The Human Right to a Healthy Environment: What Impact on Intellectual Property Laws?

(with the financial support by the University of Amsterdam Law Faculty Research Strategic Investment Fund and the Netherlands Network for Human Rights Research)

Abstract

Current linear market patterns, marked by excessive production and overconsumption, threaten the environment, fueling its degradation. Recognizing this, there is a growing call for environmental awareness, with practices exploring the alternatives to the destruction of goods emerging as hopeful solutions for transitioning to a more just and sustainable economy that respects the fundamental rights of all stakeholders, including the human right to a healthy environment (HR2HE). However, a notable obstacle arises to these aspirations and sustainable practices – intellectual property (IP) protection. Current IP laws frequently diverge from sustainability objectives, hindering the shift away from linear business models. As a result, across jurisdictions, IP holders wield significant power, enabling them to impede sustainable businesses such as repair, refurbishment, or upcycling, or to advocate for unsustainable measures, such as destroying even genuine but parallel-imported goods that are found to infringe on IP rights.

Despite a growing discourse on the negative impact of IP protection on sustainability, there has been a notable absence of in-depth analysis of this issue from a human rights law perspective. This workshop aims to address this gap by examining the intersection of the evolving human right to a healthy environment and IP laws. Recent developments, such as the UN’s recognition of a self-standing HR2HE in its October 2021 Resolution and the 2024 Grand Chamber judgment of the European Court of Human Rights affirming that a country’s failure to uphold its environmental protection commitments constitutes a human rights violation, underscore the urgency of this issue.  The workshop will consist of several sessions, each featuring introductory talks by presenters, followed by discussions with participants. The first session will lay the foundation for applying HR2HE to IP by examining the meaning and scope of this rapidly evolving human right within international, Council of Europe, and EU legal frameworks. The second session will shift to a more specific discussion on the role of environmental human rights in fostering sustainability and building circular economies, thereby smoothly transitioning to the subsequent sessions focused on specific rules of IP protection in Europe and their impact on sustainability. To this effect, the third session will examine the impact of trademark protection on businesses engaged in repair, refurbishment, and upcycling. The fourth session will conduct a similar examination from the copyright law perspective, while the fifth session will analyze substantive patent protection, as well as remedies for IP infringement, from the HR2HE angle. The sixth and final session, featuring one introductory talk followed by an extended open discussion with all workshop speakers and the audience, will explore potential strategies for reconciling the human right to environmental protection with intellectual property laws. It will also address a more substantive question on the role and place of this human right in the broader discussions on IP and sustainability.

Program

13.00 – 13.30	Welcoming (coffee/tea)
13.30 – 13.35	Opening
1	Understanding HR2HE: International, ECHR and EU Charter Perspectives
13.35 – 13.45	HR2HE: The international law perspective (10 min) by Otto Spijkers, Assistant Professor of International and European Law, Leiden University College, Faculty of Governance and Global Affairs, Leiden University, The Netherlands
13.45 – 13.55	HR2HE: Perspective of the European Court of Human Rights (10 min) by Natalia Kobylarz, Senior Lawyer, European Court of Human Rights, Strasbourg, France (online)
13.55 – 14.05	HR2HE: The EU Charter perspective (10 min) by Jasper Krommendijk, Professor of Human Rights Law, Jean Monnet Chair on the Rule of Law in the national and EU legal orders (EURoLNAT), Director of the research centre for State and Law (SteR), Radboud University Nijmegen, The Netherlands
14.05 – 14.20	Discussion – 15 min
2	The Role of Environmental Human Rights in Fostering Sustainability and Building Circular Economies
14.20 – 14.30	Resisting the allure of future generations’ rights (10 min) by Luísa Pinto E Netto, Assistant Professor, Leiden Univertsity, The Netherlands
14.30 – 14.40	Fashion industry’s impact on sustainability and human rights (10 min) by Eva Meyermans Spelmans, PhD Researcher in European Law, Erasmus University Rotterdam, The Netherlands (co-convener)
14.40 – 14.50	Discussion – 10 min
14.50 – 15.10	Coffee break – 20 min
3	HR2HE and Trademarks
15.10 – 15.20	Trademark protection and upcycling (10 min) by Martin Senftleben, Professor of Intellectual Property Law and Director, IViR, University of Amsterdam; Of Counsel, Bird & Bird, The Hague, The Netherlands
15.20 – 15.30	Trademarks, repair and refurbishment (10 min) by Annette Kur, Professor of Intellectual Property Law, Max Planck Institute for Innovation and Competition, Munich, Germany
15.30 – 15.40	Discussion – 10 min
4	HR2HE and Copyright
15.40 – 15.50	Copyright economic rights protection and environmental sustainability (10 min) by Péter Mezei, Professor of Law, Faculty of Law and Political Sciences, University of Szeged, Hungary
15.50 – 16.00	Copyright moral rights protection and environmental sustainability (10 min) by Heidi Härkönen, Postdoctoral Researcher, Faculty of Law, University of Turku, Finland
16.00 – 16.10	Discussion – 10 min
16.10 – 16.30	Coffee break – 20 min
5	HR2HE, Patent Protection and Remedies for IP Infringement
16.30 – 16.40	Patent protection and environmental sustainability (10 min) by Léon Dijkman, Assistant professor, IViR, University of Amsterdam, The Netherlands
16.40 – 16.50	Sustainability and remedies for IP infringement (10 min) by Charlotte Vrendenbarg, Professor of Private Law / Intellectual Property Law, Radboud University, The Netherlands
16.50 – 17.00	Patents, destruction of infringing goods and sustainability: An insurmountable paradox? (10 min) by Lisa van Dongen, Postdoctoral Researcher, IViR, University of Amsterdam, The Netherlands
17.00 – 17.15	Discussion – 15 min
6	Solutions: What Role for HR2HE in IP Law?
17.15 – 17.25	Aligning IP Protection with HR2HE (Introductory talk followed by an open discussion) (10 min) by Elena Izyumenko, Assistant Professor of Intellectual Property Law, IViR, University of Amsterdam, The Netherlands (co-convener)
17.25 – 17.55	Open discussion: What role for HR2HE in IP law? (30 min)
17.55 – 18.00	Concluding remarks and closing (5 min)
18.00 – 19.00	Closing drinks (60 min)

Registration