A1 Refereed original research article in a scientific journal

Of Values and Legitimacy – Discourse Analytical Insights on the Copyright Case Law of the Court of Justice of the European Union




AuthorsHarri Kalimo, Trisha Meyer, Tuomas Mylly

PublisherWiley-Blackwell

Publication year2018

JournalModern Law Review

Journal name in sourceModern Law Review

Volume81

Issue2

First page 282

Last page307

Number of pages26

ISSN0026-7961

eISSN1468-2230

DOIhttps://doi.org/10.1111/1468-2230.12329(external)


Abstract
The Court of Justice of the European Union (CJEU) increasingly faces societal value-conflicts in EU law disputes. For example, in EU copyright law, in the digital age, diverse fundamental values, as well as cultural and societal developments, are at stake. This article discusses the role of the CJEU in the European value discourse, using copyright law as a case study. The methodological approach used, critical discourse analysis, is seldom applied in jurisprudentialstudies, but is well suited for teasing out value-related aspects of case law. Exploratory research of seminal copyright cases suggests that the CJEU’s discourse of the various values seems unnec-essarily one-sided and shallow. A lack of discursiveness in the jurisprudence would diminish the legitimacy of the Court’s decisions, and would not offer adequate guidance to national courts or private decision-makers, to whom the Court at the same time may be leaving more of thetask of value reconciliation.



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