Developing novel property concepts in private law to foster the circular economy

Abstract

This paper highlights the shortcomings of the mainstream utility economic approach to the private law pillar of ‘property’ in fostering socially desirable developments, such as sustainability, important in the context of the circular economy (CE). In this exercise, we take the examples of two prominent private law regimes, namely intellectual property and property laws. We shed light over specific issues related inter alia to acts of repairing, reusing and leasing, where in particular these selected private law fields are currently failing to provide the incentives needed for directing innovations and businesses towards more sustainable types of model. We argue that this mainstream utility approach to property has become untenable in a world where the impact of both tangible and intellectual property law frameworks on ecological integrity should actually be prioritized. As we then show, legal practices that reflect more social planning types of theory might better facilitate a smoother and swifter transition towards the CE. This switch would also better align private law regimes with some of the noble goals already included in public areas of law, that way putting the two frameworks more in harmony towards achieving a European sustainable CE.

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