Keyword: Freedom of expression

Freedom of Political Expression as “Due Cause”: The Pending IKEA v. Vlaams Belang Case Before the CJEU external link

Izyumenko, E.
Kluwer Trademark Blog, 2025

Abstract

The pending IKEA v. Vlaams Belang case before the CJEU offers a key test of how freedom of expression (FoE) interacts with EU trademark law. IKEA sued the Belgian party Vlaams Belang for parodying its name, logo, and colours in a campaign titled “IKEA Plan” (Immigratie Kan Echt Anders—“Immigration Really Can Be Different”). The Belgian Enterprise Court asked the CJEU whether such political parody can constitute “due cause” under EU trademark rules and, if so, which factors should guide that assessment. The hearing took place in June 2025, with the Advocate General’s Opinion expected on 13 November 2025. This post considers the FoE factors identified by the Belgian court—rooted in ECtHR case-law—and their role in the proportionality analysis.

Freedom of expression, Politics, Trademark law

RIS

Save .RIS

Bibtex

Save .bib

Freedom of expression and intellectual property external link

Geiger, C. & Izyumenko, E.
P. Torremans, I. Stamatoudi, P.K. Yu & J. Jutte (eds.), Encyclopedia of Intellectual Property Law, Edward Elgar Publishing, 2025, ISBN: 9781800886926

Freedom of expression, Intellectual property

RIS

Save .RIS

Bibtex

Save .bib

The European Court of Human Rights and Intellectual Property: Still Waiting for the New Innovation Frontier? external link

Izyumenko, E.
2025

Abstract

This article explores the influence of the European Court of Human Rights (ECtHR) on intellectual property (IP) law through human rights methodologies. While Professor Laurence Helfer, in his seminal article published in 2008, identified the ECtHR as an emerging innovation frontier in Europe, the extent to which this prediction has come to fruition might seem debatable. Notably, the jurisprudence of the Court of Justice of the European Union (CJEU), rather than that of the ECtHR, has largely dominated discussions on the intersection of IP and human rights in Europe. As such, this article seeks to analyse the ECtHR’s contribution to – and its actual impact on – the human rights-based adjudication of IP issues. After a short introduction (I), it begins by examining the possible reasons behind the relative obscurity of ECtHR decisions in the European IP law discourse (II). It then focuses on the Strasbourg Court’s contribution to the development of human rights-based IP adjudication, demonstrating that, despite the limited engagement of IP community with the ECtHR, its jurisprudence has played, and continues to play, a pivotal role in shaping European IP law norms (III). This influence is assessed by first exploring the ECtHR-developed approaches to resolving conflicts between IP protection and freedom of expression (III.1), followed by an examination of the Court’s recognition of IP rights as an integral part of the broader human right to property – an area that has seen considerable expansion, particularly in recent years (III.2). Based on this analysis, the article concludes that we are certainly not waiting anymore for the ECtHR to become a new innovation frontier – it has already become one, having formed itself as a significant, albeit often underappreciated, force in the European IP legal landscape, operating quietly but far more meaningfully than is commonly recognised (IV).

Freedom of expression, Human rights, Intellectual property

RIS

Save .RIS

Bibtex

Save .bib

Copyright as a Freedom of (Artistic) Expression Right? The Dangers and Human Rights Law Misconceptions in the AG’s Opinion in Pelham II external link

Izyumenko, E.
Kluwer Copyright Blog, 2025

Copyright, Freedom of expression, Human rights

RIS

Save .RIS

Bibtex

Save .bib

Public Knowledge and Expertise Under Authoritarian Siege: A Defense of Academic Freedom from Digital Journalism Studies external link

Westlund, O., Carlson, M., Hamada, B., Helberger, N., Lecheler, S., Lewis, S.C., Quandt, T., Reese, S.D., Salaverria, R., Saldana, M., Thomson, T.J., Wahl-Jorgensen, K. & Wu, S.
Digital Journalism, vol. 13, iss. : 5, pp: 869–892, 2025

Abstract

This article addresses the growing global assault on academic free-dom—a cornerstone of democratic societies now under increasingthreat from authoritarian regimes. It highlights a global decline inthat freedom since its peak 20 years ago, focusing on the UnitedStates in 2025 to illustrate rapidly escalating academic silencing, evenin a country with well-established democratic freedoms and institu-tions. Drawing on the collective expertise of international scholars indigital journalism studies (DJS)—a field situated at the crossroads ofvulnerable institutions—and informed by anonymous reports fromU.S.-based academics as well as the wider academic literature, thiscommentary examines the impact of political interference, censorship,and self-censorship in academia. It argues that DJS as a field mustdevelop approaches that actively resist authoritarianism and upholdfreedom of expression and inquiry. The commentary concludes witha normative framework for doing this, proposing a three-prongedapproach to defending the larger field, the scholarship within it, andthe wellbeing of individual scholars of digital journalism studies.

academic freedom, academic research, censorship, Freedom of expression

RIS

Save .RIS

Bibtex

Save .bib

Fashion Waste, Trade Mark Protection, and the Circular Economy: Towards a New Public Domain for Sustainable Reuse download

Senftleben, M.
The Handbook of Fashion Law, Oxford University Press, 2025, Oxford, pp: 115–136, ISBN: 9780198938897

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

RIS

Save .RIS

Bibtex

Save .bib

The Regulation of Disinformation Under the Digital Services Act external link

Fahy, R., Buijs, D. & van Hoboken, J.
Media and Communication, vol. 13, 2025

Abstract

This article critically examines the regulation of disinformation under the EU’s Digital Services Act (DSA). It begins by analysing how the DSA applies to disinformation, discussing how the DSA facilitates the removal of illegal disinformation, and on the other hand, how it can protect users’ freedom of expression against the removal of certain content classified as disinformation. The article then moves to the DSA’s special risk‐based rules, which apply to Very Large Online Platforms in relation to mitigation of systemic risks relating to disinformation, and are to be enforced by the European Commission. We analyse recent regulatory action by the Commission in tackling disinformation within its DSA competencies, and assess these actions from a fundamental rights perspective, focusing on freedom of expression guaranteed under the EU Charter of Fundamental Rights and the European Convention on Human Rights.

Digital Services Act (DSA), disinformation, Freedom of expression, Online platforms

RIS

Save .RIS

Bibtex

Save .bib

How the EU Outsources the Task of Human Rights Protection to Platforms and Users: The Case of UGC Monetization external link

Senftleben, M., Quintais, J. & Meiring, A.
Berkeley Technology Law Journal, vol. 38, iss. : 3, pp: 933-1010, 2024

Abstract

With the shift from the traditional safe harbor for hosting to statutory content filtering and licensing obligations, EU copyright law has substantially curtailed the freedom of users to upload and share their content creations. Seeking to avoid overbroad inroads into freedom of expression, EU law obliges online platforms and the creative industry to take into account human rights when coordinating their content filtering actions. Platforms must also establish complaint and redress procedures for users. The European Commission will initiate stakeholder dialogues to identify best practices. These “safety valves” in the legislative package, however, are mere fig leaves. Instead of safeguarding human rights, the EU legislator outsources human rights obligations to the platform industry. At the same time, the burden of policing content moderation systems is imposed on users who are unlikely to bring complaints in each individual case. The new legislative design in the EU will thus “conceal” human rights violations instead of bringing them to light. Nonetheless, the DSA rests on the same – highly problematic – approach. Against this background, the paper discusses the weakening – and potential loss – of fundamental freedoms as a result of the departure from the traditional notice-and-takedown approach. Adding a new element to the ongoing debate on content licensing and filtering, the analysis will devote particular attention to the fact that EU law, for the most part, has left untouched the private power of platforms to determine the “house rules” governing the most popular copyright-owner reaction to detected matches between protected works and content uploads: the (algorithmic) monetization of that content. Addressing the “legal vacuum” in the field of content monetization, the analysis explores outsourcing and concealment risks in this unregulated space. Focusing on large-scale platforms for user-generated content, such as YouTube, Instagram and TikTok, two normative problems come to the fore: (1) the fact that rightholders, when opting for monetization, de facto monetize not only their own rights but also the creative input of users; (2) the fact that user creativity remains unremunerated as long as the monetization option is only available to rightholders. As a result of this configuration, the monetization mechanism disregards users’ right to (intellectual) property and discriminates against user creativity. Against this background, we discuss whether the DSA provisions that seek to ensure transparency of content moderation actions and terms and conditions offer useful sources of information that could empower users. Moreover, we raise the question whether the detailed regulation of platform actions in the DSA may resolve the described human rights dilemmas to some extent.

Artificial intelligence, Content moderation, Copyright, derivative works, discrimination, Freedom of expression, Human rights, liability, proportionality, user-generated content

RIS

Save .RIS

Bibtex

Save .bib

Generative AI and Author Remuneration

Senftleben, M.
IIC, vol. 54, pp: 1535-1560, 2023

Abstract

With the evolution of generative AI systems, machine-made productions in the literary and artistic field have reached a level of refinement that allows them to replace human creations. The increasing sophistication of AI systems will inevitably disrupt the market for human literary and artistic works. Generative AI systems provide literary and artistic output much faster and cheaper. It is therefore foreseeable that human authors will be exposed to substitution effects. They may lose income as they are replaced by machines in sectors ranging from journalism and writing to music and visual arts. Considering this trend, the question arises whether it is advisable to take measures to compensate human authors for the reduction in their market share and income. Copyright law could serve as a tool to introduce an AI levy system and ensure the payment of equitable remuneration. In combination with mandatory collective rights management, the new revenue stream could be used to finance social and cultural funds that improve the working and living conditions of flesh-and-blood authors.

collective rights management, Copyright, Freedom of expression, Text and Data Mining (TDM), three-step test

RIS

Save .RIS

Bibtex

Save .bib

Designing a freedom of expression-compliant framework for moral rights in the EU: challenges and proposals

Geiger, C. & Izyumenko, E.
Research Handbook on Intellectual Property and Moral Rights, Edward Elgar Publishing, 2023, pp: 292–314, ISBN: 9781789904864

Abstract

In the discussions on copyright and freedom of expression, it is common to focus on copy-right’s economic rights and their potential to restrict the users’ freedom of artistic creativity, freedom to express criticism or freedom to receive and impart information. By contrast, moral rights of the authors (such as the right of divulgation, the right of attribution and the right of integrity) have been much less explored with regard to their potential conflict with creators’ and users’ freedom of expression. Without doubt, moral rights are at the core of copyright protection, in particular in systems following the so-called “civil law” tradition. Their protection represents an important interest that can claim fundamental rights foundations. On a more general level, moral rights can emanate from the need to protect the authors’ dignity and personality - the values underlying a number of fundamental rights in the human rights treaties. More specifically, certain scholars allocate the interest in the protection of the authors’ moral rights in the right to privacy and personal integrity, others - in the so-called “negative” aspect of the right to freedom of expression - the right not to speak and to be free from unwanted associations. Either one way or another, however, the interest of the author in the protection of her personality via moral rights should not be accorded absolute and hence unqualified protection. In particular, competing freedom of expression interests of users (including derivative creators) must not be neglected as a result of such protection. The argument of this chapter is that, despite a relative lack of attention towards the effects of moral rights on the freedom of expression of others, moral rights, if applied in an unlimited way, might impede users’ freedoms even to a greater extent than economic rights of copyright holders. The problem thus deserves further scrutiny and solutions need to be advanced to guarantee that uses of copyright-protected works that are essential for a democratic society are not unduly hindered by moral rights.

Freedom of expression, moral rights

RIS

Save .RIS

Bibtex

Save .bib