‘Intuitive’ rules on clashes between the right to intellectual property (copyright) and other fundamental rights before the CJEU

This article focuses on determining the intuitive rules which govern the clash between the fundamental right to intellectual property (copyright) and other fundamental rights before the CJEU. Since all the fundamental rights recognized in the Charter are at the very top of the hierarchy of EU legal order, there is no direct substantive provision governing the clash between them. Hence, this article seeks the answer within intuitive rules, which are understood as a set of substantive (not procedural) rules stemming from certain invisible or intangible rules, values or principles of a society in which the legal normative system is applied. The article seeks those rules within the legal reasoning present in CJEU judgments involving clashes between the right to intellectual property (copyright) and other fundamental rights. It is divided into three parts. The first part sets out the normative framework within which the CJEU seeks to resolve clashes of fundamental rights. The second part then presents an analysis of the case law involving such clashes. The analysis is divided into smaller sections in which, through analyzing the reasoning in CJEU decisions, intuitive rules are ascertained. Among those intuitive rules, it will be demonstrated that there are three general rules that apply over all sections. Firstly, when it comes to clashes between copyright and other fundamental rights, the CJEU mostly regards the essence of the right to copyright as the centrepiece of its reasoning. Secondly, it will be shown that this essence is viewed predominantly through the prism of the economy as a vehicle ensuring the commercial exploitation of the copyright subject matter by granting licences in return for payment of an appropriate reward. And thirdly, it will be argued that such a market-orientated view of the essence of copyright ultimately impacts the importance and effect of other conflicting fundamental rights. More specifically, it will be argued that the higher the potential for repeated commercialization of copyright subject matter through licensing, the lesser the probability that other fundamental rights will prevail over copyright.