infoJustice

Authors: Péter Mezei and Heidi Härkönen

Abstract: Exhaustion is a fundamental doctrine of copyright law, allowing for the resale of lawfully acquired copies of protected subject matter without prior authorization and payment to the rightholder. Following the debates on parallel importation, freedom of movement of goods, property rights v. copyright, and, most recently, resale of digital files, it is time to assess the relevance of the doctrine for a sustainable economy. More precisely, this paper addresses whether upcycling (transformative redistribution of materials based on the use of pieces/copies of, inter alia, works of authorship) fits into the doctrine of exhaustion.

Our analysis starts with a recent opinion of the Finnish Copyright Council on the upcycling of broken tableware, and follows with the critical analysis of the case law of the European Union and the United States on transformative redistributions. We argue that upcycling doctrinally fits into the concept of exhaustion, and – more importantly – it is supported by sound policy arguments based on the primary sources of EU law and the general aims of sustainability and circular economy.

Citation: Mezei, Péter and Härkönen, Heidi, Monopolising Trash: The Critical Analysis of Upcycling under Finnish and EU Copyright Law (January 3, 2023). Available at SSRN: https://ssrn.com/abstract=4316893 or http://dx.doi.org/10.2139/ssrn.4316893