of E&Ls. The distribution reveals a correlation between the application of strict interpretation and the E&Ls without origin in the Berne Convention and between the application of effective interpretation and the E&Ls with origin in the Berne Convention. Based on the correlation, applying effective interpretation should enable greater flexibility than strict interpretation when it is applied to the E&Ls without origin in the Berne Convention, especially to permit uses enabled by new technologies.