Is There a Fundamental Right to Upcycling? An Analytical Approach

This chapter discusses whether the existing IP laws in Europe offer sufficient room for upcycling from the perspective of fundamental rights. It is argued that both the EU Charter and the ECHR may include obligations to facilitate the innovative reuse of materials. This is considered both as a matter of artistic freedom and as a positive obligation to safeguard the right to life, health, and a sustainable environment. From this perspective, existing IP laws may not be accommodating enough of creative and innovative upcycling practices. It is suggested that, as a matter of direct effect of primary EU law, both the Charter and free movement of goods may have a limiting effect on the enforceability of IP rights.