Copyright - Page 2 of 24

Greening EU Intellectual Property Law through the Human Right to a Healthy Environment: An Operative Methodology for Constitutional Interpretation external link

2026

Abstract

Can the human right to a clean, healthy and sustainable environment (HR2HE) reshape the interpretation of EU intellectual property (IP) law? This chapter argues that the question is no longer whether environmental protection should influence IP law, but how it should do so. Drawing on international environmental law, United Nations practice, regional human rights jurisprudence and EU constitutional law, it reconstructs an operative methodology for translating the constitutional relevance of environmental protection into concrete legal reasoning. The resulting three-stage framework distinguishes three questions: why environmental protection is constitutionally relevant to the interpretation of IP law; whether and to what extent the activity at issue genuinely advances constitutionally protected environmental objectives; and how those objectives should be reconciled with the legitimate purposes of the IP regime concerned through the interpretation of its existing doctrines. The chapter illustrates the methodology through the recent Hermès upcycling litigation before the Paris Judicial Court. It argues that the HR2HE need not operate primarily through new environmental exceptions or defences, but can function as an internal constitutional consideration informing the interpretation of open-textured IP doctrines wherever they leave room for judicial choice.

Links

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=7278138

Copyright, healthy environment, Human rights, Intellectual property

RIS

TY  - UNPD
AU  - Izyumenko, E.
PY  - 2026
DA  - 2026-08-17
T1  - Greening EU Intellectual Property Law through the Human Right to a Healthy Environment: An Operative Methodology for Constitutional Interpretation
AB  - Can the human right to a clean, healthy and sustainable environment (HR2HE) reshape the interpretation of EU intellectual property (IP) law? This chapter argues that the question is no longer whether environmental protection should influence IP law, but how it should do so. Drawing on international environmental law, United Nations practice, regional human rights jurisprudence and EU constitutional law, it reconstructs an operative methodology for translating the constitutional relevance of environmental protection into concrete legal reasoning. The resulting three-stage framework distinguishes three questions: why environmental protection is constitutionally relevant to the interpretation of IP law; whether and to what extent the activity at issue genuinely advances constitutionally protected environmental objectives; and how those objectives should be reconciled with the legitimate purposes of the IP regime concerned through the interpretation of its existing doctrines. The chapter illustrates the methodology through the recent Hermès upcycling litigation before the Paris Judicial Court. It argues that the HR2HE need not operate primarily through new environmental exceptions or defences, but can function as an internal constitutional consideration informing the interpretation of open-textured IP doctrines wherever they leave room for judicial choice.
K1  - Copyright
K1  - healthy environment
K1  - Human rights
K1  - Intellectual property
ER  -

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Bibtex

Working paper{nokey,
	title = {Greening EU Intellectual Property Law through the Human Right to a Healthy Environment: An Operative Methodology for Constitutional Interpretation},
	author = {Izyumenko, E.},
	url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=7278138},
	year = {2026},
	date = {2026-08-17},
	abstract = {Can the human right to a clean, healthy and sustainable environment (HR2HE) reshape the interpretation of EU intellectual property (IP) law? This chapter argues that the question is no longer whether environmental protection should influence IP law, but how it should do so. Drawing on international environmental law, United Nations practice, regional human rights jurisprudence and EU constitutional law, it reconstructs an operative methodology for translating the constitutional relevance of environmental protection into concrete legal reasoning. The resulting three-stage framework distinguishes three questions: why environmental protection is constitutionally relevant to the interpretation of IP law; whether and to what extent the activity at issue genuinely advances constitutionally protected environmental objectives; and how those objectives should be reconciled with the legitimate purposes of the IP regime concerned through the interpretation of its existing doctrines. The chapter illustrates the methodology through the recent Hermès upcycling litigation before the Paris Judicial Court. It argues that the HR2HE need not operate primarily through new environmental exceptions or defences, but can function as an internal constitutional consideration informing the interpretation of open-textured IP doctrines wherever they leave room for judicial choice.},
	keywords = {Copyright, healthy environment, Human rights, Intellectual property},
}

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Copyrighting Style? Reframing Style Imitation as Non-Literal Copying in EU Copyright Law: Implications for Generative AI and Fashion Dupes external link

Izyumenko, E.

2026

Abstract

The proposition that artistic style falls outside copyright protection is widely regarded as axiomatic in copyright law. Under the idea/expression dichotomy, authors may claim exclusive rights over the specific expression of their ideas, but not over artistic styles, genres or aesthetic vocabulary. Recent developments, however, have made the copyright treatment of style increasingly difficult to ignore. Generative artificial intelligence can produce works in the recognisable style of individual creators within seconds, while fashion dupes systematically reproduce the aesthetic language of successful luxury designs without literal copying. These developments have prompted renewed interest in the relationship between copyright and artistic style. This article argues that the central question has been framed too broadly. The issue is not whether copyright should protect style itself. Rather, it is whether conduct described as “style imitation” may already constitute the non-literal reproduction of protected expression under existing EU copyright law. Revisiting the Court of Justice’s jurisprudence on originality and the reproduction right, the article demonstrates that the existing framework already provides the doctrinal tools necessary to distinguish between lawful stylistic inspiration and copyright infringement. It concludes that AI-generated outputs and fashion dupes do not expose a need to copyright style, but rather a need to recognise more clearly when apparent stylistic borrowing is, in reality, the non-literal reproduction of protected expression.

Links

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=7206858

Copyright, Fashion, Generative AI

RIS

TY  - UNPD
AU  - Izyumenko, E.
PY  - 2026
DA  - 2026-08-03
T1  - Copyrighting Style? Reframing Style Imitation as Non-Literal Copying in EU Copyright Law: Implications for Generative AI and Fashion Dupes
AB  - The proposition that artistic style falls outside copyright protection is widely regarded as axiomatic in copyright law. Under the idea/expression dichotomy, authors may claim exclusive rights over the specific expression of their ideas, but not over artistic styles, genres or aesthetic vocabulary. Recent developments, however, have made the copyright treatment of style increasingly difficult to ignore. Generative artificial intelligence can produce works in the recognisable style of individual creators within seconds, while fashion dupes systematically reproduce the aesthetic language of successful luxury designs without literal copying. These developments have prompted renewed interest in the relationship between copyright and artistic style.

This article argues that the central question has been framed too broadly. The issue is not whether copyright should protect style itself. Rather, it is whether conduct described as “style imitation” may already constitute the non-literal reproduction of protected expression under existing EU copyright law. Revisiting the Court of Justice’s jurisprudence on originality and the reproduction right, the article demonstrates that the existing framework already provides the doctrinal tools necessary to distinguish between lawful stylistic inspiration and copyright infringement. It concludes that AI-generated outputs and fashion dupes do not expose a need to copyright style, but rather a need to recognise more clearly when apparent stylistic borrowing is, in reality, the non-literal reproduction of protected expression.
K1  - Copyright
K1  - Fashion
K1  - Generative AI
ER  -

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Bibtex

Working paper{nokey,
	title = {Copyrighting Style? Reframing Style Imitation as Non-Literal Copying in EU Copyright Law: Implications for Generative AI and Fashion Dupes},
	author = {Izyumenko, E.},
	url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=7206858},
	year = {2026},
	date = {2026-08-03},
	abstract = {The proposition that artistic style falls outside copyright protection is widely regarded as axiomatic in copyright law. Under the idea/expression dichotomy, authors may claim exclusive rights over the specific expression of their ideas, but not over artistic styles, genres or aesthetic vocabulary. Recent developments, however, have made the copyright treatment of style increasingly difficult to ignore. Generative artificial intelligence can produce works in the recognisable style of individual creators within seconds, while fashion dupes systematically reproduce the aesthetic language of successful luxury designs without literal copying. These developments have prompted renewed interest in the relationship between copyright and artistic style.

This article argues that the central question has been framed too broadly. The issue is not whether copyright should protect style itself. Rather, it is whether conduct described as “style imitation” may already constitute the non-literal reproduction of protected expression under existing EU copyright law. Revisiting the Court of Justice’s jurisprudence on originality and the reproduction right, the article demonstrates that the existing framework already provides the doctrinal tools necessary to distinguish between lawful stylistic inspiration and copyright infringement. It concludes that AI-generated outputs and fashion dupes do not expose a need to copyright style, but rather a need to recognise more clearly when apparent stylistic borrowing is, in reality, the non-literal reproduction of protected expression.},
	keywords = {Copyright, Fashion, Generative AI},
}

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The EU Can No Longer Let Fashion Go Up in Flames: The Ban on Destroying Unsold Clothes Marks a New Stage in EU Market Regulation external link

Izyumenko, E.

Verfassungsblog, 2026

Links

https://verfassungsblog.de/no-longer-let-fashion-go-up-in-flames/

Copyright, EU, Fashion, Regulation

RIS

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Bibtex

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Is Upcycling Always Green – and Should It Be? Reconsidering the Rationale for Accommodating Upcycling within IP Law and Leveraging the Potential of Quotation and ‘Due Cause’ external link

Izyumenko, E.

GRUR International, vol. 75, iss. : 8, pp: 719–729, 2026

Abstract

Climate change has forced legal systems to question many of their long-standing assumptions, including the largely linear logic that continues to underpin intellectual property (IP) law. Existing scholarship has convincingly shown that copyright and trade mark laws often hinder circular practices such as repair and upcycling, prompting calls for greater flexibility or the ‘greenification’ of IP law. This article challenges a key premise of those proposals: that upcycling is inherently environmentally beneficial. The environmental value of upcycling is neither uniform nor self-evident, and in some contexts may be marginal or even adverse. This uncertainty raises a normative question: should accommodation of upcycling under IP law depend on demonstrated environmental benefit, or does upcycling embody a wider social value warranting protection irrespective of ecological impact? The article argues for the latter, developing a justificatory framework grounded not primarily in environmental sustainability, but in artistic freedom and cultural diversity. On this account, environmental benefits – where present – serve as reinforcing considerations rather than the foundation for legal reform. Building on this reframing, the article reassesses concerns about free-riding on IP holders’ rights and argues for a more calibrated balance between upcycling practices and the protection of legitimate IP interests. It then examines how this balance might be realised within existing EU IP law, focusing on the underexplored potential of the quotation exception in copyright law and the ‘due cause’ defence in trade mark law. By repositioning these defences within the sustainability discourse, the article seeks to broaden the tools available to courts and policymakers for aligning IP law with the social value of upcycling.

Links

Copyright, Freedom of expression, Trademark law, upcycling

RIS

TY  - JOUR
AU  - Izyumenko, E.
PY  - 2026
DA  - 2026-05-19
T1  - Is Upcycling Always Green – and Should It Be? Reconsidering the Rationale for Accommodating Upcycling within IP Law and Leveraging the Potential of Quotation and ‘Due Cause’
JO  - GRUR International
VL  - 75
IS  - 8
SP  - 719–729
UR  - https://papers.ssrn.com/sol3/papers.cfm?abstract_id=6176840
DO  - https://doi.org/10.1093/grurint/ikag039
AB  - Climate change has forced legal systems to question many of their long-standing assumptions, including the largely linear logic that continues to underpin intellectual property (IP) law. Existing scholarship has convincingly shown that copyright and trade mark laws often hinder circular practices such as repair and upcycling, prompting calls for greater flexibility or the ‘greenification’ of IP law. This article challenges a key premise of those proposals: that upcycling is inherently environmentally beneficial. The environmental value of upcycling is neither uniform nor self-evident, and in some contexts may be marginal or even adverse.

This uncertainty raises a normative question: should accommodation of upcycling under IP law depend on demonstrated environmental benefit, or does upcycling embody a wider social value warranting protection irrespective of ecological impact? The article argues for the latter, developing a justificatory framework grounded not primarily in environmental sustainability, but in artistic freedom and cultural diversity. On this account, environmental benefits – where present – serve as reinforcing considerations rather than the foundation for legal reform.

Building on this reframing, the article reassesses concerns about free-riding on IP holders’ rights and argues for a more calibrated balance between upcycling practices and the protection of legitimate IP interests. It then examines how this balance might be realised within existing EU IP law, focusing on the underexplored potential of the quotation exception in copyright law and the ‘due cause’ defence in trade mark law. By repositioning these defences within the sustainability discourse, the article seeks to broaden the tools available to courts and policymakers for aligning IP law with the social value of upcycling.
K1  - Copyright
K1  - Freedom of expression
K1  - Trademark law
K1  - upcycling
ER  -

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Bibtex

Article{nokey,
	title = {Is Upcycling Always Green – and Should It Be? Reconsidering the Rationale for Accommodating Upcycling within IP Law and Leveraging the Potential of Quotation and ‘Due Cause’},
	author = {Izyumenko, E.},
	doi = {https://doi.org/10.1093/grurint/ikag039},
	year = {2026},
	date = {2026-05-19},
	journal = {GRUR International},
	volume = {75},
	issue = {8},
	pages = {719–729},
	abstract = {Climate change has forced legal systems to question many of their long-standing assumptions, including the largely linear logic that continues to underpin intellectual property (IP) law. Existing scholarship has convincingly shown that copyright and trade mark laws often hinder circular practices such as repair and upcycling, prompting calls for greater flexibility or the ‘greenification’ of IP law. This article challenges a key premise of those proposals: that upcycling is inherently environmentally beneficial. The environmental value of upcycling is neither uniform nor self-evident, and in some contexts may be marginal or even adverse.

This uncertainty raises a normative question: should accommodation of upcycling under IP law depend on demonstrated environmental benefit, or does upcycling embody a wider social value warranting protection irrespective of ecological impact? The article argues for the latter, developing a justificatory framework grounded not primarily in environmental sustainability, but in artistic freedom and cultural diversity. On this account, environmental benefits – where present – serve as reinforcing considerations rather than the foundation for legal reform.

Building on this reframing, the article reassesses concerns about free-riding on IP holders’ rights and argues for a more calibrated balance between upcycling practices and the protection of legitimate IP interests. It then examines how this balance might be realised within existing EU IP law, focusing on the underexplored potential of the quotation exception in copyright law and the ‘due cause’ defence in trade mark law. By repositioning these defences within the sustainability discourse, the article seeks to broaden the tools available to courts and policymakers for aligning IP law with the social value of upcycling.},
	keywords = {Copyright, Freedom of expression, Trademark law, upcycling},
}

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