Taking Constitutionalization Seriously: European IP Law, Weak Fundamental Rights and the Network of Courts

Abstract

Abstract A set of three recent decisions delivered by the CJEU – Spiegel Online,1 Pelham2 and Funke Medien3 – deepens the widespread interpretation of European IP law through the lenses of constitutionalization. While there is no unitary understanding of constitutionalization, many scholars associate it with the growing influence of fundamental rights on European IP law – both within and beyond the statutory body. In fact, the case law provides plenty of evidence on how the Charter of Fundamental Rights and proportionality – its central method – is deployed to steer the implementation of EU law by domestic courts. However, as the said decisions also show, there are still a lot of questions and frustration. While we have to acknowledge that the CJEU takes fundamental rights into account when interpreting IP law, some critics see deficits when the Court strictly rejects the idea of external limitations on exclusive copyrights. European fundamental rights are – obviously – not a trump card. This article aims to clarify some misleading aspirations by re-examining both the idea of constitutionalization and its impact on European IP law. It will argue that weak or evasive fundamental rights are not necessarily a sign of deficient constitutionalization, they might rather be the consequence thereof.