Publications

From AI Ethics to AI Regulation: Emerging Regulatory Frameworks for AI-Enhanced Justice

In: The Cambridge Handbook of AI in Civil Dispute Resolution, Cambridge University Press , 2026, pp: 51-67, ISBN: 9781009589086

Abstract

In governing the development and deployment of AI across the European Member States, the EU AI Act tries to bring together two very different visions of AI. The first sees AI as a powerful tool that can be made less risky to the health, safety, and fundamental rights of European consumers if it adheres to a series of technical requirements. The second sees AI as a systems technology whose governance requires a nuanced understanding of its transformative effects on the values, fundamental rights, and power relations that characterise society. This chapter uses these two perspectives on AI as a lens through which to reflect on the implications of the EU AI Act for the justice sector. It analyses the extent to which the Act’s provisions and safeguards are aligned with emerging ethical guidelines for the use of AI in the administration of justice and discusses whether it can be expected to effectively address core ethical concerns about the use of AI in the justice sector. This analysis demonstrates the limitations of the ‘tool’ perspective that dominates the AI Act and reveals the considerable discretion it gives judicial authorities to guide the integration of AI as a societally transformative systems technology into the justice sector.

Links

DOI: https://doi.org/10.1017/9781009589086.009

RIS

TY  - CHAP
AU  - Helberger, N.
AU  - Banks, I.
PY  - 2026
DA  - 2026-05-21
T1  - From AI Ethics to AI Regulation: Emerging Regulatory Frameworks for AI-Enhanced Justice
SP  - 51-67
DO  - https://doi.org/10.1017/9781009589086.009
AB  - In governing the development and deployment of AI across the European Member States, the EU AI Act tries to bring together two very different visions of AI. The first sees AI as a powerful tool that can be made less risky to the health, safety, and fundamental rights of European consumers if it adheres to a series of technical requirements. The second sees AI as a systems technology whose governance requires a nuanced understanding of its transformative effects on the values, fundamental rights, and power relations that characterise society. This chapter uses these two perspectives on AI as a lens through which to reflect on the implications of the EU AI Act for the justice sector. It analyses the extent to which the Act’s provisions and safeguards are aligned with emerging ethical guidelines for the use of AI in the administration of justice and discusses whether it can be expected to effectively address core ethical concerns about the use of AI in the justice sector. This analysis demonstrates the limitations of the ‘tool’ perspective that dominates the AI Act and reveals the considerable discretion it gives judicial authorities to guide the integration of AI as a societally transformative systems technology into the justice sector.
ER  -

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Bibtex

Chapter{nokey,
	title = {From AI Ethics to AI Regulation: Emerging Regulatory Frameworks for AI-Enhanced Justice},
	author = {Helberger, N. and Banks, I.},
	doi = {https://doi.org/10.1017/9781009589086.009},
	year = {2026},
	date = {2026-05-21},
	pages = {51-67},
	abstract = {In governing the development and deployment of AI across the European Member States, the EU AI Act tries to bring together two very different visions of AI. The first sees AI as a powerful tool that can be made less risky to the health, safety, and fundamental rights of European consumers if it adheres to a series of technical requirements. The second sees AI as a systems technology whose governance requires a nuanced understanding of its transformative effects on the values, fundamental rights, and power relations that characterise society. This chapter uses these two perspectives on AI as a lens through which to reflect on the implications of the EU AI Act for the justice sector. It analyses the extent to which the Act’s provisions and safeguards are aligned with emerging ethical guidelines for the use of AI in the administration of justice and discusses whether it can be expected to effectively address core ethical concerns about the use of AI in the justice sector. This analysis demonstrates the limitations of the ‘tool’ perspective that dominates the AI Act and reveals the considerable discretion it gives judicial authorities to guide the integration of AI as a societally transformative systems technology into the justice sector.},
}

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Enabling contestation: The right to an explanation of judicial AI external link

Metikoš, L.

2026

Abstract

Judges across the world increasingly use various AI-tools in the administration of justice. However, litigants may be unable to contest important pieces of evidence or legal arguments when the functioning and usage of these systems remains unexplained. This dissertation discusses how a right to an explanation could enable litigant contestation of judicial AI. To that end, a comparative overview is provided of the scope, content, and restrictions of this right under due process safeguards, Data Protection Law, and AI Law in the EU, Brazil, and China. Moreover, based on four different theories of procedural justice, the normative reasons why litigant contestation of judicial AI should be enabled are also discussed. This includes analyses of utilitarian, rights-based (including a dignitarian and a Dworkinian approach), and relational approaches to procedural justice. These highlight different values of litigant contestation; it has instrumental value in error correction, and intrinsic value in respecting the dignity of litigants, either as rational autonomous agents or as socio-relational beings. However, it is technically difficult to faithfully explain the internal workings of certain opaque AI-models. Moreover, integrity and safety concerns and the potential violation of trade secrets and business interests of external developers could block the disclosure of explanations. To address these issues, this dissertation argues that judiciaries should adopt certain technical and organizational measures already during the development of judicial AI. This shows that the right to an explanation should not be conceptualized as a mere procedural right, but also as a substantive requirement that safeguards contestation by design.

Links

https://pure.uva.nl/ws/files/321271751/Thesis.pdf

Artificial intelligence, contestation, digital justice, right to an explanation

RIS

TY  - THES
AU  - Metikoš, L.
PY  - 2026
DA  - 2026-06-03
T1  - Enabling contestation: The right to an explanation of judicial AI
AB  - Judges across the world increasingly use various AI-tools in the administration of justice. However, litigants may be unable to contest important pieces of evidence or legal arguments when the functioning and usage of these systems remains unexplained. This dissertation discusses how a right to an explanation could enable litigant contestation of judicial AI. To that end, a comparative overview is provided of the scope, content, and restrictions of this right under due process safeguards, Data Protection Law, and AI Law in the EU, Brazil, and China. Moreover, based on four different theories of procedural justice, the normative reasons why litigant contestation of judicial AI should be enabled are also discussed. This includes analyses of utilitarian, rights-based (including a dignitarian and a Dworkinian approach), and relational approaches to procedural justice. These highlight different values of litigant contestation; it has instrumental value in error correction, and intrinsic value in respecting the dignity of litigants, either as rational autonomous agents or as socio-relational beings. However, it is technically difficult to faithfully explain the internal workings of certain opaque AI-models. Moreover, integrity and safety concerns and the potential violation of trade secrets and business interests of external developers could block the disclosure of explanations. To address these issues, this dissertation argues that judiciaries should adopt certain technical and organizational measures already during the development of judicial AI. This shows that the right to an explanation should not be conceptualized as a mere procedural right, but also as a substantive requirement that safeguards contestation by design.
K1  - Artificial intelligence
K1  - contestation
K1  - digital justice
K1  - right to an explanation
ER  -

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Bibtex

PhD Thesis{nokey,
	title = {Enabling contestation: The right to an explanation of judicial AI},
	author = {Metikoš, L.},
	url = {https://pure.uva.nl/ws/files/321271751/Thesis.pdf},
	year = {2026},
	date = {2026-06-03},
	abstract = {Judges across the world increasingly use various AI-tools in the administration of justice. However, litigants may be unable to contest important pieces of evidence or legal arguments when the functioning and usage of these systems remains unexplained. This dissertation discusses how a right to an explanation could enable litigant contestation of judicial AI. To that end, a comparative overview is provided of the scope, content, and restrictions of this right under due process safeguards, Data Protection Law, and AI Law in the EU, Brazil, and China. Moreover, based on four different theories of procedural justice, the normative reasons why litigant contestation of judicial AI should be enabled are also discussed. This includes analyses of utilitarian, rights-based (including a dignitarian and a Dworkinian approach), and relational approaches to procedural justice. These highlight different values of litigant contestation; it has instrumental value in error correction, and intrinsic value in respecting the dignity of litigants, either as rational autonomous agents or as socio-relational beings. However, it is technically difficult to faithfully explain the internal workings of certain opaque AI-models. Moreover, integrity and safety concerns and the potential violation of trade secrets and business interests of external developers could block the disclosure of explanations. To address these issues, this dissertation argues that judiciaries should adopt certain technical and organizational measures already during the development of judicial AI. This shows that the right to an explanation should not be conceptualized as a mere procedural right, but also as a substantive requirement that safeguards contestation by design.},
	keywords = {Artificial intelligence, contestation, digital justice, right to an explanation},
}

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Comparing the right to an explanation of judicial AI by function; studies on the EU, Brazil, and China

Metikoš, L., Iglesias Keller, C., Qiao, C. & Helberger, N.

Computer Law & Security Review, vol. 61, 2026

Abstract

Courts across the world are increasingly adopting Artificial Intelligence (AI) to automate various tasks. But the opacity of judicial AI systems can hinder the ability of litigants to contest vital pieces of evidence and legal observations. One proposed remedy for the inscrutability of judicial AI has been the right to an explanation. This paper provides a comparative analysis of the scope and contents of a right to an explanation of judicial AI in the European Union (EU), Brazil, and China; three jurisdictions with distinct legal traditions and institutional architectures. We argue that such a right needs to take into account that judicial AI can perform widely different functions. We provide a classification of these functions, ranging from ancillary to impactful tasks. We subsequently compare, by function, how judicial AI would need to be explained under due process standards, Data Protection Law, and AI regulation in the EU, Brazil, and China. We find that due process standards provide a broad normative basis for a derived right to an explanation. However, these standards do not sufficiently clarify the scope and content of such a right. Data Protection Law and AI regulations contain more explicitly formulated rights to an explanation that also apply to certain judicial AI systems. Nevertheless, they often exclude impactful functions of judicial AI from their scope. Within these laws there is also a lack of guidance as to what explainability substantively entails. Ultimately, this patchwork of legal frameworks suggests that the protection of litigant contestation is still incomplete, requiring further legislative and scholarly efforts to substantiate the right to an explanation in the administration of justice.

Links

DOI: https://doi.org/10.1016/j.clsr.2026.106302

Artificial intelligence, contestation, digital justice, explainability, right to an explanation

RIS

TY  - JOUR
AU  - Metikoš, L.
AU  - Iglesias Keller, C.
AU  - Qiao, C.
AU  - Helberger, N.
PY  - 2026
DA  - 2026-06-09
T1  - Comparing the right to an explanation of judicial AI by function; studies on the EU, Brazil, and China
JO  - Computer Law & Security Review
VL  - 61
DO  - https://doi.org/10.1016/j.clsr.2026.106302
AB  - Courts across the world are increasingly adopting Artificial Intelligence (AI) to automate various tasks. But the opacity of judicial AI systems can hinder the ability of litigants to contest vital pieces of evidence and legal observations. One proposed remedy for the inscrutability of judicial AI has been the right to an explanation. This paper provides a comparative analysis of the scope and contents of a right to an explanation of judicial AI in the European Union (EU), Brazil, and China; three jurisdictions with distinct legal traditions and institutional architectures. We argue that such a right needs to take into account that judicial AI can perform widely different functions. We provide a classification of these functions, ranging from ancillary to impactful tasks. We subsequently compare, by function, how judicial AI would need to be explained under due process standards, Data Protection Law, and AI regulation in the EU, Brazil, and China. We find that due process standards provide a broad normative basis for a derived right to an explanation. However, these standards do not sufficiently clarify the scope and content of such a right. Data Protection Law and AI regulations contain more explicitly formulated rights to an explanation that also apply to certain judicial AI systems. Nevertheless, they often exclude impactful functions of judicial AI from their scope. Within these laws there is also a lack of guidance as to what explainability substantively entails. Ultimately, this patchwork of legal frameworks suggests that the protection of litigant contestation is still incomplete, requiring further legislative and scholarly efforts to substantiate the right to an explanation in the administration of justice.
K1  - Artificial intelligence
K1  - contestation
K1  - digital justice
K1  - explainability
K1  - right to an explanation
ER  -

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Bibtex

Article{nokey,
	title = {Comparing the right to an explanation of judicial AI by function; studies on the EU, Brazil, and China},
	author = {Metikoš, L. and Iglesias Keller, C. and Qiao, C. and Helberger, N.},
	doi = {https://doi.org/10.1016/j.clsr.2026.106302},
	year = {2026},
	date = {2026-06-09},
	journal = {Computer Law & Security Review},
	volume = {61},
	abstract = {Courts across the world are increasingly adopting Artificial Intelligence (AI) to automate various tasks. But the opacity of judicial AI systems can hinder the ability of litigants to contest vital pieces of evidence and legal observations. One proposed remedy for the inscrutability of judicial AI has been the right to an explanation. This paper provides a comparative analysis of the scope and contents of a right to an explanation of judicial AI in the European Union (EU), Brazil, and China; three jurisdictions with distinct legal traditions and institutional architectures. We argue that such a right needs to take into account that judicial AI can perform widely different functions. We provide a classification of these functions, ranging from ancillary to impactful tasks. We subsequently compare, by function, how judicial AI would need to be explained under due process standards, Data Protection Law, and AI regulation in the EU, Brazil, and China. We find that due process standards provide a broad normative basis for a derived right to an explanation. However, these standards do not sufficiently clarify the scope and content of such a right. Data Protection Law and AI regulations contain more explicitly formulated rights to an explanation that also apply to certain judicial AI systems. Nevertheless, they often exclude impactful functions of judicial AI from their scope. Within these laws there is also a lack of guidance as to what explainability substantively entails. Ultimately, this patchwork of legal frameworks suggests that the protection of litigant contestation is still incomplete, requiring further legislative and scholarly efforts to substantiate the right to an explanation in the administration of justice.},
	keywords = {Artificial intelligence, contestation, digital justice, explainability, right to an explanation},
}

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Annotatie bij Hof van Justitie van de Europese Unie 4 december 2025 (Mio / Galleri Mikael & Thomas Asplund Aktiebolag en USM U. Schärer Söhne / Konektra) download

Hugenholtz, P.B.

Nederlandse Jurisprudentie, iss. : 18, num: 155, pp: 3364-3367, 2026

Links

Annotatie_NJ_2026_155

Copyright, Neighbouring rights, reproductierecht

RIS

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New IViR Study: Towards a Digital Knowledge Act – Mapping Policy Options to Mitigate Legal Risks for Teaching, Learning and Research external link

Valk, E.G., Szkalej, K. & Senftleben, M.

Kluwer Copyright Blog, 2026

Links

https://legalblogs.wolterskluwer.com/copyright-blog/new-ivir-study-towards-a-digital-knowledge-act-mapping-policy-options-to-mitigate-legal-risks-for-teaching-learning-and-research/

Copyright

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A Blind Spot at the Heart of EU Copyright and AI Policymaking? external link

Keller, P.

Kluwer Copyright Blog, 2026

Links

https://legalblogs.wolterskluwer.com/copyright-blog/a-blind-spot-at-the-heart-of-eu-copyright-and-ai-policymaking/

Copyright

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Digital Fairness Act: Why we need an ambitious DFA to protect digital consumers from manipulative and addictive design practices external link

Albert, J.A., Sax, M. & Helberger, N.

DSA Observatory, 2026

Links

https://dsa-observatory.eu/2026/05/19/digital-fairness-act-why-we-need-an-ambitious-dfa-to-protect-digital-consumers-from-manipulative-and-addictive-design-practices/

RIS

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Trademark Law as Regulation of Expression: Why Article 10 ECHR Should Become the Internal Grammar of European Trademark Law external link

Izyumenko, E.

2026

Abstract

This chapter argues that European trademark law increasingly operates as a system of expression regulation and should therefore be reconstructed in light of Article 10 ECHR. Trademark law no longer merely protects consumers against deception: through anti-dilution protection, expansive infringement standards, and morality-based registration rules, it increasingly governs the circulation of cultural and political meanings attached to trademarks, which themselves have become communicative resources used in parody, artistic appropriation, political criticism, activism, journalism, and public debate. The chapter first identifies the two principal contexts in which these tensions arise: restrictions on expressive reuse of trademarks and refusals to register allegedly immoral or offensive signs. It then analyses the Article 10 principles most relevant to trademark law, focusing on the listener-oriented structure of freedom of expression and its implications for confusion-based and anti-dilution protection; the constitutional treatment of commercial speech and the dangers of overly broad conceptions of “commerciality”; the heightened protection afforded to speech on matters of public interest; the protection of artistic expression, satire, and humour; the broader tolerance required for criticism of powerful corporate actors; and the contextual protection of offensive or provocative expression. Building on this framework, the chapter argues that freedom of expression should not remain an external defence applied only after infringement has been established. Instead, Article 10 values should shape trademark doctrine internally, including the interpretation of use in the course of trade, use in relation to goods or services, anti-dilution protection, due cause, and morality or public-order exclusions. It concludes that trademark law can retain its legitimate market-regulating role only if Article 10 ECHR becomes part of its internal doctrinal structure.

Links

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=6805099

Art. 10 EVRM, Freedom of expression, Trademark law

RIS

TY  - UNPD
AU  - Izyumenko, E.
PY  - 2026
DA  - 2026-05-20
T1  - Trademark Law as Regulation of Expression: Why Article 10 ECHR Should Become the Internal Grammar of European Trademark Law
AB  - This chapter argues that European trademark law increasingly operates as a system of expression regulation and should therefore be reconstructed in light of Article 10 ECHR. Trademark law no longer merely protects consumers against deception: through anti-dilution protection, expansive infringement standards, and morality-based registration rules, it increasingly governs the circulation of cultural and political meanings attached to trademarks, which themselves have become communicative resources used in parody, artistic appropriation, political criticism, activism, journalism, and public debate.

The chapter first identifies the two principal contexts in which these tensions arise: restrictions on expressive reuse of trademarks and refusals to register allegedly immoral or offensive signs. It then analyses the Article 10 principles most relevant to trademark law, focusing on the listener-oriented structure of freedom of expression and its implications for confusion-based and anti-dilution protection; the constitutional treatment of commercial speech and the dangers of overly broad conceptions of “commerciality”; the heightened protection afforded to speech on matters of public interest; the protection of artistic expression, satire, and humour; the broader tolerance required for criticism of powerful corporate actors; and the contextual protection of offensive or provocative expression. Building on this framework, the chapter argues that freedom of expression should not remain an external defence applied only after infringement has been established. Instead, Article 10 values should shape trademark doctrine internally, including the interpretation of use in the course of trade, use in relation to goods or services, anti-dilution protection, due cause, and morality or public-order exclusions. It concludes that trademark law can retain its legitimate market-regulating role only if Article 10 ECHR becomes part of its internal doctrinal structure.
K1  - Art. 10 EVRM
K1  - Freedom of expression
K1  - Trademark law
ER  -

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Bibtex

Working paper{nokey,
	title = {Trademark Law as Regulation of Expression: Why Article 10 ECHR Should Become the Internal Grammar of European Trademark Law},
	author = {Izyumenko, E.},
	url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=6805099},
	year = {2026},
	date = {2026-05-20},
	abstract = {This chapter argues that European trademark law increasingly operates as a system of expression regulation and should therefore be reconstructed in light of Article 10 ECHR. Trademark law no longer merely protects consumers against deception: through anti-dilution protection, expansive infringement standards, and morality-based registration rules, it increasingly governs the circulation of cultural and political meanings attached to trademarks, which themselves have become communicative resources used in parody, artistic appropriation, political criticism, activism, journalism, and public debate.

The chapter first identifies the two principal contexts in which these tensions arise: restrictions on expressive reuse of trademarks and refusals to register allegedly immoral or offensive signs. It then analyses the Article 10 principles most relevant to trademark law, focusing on the listener-oriented structure of freedom of expression and its implications for confusion-based and anti-dilution protection; the constitutional treatment of commercial speech and the dangers of overly broad conceptions of “commerciality”; the heightened protection afforded to speech on matters of public interest; the protection of artistic expression, satire, and humour; the broader tolerance required for criticism of powerful corporate actors; and the contextual protection of offensive or provocative expression. Building on this framework, the chapter argues that freedom of expression should not remain an external defence applied only after infringement has been established. Instead, Article 10 values should shape trademark doctrine internally, including the interpretation of use in the course of trade, use in relation to goods or services, anti-dilution protection, due cause, and morality or public-order exclusions. It concludes that trademark law can retain its legitimate market-regulating role only if Article 10 ECHR becomes part of its internal doctrinal structure.},
	keywords = {Art. 10 EVRM, Freedom of expression, Trademark law},
}

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Comment of the European Copyright Society on the Request for Preliminary Ruling in Case C-250/25 (Like Company) external link

Mezei, P., Kretschmer, M., Margoni, T., Peukert, A. & Quintais, J.

IIC, 2026

Abstract

The reference in Like Company v Google (Case C-250/25) is seen as a potential landmark case, giving the EU’s highest court the opportunity to define the scope and conditions of permitted artificial intelligence (AI) training and develop an infringement test for AI outputs. The European Copyright Society (ECS) urges the Court of Justice (sitting as a Grand Chamber) to exercise caution. While the reference stems from a plausible complaint by a press publisher against the provider of an AI powered chatbot reproducing and communicating its editorial content, the implications of this problematic reference could be far-reaching. 1. The reference is factually murky with respect to the technology and services at stake, conflating concepts of “chatbot”, “large language model”, and “search engine”. 2. The reference fails to identify consistently the subject matter at stake, which is the press publishers’ right under Art. 15 of the Copyright in the Digital Single Market Directive (2019/790/EU, hereinafter CDSMD), not authorial works. Specifically, the reference conflates questions relating to the training phase (Questions 2 and 3) with the legal characterisation of the use of press publications by an LLM-based chatbot (Question 4 but also Question 1, referring to the right of communication to the public and the right of reproduction under Directive 2001/29/EC, hereinafter the InfoSoc Directive). If the reference is found admissible, it is suggested that the Court of Justice should address jointly Questions 4 and 1, which relate to the legal characterisation of the use of press publications in the display. Here it is important to correctly understand next-token prediction in large language models, augmented retrieval technology (where the use of data does not generally form part of the learning process) as well as “online use”, defining the scope of the press publishers’ right under Art. 15 of the CDSMD. In the opinion of the ECS, the ambiguous characterisation of a fast-moving technology may result in the failure to realise the societal benefits of AI as a potential general-purpose technology. There are risks that a rash decision will push Europe towards a licensing economy in which AI systems are offered as a service by (non-European) multinationals, without solving issues of equity such as creator consent and distribution of revenues.

Links

Copyright

RIS

TY  - JOUR
AU  - Mezei, P.
AU  - Kretschmer, M.
AU  - Margoni, T.
AU  - Peukert, A.
AU  - Quintais, J.
PY  - 2026
DA  - 2026-05-18
T1  - Comment of the European Copyright Society on the Request for Preliminary Ruling in Case C-250/25 (Like Company)
JO  - IIC
DO  - https://doi.org/10.1007/s40319-026-01717-6
AB  - The reference in Like Company v Google (Case C-250/25) is seen as a potential landmark case, giving the EU’s highest court the opportunity to define the scope and conditions of permitted artificial intelligence (AI) training and develop an infringement test for AI outputs. The European Copyright Society (ECS) urges the Court of Justice (sitting as a Grand Chamber) to exercise caution. While the reference stems from a plausible complaint by a press publisher against the provider of an AI powered chatbot reproducing and communicating its editorial content, the implications of this problematic reference could be far-reaching.

1.
The reference is factually murky with respect to the technology and services at stake, conflating concepts of “chatbot”, “large language model”, and “search engine”.

2.
The reference fails to identify consistently the subject matter at stake, which is the press publishers’ right under Art. 15 of the Copyright in the Digital Single Market Directive (2019/790/EU, hereinafter CDSMD), not authorial works.

Specifically, the reference conflates questions relating to the training phase (Questions 2 and 3) with the legal characterisation of the use of press publications by an LLM-based chatbot (Question 4 but also Question 1, referring to the right of communication to the public and the right of reproduction under Directive 2001/29/EC, hereinafter the InfoSoc Directive). If the reference is found admissible, it is suggested that the Court of Justice should address jointly Questions 4 and 1, which relate to the legal characterisation of the use of press publications in the display. Here it is important to correctly understand next-token prediction in large language models, augmented retrieval technology (where the use of data does not generally form part of the learning process) as well as “online use”, defining the scope of the press publishers’ right under Art. 15 of the CDSMD. In the opinion of the ECS, the ambiguous characterisation of a fast-moving technology may result in the failure to realise the societal benefits of AI as a potential general-purpose technology. There are risks that a rash decision will push Europe towards a licensing economy in which AI systems are offered as a service by (non-European) multinationals, without solving issues of equity such as creator consent and distribution of revenues.
K1  - Copyright
ER  -

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Bibtex

Article{nokey,
	title = {Comment of the European Copyright Society on the Request for Preliminary Ruling in Case C-250/25 (Like Company)},
	author = {Mezei, P. and Kretschmer, M. and Margoni, T. and Peukert, A. and Quintais, J.},
	url = {https://link.springer.com/article/10.1007/s40319-026-01717-6},
	doi = {https://doi.org/10.1007/s40319-026-01717-6},
	year = {2026},
	date = {2026-05-18},
	journal = {IIC},
	abstract = {The reference in Like Company v Google (Case C-250/25) is seen as a potential landmark case, giving the EU’s highest court the opportunity to define the scope and conditions of permitted artificial intelligence (AI) training and develop an infringement test for AI outputs. The European Copyright Society (ECS) urges the Court of Justice (sitting as a Grand Chamber) to exercise caution. While the reference stems from a plausible complaint by a press publisher against the provider of an AI powered chatbot reproducing and communicating its editorial content, the implications of this problematic reference could be far-reaching.

1.
The reference is factually murky with respect to the technology and services at stake, conflating concepts of “chatbot”, “large language model”, and “search engine”.

2.
The reference fails to identify consistently the subject matter at stake, which is the press publishers’ right under Art. 15 of the Copyright in the Digital Single Market Directive (2019/790/EU, hereinafter CDSMD), not authorial works.

Specifically, the reference conflates questions relating to the training phase (Questions 2 and 3) with the legal characterisation of the use of press publications by an LLM-based chatbot (Question 4 but also Question 1, referring to the right of communication to the public and the right of reproduction under Directive 2001/29/EC, hereinafter the InfoSoc Directive). If the reference is found admissible, it is suggested that the Court of Justice should address jointly Questions 4 and 1, which relate to the legal characterisation of the use of press publications in the display. Here it is important to correctly understand next-token prediction in large language models, augmented retrieval technology (where the use of data does not generally form part of the learning process) as well as “online use”, defining the scope of the press publishers’ right under Art. 15 of the CDSMD. In the opinion of the ECS, the ambiguous characterisation of a fast-moving technology may result in the failure to realise the societal benefits of AI as a potential general-purpose technology. There are risks that a rash decision will push Europe towards a licensing economy in which AI systems are offered as a service by (non-European) multinationals, without solving issues of equity such as creator consent and distribution of revenues.},
	keywords = {Copyright},
}

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Trademark Law and Political Expression: The Case of IKEA v. Vlaams Belang and Beyond external link

Izyumenko, E.

IIC, 2026

Abstract

This article offers a comprehensive exploration of the evolving interface between trademark law and freedom of political expression in Europe, using the CJEU case IKEA v. Vlaams Belang as a focal but not exhaustive case study. It argues that the dispute exemplifies a much broader and increasingly urgent structural question: how EU trademark law – especially in its protection of reputed marks – can be reconciled with the constitutional commitments to political speech, artistic creativity, and democratic participation embedded in Article 10 of the European Convention on Human Rights (ECHR) and Article 11 of the EU Charter. Against a backdrop of the expanding preliminary infringement criteria of “use in the course of trade” and “use in relation to goods or services”, as well as the uniquely far-reaching Benelux “super anti-dilution” regime, the article demonstrates that “due cause” has become the principal doctrinal locus for internalising freedom-of-expression concerns within trademark law. Drawing on Strasbourg jurisprudence, it develops a holistic framework for a free-speech-conforming interpretation of “due cause”, analysing both the criteria suggested by the Belgian referring court and additional factors central to the European Court of Human Rights’ proportionality review, including commerciality, the value of political speech and artistic expression, the reputation of the mark and the power of corporate symbols, availability of alternatives, tolerance for offensive expression, the limits imposed by hate speech, and the compelled speech doctrine. The article concludes that failing to interpret “due cause” in a speech-sensitive way would risk enabling trademark rights to override core democratic freedoms.

Links

Freedom of expression, Political speech, Trademark law

RIS

TY  - JOUR
AU  - Izyumenko, E.
PY  - 2026
DA  - 2026-05-12
T1  - Trademark Law and Political Expression: The Case of IKEA v. Vlaams Belang and Beyond
JO  - IIC
UR  - https://link.springer.com/article/10.1007/s40319-026-01719-4
DO  - https://doi.org/10.1007/s40319-026-01719-4
AB  - This article offers a comprehensive exploration of the evolving interface between trademark law and freedom of political expression in Europe, using the CJEU case IKEA v. Vlaams Belang as a focal but not exhaustive case study. It argues that the dispute exemplifies a much broader and increasingly urgent structural question: how EU trademark law – especially in its protection of reputed marks – can be reconciled with the constitutional commitments to political speech, artistic creativity, and democratic participation embedded in Article 10 of the European Convention on Human Rights (ECHR) and Article 11 of the EU Charter. Against a backdrop of the expanding preliminary infringement criteria of “use in the course of trade” and “use in relation to goods or services”, as well as the uniquely far-reaching Benelux “super anti-dilution” regime, the article demonstrates that “due cause” has become the principal doctrinal locus for internalising freedom-of-expression concerns within trademark law. Drawing on Strasbourg jurisprudence, it develops a holistic framework for a free-speech-conforming interpretation of “due cause”, analysing both the criteria suggested by the Belgian referring court and additional factors central to the European Court of Human Rights’ proportionality review, including commerciality, the value of political speech and artistic expression, the reputation of the mark and the power of corporate symbols, availability of alternatives, tolerance for offensive expression, the limits imposed by hate speech, and the compelled speech doctrine. The article concludes that failing to interpret “due cause” in a speech-sensitive way would risk enabling trademark rights to override core democratic freedoms.
K1  - Freedom of expression
K1  - Political speech
K1  - Trademark law
ER  -

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Article{nokey,
	title = {Trademark Law and Political Expression: The Case of IKEA v. Vlaams Belang and Beyond},
	author = {Izyumenko, E.},
	doi = {https://doi.org/10.1007/s40319-026-01719-4},
	year = {2026},
	date = {2026-05-12},
	journal = {IIC},
	abstract = {This article offers a comprehensive exploration of the evolving interface between trademark law and freedom of political expression in Europe, using the CJEU case IKEA v. Vlaams Belang as a focal but not exhaustive case study. It argues that the dispute exemplifies a much broader and increasingly urgent structural question: how EU trademark law – especially in its protection of reputed marks – can be reconciled with the constitutional commitments to political speech, artistic creativity, and democratic participation embedded in Article 10 of the European Convention on Human Rights (ECHR) and Article 11 of the EU Charter. Against a backdrop of the expanding preliminary infringement criteria of “use in the course of trade” and “use in relation to goods or services”, as well as the uniquely far-reaching Benelux “super anti-dilution” regime, the article demonstrates that “due cause” has become the principal doctrinal locus for internalising freedom-of-expression concerns within trademark law. Drawing on Strasbourg jurisprudence, it develops a holistic framework for a free-speech-conforming interpretation of “due cause”, analysing both the criteria suggested by the Belgian referring court and additional factors central to the European Court of Human Rights’ proportionality review, including commerciality, the value of political speech and artistic expression, the reputation of the mark and the power of corporate symbols, availability of alternatives, tolerance for offensive expression, the limits imposed by hate speech, and the compelled speech doctrine. The article concludes that failing to interpret “due cause” in a speech-sensitive way would risk enabling trademark rights to override core democratic freedoms.},
	keywords = {Freedom of expression, Political speech, Trademark law},
}

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