The Unproductive “Overconstitutionalization” of EU Copyright and Trademark Law – Fundamental Rights Rhetoric and Reality in CJEU Jurisprudence

Abstract In EU copyright and trademark law, the protection of the right to intellectual property is the rule, and breathing space for competing fundamental rights, such as freedom of expression and the right to a healthy environment, is the exception. While formally recognizing the need to balance protection interests against other fundamental rights and values, the Court of Justice of the European Union (CJEU) fails to use competing fundamental rights productively. Instead, the Court has developed a meaningless fundamental rights rhetoric that produces the false impression that there is sufficient room for all competing rights and interests within the existing copyright and trademark systems. However, the current configuration of EU copyright and trademark law fails to offer users the chance of meeting right holders as equals, even if their fundamental rights are of equal ranking in the Charter. By adding fundamental rights cosmetics to imbalanced protection systems, the CJEU only cements and further stabilizes the existing rule/exception edifice that is strongly in favour of right holders. Introducing the mantra of internal balancing – requiring the reconciliation of competing rights and interests within the confines of secondary copyright and trademark legislation – the Court has even created a considerable risk of sacrificing competing fundamental rights on the altar of the EU harmonization agenda. By letting the harmonization objective reign supreme, the CJEU has also given the three-step test in copyright law and the honest practices proviso in trademark law a quasi-constitutional status. As a result, these open-ended provisions undermine limitations of exclusive rights that could support competing fundamental rights. To remove the imbalances in current EU copyright and trademark law, it would be necessary to introduce upfront gatekeeper requirements that prevent illegitimate infringement claims from the outset when competing fundamental rights are at stake.