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.
