Is there a fundamental right to upcycling? An analytical approach

Upcycling represents an important strategy for addressing the planet’s waste problem – essential if we are to avoid environmental disaster. Where intellectual property laws restrict upcycling practices, they may obstruct the pursuit of environmental objectives and, in turn, limit the enjoyment of certain fundamental rights, most notably the right to a healthy environment. This paper examines how fundamental rights may affect the content and validity of IP rights in the context of upcycling, with particular reference to the EU. It argues that while potential obstacles created by IP legislation are unlikely in themselves to amount to violations of fundamental rights, their principal relevance lies in their weak indirect effect, namely as a source of values that can guide the interpretation of ambiguous norms. Ironically, although such an effect has long been recognised in EU copyright law through its emphasis on maintaining a fair balance of rights and interests, it may prove difficult to accommodate flexible, climate-friendly solutions within the rigid existing legal framework. By contrast, the exhaustion doctrine in trademark law appears more adaptable to supporting environmentally beneficial upcycling, but this would require a fundamental-rights-based reasoning that the ECJ has yet to develop in the trademark context.