Constitutionalising or Harmonising? The Court of Justice, the Right to Property and European Copyright Law

Abstract

The legislative construction of European copyright law remains incomplete. However, since its landmark judgment in Infopaq in 2009, the Court of Justice has been vigorously filling gaps in the acquis. Over the same period, the Court has also begun to make more frequent reference to the EU’s framework of fundamental rights in its judgments on copyright law. With a particular focus on the fundamental right to property, it is argued here that these two developments are connected. The Court’s conclusions on the application of fundamental rights, including the right to property, have generally promoted an interpretation of the acquis that advances a harmonising agenda. Indeed, it can be suggested that the recent increase in the level of attention devoted to such rights may be motivated as much by a desire to construct a comprehensive body of copyright rules at EU level as by a true commitment to the detailed demands of the law of fundamental rights.

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