Keyword: upcycling
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
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.
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Copyright, Freedom of expression, Trademark law, upcycling
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Laying Competition to Waste: The Economics of Resale, Recycling, and Upcycling download
Abstract
This chapter analyzes upcycling through an economic lens. First, it discusses the similarities and differences between resale, recycling, and upcycling from an economic perspective. Next, it analyzes the incentives for producers in the primary market to engage with these markets further down the lifecycle of a product. The author argues that companies with sufficient market power in their primary market often have an incentive to try to control such aftermarkets, particularly in the case of resale or upcycling, in order to price discriminate in the primary market or to reduce competition in their primary market. Subsequently, the chapter discusses the role of IPRs in this and analyzes from a normative economic perspective (incentive rationale for IPRs), whether IPRs should grant producers control over resale and upcycling.
competition, economical aspects, upcycling
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Bibtex
Fashion Upcycling and Trademark Infringement: A Circular Economy/Freedom of the Arts Approach download
Abstract
Fashion upcycling offers unprecedented opportunities for the sustainable reuse of clothing: using second-hand garments as raw materials for new creations, upcyclers can ransform used pieces of clothing into new fashion products that may become even more sought-after than the source material. Considering the overarching policy objective to ensure a circular economy, the use of trademark-protected fashion elements for upcycling purpose can be qualified as a particularly important form of artistic expression. The reference to products of the original trademark owner is made for the socially valuable purpose of providing a vision of better, more sustainable production and consumption practices.
Fashion, infringement, Trademark law, upcycling