Since 2021, generative AI has revolutionised content creation, with prompt-based generation at its core. As the driving force behind large language models and diffusion models, prompts serve as essential commands that shape AI-generated outputs. However, this prompt-driven mechanism raises intricate copyright challenges. Key questions include whether prompts themselves qualify for copyright protection and whether prompt-based outputs contribute to widespread copyright infringement and disinformation. While existing scholarship acknowledges these concerns, it has yet to critically assess whether granting copyright protection to prompts is a desirable approach. This article seeks to fill this gap by examining the copyrightability of human-created prompts and evaluating whether copyrighting prompts aligns with two key objectives: maintaining a fair balance of interests within copyright law and ensuring the authenticity of AI-generated content as part of broader AI regulation efforts. By addressing these issues, this study aims to illuminate the pivotal role of prompts in shaping the evolving copyright landscape and regulatory frameworks in the era of generative AI.
Repair, reuse and recycling pit the property interests in tangible goods against the rights of other rights holders, requiring careful policy coordination to balance the protection of property rights with the promotion of innovation and fair competition. Moreover, the repair, reuse and recycling of fashion goods require skills and craftsmanship that ordinary consumers may not possess, leading them to seek the services of professional third parties. This article discusses the recent decision of the Supreme Court of Korea (26 February 2026, Case No. 2024Da311181) concerning luxury goods refashioning services, namely owner-requested repair and upcycling services for products bearing famous trade marks. It explores how the Court balanced the competing interests and policy considerations at stake by applying the doctrine of trade mark use. This article first describes the facts and procedural history of the disputes that led to the decision of the Korean Supreme Court and discusses the legal principles through which the courts framed the reuse of luxury goods under Korean trade mark law. It then analyzes how the Supreme Court balanced the protection of a famous trade mark with the policy to promote sustainability, viewing the conduct of the refashioning business as that of intermediary service providers within the value chain of recycling and the circular economy. We note that the tools currently available to courts to encourage upcycling as a business may be limited. In the absence of clear legislation, courts may have limited means of permitting the reuse of tangible goods bearing others’ trade marks in the course of trade, even where such reuse serves the goals of a sustainable circular economy. This places particular importance on the interpretation of issues such as the characterization of upcycling, limiting doctrines, and knowledge requirements. In conclusion, the Supreme Court’s decision is noteworthy for its effective use of interpretative flexibility within the doctrine of trade mark use, thereby accommodating owner-requested upcycling for personal use.
The long-awaited decision by the EU General Court in the “Nero Lifestyle” case sets an important precedent in the problematic relationship between subsequent trade marks and Geographical Indications (GIs), more precisely for the case of trade marks “delimited” to compliant products. Although in the end the EU judges annulled the contested “Nero Champagne” trade mark, the decision produces more questions than answers for the future registration of trade marks incorporating GIs. On the one hand, the decision aggravates the uncertainty related to the grounds for protection of GIs, especially regarding the issue of exploitation of or prejudice to reputation, let alone evocation. On the other hand, the decision creates an imbalance in the burden of proof and control placed on legitimate GI producers, in the face of a certain “institutional disengagement” by EUIPO. This article aims to tackle such problematic implications from both perspectives. After presenting the policy options, the reconstruction will focus on a more pragmatic solution within the existing legal framework: the proposal is to extend by analogy the regime of notification for prepacked food using GIs as an ingredient, in order to avoid a potential scenario where the uncontrollable explosion of trade marks incorporating GIs burns the system down.
In its questions for preliminary ruling to the CJEU, the Belgian Constitutional Court asks for clarification as to whether the remuneration rights enacted by the Belgian lawmaker when implementing the Directive 2019/790 on Copyright in the Digital Single Market (CDSMD), in the field of streaming service providers and of open content sharing service providers, are compliant with EU law. In the present Opinion, the European Copyright Society takes the view that an inalienable and non-transferrable remuneration right is a lawful mechanism under EU copyright law to ensure that authors and performers receive fair remuneration for the exploitation of their works and performances. The fair remuneration rationale rests on fundamental rights protection and constitutes an objective and key principle of EU copyright law, as affirmed by recent CJEU case law. Article 18 CDSMD requires Member States to ensure that authors and performers are entitled to an appropriate and proportionate remuneration when they license or transfer their exclusive rights, but states that Member States are free to choose the mechanisms to achieve that purpose. This flexibility allows national copyright laws to complement obligations of remuneration in the contractual sphere with residual rights of remuneration (RRRs), that authors and performers, generally through a collective management organization, can directly assert against economic operators exploiting their works and performances. Article 18 provides only minimum harmonization and is formulated in a way that does not require remuneration to be achieved solely through contractual arrangements between creators and their immediate contractual partners. RRRs are well established within the EU and Member States copyright law. The Rental and Lending Rights Directive already provides authors and performers with an unwaivable right to equitable remuneration for rentals. Similar remuneration mechanisms exist in several Member States for diverse modes of exploitation. The mechanism of RRR does not unduly interfere with exclusive rights. Authors and performers benefit from full exclusive rights but retain a right to remuneration (hence called residual) after they transfer or license them. This legal technique dissociates the exclusive right, necessary to authorize the reproduction, communication or making available to the public, from the right to be remunerated for such exploitation. The ECS also rejects the claim that RRRs create double payment obligations. Legally speaking, the remuneration paid under exploitation contracts concluded with producers or publishers and the remuneration paid under an RRR arise from different legal bases. Rather than requiring platforms to pay twice for the same use, the mechanism reallocates part of the overall revenue stream to creators. It is therefore a redistribution mechanism rather than an additional layer of compensation. It is in line with EU copyright law and CJEU case law admitting that the many entitlements and rights under copyright and related rights can be unbundled and separately assigned for distinct modes of exploitation. The RRR is not an exception or limitation to copyright either: it does not replace or substitute an exclusive right (as is the case with the right performers and phonogram producers to claim remuneration for broadcasting of phonograms) and it is not a compensatory system for a legally authorized use (as in the case of private copying). Regarding freedom of contract and freedom to conduct a business, the Opinion acknowledges that RRRs may require the economic operators concerned to deal with collective management organizations despite the conclusion of an exploitation contract. However, such limitations pursue legitimate public-interest objectives, namely correcting structural bargaining imbalances and ensuring fair remuneration for creators, in a proportionate manner. The RRR, provided for in Belgium in the field of online content-sharing, is not contrary to Art. 17 CDSMD, which governs online content-sharing service providers. The maximum harmonization pursued by Art. 17 only pertains to the obligation for online content sharing service providers to obtain an authorization for the making available of works and other subject-matter, and to the specific liability regime it lays down. It does not regulate how artists should be remunerated once authorization has been obtained. Remuneration issues remain governed by Arts. 18–23 CDSMD, which expressly allow Member States flexibility in implementing fair-remuneration mechanisms. National RRR systems therefore complement, rather than conflict with, Art. 17. In conclusion, Member States may lawfully introduce RRRs as a means of ensuring that authors and performers receive a fair share of the economic value generated by the exploitation of their works and performances.
The exhaustion principle, while a well-known concept in intellectual property (IP) law, has not received much attention in the African context. Until February 2023, when the African Continental Free Trade Area Protocol on Intellectual Property was adopted, the African Union lacked a formal stance on the exhaustion of IP rights. The African Regional Intellectual Property Organization (ARIPO) does not have an exhaustion policy, whereas its counterpart, the African Intellectual Property Organization (OAPI), under the Bangui Agreement, features a somewhat mixed set of exhaustion rules. Some national laws, except those of the OAPI member states, also appear to lack explicit provisions on the matter. However, the new IP Protocol has changed this situation by providing for regional exhaustion of IP rights. This paper argues that while this development creates an opportunity for continental harmonization, promoting intra-African trade, and enhancing regional competition, a mixed set of exhaustion rules would be optimal if access to protected subject matter, such as books and health technologies, is prioritized.
Establishing correct and precise legal parameters in European Union design law begins with the determination of accurate and proper terminology. Assessing validity, which is an absolute test (either a design is valid or not), determining its scope of protection (relative by nature), and finding the presence or absence of infringement of an EU design (again, in absolute terms), should be based on objective and accepted standards. A major prerequisite for establishing and applying these standards across the EU is proper and consistent terminology. All three central areas of EU design law – validity, scope of protection, and infringement – interact with each other, not only in daily practice but also dogmatically. This article examines such a correlation, with a particular focus on the freedom of the designer, departure from the existing design corpus, and the overarching concept of reciprocity. Overall, drawing on established European and national case law, ten “rules of argument” can be identified, providing guidance for a consistent interpretation and application of EU design law.
This paper offers a response to the commentary by Andrzej Falkowski and Justyna Olszewska (2026) on our empirical study presented in the article “Spare Parts, Repairs, Trade Marks and Consumer Understanding” (IIC (2023), vol. 54, pp. 26–60). Our study examined how different forms of trade mark use in the online commercialization of non-original spare parts – under the EU repair clause framework – affect consumer evaluation and identification of commercial origin. It did not investigate brand equity, nor did it compare original parts with non-original components. At the outset, we emphasize that the study was conducted exclusively for academic, non-commercial purposes and forms part of our broader research on the perception of trade marks in the context of circular economy practices. In contrast to Andrzej Falkowski – who acted as an expert witness on behalf of Audi AG in related court proceedings – we have no affiliation with any actors from the automotive sector. In this response, we address several core misunderstandings underlying the commentary. First, we clarify that we have never claimed that the trade marks do not influence products’ evaluation in general; rather, we reported that, within the specific experimental conditions examined, quality assessments and purchase intentions did not substantially vary depending on the form of trade mark use in the commercialization of non-original spare parts. Second, we explain that separate analyses for the small minority of participants who incorrectly identified AUDI as the manufacturer (as suggested by Falkowski and Olszewska) were not central to the study’s aims, which concerned permissible trade mark use and origin identification – not brand endorsement effects. We also comment on the additional analyses conducted by the Falkowski and Olszewska based on our openly available dataset, noting both the generally positive evaluations of spare parts and concerns regarding selective result presentation and graphical scaling that may exaggerate perceived differences. Finally, we reiterate that our empirical study was methodologically sound and aligned with its stated objectives. It should be understood as a contribution to academic discourse on the legitimate use of trade marks in the context of circular economy practices, rather than as advocacy for any party or as evidentiary material in ongoing litigation.
Tischner and Stasiuk (IIC 54:26–60 (2023), https://doi.org/10.1007/s40319-022-01274-8 ) concluded that the Audi trademark does not influence the evaluation of independently manufactured automotive spare parts, arguing that both consumers and experts interpret such trademarks primarily as descriptive cues of intended use rather than as indicators of origin. The present paper revisits their empirical evidence and challenges this conclusion by reanalyzing the original raw dataset made publicly available in the OSF repository. We argue that the original authors’ conclusions stem from a methodological error – specifically, the aggregation of evaluations across participants who differed fundamentally in their perceptions of the part’s manufacturer. Using the original data, we reclassified both Audi owners and automotive experts according to the manufacturer they recalled after product exposure: Audi, the independent manufacturers named in the description, or other/unknown manufacturers. Separate analyses of variance were then conducted within these groups for four evaluation dimensions: perceived quality, material durability, appearance, and purchase intention. The reanalysis focused on the radiator grille stimulus, across four trademark presentation conditions. Contrary to Tischner and Stasiuk’s conclusions, the results consistently show that brand recall significantly shaped product evaluations. Both consumers and experts who mistakenly identified Audi as the manufacturer evaluated the spare parts more favorably than those who correctly identified independent manufacturers or expressed uncertainty. These effects were particularly pronounced when the Audi trademark was embedded in the product or visually integrated into its design, and in several conditions reached statistical significance. The high rate of manufacturer misidentification – despite explicit textual information – underscores the influential role of trademarks as associative signals affecting perceived quality and value. Overall, this reanalysis demonstrates that the Audi trademark did influence the evaluation of automotive spare parts. The original claim that trademarks have lost their origin-identifying and evaluative function is therefore unsupported and inconsistent with both the empirical evidence and the broader literature on branding and consumer perception.
This article offers a feminist reading of decisions relating to two substitute animal food patents from the European Patent Office, Cheese Analogue/Avebe and Meat Substitute/Impossible Foods. This is contextualised within the history of the patentability of food and of recipes, and analyses the Opposition Division and Boards of Appeal decisions of both patents in relation to the requirement that an invention is sufficiently disclosed, supported and non-obvious, and how one provides evidence for food-related inventions. In particular, the article notes the change in language used to patent food compared to the language of recipes, the willingness to have uncertainty in either the starting materials or the end product of processed foods compared to traditional recipes, and the patent system’s acceptance of measures and professions that are created to ostensibly give quantitative credence to food-related characteristics constituting “technical effects”.
The paper examines the historically contingent and socio-politically embedded development of copyright in Central and Eastern Europe (CEE) and argues that its contemporary “identity” in the region cannot be adequately captured through the canonical Western paradigms of ownership, technological neutrality, and the utilitarian–romantic divide. Building on a historically grounded comparative account, the paper reconstructs the distinctive institutional origins of CEE copyright, where printing privileges were administered by sovereign and ecclesiastical authorities and operated not primarily as market instruments but as mechanisms of governance – closely connected to censorship, political control, and the regulation of public discourse. The analysis then situates the post-communist transition within this longer trajectory, emphasizing how accelerated legislative change, external pressures, and limited deliberative capacity contributed to persistent axiological and interpretive instability. In the absence of a sustained property–public domain discourse comparable to that in Western Europe, judicial reasoning in the region may rely more heavily on equity, proportionality, and intuitive assessments of fairness, producing outcomes that are difficult to systematize within EU-harmonized doctrinal categories. Finally, the paper highlights moments in which this underlying identity becomes publicly legible, including the mobilization surrounding ACTA protests and the challenged reception of the DSM Directive. By treating CEE not as a peripheral deviation but as an analytically productive vantage point, the article reframes the problem of harmonization as one of divergent historical memory and legal consciousness, with direct implications for future EU copyright reform under conditions of rapid technological change.
The reference in Like Company v Google (Case C-250/25) is seen as a potential landmark case, giving the EU’s highest court the opportunity to define the scope and conditions of permitted artificial intelligence (AI) training and develop an infringement test for AI outputs. The European Copyright Society (ECS) urges the Court of Justice (sitting as a Grand Chamber) to exercise caution. While the reference stems from a plausible complaint by a press publisher against the provider of an AI powered chatbot reproducing and communicating its editorial content, the implications of this problematic reference could be far-reaching. Specifically, the reference conflates questions relating to the training phase (Questions 2 and 3) with the legal characterisation of the use of press publications by an LLM-based chatbot (Question 4 but also Question 1, referring to the right of communication to the public and the right of reproduction under Directive 2001/29/EC, hereinafter the InfoSoc Directive). If the reference is found admissible, it is suggested that the Court of Justice should address jointly Questions 4 and 1, which relate to the legal characterisation of the use of press publications in the display. Here it is important to correctly understand next-token prediction in large language models, augmented retrieval technology (where the use of data does not generally form part of the learning process) as well as “online use”, defining the scope of the press publishers’ right under Art. 15 of the CDSMD. In the opinion of the ECS, the ambiguous characterisation of a fast-moving technology may result in the failure to realise the societal benefits of AI as a potential general-purpose technology. There are risks that a rash decision will push Europe towards a licensing economy in which AI systems are offered as a service by (non-European) multinationals, without solving issues of equity such as creator consent and distribution of revenues.
This article offers a comprehensive exploration of the evolving interface between trademark law and freedom of political expression in Europe using the CJEU case IKEA v. Vlaams Belang as a focal but not exhaustive case study. It argues that the dispute exemplifies a much broader and increasingly urgent structural question: how EU trademark law – especially in its protection of reputed marks – can be reconciled with the constitutional commitments to political speech, artistic creativity, and democratic participation embedded in Art. 10 of the European Convention on Human Rights (ECHR) and Art. 11 of the EU Charter. Against the backdrop of the expanding preliminary infringement criteria of “use in the course of trade” and “use in relation to goods or services”, as well as the uniquely far-reaching Benelux “super anti-dilution” regime, this article demonstrates that “due cause” has become one of the principal doctrinal ways for internalising freedom-of-expression concerns within trademark law. Drawing on Strasbourg jurisprudence, it develops a holistic framework for a free-speech-conforming interpretation of “due cause”, analysing both the criteria suggested by the Belgian referring court and additional factors central to the European Court of Human Rights’ proportionality review, including commerciality, the value of political speech and artistic expression, the reputation of the mark and the power of corporate symbols, availability of alternatives, tolerance for offensive expression, the limits imposed by hate speech, and the compelled speech doctrine. The article concludes that failing to interpret “due cause” in a speech-sensitive way risks enabling trademark rights to override core democratic freedoms.
The aim of this article is to examine copyright law in the context of its appropriate regulation with respect to cultural heritage. The article distinguishes between two regulatory approaches to this relationship: the traditional regulatory approach (TRA) and the new regulatory approach (NRA). The analysis is based on the findings of the inDICEs project and a review of the literature. The results suggest that assumptions made regarding four areas – cultural heritage as property, the linear model of creativity, the exceptional nature of exceptions and limitations, and direct economic values – significantly impact the regulation of the relationship between copyright law and cultural heritage. The NRA challenges these assumptions by positing that intangible goods can be both works and elements of cultural heritage, which necessitates considering a broader social and cultural context when determining the rules for their use. Additionally, it incorporates the circular model of creativity proposed by UNESCO and the indirect socio-economic values generated through active cultural participation. This approach also considers the Culture 3.0 model developed by Sacco. Furthermore, the NRA assumes that copyright rights are internally limited by exceptions and limitations, which play an equally important role as exclusive rights. In this context, the article presents the European Instrument for ensuring access to and the (re)use of cultural heritage resources. This instrument aims to enable cultural heritage institutions (CHIs) to fulfill their public mission while respecting creators’ rights to remuneration. The article emphasizes the need to adapt copyright law to changing conditions and take into account various interests, including those of users and cultural heritage institutions.
The European Union (EU)’s legal stance on data retention for law enforcement purposes has shifted from one of strict exceptionality to a broader acceptance. Landmark rulings by the Court of Justice of the European Union (CJEU) in Bezirkshauptmannschaft Landeck and La Quadrature du Net II mark a significant turning point, unprecedentedly allowing Member States to authorize the preventive storage of individuals’ personal data for the investigation of minor offences, including copyright infringements. The article examines this development with a particular focus on the CJEU’s application of the principle of proportionality in this latter scenario. The analysis unveils an incomplete legal reasoning that fails to accurately address the peculiarities of copyright infringements and safeguard the essence of the right to data protection. This raises a cautionary note against the spreading across the EU of automated copyright enforcement systems based on the general and indiscriminate retention of internet users’ personal data.
The European Union has embraced the circular economy as a cornerstone of its transition toward climate neutrality and long-term resource efficiency. This paper, however, argues that the promise of circularity is undermined by the structural misalignment between environmental policy objectives and the legal frameworks governing intellectual property rights (IPRs) and data governance. While recent measures such as the Ecodesign for Sustainable Products Regulation (ESPR), the Right to Repair Directive (R2R), and the Data Act introduce mechanisms for data sharing, design transparency, and repairability, their effectiveness is constrained by entrenched logics of exclusivity and secrecy. In particular, trade secret protection – potentially indefinite and broadly defined – remains a systemic barrier to information flows that are indispensable for repair, reuse, remanufacturing, and interoperability. The paper advances the concepts of “circular IPRs” and “circular data” to reframe these regimes as mutually reinforcing pillars of a legal order capable of sustaining circularity. It contends that realizing the EU’s circular ambitions requires a paradigm shift: from exclusivity and secrecy toward openness and collaboration and from proprietary control toward infrastructural access and circularity. By aligning IPR reform and data regulation around openness, collaboration, and ecological imperatives, the EU can build the legal foundations for truly circular innovation.
