Is Upcycling Always Green – and Should It Be? Reconsidering the Rationale for Accommodating Upcycling within IP Law and Leveraging the Potential of Quotation and ‘Due Cause’

Abstract Climate change has forced legal systems to question many of their long-standing assumptions, including the linear logic underpinning intellectual property (IP) law. Scholars have shown that copyright and trade mark laws often hinder circular practices such as repair and upcycling, prompting calls for more flexible, ‘greener’ IP law. This article challenges a key premise of these proposals: that upcycling is inherently environmentally beneficial. The environmental value of upcycling is neither uniform nor self-evident, and in some contexts it may be marginal or even adverse. This uncertainty raises a normative question: should the accommodation of upcycling under IP law depend on demonstrated environmental benefits, or does upcycling embody a wider social value warranting protection irrespective of ecological impact? This article argues for the latter, developing a framework grounded in artistic freedom and cultural diversity rather than environmental sustainability alone. Environmental benefits, where present, are treated as supporting rather than foundational justifications. Building on this reframing, this article reassesses concerns about free-riding on IP holders’ rights and argues for a more calibrated balance between upcycling practices and the protection of legitimate IP interests. It then examines how this balance might be realised within existing EU IP law, focusing on the underexplored potential of the quotation exception in copyright law and the ‘due cause’ defence in trade mark law. By repositioning these defences within the sustainability discourse, this article seeks to broaden the tools available to courts and policymakers for aligning IP law with the social value of upcycling.