1 Introduction

Current linear market patterns, characterized by rampant overconsumption, cast a looming shadow over the environment, contributing significantly to its degradation.Footnote 1 In response, the urgent need for environmental consciousness is increasingly recognized, with various practices, such as repair, refurbishment, and fashion upcycling, having emerged as beacons of hope in mitigating the adverse effects of overconsumption.Footnote 2 These practices represent tangible efforts to reduce the environmental footprint, especially in the context of unfolding climate change.Footnote 3

However, an unexpected barrier obstructs these sustainable practices – intellectual property (IP) protection. Despite the pressing call for a shift in linear modes of consumption, IP laws fail to align with sustainability goals. Across jurisdictions, IP holders, wielding near-absolute control over their productions,Footnote 4 are well-equipped to allege trademark or copyright infringement in relation to goods incorporating their intellectual creations. In certain cases, they have even already initiated legal actions against repair, refurbishment, and upcycling businesses in this regard.Footnote 5 The internal mechanisms within IP laws, theoretically capable of safeguarding sustainable practices through concepts like IP exhaustion and exceptions, are often interpreted by the courts to favour stringent protection of IP holders, creating, at most, conflicting outcomes.Footnote 6 This, in turn, generates legal uncertainty that further chills environmentally friendly practices and sustainable business models.Footnote 7

Despite a growing body of scholarship exploring the negative impact of IP protection on repair, refurbishment, upcycling, and sustainability in general,Footnote 8 no study has yet undertaken an in-depth analysis of this problem from a human rights law perspective. This paper seeks to fill this gap by studying the impact of the rapidly evolving human right to a healthy environment on IP laws. Once relegated to the shadows of other human rights, the right to environmental protectionFootnote 9 is promptly gaining in strength through either the “greening” of traditional human rights or via the recognition of a standalone right to a healthy environment. Despite the theoretical potential of alternative mechanisms like relying on “public interest” or unfair competition law to rebalance IP laws in favour of “green” practices, the human rights framework remains essential. This framework like no other prioritizes the well-being and dignity of individuals and communities, making it crucial for interpreting IP law to support environmental protection. Human rights resonate strongly with the general public and are progressively gaining popularity among both the IP lawmakers and judges, including at the EU level.Footnote 10 The Court of Justice of the European Union (CJEU), for example, increasingly considers human rights when interpreting intellectual property laws.Footnote 11 Similarly, another principal supranational court in Europe, the European Court of Human Rights (ECtHR), is gradually engaging in examining IP issues from a human rights perspective.Footnote 12

The analysis unfolds as follows. Section 2 details the legal nature of challenges posed by IP to environmental sustainability, focusing on repair, refurbishment, and upcycling. Section 3 scrutinises the right to a healthy environment as a legal entitlement, examining its evolution and varying modes of protection, with a particular emphasis on Europe. Section 4 proposes strategies for reconciling IP protection with this human right, both internally within trademark and copyright laws and externally through the human rights litigation avenues available to repairers, refurbishers, and upcyclers. The paper concludes by summarising key findings and proposing pathways for a harmonious coexistence between intellectual property and the human right to a healthy environment.

2 Intellectual Property’s Challenges to Environmental Sustainability: The Case of Repair, Refurbishment, and Upcycling

As mentioned already, a number of practices and business models based on repair, refurbishment, and upcycling considerably benefit the environment. Repair involves fixing, refurbishment improves and restores products, while upcycling creatively transforms old items into new goods. These practices contribute to environmental sustainability by reducing waste, conserving resources, and fostering a circular economy, thereby minimizing the demand for new production and lowering the overall environmental impact.

Despite their societal benefits, however, these practices are likely to qualify as a prima facie IP infringement under the current trademark and copyright laws in the EU.Footnote 13

2.1 Circular Business Models as Prima Facie Trademark and Copyright Infringement

Under trademark law, problems arise due to the uncertainty surrounding the conditions under which repaired, refurbished, or upcycled products, still bearing their original trademarks, can be commercialised.Footnote 14 One could think of the replacement of automotive or IT equipment components, refilling of empty containers, repair of electronics, jewellery, watches, and more. In most such cases, the items to be refurbished or repaired would still carry their original makers’ trademarks. Analogously, in the sphere of upcycling, especially with fashion items, old pieces of clothing, bags, or jewellery reworked into new ones might still retain their original trademarks. The primary infringement criterion in trademark law, use “in the course of trade”,Footnote 15 automatically captures such activities, provided that they occur in the commercial sphere and not as a purely private matter.Footnote 16 Effectively, this brings all business models based on the sale of repaired, enhanced, or upcycled goods within the ambit of the use “in the course of trade”. Another trademark law’s primary infringement criterion of the use “in relation to goods or services”Footnote 17 is likewise unable to immunize the business models at issue, as this criterion had been consistently interpreted by the CJEU as requiring as little as establishment of a “link” or “association” with goods or services, rather than necessitating the use of another’s trademark as an identifier of the user’s own commercial source.Footnote 18 Consequently, trademark proprietors are well positioned to assert that repair, refurbishment, and upcycling amount to prima facie trademark infringement – by giving rise to either consumer confusion (including post-sale confusionFootnote 19) or by blurring, tarnishment, or unfair freeriding on a trademark with a reputation.Footnote 20

In addition to the chilling effects of trademark law on circular business models, certain types of these businesses, particularly those centred around upcycling, may potentially generate further claims of copyright infringement. This could occur if upcycled items incorporate copyright-protected works from the original product. One could think here of upcycled clothing, jewellery, or even furniture, glassware, ceramic or other forms of applied arts featuring copyright-protected ornaments or design patterns. Similar to trademark law, the extension of copyright protection to upcycled products is made possible because the entrance criterion for establishing prima facie copyright infringement in the EU – copying of the “author’s own intellectual creation”Footnote 21 – is often interpreted with a bias favouring strong protection for copyright holders. In Infopaq, for example, the CJEU held that even capturing as few as eleven words from the original work could constitute copyright infringement adding also that each individual part or element of a work enjoys copyright protection itself if, analysed in isolation, it satisfies the originality test.Footnote 22 Practically speaking, this means that any taking of a design element of a protected creation amounts to copyright infringement if the taken element fulfils the relatively low originality threshold.Footnote 23

Despite the above-mentioned approaches to prima facie trademark and copyright infringement, it appears, on the first sight, that the doctrine of IP exhaustion should provide an immediate shelter to repair, refurbishment, and upcycling given the particularities of trademark and copyright use implied by these practices – namely, the fixing, improving, or repurposing the old items that had previously been already placed on the market with the rightholders’ consent, and not the creation of new, unauthorized items.Footnote 24

2.2 Exhaustion – the Most Promising Avenue for Accommodating Repair, Refurbishment and Upcycling

IP exhaustion, also known as the “first sale doctrine”, is a legal principle that precludes the rightholder’s control over further distribution or use of their product or work once those have been sold with the rightholder’s consent.Footnote 25

2.2.1 Trademark Exhaustion: Non-coverage of Altered Goods

With respect to trademarks, the first-sale doctrine is incorporated, on the EU level, in Art. 15(1) of the EU Trademark Directive and Art. 15(1) of the EU Trademark Regulation. These provisions state that a trademark shall not entitle the proprietor to prohibit its use in relation to goods which have been put on the market in the Union under that trademark by the proprietor or with the proprietor’s consent. Crucially, however, the second paragraph of these provisions contains an exception to this general rule, in accordance with which the exhaustion would not apply “where there exist legitimate reasons for the proprietor to oppose further commercialisation of the goods, especially where the condition of the goods is changed or impaired after they have been put on the market.”Footnote 26

Given that repair, refurbishment, and upcycling inherently involve varying degrees of alteration to the original condition of goods initially released to the market under the trademark of the rightholder, this exception to the principle of exhaustion poses serious challenges for those running the businesses of repair or enhancement of used items.Footnote 27

In fact, this has already been evident in specific court rulings on the subject. Thus, for example, it was held by the District Court of Munich that the replacement of a firmware installed on used Wi-Fi routers constituted a change in the condition of the goods that precluded their coverage by exhaustion within the meaning of Art. 15(2) of the EU Trademark Directive, irrespective of whether the routers’ functionality had been compromised as a result.Footnote 28 In another case from Germany, it was determined that the resale of chlorine-bleached, re-dyed, and partially shortened second-hand Levi’s jeans by a third party did not fall under exhaustion despite the defendant having prominently displayed in their store, in close proximity to the offered jeans, a notice indicating that the items were used, second-hand jeans not dyed by Levi Strauss.Footnote 29 With the demand for and rise of repair- and upcycling-based businesses, it is likely that more such cases will arise in Europe. This is especially true in light of analogous recent developments in the US, where there has been a rise in trademark law litigation related to, in particular, upcycling practices.Footnote 30

2.2.2 Copyright Exhaustion: Non-coverage of Modifications of Authorized Copies

The situation is somewhat similar in copyright law. In the European Union, Art. 4(2) of the InfoSoc DirectiveFootnote 31 specifically addresses exhaustion, stating that the distribution right of the copyright holder is exhausted within the EU after the first sale or other transfer of ownership of a copy of a work with the rightholder’s consent. While, in contrast to trademark law, there is no explicit legislative provision establishing the non-coverage by exhaustion of modified subject matter under copyright law, essentially the same principle is construed through judicial interpretation.

The most relevant in this respect is the CJEU’s judgment in the case of Allposters,Footnote 32 which concerned the transfer, by means of a chemical process, of images of copyright-protected works from paper posters, marketed with the copyright holder’s consent, to a painter’s canvas that were then sold on that new medium. Faced with the question on whether such a transfer impacted on exhaustion of the distribution right, the CJEU responded in the positive. The Court reached this conclusion by a curious judicial construct, in accordance with which the transfer in question was to be covered not by the exclusive right of distribution (to which only the principle of copyright exhaustion applies) but by the right of reproduction. According to the CJEU, “a replacement of the medium […] results in the creation of a new object incorporating the image of the protected work, whereas the poster itself ceases to exist.”Footnote 33 Pursuant to the CJEU, such an alteration of the copy of the protected work was sufficient to constitute a new reproduction of that work, which required the author’s authorisation.Footnote 34 The CJEU did not accept Allposters’ argument that the transfer onto canvas could not be categorised as reproduction on the ground that there was no multiplication of copies of the protected work since the image was transferred and no longer appeared on the poster.Footnote 35 In the CJEU’s opinion, “[t]he fact that the ink is saved during the transfer cannot affect the finding that the image’s medium has been altered.” Crucially, what was important is “whether the altered object itself, taken as a whole, is, physically, the object that was placed onto the market with the consent of the rightholder.”Footnote 36

Naturally, this conclusion has significant implications for circular business models, such as upcycling, that are inherently based on alteration of used items, which happen to contain copyright-protected elements.Footnote 37 A confirmation of this statement came from Finland, where the Copyright Board was called upon to consider a case concerning the use of pieces of broken tableware for creating designed jewellery.Footnote 38 The Finnish company that produced the tableware opposed such use, claiming infringement of its copyright in the ornaments placed on original tableware that remained visible on the reworked jewellery pieces. Relying on Allposters, the company argued that the use of its ornaments in the jewellery constituted a new unauthorised copy of a work and hence infringed upon its exclusive right of reproduction. The majority of the Finnish Copyright Council members agreed. Explicitly citing Allposters, they stated that, although, unlike in Allposters, the physical medium in which the work was incorporated remained the same,Footnote 39 the creation of jewellery out of broken tableware pieces gave rise to a new object, which was no longer the work that had been authorised for distribution with the consent of the copyright holder.Footnote 40 Exhaustion of the distribution right was, accordingly, not applicable to the production of this new object (i.e., upcycled jewellery pieces).Footnote 41

In summary, it has been shown that, although trademark and copyright exhaustion appear to be the most promising legal avenues for legitimising circular business models centred on repair, refurbishment, or upcycling of old, worn-out or broken items, this doctrine does not cover most cases involving the use of others’ trademarks and copyrights, at least under the current interpretation of relevant legislative provisions.

2.3 IP Exceptions – the Repairers’ and Upcyclers’ Last Hope

In view of the exhaustion’s non-coverage of the use leading to new products, one might turn to another evident option of incorporating sustainability considerations into the legal design of IP laws – trademark and copyright exceptions.

2.3.1 Descriptive, Non-distinctive and Referential Use Exceptions Under Trademark Law

Under trademark law’s catalogue of exceptions, descriptive and non-distinctive, as well as referential use appear the most likely candidates for shielding repair and upcycling businesses.

An exception concerning the use of descriptive and non-distinctive signs is enshrined in Art. 14(1)(b) of the EU Trademark Directive and Art. 14(1)(b) of the EU Trademark Regulation. It legitimizes unauthorized use, in the course of trade, of “signs or indications which are not distinctive or which concern the kind, quality, quantity, intended purpose, value, geographical origin, the time of production of goods or of rendering of the service, or other characteristics of goods or services”. However, the effectiveness of the, first, descriptive use defence in the cases of repair, refurbishment, and upcycling is uncertain,Footnote 42 as the CJEU jurisprudence suggests that “the purely decorative” use of an original trademark in third-party products cannot be regarded as intended to give an indication concerning one of the characteristics of the third party’s goods.Footnote 43 Concerning, second, the non-distinctive use defence, whose addition to the catalogue of available trademark exceptions was a result of the 2015 trademark reform,Footnote 44 the question on whether a trademark-protected sign can be considered non-distinctive in specific contexts, such as repair, refurbishment, or upcycling is yet to be clarified by the CJEU.Footnote 45

As to the referential use exception, its applicability to repair and upcycling appears more likely at first glance.Footnote 46 Article 14(1)(c) of the EU Trademark Directive and Art. 14(1)(c) of the EU Trademark Regulation provide that the proprietor of a trademark cannot prohibit a third party from using, in the course of trade, “the trade mark for the purpose of identifying or referring to goods or services as those of the proprietor of that trade mark, in particular, where the use of the trade mark is necessary to indicate the intended purpose of a product or service, in particular as accessories or spare parts”. However, the applicability of this exception to repair and upcycling-related businesses might be constrained by the strict interpretation of this exception by the CJEU, as recently confirmed in its Audi judgment.Footnote 47 The case revolved around the question of whether it was possible to market non-original spare parts for cars, specifically a radiator grille that included a component for attaching the Audi logo, which was essentially identical to the original logo. In assessing whether that marketing practice fell under the referential use defence, the CJEU distinguished between, on the one hand, the situation in which a spare part produced by the third party does not incorporate a sign identical to the protected trademark – merely using the trademark to indicate the spare part’s compatibility with the goods of the trademark owner – and, on the other hand, the situation in which, by contrast, the protected trademark is affixed to the spare part.Footnote 48 Pursuant to the CJEU, only the former situation was covered by the referential use exception.Footnote 49 Accordingly, “[t]he affixing of a sign identical with, or similar to, the trade mark on the goods marketed by the third party exceed[ed] […] the referential use”.Footnote 50 Such an interpretation might complicate matters not only for the businesses involved in the production and sale of spare parts such as those at stake in the Audi case, but also for upcycling businesses, as some of the latter are inevitably concerned with products bearing third-party trademarks on old items used in upcycling.

In addition, further obstacles to the applicability of the referential use exception may stem from the explicit legislative wording that subjects the referential, as well as the descriptive and indistinctive use exceptions to the requirement of compliance with honest practices in industrial or commercial matters.Footnote 51 The biggest problem arises here, as Senftleben explains, from the fact that “[t]he CJEU tends to determine compliance with honesty in industrial and commercial matters on the basis of the same criteria that inform the analysis of prima facie infringement in trademark confusion and dilution cases.”Footnote 52 This “symmetry of criteria for assessing prima facie infringement and determining honesty in industrial and commercial matters” then “easily lead[s] to a situation where a finding of a likelihood of confusion or unfair freeriding already foreshadows a finding of dishonest practices.”Footnote 53

2.3.2 Quotation and Pastiche Exceptions Under Copyright Law

In the context of circular business models involving copyright-protected subject matter, the quotation exception, enshrined in Art. 5(3)(d) of the InfoSoc Directive, seems to be the primary candidate for shielding such businesses. However, here, likewise, the current CJEU understanding of quotation might preclude its applicability. In Pelham, the CJEU ruled that, in order to be able to rely on the quotation exception, the user of a protected work has to “have the intention of entering into ‘dialogue’” with the quoted work.Footnote 54 It might hence need to be demonstrated that the quoted work illustrates, clarifies or supports the borrower’s own expression. In the Finnish tableware case, the Copyright Council’s majority applied this “dialogue” requirement to the effect of excluding applicability of quotation exception to the broken tableware reworked into jewellery pieces. In the majority’s opinion, no quotation-exception-relevant interaction between the original dishes and the new jewellery could be directly observed in that case.Footnote 55

If other European jurisdictions adopt the Finnish approach, excluding upcycling practices from the scope of a quotation exception, there appears to be yet another exception within the InfoSoc Directive that could potentially apply to upcycling. This exception is outlined in Art. 5(3)(k) of the InfoSoc Directive, which pertains to the “use for the purpose of caricature, parody, or pastiche”. While parody may not offer a robust defence against copyright infringement for upcycling businesses due to the requirement of humour in derivative works,Footnote 56 the concept of pastiche, by contrast, is promising in this regard. The dictionary definition of the term is that of “a literary, artistic, musical, or architectural work that imitates the style of previous work”Footnote 57 or, alternatively, “a musical, literary, or artistic composition made up of selections from different works”.Footnote 58 The concept of “pastiche” broadly aligns with upcycling, as the latter almost by definition involves combining different styles and materials, essentially creating something new from a patchwork of elements. However, the CJEU is yet to clarify the concept of “pastiche”, pending the Pelham II judgment,Footnote 59 which aims to determine whether this concept could serve as a “catch-all” provision for artistic use of copyright-protected subject-matter and whether this exception is subject to limiting criteria, such as the requirement of humour, stylistic imitation or tribute.Footnote 60 If interpreted broadly, the CJEU’s clarification would potentially allow the pastiche exception to cover, among other practices, upcycling.Footnote 61 However, the narrow interpretation is also possible,Footnote 62 and, until the CJEU provides further clarification, relying on the pastiche defence remains highly unpredictable for upcycling businesses, offering insufficient legal certainty for their operations to thrive.

It thus appears that the current interpretation of both trademark and copyright laws in the EU offers limited immunity for businesses focused on repair, refurbishment, and upcycling. The level of certainty required for these businesses to thrive and establish themselves is lacking. This raises the question of whether this situation potentially violates the sustainability principle, grounded in the human right to a healthy environment.Footnote 63

3 Looking Closer at the Right to a Healthy Environment as a Legal Entitlement

To assess the above hypothesis, a deeper examination of the legal nature of the right to a healthy environment is necessary. Specifically, it must be determined whether this right is, indeed, a recognized human right, and, if so, what are its meaning, scope, and modes of protection.

3.1 Environmental Protection as a Human Right? A General Overview of Global Evolution and the Scope of Protection

3.1.1 A Brief History of the Right to a Healthy Environment

The main international human rights instruments, such as the Universal Declaration of Human Rights,Footnote 64 the International Covenant on Civil and Political Rights,Footnote 65 and the International Covenant on Economic, Social and Cultural RightsFootnote 66 do not explicitly include a right to a healthy environment in their catalogue of rights.Footnote 67 It is noteworthy, however, that these instruments were all drafted before the full awareness of environmental issues started to emerge in the 1970s.Footnote 68 The first indirect mention of the right to environmental protection was made in the 1973 Declaration of the United Nations Conference on the Human Environment, which emphasised the importance of the environment for the enjoyment of basic human rights.Footnote 69 Subsequently, this right proliferated into numerous national Constitutions worldwideFootnote 70 and became part of regional human rights instruments drafted after the 1970s.Footnote 71 Most recently, the aggravation and heightened awareness of the climate change crisis have significantly contributed to an increasing acknowledgment of the importance of enhanced environmental protection, including through human rights litigation.Footnote 72

All of these tendencies culminated in the groundbreaking recognition by the UN, in its October 2021 Resolution, of a self-standing “right to a clean, healthy, and sustainable environment as a human right that is important for the enjoyment of human rights”.Footnote 73 This recognition, having marked the first time that the right to a healthy environment was acknowledged as a distinct human right in international human rights law, was already labelled a “game changer”Footnote 74 and “a turning point in the evolution of human rights”.Footnote 75

Around the same time on the European soil, in September 2021, the Parliamentary Assembly of the Council of Europe (PACE) proposed to the Committee of Ministers a draft additional protocol anchoring “the right to a safe, clean, healthy and sustainable environment” to the European Convention on Human Rights (ECHR),Footnote 76 which currently does not recognize a standalone right to a healthy environment. In another groundbreaking move in April 2024, the Grand Chamber of the ECtHR ruled that Switzerland’s failure to implement sufficient measures to combat climate change amounted to a violation of human rights.Footnote 77

3.1.2 Scope of Protection: “Not an Empty Vessel Waiting to be Filled”

Concerning the meaning and scope of the human right to a healthy environment, despite the recency of its recognition in the UN, “the right is not an empty vessel waiting to be filled”, as stated famously by John Knox, the first UN Independent Expert on Human Rights and the Environment and, subsequently, the first UN Special Rapporteur on the Environment.Footnote 78 As observed by Knox and other experts, the right to a healthy environment, as well as, more generally, the relationship between environmental protection and human rights, have already been the subject of extensive examination by national courts, regional human rights tribunals, and various international bodies.Footnote 79

One of the first most notable judicial clarifications of this right came from the African Commission of Human and Peoples’ Rights in the 2001 Ogoniland case.Footnote 80 In that instance, the Commission asserted that the right to a general satisfactory environment, as recognized in the African Charter on Human and Peoples’ Rights, “requires the State to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources”.Footnote 81

Following the Ogoniland case, the right to a healthy environment was further elaborated in various instances, including the 2007 Malé Declaration on the Human Dimension of Global Climate Change.Footnote 82 Having for the first time placed climate change in the human rights context, the Declaration stated, notably, that “climate change has clear and immediate implications for the full enjoyment of human rights including inter alia the right to life, the right to take part in cultural life, the right to use and enjoy property, the right to an adequate standard of living, the right to food, and the right to the highest attainable standard of physical and mental health”.Footnote 83

Further elaboration of the States’ obligations under the right to a healthy environment came through the Framework Principles on Human Rights and the Environment developed by the UN Special Rapporteur.Footnote 84 Those Principles include, apart from the States’ obligation to “ensure a safe, clean, healthy and sustainable environment in order to respect, protect and fulfil human rights”,Footnote 85 providing access to effective remedies for violations of human rights and domestic laws relating to the environment,Footnote 86 establishing and maintaining substantive environmental standards and ensuring their effective enforcement,Footnote 87 and many other measures.

In addition to regional human rights tribunals and international bodies, interpretations of the scope of the right to a healthy environment, as enshrined in national constitutions, by domestic courts undoubtedly add further clarity to the understanding of the contents of this human right.Footnote 88 For example, in a recent judgment from March 2021, the German Constitutional Court highlighted that the protection of life and physical integrity under Art. 2(2) of the country’s Basic Law encompasses protection against environmental pollution and the negative effects of climate change.Footnote 89 The Court further referred to the specific environmental protection clause in Art. 20a of the Basic Law that sets out the state’s responsibility to “protect the natural foundations of life and animals.”Footnote 90 According to the Court, that provision, among others, “obliges the state to take climate action”.Footnote 91 The Court clarified further that, although “Article 20a of the Basic Law does not take absolute precedence over other interests”, in cases of conflict, “it must be balanced against other constitutional interests and principles.”Footnote 92 Within such a balancing process, according to the Court, “the obligation to take climate action is accorded increasing weight as climate change intensifies.”Footnote 93

Either through its judicial interpretations in domestic courts or directly within the texts of national constitutions, the right to environmental protection is often acknowledged as both individual and collective.Footnote 94 Additionally, it is recognized as a right that can be asserted on behalf of future generations.Footnote 95 The right to a healthy environment is also often referred to as a “third-generation” human right distinguished, again, by its collective nature and emphasis on solidarity.Footnote 96

The ongoing efforts to clarify the scope of human rights entitlements related to environmental protection are further evident in proposed texts. Most notably, the proposed additional protocol to the European Convention on Human Rights defines “the right to a safe, clean, healthy and sustainable environment” as that “of present and future generations to live in a non-degraded, viable and decent environment that is conducive to their health, development and well-being”.Footnote 97

Despite all of the aforementioned efforts to delineate the scope and meaning of the human right to a healthy environment, it is still, of course, a human right in the making.Footnote 98 Nevertheless, the right is rapidly evolving and, as noted by the German Constitutional Court in the above-discussed judgment, increasingly gaining in its legal weight.Footnote 99 These developments are primarily facilitated through two main modes of protection: 1) the so-called “greening” of traditional human rights from the first and second generations; and 2) the establishment of a self-standing right to a healthy environment, which is also the direction in which the first type of protection is progressively evolving.Footnote 100

The following delves into a more detailed analysis of each of these two modes of human rights law protection of the environment, with a specific focus on Europe.

3.2 Focus on Europe: Two Distinct Modes of Protection in the European Context

3.2.1 Environmental Protection via “Greening” of Traditional Human Rights – the Council of Europe Approach

Ensuring that those affected by negative environmental impacts of anthropogenic nature receive human rights protection is often achieved by means of “greening” of traditional and well-established human rights.Footnote 101 The most prominent example of such an approach to environmental protection on the European level is the case-law of the Council of Europe’s European Court of Human Rights.Footnote 102

As noted already, the ECHR, having been adopted at the time when “the universal need for environmental protection was not yet apparent”,Footnote 103 does not contain a self-standing right to a healthy environment.Footnote 104 Consequently, protection is ensured via “an evolutive interpretation by the Court”Footnote 105 of a number of existing Convention rights “so as to encompass environmental protection”.Footnote 106 These rights include the right to private life, rights to life, property, and certain other Convention rights that might be affected by environmental harms.Footnote 107 Within the scope of these rights the Court has developed, as highlighted by the former President of the ECtHR, “quite a rich case-law on environmental issues”.Footnote 108 Harmful industrial activities and pollution (including hazardous waste),Footnote 109 waste handling,Footnote 110 excessive noise,Footnote 111 and other environment-related issuesFootnote 112 were all at different points in time brought to the ECtHR’s scrutiny, and in many such cases conclusions were reached favouring environmental protection. In a recent and ground-breaking development, the Grand Chamber of the ECtHR had even ruled that the human right to private and family life (Art. 8 ECHR) includes individuals’ entitlement to effective protection from the serious adverse effects of climate change by State authorities.Footnote 113 The ruling now carries significant influence across all forty-six European States that are party to the Convention. It is, however, noteworthy that, even prior to this game-changing pronouncement by the ECtHR, certain national courts in Europe had already started to address the issue of greenhouse gas emissions and climate change from a human rights perspective.Footnote 114 Specifically, the Dutch Supreme Court in its landmark 2019 Urgenda judgment affirmed the State’s obligation to reduce the Netherlands’ pollutant emissions by at least twenty-five percent from 1990 levels by 2020, grounding its rationale in the right to life and the right to private and family life under the ECHR, as well as the corresponding case-law of the Strasbourg Court.Footnote 115 A number of other national courts in Europe have subsequently arrived at analogous conclusions.Footnote 116

Already in the 1990s, when the environmental case-law under the Convention only started to emerge, the ECtHR was recognising the protection of the environment as “an increasingly important consideration”.Footnote 117 More recently, in his concurring opinion in the case of Pavlov and Others v. Russia, Judge Serghides even stressed that, although the right to environmental protection is not yet a jus cogens norm, “it will not be too long before it is developed and becomes such a norm, considering the negative, sometimes cataclysmically negative, direct and indirect implications of climate change – and, of course, the other serious environmental hazards which plague the world – on the effective enjoyment of all human rights.”Footnote 118

Of particular importance for the discussion in this paper, which focuses on balancing environmental protection with the economic rights of IP holders, is the ECtHR position that environmental protection can well justify interference with the right to respect for property.Footnote 119 The Court very strongly emphasises the legitimacy of environmental protection considerations in the context of conflicting property rights,Footnote 120 stating that “[f]inancial imperatives and even certain fundamental rights, such as ownership, should not be afforded priority over environmental protection considerations.”Footnote 121

Protection of environment through the greening of traditional human rights can offer an advantage of leveraging the wealth of established case-law related to the application and interpretation of such rights. This mode of protection does not, however, come without limitations. The major one is that the first- and second-generation human rights are not always well-suited for addressing collective (by contrast to personal) needs implied in environmental protection, as well as the protection of the environment per se.Footnote 122 There are also related difficulties of establishing a causal link between environmental damage and the individual harm to life, private and family life, or other traditional human rights.Footnote 123 This difficulty is particularly acute in the case of climate change that is “characterized by a long and complex chain of steps between the initial human activities that produce greenhouse gas emissions and the final physical impacts that may result from those emissions”.Footnote 124 In addition, greening traditional human rights is effective for localized pollution but is less applicable when dealing with de-localized sources like greenhouse gas emissions that transcend national borders.Footnote 125 Finally, traditional human rights provide redress for the harm that had already occurred, and do not offer protection (at least not directly) against future harms.Footnote 126

In view of these shortcomings, the second mode of protecting the environment that is rapidly gaining strength – protection via a self-standing right to a healthy environment – is worth a closer examination.

3.2.2 Environmental Protection via a Self-Standing Human Right to a Healthy Environment – the EU Approach

The most notable European human rights instrument providing for a self-standing protection to the environment is the EU Charter of Fundamental Rights that was adopted in 2000Footnote 127 and became binding in 2009.Footnote 128 Article 37 of the Charter is explicitly titled “Environmental protection”. It provides as follows: “A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.”Footnote 129

While presenting the potential to overcome the aforementioned limitations associated with the greening of traditional human rights by autonomously safeguarding the environment,Footnote 130 the legal nature of Art. 37 of the Charter is debatable.Footnote 131 As immediately transpires from the wording of this provision, it is formulated rather as a legal principle, and not as a right in the traditional sense. It does not start with typical “rights” language, such as “Everyone has the right to”. Moreover, it addresses the EU institutions (“the policies of the Union”).Footnote 132 The Explanations to the EU Charter, notably to its Art. 52(5) that clarifies the distinction between Charter “rights” and “principles”, explicitly list Art. 37 as an example of the latter.Footnote 133

Then what this “principle” nature of Art. 37 means in practice is unclear. An immediate explanation would be that a legal “principle”, by contrast to a “right”, is not directly applicable.Footnote 134 As the Explanations to Art. 52(5) of the EU Charter proceed to state, while “[p]rinciples may be implemented through legislative or executive acts”, “[t]hey do not however give rise to direct claims for positive action by the Union’s institutions or Member States authorities.”Footnote 135

Arguably, however, the right to intellectual property protection in Art. 17(2) of the EU Charter is likewise formulated rather in the “principle” and not the “rights” language: “Intellectual property shall be protected”.Footnote 136 Nevertheless, this did not prevent the CJEU from developing a body of case-law in which Art. 17(2) was directly applied to justify a rather strong human rights protection for economic intellectual property rights holders.Footnote 137 The view is also expressed that “bright lines” between the Charter rights and principles are “difficult to draw”,Footnote 138 and that “the jurisprudential picture points towards the essential similarity between rights and principles rather than difference”.Footnote 139 Much in confirmation of this statement, Advocate General Villalón argued, for example, that “the general category chosen for the title of the Charter itself, ‘fundamental rights’, must relate to all its contents”, meaning that “none of the content of the Charter, in terms of its substantive provisions, should be excluded from the category of ‘fundamental rights’.”Footnote 140 In European Air Transport, Advocate General Villalón even stated that “Article 37 expressly recognises the right to environmental protection”,Footnote 141 despite the fact that “[this] right is expressed as a principle”.Footnote 142 Advocate General Colomer, likewise, referred to “a right to enjoy an acceptable environment”Footnote 143 that is supplemented by “the correlative duties on public authorities”.Footnote 144 He further emphasized, with reference to the environmental case-law of the ECtHR, that, “irrespective of how the notion of the right to enjoy an appropriate natural environment is couched, it is easy to discern its link with the content of certain fundamental rights.”Footnote 145 Advocate General Jääskinen also made reference to “the fundamental right to environmental protection laid down in Art. 37 of the Charter of Fundamental Rights”.Footnote 146

In relation to balancing environmental protection with other interests, the CJEU has consistently affirmed that safeguarding the environment qualifies as a public interest goal, justifying limitations on fundamental freedoms, including the freedom of trade.Footnote 147 Back in the 1980s, the Court was already stating that environmental protection is “one of the Community’s essential objectives”,Footnote 148 which may as such warrant certain constraints on the free movement of goods.Footnote 149 More recently, in the 2004 Opinion on the Commission v. Italy case, Advocate General Colomer observed that environmental protection occupies “a prominent position among Community policies”, that the Member States have “a crucial responsibility in that area”, and that, accordingly, “Community citizens are entitled to demand fulfilment of that responsibility under Art. 37 of the Charter of Fundamental Rights of the European Union”.Footnote 150 Therefore, pursuant to Advocate General Colomer, “the main elements of any measure which strays from the general criteria aimed at protecting the environment must be duly specified”.Footnote 151 In addition, in the 2013 Opinion on the Essent Belgium case, Advocate General Bot contended that, although it was not required that priority should always be given to environmental protection, “the environmental objective may be routinely balanced against the European Union’s other fundamental objectives.”Footnote 152

Despite the firm stance taken by several Advocates General of the CJEU regarding the generally prominent status of Art. 37, and notwithstanding the CJEU being “an active environmental court”,Footnote 153 “the Charter has only played a limited role in environmental cases before the CJEU to date”.Footnote 154 Krommendijk and Sanderink argue that this can be attributed, first, to the fact that reliance on the Charter is often unnecessary from a substantive point of view, because citizens can rely on elaborated EU secondary law on environmental protection instead.Footnote 155 One example (which is also of particular significance for the discussion in this paper) is the Waste Directive,Footnote 156 which imposes substantial obligations on Member States to ensure that producers of products “contribute to waste prevention and to the reusability and recyclability of products.”Footnote 157 The second reason for the scarce CJEU reliance on Art. 37 of the Charter is the limited engagement with this provision by the national courts and litigants who are more accustomed to rely on the ECHR instead.Footnote 158

Nevertheless, it might be expected that, given the recent recognition of the right to a healthy environment at the UN level, the ongoing reinforcement of environmental protection on national, regional, and international levels, as well as the pending proposals to transit the Council of Europe system of indirect environmental protection to the self-standing right to a healthy environment akin to Art. 37 of the EU Charter, the latter is likely to soon play a more prominent role in the European legal landscape, including in the case-law of the CJEU. In addition, it should not be overlooked that the same individual rights which the Strasbourg Court employs to “green” the ECHR are also present in the EU Charter. Consequently, the CJEU can similarly emulate the ECtHR’s approach in “greening” the Charter, drawing upon not only Art. 37 but also the “traditional’ fundamental rights used for this purpose within the ECHR context.

4 Reconciling Intellectual Property Protection with the Human Right to a Healthy Environment

The heightened emphasis on human rights protection for the environment, coupled with the recognition of an independent right to a healthy environment, provides the basis for reassessing the existing balance in intellectual property regulation. As demonstrated in Section 2, the current regulatory framework often leans heavily towards robust protection for IP holders, even when conflicting environmental values are in question. Particularly in scenarios where IP protection hinders sustainable practices such as repair, refurbishment, and upcycling, a reconfiguration of IP regulation becomes imperative to allow more flexibility for these environmentally friendly practices.Footnote 159

Such a reconfiguration can be accomplished through two primary avenues: (1) by incorporating considerations of the right to a healthy environment into the internal design of IP laws, including their judicial interpretation; and (2) by externally applying human rights that afford protection to the environment to the field of IP law.

4.1 Integrating the Right to a Healthy Environment into the Internal Design of Trademark and Copyright Laws

The first way of bringing IP regulation in compliance with the requirements of the human right to a healthy environment is by interpreting internal rules of EU trademark and copyright law “in the light of” this fundamental right. The CJEU is well accustomed to this way of balancing IP protection with fundamental rights, as, in the past, the Court had already reconciled on numerous occasions, in particular, freedom of expression, with copyright protection by interpreting copyright law’s own internal balancing mechanisms so as to accommodate the freedom of expression interests, including freedom of the press and freedom of artistic creativity.Footnote 160 To give just a few examples, in Pelham, for instance, the CJEU relied on freedom of expression and freedom of the arts to hold that a music sample taken from a phonogram and used in a new work in a modified form unrecognisable to the ear does not fall within an exclusive right of reproduction.Footnote 161 In Funke Medien and Spiegel Online, the Court held that the quotation and news reporting exceptions had to be interpreted liberally in order not to block, on copyright grounds, the information of general public interest (including information on politically sensitive matters) from reaching the public.Footnote 162

The same approach could be employed when addressing the interface between IP and the right to a healthy environment. More specifically, the CJEU could, by analogy to the above-discussed freedom of expression cases, rely on Art. 37 of the EU Charter in order to give a liberal interpretation to the requirement of, first and foremost, trademark and copyright exhaustion.

4.1.1 Environmentally Friendly Interpretation of IP Exhaustion

In the context of trademark exhaustion, integration of the environmental protection considerations into the scope of trademark protection implies that the exhaustion argument should not be easily dismissed by merely pointing out that the condition of goods had changed or was impaired after repair, refurbishment, or upcycling.Footnote 163 Importantly in this regard, EU trademark legislation does not mandate an automatic non-coverage by exhaustion of cases involving modifications to original goods. To establish such exhaustion non-coverage, it must be demonstrated additionally that the trademark proprietor has “legitimate reasons” to oppose further commercialization of goods after the first sale.Footnote 164 In essence, the alteration of condition or impairment of the goods is just one possible circumstance, not the necessary precondition, for these “legitimate reasons” to arise. As Senftleben contends in relation to, specifically, upcycling cases, integrating environmental considerations into the balancing act would lead to a rationale wherein “arguments based on the change/transformation of goods must be deemed illegitimate from the outset unless the trademark proprietor manages to substantiate an unusual necessity to oppose the commercialization of upcycled products containing her brand insignia.”Footnote 165

As the law stands now, however, there is, at most, a lack of clarity as to whether the courts would be inclined to consider environmental considerations as a valid counter-argument to legitimate reasons to oppose further commercialization.Footnote 166 If the right to a healthy environment is to be taken seriously, however, and the analysis in Section 3 demonstrated that it should, this needs to change. The repair, refurbishing, and upcycling businesses need to receive a clear message on their legitimacy in the face of trademark protection.Footnote 167 Ruling to the contrary should be exceptional and reduced to the rare cases of blatant violation of the property rights of trademark holders. In addition, it should be up to the latter to demonstrate unequivocally that the “legitimate reasons” advanced by them to oppose the repair, refurbishment, or upcycling of trademarked goods are so strong as to outweigh the benefits that these sustainable practices bring to the environment. Senftleben provides as an example the (evidenced) trademark use that deliberately aims at misleading consumers, damaging the mark, or denigrating the business of the trademark proprietor.Footnote 168

Insofar as copyright exhaustion is concerned, one of the internal ways of reconciling copyright protection with the right to a healthy environment would be ruling that upcycling does not go beyond the right of distribution, making therefore the exhaustion doctrine applicable. This approach implies that upcycling would have to be regarded as a practice that does not amount to a relevant act of reproduction and, thus, does not fall within the scope of the corresponding exclusive right, as could be otherwise inferred from the CJEU judgment in Allposters.Footnote 169 As Mezei and Härkönen aptly note, “[t]ransformative redistributions clearly fit into the scope of the reinterpreted (or rather properly interpreted) exhaustion doctrine.”Footnote 170 Upcycling, by definition, implies reuse of the very same objects that had already been placed on the market. In case those objects incorporate copyright-protected works, those are also the works that had already been commercialised by copyright holders. Consequently, the reuse of objects that incorporate such works should fall within the scope of the distribution right.Footnote 171 Such an approach is of particular importance in relation to mass-produced works of applied art.Footnote 172 By contrast, interpreting the copyright exhaustion doctrine in a manner which prohibits actions that improve the lifespan of a product simply does not serve the demands, aims, and goals of a circular economy and environmental protection.Footnote 173

Importantly, this environmentally friendly interpretation of copyright exhaustion had already been expressed in the aforementioned Finnish tableware case through a robust dissenting opinion. The latter highlighted, in particular, that, in creating the jewellery pieces out of the broken tableware, “no copy has been produced”.Footnote 174 Materially, the subject matter of claimed copyright protection was the object that had been already put on the market with the consent of the copyright holder.Footnote 175 Consequently, in this case, according to the dissenting member of the Finnish Copyright Council, the distribution right in the tableware receiving copyright protection had been exhausted.Footnote 176 The dissenting opinion highlighted separately that the case was also about balancing the fundamental rights to intellectual property and environmental protection as enshrined, respectively, in Arts. 17(2) and 37 of the EU Charter. According to the dissenting opinion, in the case at hand, that balancing act required permitting a new use, specifically as jewellery, for the shards of dishes.Footnote 177

Importantly, an environmentally friendly interpretation of copyright’s exclusive rights and copyright law’s exhaustion doctrine need not necessarily contradict the CJEU ruling in Allposters. While, in Allposters, copyright-protected works were transferred from one medium (paper poster) to another (a painter’s canvas), in the case of upcycling, the transformed objects physically remain the same as the original ones placed on the market with the copyright-holder’s consent.Footnote 178

4.1.2 Alternative Applicability of Exceptions

In the (undesirable) scenario that trademark and copyright exhaustion is held inapplicable to the sustainable practices under consideration in this paper, recourse can be made, as a last resort of internal balancing,Footnote 179 to relevant trademark and copyright exceptions.

Trademark law can, in principle, address environmental protection concerns through exceptions like descriptive/non-distinctive and referential use. However, as discussed in Section 2, the main challenge arises here from the strict interpretation of these exceptions, as well as from the “circular” interpretation of the “honest practices” test to which all of these exceptions are subjected.Footnote 180 In accordance with this interpretation, the CJEU applies the same criteria for determining compliance with honest practices as those for prima facie trademark infringement.Footnote 181

To address this issue, the Luxemburg Court should refrain, first, from extending the Audi approach, in accordance with which “[t]he affixing of a sign identical with, or similar to, the trade mark on the goods marketed by the third party exceeds […] the referential use”,Footnote 182 to other cases. This approach should be limited to a particular form of spare part production, specifically spare parts bearing a sign confusingly similar to a registered trademark, and the CJEU should avoid adopting a similar approach in cases involving environmental considerations.

Second, a more flexible and “context-sensitive” assessment within the “honest practices” test for exceptions might be required.Footnote 183 More concretely, the desired flexibility can be achieved by taking into account the secondary user’s behaviour, most importantly – “the effort made to avoid the impression of a commercial connection with the trademark proprietor”.Footnote 184 This can be done, in turn, by provision of clear information on the changed nature of the repaired, refurbished, or upcycled products by means of, e.g., additional labelling or other disclaimers.Footnote 185 The practices in the relevant sector – in particular, whether consumers are accustomed to the repair/refurbishment/upcycling practices at stake – should also be taken into account.Footnote 186

Inspiration in this regard can be drawn from CJEU cases concerning the refilling of empty containers, where it was established that the use of a trademark is permissible without the trademark owner’s prior consent (even if the original trademark remains visible on the refilled product), provided that the supplementary labelling guarantees transparency regarding the commercial origin of the replenished product, taking into account sector practices and consumer awareness.Footnote 187 With regards to the latter, in particular, it can be argued that repair, refurbishment, and upcycling are rapidly gaining in popularity and become widespread, resulting in consumers being gradually accustomed to such practices.Footnote 188

In relation to the referential use exception in particular, a more flexible reading of this exception is further supported by its broader scope introduced in the 2015 Trademark Directive. Unlike the previous wording, which required referential trademark use solely to indicate the intended purpose of a product or service, the current directive lists such use as one of the specific applications of the broader referential use exception.Footnote 189

Concerning the ability of copyright law exceptions in the EU to accommodate the environmentally friendly practices at stake, the issue might appear more problematic. As outlined in Section 2, although the quotation exception stands as a potential avenue for accommodating such practices, its application is unlikely due to the CJEU’s requirement of a dialogic nature of a quoting work.Footnote 190 Another candidate, the pastiche exception, seems even more suitable for upcycling. Arguably, upcycling is a legitimate practice of pastiche – in the sense of a medley and mix of pre-existing copyrighted works. However, pastiche remains one of the most ambiguous copyright exceptions, pending further clarification of its scope by the CJEU. In its forthcoming Pelham II judgment,Footnote 191 the CJEU might adopt a broad approach to interpreting the pastiche exception as distinct from parody. Should this occur, pastiche could serve as a robust defence for upcycling, especially when viewed in the context of Art. 37 of the EU Charter. Importantly in this regard, some courts in Europe have already adopted this broader reading of the pastiche exception potentially allowing for its application to a larger range of transformative uses of copyright-protected works.Footnote 192 However, if, differing from such approaches, the CJEU were to adopt a narrow interpretation of the pastiche exception by considering it merely as a variation of the parody exception requiring a humorous element, or as a variation of the quotation exception necessitating a “dialogue” with the previous protected work, its application to upcycling could be constrained.

No other provision from the closed EU copyright list of exceptions would then appear to qualify as a valid defence to copyright infringement in upcycling cases. Whereas, in the US, the open-ended fair use defence has all the potential of accommodating environmentally friendly upcycling as a type of transformative use,Footnote 193 no analogous flexible provision exists in the EU. Arguably, the introduction of such a provision could, to some extent, alleviate the obstacles created by copyright law for upcycling.Footnote 194 However, this outcome is unlikely given the CJEU’s explicit rejection, in Pelham, of an idea of any open-ended “fair use” type of provision under the EU law.Footnote 195

In such a situation, there might be no other defence to upcycling rather than an external recourse to human rights law. Whereas in Pelham and its fellow judgments Funke Medien and Spiegel Online (delivered on the same day) the CJEU rejected the possibility of applying any external, human-rights-grounded defence to the existing catalogue of copyright exceptions,Footnote 196 arguably, this might not be an obstacle to raising an external claim alleging a violation of the human right to a healthy environment in copyright proceedings. The rationale behind this lies in the primacy of human rights law over any economic considerations. As far back as the 2000s, the UN was unequivocal on “the precedence of human rights obligations over economic policies and agreements”.Footnote 197 It is difficult to imagine, for instance, the ECtHR rejecting an otherwise valid claim alleging a violation of one of the Convention rights stemming from restrictions on environmentally friendly businesses simply because such restrictions are IP law-related. While the protection of the rights of others, within which IP protection usually falls when balanced with other human rights, certainly constitutes one of the legitimate grounds for restricting several qualified Convention rights, such as the right to freedom of expression (Art. 10 ECHR) or the right to a private life (Art. 8 ECHR), this is only one of the factors to be considered in the human rights-based proportionality assessment, and certainly not an outright block on the applicability of the relevant human right to IP as such. Indeed, the ECtHR has already conducted an external human rights-based review of copyright law provisions in the pastFootnote 198 – an approach that is also familiar to several national courts in Europe.Footnote 199 In addition, it should not be overlooked that the EU is under a legal obligation to accede to the ECHR,Footnote 200 which will subject several EU institutions to direct scrutiny by the Strasbourg Court and is expected to increase the relevance of ECtHR rules of interpretation on the EU fundamental rights order. In any event, ECHR rights are already recognised as general principles of EU law,Footnote 201 all EU member states are also parties to the ECHR, and EU fundamental rights have the same meaning and scope as the corresponding ECHR rights.Footnote 202 Considering all these factors, rejecting the ECHR approach toward the possibility of (always) applying human rights external assessment to the laws of EU member states, whether copyright or any other laws, appears untenable.

4.2 External Application of the Right to a Healthy Environment to IP

If the authorities (including the judiciary) fail to fully accommodate the right to a healthy environment that is rapidly gaining in its strength and relevance, those affected by such failures should have the standing to allege a violation of their human right to a healthy environment through the external application of this right to IP law.

The problem for the types of cases considered in this paper is that such a claim would have to be made by repair/refurbishment/upcycling businesses in their proceedings against IP rights holders. Arguably, it might prove problematic for such business to rely on either the self-standing human right to a healthy environment or (even more so) on the “greened” traditional human rights to privacy or life on behalf of, essentially, the entire population that would potentially benefit from the improved environment to which such businesses contribute. Indeed, it can be complicated to establish a causal link between the IP-imposed restrictions on such businesses and the ultimate negative effects on the environment.

It would not also escape the attention of the courts in such litigation that an immediate interest which repair/upcycling businesses would seek to protect is, first and foremost, not necessarily their interest in environmental protection, but rather their property interest and/or the interest in operating their business freely without restrictions. From a human rights law perspective, the conflict hence can be characterised as a clash between the right to propertyFootnote 203 (or business freedomFootnote 204) of repairers, refurbishers, or upcyclers, and the right to intellectual property of IP holders (i.e., the property vs. property type of conflict). Nevertheless, it would be crucial for the courts handling such cases to duly acknowledge that the economic interests of repairers/upcyclers also align with the significant societal goal of environmental protection. Due consideration of this fact can be made by evaluating the intellectual property-related restrictions on the right to property of repairers/upcyclers in the light of the human right to a healthy environment. Importantly, this type of assessment is not uncommon for human rights courts. The ECtHR, for example, routinely assesses claims of breaches of, in particular, freedom of expression or freedom of religion by reading them in the light of freedom of assembly, and vice versa.Footnote 205 The Court also examined the right to education in the light of freedom of expression, right to private life, and freedom of religion.Footnote 206 In addition, the right to private life was interpreted by taking into consideration the freedom of religion,Footnote 207 and the freedom of religion – by accounting for the prohibition of forced or compulsory labour.Footnote 208 Finally, some ECtHR judges expressed an opinion that, in order to assess the legality of a criminal-law interference with the sphere of freedom of expression, the latter must be read in the light of Art. 7 ECHR (no punishment without law),Footnote 209 or that the right to marry must be interpreted in the light of the right to a private and family life.Footnote 210 By analogy, nothing prevents national courts and, ultimately, the ECHR and the CJEU, from examining alleged violations of the right to property or business freedom of repairers/upcyclers in the light of the human right to environmental protection. Arguably, the increasing relevance and importance of this fundamental right, as discussed in Section 3, may even require the national judiciary to make such an assessment.

Furthermore, when called upon to resolve the conflicting fundamental rights of repairers/refurbishers/upcyclers and IP holders, the courts might want to examine the possible impacts of imposing restrictions on environmentally beneficial businesses on larger groups of citizens. The latter, although not parties to the proceedings at issue, can still bear the consequences of such restrictions. Again, this type of assessment is not something uncommon in human rights litigation. Thus, for example, in the recent case of Preobrazheniye Rossii and Others v. Russia, the ECtHR, when finding a violation of the applicant organisation’s freedom of assembly under Art. 11 of the Convention, took into account the fact that the national court resolving the case “did not analyse the impact of the dissolution on the organisation’s socially important activities targeting vulnerable groups and the rights of its members.”Footnote 211 Putting this in the context of allegations of IP infringements presumably committed by repairers/upcyclers, it would be crucial for the national and supranational courts to carefully assess the possible consequences of shutting up such businesses on IP law grounds upon waste handling, circular economy, climate change, and, ultimately, the human right to a healthy environment.

Finally, in the process of balancing the repairer’s/upcycler’s human rights to property or business freedom (interpreted in the context of the right to a healthy environment) against the IP holder’s human right to property (influenced, in contrast, by straightforward economic considerations), the courts may also consider the fact that the trademark or copyright holder has already realized the full economic value of the object for which they seek relevant IP protection through the initial sale.Footnote 212 This would, in a way, “externalise” the exhaustion argument, incorporating it as one of the factors in the external human rights law proportionality assessment. This is particularly relevant in case this argument does not prevail within the context of the internal human rights balancing within intellectual property law.

5 Conclusion

It has been demonstrated that current intellectual property laws can inadvertently block sustainable reuse practices, potentially violating the human right to a healthy environment. The “environmental imbalances” within these laws, however, primarily stem from their judicial interpretations and practical applications rather than necessarily from their legislative design. Nevertheless, these interpretations and applications need reconsideration to better accommodate the human right to a healthy environment, which is rapidly gaining strength and expanding its scope of protection in response to the unfolding environmental crisis.Footnote 213

Only by reimagining and reshaping the contours of intellectual property protection to align with our evolving understanding of the human right to environmental protection can we ensure a sustainable future, in which there is a place not only for safeguarding our creative endeavours and free markets, but also for a flourishing and healthy environment.