Credits: Marieke Boessenkool
By Eva Meyermans Spelmans and Elena Izyumenko
Repair, refurbishment, fashion upcycling and similar practices that minimize the environmental impact of (over)consumption are key in the transition from a linear market economy towards a just and sustainable one. However, intellectual property (IP) protection presents an unexpected yet significant challenge to these efforts. Strict IP laws can impede the move away from traditional linear business models, clashing with sustainability goals (further on this, see here, here, here, and here). Additionally, there is growing concern that the enforcement of IP rights tends to prioritize the destruction of infringing goods, overlooking alternative remedies that could be more environmentally sustainable (see, e.g., here).
This tension between IP protection and sustainability objectives underscores the broader need to align IP laws with the growing recognition of environmental interests, particularly as these interests are increasingly elevated to the level of human rights. In fact, in recent years, the human right to a clean, healthy and sustainable environment (HR2HE) has gained considerable importance. In 2021, this right was formally acknowledged by the UN General Assembly through Resolution 76/300, and, a couple of years later, the Grand Chamber of the European Court of Human Rights (ECtHR) in Klimaseniorinnen affirmed that a country’s failure to uphold its environmental protection commitments could constitute a human rights violation.
Despite this growing importance of HR2HE and the parallel recognition of the negative impact of IP protection on sustainability (see, for example, here, here, here and here), there remains a notable lack of in-depth analysis of the tension between IP and sustainability from a human rights law perspective (see, however, here and here). To address this gap, a research workshop entitled “The Human Right to a Healthy Environment: What Impact on Intellectual Property Laws?” was organised on the 4 December 2024 by Dr. Elena Izyumenko from the Institute for Information Law (IViR) of the University of Amsterdam (UvA) and Eva Meyermans Spelmans from Erasmus University Rotterdam. The workshop was supported by the Netherlands Network for Human Rights Research (NNHRR), IViR and the UvA Law Faculty. Below is a brief report on this workshop, which addressed the obstacles posed by IP holders to sustainable business models and explored – through the lens of human rights law – how IP law frameworks could better align with sustainability objectives.
Laying the Foundation: What Does the Human Right to a Healthy Environment Entail?
The first part of the workshop laid the foundations for the discussion, focusing on the meaning of the right to a healthy environment within international and European human rights law, as well as its role in fostering sustainability. Dr. Otto Spijkers opened with an international law perspective on HR2HE, drawing on Resolution 48/13 from the Human Rights Council and Resolution 76/300 from the UN General Assembly to elucidate the status of this right at the international level, concluding that, despite its recent recognition as a self-standing human right, the status of this right remains controversial. ECtHR senior lawyer Natalia Kobylarz followed, explaining how environmental human rights are protected in Europe, particularly under the European Convention on Human Rights (ECHR). She explained that, in the absence of a self-standing HR2HE under the Convention, the ECtHR provides for indirect environmental protection by relying on proxy rights, such as the right to private life, property, life, freedoms of expression and assembly, and the right to a fair hearing. Prof. Jasper Krommendijk further analysed the protection of HR2HE under Article 37 of the EU Charter of Fundamental Rights (CFR). He highlighted the rarity of reliance on this provision in CJEU case law and pointed out that, despite an observable trend in recent years toward shifting from brief references to this right to more extensive engagement by the CJEU (using HR2HE either as an interpretative tool or as a justification for interference), Article 37 CFR does not, for the time being, substantially influence EU law. This can be explained, among other factors, by the strict locus standi requirement and the high threshold for state liability in environmental violations. Lastly, Dr. Luisa Netto posed important questions about the reliance on the right of future generations when defining the scope of HR2HE. She asked whether this reliance is legally consistent, what hurdles exist for recognizing future generations’ rights, and whether granting (present) human rights to future generations is an effective strategy for addressing the worsening climate crisis. She argued that the category of future generations needs to be defined more specifically to be used consistently in the legal domain.
Intellectual Property and Sustainability: Challenges and Legal Tensions
In the second part of the workshop, the focus shifted to the IP side of the discussion. Key topics included the various conflicts between substantive IP and sustainability, as well as challenges related to IP enforcement. The first topic discussed was trademark protection and upcycling, presented by Prof. Martin Senftleben. He explained that the current interpretation of trademark laws in the EU can hinder upcycling practices, such as the creative reworking of old designer bags, clothes, or even items like Lego bricks that still feature the original producers’ trademarks. He also outlined the flexibilities within trademark law itself such as the exhaustion doctrine and the referential use exception that could potentially reverse this trend, enabling greater freedom for upcyclers. Prof. Annette Kur addressed the tension between trademark protection and repair or refurbishment practices. She argued that trademark rights should be exhausted in cases of repair or refurbishment, provided the measures do not alter the core substance of the product and the public is properly informed about or expects the changes. If these conditions are not met, she suggested that products capable of fulfilling their intended purpose should not be discarded. Additionally, the risk of infringement, whether from removing or retaining the trademark, should not fall solely on marketers, and flexible solutions should be offered within the “risk zone” to address these issues.
The discussion then shifted to the tension between sustainability and copyright protection. Prof. Péter Mezei explained that copyright economic rights over prints, ornaments and design patters can, similarly to trademark law, hinder upcycling and that, in order to avoid this, the doctrine of copyright exhaustion can be applied, guaranteeing the most balanced approach to upcycling and environmental sustainability. Dr. Heidi Härkönen further discussed the possible tension between copyright moral rights protection and upcycling, exploring whether the moral rights of attribution and integrity could pose a real obstacle to upcyclers. She noted that the right of attribution might even add value to the upcycled product but could also become an obstacle if upcyclers fail to respect this right. Regarding the right of integrity, Dr. Härkönen explained that the assessment of prejudice could consider factors such as the author’s values and considerations regarding whether the sustainable use of a copy of a work truly causes prejudice to the author.
The workshop continued with a presentation by Dr. Léon Dijkman, who spoke about promoting sustainable technologies through patent law. He raised the question of whether the degree of innovation brought about by the patent, alongside the contribution of this innovation to sustainability goals, should be a relevant factor when determining the scope of protection of a patent. Prof. Charlotte Vrendenbarg then focused on sustainability and remedies for IP infringement, discussing the so-called “greenforcement” in IP practice – i.e., the flexibilities within IP laws that allow judges to opt for more sustainable alternatives to the destruction or long-term storage of IP-infringing goods as remedies for IP infringement. Next, Lisa van Dongen explored the feasibility and attractiveness of alternative solutions to destruction based on Customs Enforcement Regulation, IP Rights Enforcement Directive and Unified Patent Court Agreement.
Reconciling IP Protection with the Right to a Healthy Environment: Final Reflections and Open Discussion
In the final session, Dr. Elena Izyumenko outlined potential avenues for reconciling IP protection with HR2HE – either through a flexible interpretation of certain internal mechanisms of IP law in the light of this human right or by invoking HR2HE “externally” as an independent defence in IP infringement actions.
The workshop concluded with an open discussion, where speakers and participants applied insights from human rights law, gained in the first part of the workshop, to the IP-related challenges identified in the second part. The discussion explored, among other topics, whether HR2HE is sufficiently well-defined to meaningfully shape IP protection and enforcement. It also considered whether environmental interests should be integrated into IP laws through the “greening” of existing human rights (i.e., an evolutive interpretation in light of sustainability concerns) or recognized as a distinct right. Participants further debated whether HR2HE is an appropriate framework at all for fostering a more sustainable IP regime. Some argued against this position, asserting that judges and legislators require a strong normative basis – rooted in human rights rather than abstract sustainability goals – to drive environmentally conscious legal developments in IP law. Practical challenges were also examined, particularly the need to establish clear limits on the harm to IP rights holders when balancing IP laws with sustainability. Additionally, the discussion emphasized the importance of defining effective enforcement mechanisms, including “greenforcement”, while ensuring that parallel trade does not lead to unnecessary destruction.
Overall, the discussion highlighted the complexity of aligning IP law with environmental concerns, underscoring the need for further research and dialogue on the role of human rights law in general and HR2HE in particular in the IP legal landscape.
Bio:
Eva Meyermans Spelmans (LLM) is a PhD candidate in European law at the Law and Markets department. Her research focuses on the EU green transition of the fashion industry and the impact thereof on sustainability and human rights in the textile industry’s global value chain. She explores how law created the current economic conditions wherein there is a power imbalance between different actors in the global value chain and in what ways these dynamics are connected to the legal framework.
Dr. Elena Izyumenko is an Assistant Professor of Intellectual Property (IP) Law at the University of Amsterdam’s Institute for Information Law (IViR), specializing in EU copyright and trademark laws, online IP enforcement, creators’ remuneration, sustainability, digital rights, and the impact of IP laws on human and fundamental rights. Elena is a former case-processing lawyer at the European Court of Human Rights (Council of Europe) and she has also previously worked as a legal researcher at the Centre for International Intellectual Property Studies (CEIPI) of the University of Strasbourg in France. She lectures internationally and publishes extensively in leading IP and broader law journals, with her research having been cited, among others, by Advocates General of the Court of Justice of the European Union. Additionally, Elena is a Certified Tutor for the Council of Europe Programme for Human Rights Education for Legal Professionals and a Senior Member of the Netherlands Network for Human Rights Research.