Stronger IP rights will undermine the transition – rights owners have incentives to pursue cases against sustainable practices

Yet, from the legal challenges recently brought against companies engaging in circular and sustainable practices, it is clear that the relationship between IP owners and these practices is, at best, uncomfortable and generally controversial. Notably, IP owners continue to rely on IP rights as the invisible string they pull to oppose most attempts by third parties to repair, reuse, resell, upcycle, or recycle their products without their consent. For example, IP owners have regularly blocked or attempted to block third parties trying to repair, refurbish, or upcycle original products, leading to a series of legal disputes. Even though some of these disputes were ultimately decided in favor of the unauthorized parties, many were not, and most cases were settled under confidential terms.10

This situation is largely due to the fact that IP protection has historically been justified based on the theory of incentives for innovation and creativity, but on a linear rather than circular model. We have been repeatedly told that IP rights benefit society by encouraging innovation and creativity on the one hand and market competition on the other. Specifically, the IP system incentivizes investments in innovation and creative industries by granting IP owners the right to exclude third parties from using their IP-protected products and processes without their consent for a (generally) limited time. In this way, IP owners can recover costs while also disseminating new products and works for the benefit of society. However, during the term of protection of IP rights, IP owners' right to control their products and processes extends to any use, including those related to circular and sustainable practices, unless a specific limitation or exception applies.11 In this way, IP owners can often prevent third parties from repairing, reselling, upcycling, and recycling their products when they can claim that these activities constitute an act of infringement of their IP rights.

In this context, aligning the current IP system with the need to promote circularity and sustainability seems like pushing a square pin into a round hole. Moreover, even though the system provides for several exceptions and limitations to prevent abuses and guarantees specific free uses, IP owners always try to deter third parties from engaging in activities that promote sustainability and circularity, also when their claim may not be well founded. This raises serious questions, considering the fundamental threat to the environment (and human life in general) of many industries. Accordingly, the time has come to adopt a bolder approach and make sure the current IP system does not become a tool to prevent the development and flourishing of sustainable and circular economic practices.