Private Law Theory

ABSTRACT
Upcycling is an increasingly important practice within the circular economy, particularly in the fashion and creative industries, where discarded or underused goods are transformed into products with a new function or added value. Yet, when the source materials embody intellectual property (IP), upcycling may conflict with the exclusive rights of copyright, trademark, and design right holders. This paper examines upcycling as a form of transformative recycling and explores whether, and to what extent, current IP frameworks can accommodate and support sustainable reuse. It identifies three interconnected challenges. First, it analyses the tension between the proprietary and exclusionary logic of IP law and the inclusive, resource-conserving objectives of the circular economy, including the emerging ‘commercial paradox of upcycling’, whereby sustainability-oriented downstream users may compete with established rightsholders. Second, it examines the difficulties created by overlapping IP rights in ‘mixed goods’, particularly fashion products that may simultaneously attract copyright, trademark, and design protection, and considers the role of exhaustion, exceptions and limitations, moral rights, and fundamental rights in resolving such conflicts. Third, it addresses the spatial dimension of upcycling, including the unequal distribution of textile waste between the Global North and Global South and the resulting risks of waste colonialism. Drawing on EU and US legal doctrines and emerging case law concerning the reuse, customization, and transformation of protected goods, the paper argues that upcycling should not be regarded as inherently infringing. Rather, it provides a valuable case study for reconsidering the relationship between IP protection and sustainability. The paper concludes that future IP policies should facilitate legitimate transformative reuse and recognise sustainability as a relevant consideration in balancing exclusive rights against the objectives of a circular and environmentally sustainable economy.

Mezei, Péter and Härkönen, Heidi, Intellectual Property Law and Upcycling – Towards a Sustainable Transformativeness? (August 26, 2026) in Iris Nguyen Duy, Ingvil Helland Göller and Siri-Helen Egeland (eds), Legislation for Tomorrow. The Regulation of New Technologies and Climate Change in a Comparative Perspective, Routledge, 2026 (forthcoming).