Intellectual property

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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Deepfakes: IP Is Not the Cure external link

Hugenholtz, P.B.

GRUR International, vol. 75, iss. : 9, pp: 803-804, 2026

Links

Copyright, deepfakes, Intellectual property

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

Izyumenko, E.

GRUR International, vol. 75, iss. : 5, pp: 437-444, 2026

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).

Links

Freedom of expression, Human rights, Intellectual property

RIS

TY  - JOUR
AU  - Izyumenko, E.
PY  - 2026
DA  - 2026-01-22
T1  - The European Court of Human Rights and Intellectual Property: Still Waiting for the New Innovation Frontier?
JO  - GRUR International
VL  - 75
IS  - 5
SP  - 437-444
DO  - https://doi.org/10.1093/grurint/ikag004
AB  - 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).
K1  - Freedom of expression
K1  - Human rights
K1  - Intellectual property
ER  -

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Bibtex

Article{nokey,
	title = {The European Court of Human Rights and Intellectual Property: Still Waiting for the New Innovation Frontier?},
	author = {Izyumenko, E.},
	url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5375309},
	doi = {https://doi.org/10.1093/grurint/ikag004},
	year = {2026},
	date = {2026-01-22},
	journal = {GRUR International},
	volume = {75},
	issue = {5},
	pages = {437-444},
	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).},
	keywords = {Freedom of expression, Human rights, Intellectual property},
}

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Freedom of Expression and Intellectual Property before the European Courts external link

Izyumenko, E. & Geiger, C.

In: E. Izyumenko and C. Geiger, Human Rights and Intellectual Property before the European Courts: A Case Commentary on the Court of Justice of the European Union and the European Court of Human Rights , Edward Elgar Publishing, 2025, Series: Elgar Commentaries in European Law

Abstract

This paper presents the second chapter of the forthcoming book Human Rights and Intellectual Property before the European Courts: A Case Commentary on the Court of Justice of the European Union and the European Court of Human Rights, the first comprehensive guide to how Europe’s highest courts address the intersection of intellectual property (IP) and human rights. This chapter analyses the relationship between freedom of expression and intellectual property in European law, focusing on how IP rights are balanced against the privileged yet limited right to free expression under Article 10 of the European Convention on Human Rights and Article 11 of the EU Charter. It outlines the three-part test of the European Court of Human Rights (ECtHR) for assessing interferences with freedom of expression and situates IP protection within the “rights of others” that may justify restrictions. The chapter then examines copyright and trademark law as the two principal areas in which this conflict has arisen before the ECtHR and the Court of Justice of the European Union (CJEU). In copyright, it highlights the growing engagement of both courts with freedom of expression claims and the divergence between the ECtHR’s acceptance of freedom of expression as an external limitation on copyright and the CJEU’s preference for internal balancing through copyright exceptions interpreted in the light of fundamental rights. In trademark law, it explores disputes over third-party expressive uses and refusals of trademark registration, noting the courts’ increasingly nuanced and contextual approach. Overall, the chapter shows how freedom of expression has become a central, though differently framed, constraint on IP protection in Europe.

Links

Freedom of expression, Intellectual property

RIS

TY  - CHAP
AU  - Izyumenko, E.
AU  - Geiger, C.
PY  - 2025
DA  - 2025-12-15
T1  - Freedom of Expression and Intellectual Property before the European Courts
DO  - https://doi.org/10.2139/ssrn.5923642
AB  - This paper presents the second chapter of the forthcoming book Human Rights and Intellectual Property before the European Courts: A Case Commentary on the Court of Justice of the European Union and the European Court of Human Rights, the first comprehensive guide to how Europe’s highest courts address the intersection of intellectual property (IP) and human rights. This chapter analyses the relationship between freedom of expression and intellectual property in European law, focusing on how IP rights are balanced against the privileged yet limited right to free expression under Article 10 of the European Convention on Human Rights and Article 11 of the EU Charter. It outlines the three-part test of the European Court of Human Rights (ECtHR) for assessing interferences with freedom of expression and situates IP protection within the “rights of others” that may justify restrictions.

The chapter then examines copyright and trademark law as the two principal areas in which this conflict has arisen before the ECtHR and the Court of Justice of the European Union (CJEU). In copyright, it highlights the growing engagement of both courts with freedom of expression claims and the divergence between the ECtHR’s acceptance of freedom of expression as an external limitation on copyright and the CJEU’s preference for internal balancing through copyright exceptions interpreted in the light of fundamental rights. In trademark law, it explores disputes over third-party expressive uses and refusals of trademark registration, noting the courts’ increasingly nuanced and contextual approach. Overall, the chapter shows how freedom of expression has become a central, though differently framed, constraint on IP protection in Europe.
K1  - Freedom of expression
K1  - Intellectual property
ER  -

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Bibtex

Chapter{nokey,
	title = {Freedom of Expression and Intellectual Property before the European Courts},
	author = {Izyumenko, E. and Geiger, C.},
	url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5923642},
	doi = {https://doi.org/10.2139/ssrn.5923642},
	year = {2025},
	date = {2025-12-15},
	abstract = {This paper presents the second chapter of the forthcoming book Human Rights and Intellectual Property before the European Courts: A Case Commentary on the Court of Justice of the European Union and the European Court of Human Rights, the first comprehensive guide to how Europe’s highest courts address the intersection of intellectual property (IP) and human rights. This chapter analyses the relationship between freedom of expression and intellectual property in European law, focusing on how IP rights are balanced against the privileged yet limited right to free expression under Article 10 of the European Convention on Human Rights and Article 11 of the EU Charter. It outlines the three-part test of the European Court of Human Rights (ECtHR) for assessing interferences with freedom of expression and situates IP protection within the “rights of others” that may justify restrictions.

The chapter then examines copyright and trademark law as the two principal areas in which this conflict has arisen before the ECtHR and the Court of Justice of the European Union (CJEU). In copyright, it highlights the growing engagement of both courts with freedom of expression claims and the divergence between the ECtHR’s acceptance of freedom of expression as an external limitation on copyright and the CJEU’s preference for internal balancing through copyright exceptions interpreted in the light of fundamental rights. In trademark law, it explores disputes over third-party expressive uses and refusals of trademark registration, noting the courts’ increasingly nuanced and contextual approach. Overall, the chapter shows how freedom of expression has become a central, though differently framed, constraint on IP protection in Europe.},
	keywords = {Freedom of expression, Intellectual property},
}

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Intellectual Property and the Human Right to a Healthy Environment external link

Izyumenko, E.

Verfassungsbooks, 2025, Berlin, ISBN: 9783565044535

Links

Human rights, Intellectual property

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Balancing Intellectual Property Protection with the Human Right to a Healthy Environment: Internal and External Reconciliation Approaches download

Izyumenko, E.

Chapter in: E. Izyumenko (ed.), Intellectual Property and the Human Right to a Healthy Environment, Verfassungsbooks, 2025, Berlin, ISBN: 9783565044535

Links

healthy environment, Human rights, Intellectual property

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Human Rights and Intellectual Property Before the European Courts: A Case Commentary on the Court of Justice of the European Union and the European Court of Human Rights external link

Izyumenko, E. & Geiger, C.

Edward Elgar Publishing, 2025, pp: 876, ISBN: 978103536887

Abstract

This unique reference work serves as a comprehensive guide to how Europe’s top courts – the Court of Justice of the European Union and the European Court of Human Rights – address the intersection of intellectual property (IP) and human rights. It traces the evolution of the courts’ jurisprudence in these fields and explores how human and fundamental rights including freedom of expression, freedom to conduct a business, and the right to a fair trial can influence copyright, trademarks, patents, and other IP rights.

Links

https://www.e-elgar.com/shop/gbp/human-rights-and-intellectual-property-before-the-european-courts-9781035368877.html

Human rights, Intellectual property

RIS

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Bibtex

Book{nokey,
	title = {Human Rights and Intellectual Property Before the European Courts: A Case Commentary on the Court of Justice of the European Union and the European Court of Human Rights},
	author = {Izyumenko, E. and Geiger, C.},
	url = {https://www.e-elgar.com/shop/gbp/human-rights-and-intellectual-property-before-the-european-courts-9781035368877.html},
	year = {2025},
	date = {2025-12-19},
	pages = {876},
	abstract = {This unique reference work serves as a comprehensive guide to how Europe’s top courts – the Court of Justice of the European Union and the European Court of Human Rights – address the intersection of intellectual property (IP) and human rights. It traces the evolution of the courts’ jurisprudence in these fields and explores how human and fundamental rights including freedom of expression, freedom to conduct a business, and the right to a fair trial can influence copyright, trademarks, patents, and other IP rights.},
	keywords = {Human rights, Intellectual property},
}

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Intellectual Property and the Human Right to a Healthy Environment: An Introduction download

Izyumenko, E.

Chapter in: E. Izyumenko (ed.), Intellectual Property and the Human Right to a Healthy Environment, Verfassungsbooks, 2025, Berlin, pp: 9-19, ISBN: 9783565044535

Links

Human rights, Intellectual property

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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

Links

Freedom of expression, Intellectual property

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Fashion Upcycling: The Problem of Overlapping Intellectual Property Rights and How to Solve it external link

Senftleben, M.

Heidi Härkönen and Péter Mezei (eds.), Cambridge Handbook on Intellectual Property and Upcycling, 2025, forthcoming, Cambridge University Press , 2025, pp: 221-241, ISBN: 9781009685108

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.

Links

Fashion, Intellectual property

RIS

TY  - CHAP
AU  - Senftleben, M.
PY  - 2025
DA  - 2025-08-19
T1  - Fashion Upcycling: The Problem of Overlapping Intellectual Property Rights and How to Solve it
SP  - 221-241
UR  - https://www.ivir.nl/nl/publications/fashion-upcycling-the-problem-of-overlapping-intellectual-property-rights-and-how-to-solve-it/fashion_upcycling_book/
DO  - https://doi.org/10.1017/9781009685078.017
AB  - 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.
K1  - Fashion
K1  - Intellectual property
ER  -

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Bibtex

Chapter{nokey,
	title = {Fashion Upcycling: The Problem of Overlapping Intellectual Property Rights and How to Solve it},
	author = {Senftleben, M.},
	doi = {https://doi.org/10.1017/9781009685078.017},
	year = {2025},
	date = {2025-08-19},
	pages = {221-241},
	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.},
	keywords = {Fashion, Intellectual property},
}

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