Freedom of expression and intellectual property external link
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Freedom of expression, Intellectual property
Keyword: Intellectual property
Fashion Upcycling: The Problem of Overlapping Intellectual Property Rights and How to Solve it external link
Abstract
Fashion upcycling offers unprecedented opportunities for the sustainable reuse of clothing: using second-hand garments as raw materials for new creations, upcyclers can transform used pieces of clothing into new fashion products that may become even more sought-after than the source material. The productive reuse of garment components in upcycling projects is socially desirable in the light of the overarching policy goal to achieve environmental sustainability. However, the more individual fashion elements are protected by intellectual property (IP) rights, the more legal obstacles arise. Fashion items may enjoy cumulative copyright, industrial design and trademark protection. Accordingly, infringement claims may be based on multiple IP rights and upcyclers may have to rebut infringement arguments stemming from different IP domains.
Seeking to pave the way for large-scale upcycling initiatives in the circular economy, it is crucial against this background to develop robust defences that are applicable across different protection regimes. To achieve this goal, the rules governing protection overlaps should be recalibrated. As a corollary of the cumulation of different IP rights, rightsholders should be obliged to keep intact the checks and balances of each individual protection regime involved. Following this approach, only the smallest common denominator of exclusive rights – the scope of protection after subtraction of all forms of permissible unauthorized use – remains available. If upcycling is permissible under an exception to exclusive rights or the exhaustion rule in one protection regime, the rightsholder is obliged to ensure that overlapping rights in other IP domains do not stifle this breathing space. Practically speaking, this leads to the universal applicability of a defence for upcycling across the different domains of IP law.
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Fashion, Intellectual property
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Fashion Waste, Trade Mark Protection, and the Circular Economy: Towards a New Public Domain for Sustainable Reuse download
Abstract
Traditionally, the debate on trade mark law and the public domain has focused on the strategic use of trade mark law to artificially prolong exclusive rights after the expiry of protection in intellectual property systems with a limited term, and the grant of trade mark rights covering public domain material, such as cultural signs and traditional cultural expressions. While the glamorous world of fashion offers examples of protection term extension and public domain re-appropriation cases, the following analysis focuses on fashion reuse in the circular economy as a phenomenon that can be placed in a public domain context. Considering the urgent need for measures to enhance legal certainty for sustainable fashion reuse in the circular economy, the question arises whether the time has come to discuss a limitation of trade mark rights and a corresponding broadening of the public domain. More concretely, it seems tempting to establish a new public domain by giving second-hand and unsold fashion items the status of freely available resources for sustainable upcycling and reuse in the circular economy—even if these fashion items bear protected third-party brand insignia. Exploring options for the practical implementation of this new public domain space, the analysis will yield the insight that the termination of trade mark rights is beyond reach. Alternatively, however, lawmakers and judges could consider introducing a robust principle of free reuse that shields initiatives leading to the sustainable reuse of trade-marked fashion items effectively against allegations of trade mark infringement.
Fashion, Freedom of expression, Intellectual property, public domain, trade mark
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Intellectual Property and the Human Right to a Healthy Environment: An Introduction external link
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healthy environment, Human rights, Intellectual property
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Research Workshop Report: “The (Evolving) Human Right to a Healthy Environment: What Impact on Intellectual Property Laws?” external link
Intellectual Property in the Age of the Environmental Crisis: How Trademarks and Copyright Challenge the Human Right to a Healthy Environment
Abstract
In the face of the escalating environmental crisis driven by overconsumption, there is a growing recognition of the urgent need for environmental consciousness and a sustainable, circular economy. Practices like repair, refurbishment, and fashion upcycling have emerged as tangible efforts to mitigate the negative effects of this crisis. Perhaps unexpectedly, however, trademark and copyright laws clash with these endeavours, placing obstacles to sustainability goals. This paper contributes to the emerging literature devoted to studying this problem by undertaking the first in-depth analysis of the issue from a human rights law perspective. It specifically investigates the nature, scope, impact on, and consequences for intellectual property protection of the evolving human right to a
healthy environment. Following a short introduction, the paper delves into the legal nature of obstacles posed by trademark and copyright protection to environmental sustainability, scrutinizes the human right to a healthy environment with a European emphasis, and proposes strategies for reconciling trademark and copyright protection with this fundamental right. The key findings are summarised at the end.
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Intellectual property
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Reciprociteit bij bescherming vormgeving na RAAP: Annotatie bij Hoge Raad 31 maart 2023 (Kwantum / Vitra) download
Freedom of Expression as a Rationale for IP Protection
Abstract
This article revisits the discussion on the rationales for intellectual property (IP) protection by addressing a particular justificatory theory for IP that had come to the forefront of legal discussions in recent years – the theory based on freedom of expression and information. This modern vision of IP focuses on the communicative nature of IP subject-matter and of IP as a legal regime. Firstly, this article reviews the Kantian theory of copyright that lies at the origins of any modern discussions on the communicative nature of IP regulation with the aim of answering whether IP should be more properly conceived as the system for regulating communication. It then looks at the readings of this theory by contemporary copyright scholars and considers applicability of the communicative theory to other areas of IP such as trademarks and patents. The analysis then proceeds towards looking at the freedom of expression dimension of the ‘classic’ IP theories. Reflecting on this matter is important as the rationales for IP protection influence virtually all spheres of IP’s legal regulation, including – first and foremost – the reach of IP holders’ entitlements.
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Freedom of expression, Intellectual property
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Territoriality Roundtables (combined report) download
Abstract
This report summarizes the outcome of two roundtables held with expert legal scholars on the need for a unified European copyright. Issues discussed include various models for a unitary copyright title and fundamental rights aspects.
The Roundtables are part of a strand of the Recreating Europe project that queries how the territorial nature of copyright and related rights can hinder the realisation of the digital single market. While for e.g., trademarks and designs the EU has legislated community wide rights that extend across borders of individual Member States, copyright and related rights remain national at heart. Authors, performers, phonogram producers, database producers and other related rights owners all acquire bundles of national rights in their respective (intellectual) productions. Despite far-reaching harmonization of the subject-matter, scope and duration of national rights, these rights remain restricted in their existence and exploitation to the geographic boundaries of the individual Member States under whose laws they arise, i.e., they are territorial.
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Copyright, Digital Single Market, EU law, Intellectual property, unitary title
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Remuneration rights and national treatment external link
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global policy goals, Intellectual property, international agreements, shifting boundaries