Law and Technological Challenges – Book review

6/2021 22.11.2021
open book

M.Sc. (Econ.) Mikko Antikainen is the third in a row of PhD Students in Finland (two at Hanken and one at the University of Lapland) who within a fairly short time have successfully defended a doctoral thesis related to copyright issues.

The full name of the thesis is “Surviving Technological Change: Towards More Coherent Regulation of Digital Creativity Through EU Copyright and Design Law, Economics and Society, Publications of the Hanken School of Economics Nr 353”.

Antikainen defended his doctoral thesis on 5th November 2021, at Hanken. As his opponent functioned Professor Dinusha Mendis from Bournemouth University, United Kingdom.

The dissertation is composed of one peer-reviewed book chapter written together with Daniel Jongsma “The Art of CAD; Copyrightability of Digital Design Files” in “3D printing, intellectual property and innovation – insights from law and technology” edited by R.M. Ballardini, M. Norrgård and J. Partanen, Wolters Kluwer 2017, and two peer-reviewed articles “Copyright Protection and AI-Generated Works – A Fight We Have Already Lost?” and “Differences in Immaterial Details: Dimensional Conversion and Its Implications for Protecting Digital Designs Under EU Design Law” published in 2018 and 2021 in AIDA: Annali italiani del diritto d´autore, della cultura e dello spettacolo XXVII 2018 and International Review of Intellectual Property and Competition Law, 53, respectively.

In an integrative chapter (PP. 1-102) Antikainen introduces the research questions, the structure of the thesis and the methodology used, i.e. legal dogmatics and presents his concluding remarks. He summarises also the content of each article and points at the key findings and the main contribution of the articles.

The main research question is: Can the current IP Law in the EU, especially copyright and design law, adequately regulate digital designs as well as properly incentivize and protect digital creativity? In order to analyse the research question, he divides it in three sub-questions, each presented more closely in the three separate publications. These are:

– How should CAD-files be characterized and when are digital design works covered by copyright law in the EU?

– What is the legal status of AI-generated works according to EU copyright law, and can AI-generated works obtain protection regardless of the normative arguments against it? and

– What is the status of digital designs and to what extent are those designs covered according to EU design law?

Without going into any depth with respect to the presented arguments the first question is answered by laying down that a CAD-file representing a digital design is an artistic work assuming that it is the author´s own intellectual creation. This in turn should imply that the creation reflects the author´s personality and that he or she has been able to make free and creative choices. If this is the case it can be copyright protected. If the physical work is original, then the digital depiction in CAD form is so as well and consequently protected. Digital design depicting a purely functional object is on the other hand not protected. 3D scanning and modelling are also dealt with in the chapter.

According to Antikainen there are two types of arguments with respect to AI-generated works. One indicates that they cannot be protected because a work in copyright terms must be created by a natural person. The concept “an author´s own intellectual creation” implies the necessity of a human being when using the terms personal touch and personality when talking about originality. In addition, Antikainen argues, many works generated with an AI system lack originality anyway. On the other hand, there are economic, political, and practical arguments favouring protection according to him.

Protection will probably assure further economic investment in AI technology and also incentivize the creators, who use AI to create their artwork. The latter is of course not an issue since awarding the creator with protection if he or she uses AI as a tool only is not answering the question regarding the AI receiving copyright directly. A distinction can thus be made between AI-assisted and AI-generated creations. Antikainen also points out that the existing legal uncertainty might force the creators to seek other means of protection, such as using contractual measures or technological protection.

He concludes by noting that the prevailing view seems to be that AI-generated works do not, at least for the time being, receive copyright protection and thus do fall within the public sphere.

In his third article Antikainen ponders upon the implications of conversion with respect to protection of digital designs. He notes initially that within the EU there used to be two views, one called the “abstract” and the other the “concrete” view. According to the former the protection is not dependent on the dimensions of the object. The latter presupposes a particular article of manufacture in its actual dimensions. The CJEU seems to, according to Antikainen, have adopted the “abstract” view, which means that design protection covers dimensional conversion. He also explains how concepts, such as appearance of a product, individual character, normal use, and informed user should be viewed from the perspective of digitalization and video games. The conclusion is that in many cases EU design legislation can answer most of the problems caused by digitalization.

Digital designs seem thus to be fairly well protected both by copyright and design law. Consequently, the regulation does also, at least to some extent, function as an incentive for innovation. The challenge is AI-generated innovations. One answer is to award the creator of an algorithm the IP protection thus guaranteeing further innovation. This secures also some control over the rapidly expanding AI-innovations. I do not think that the time is ripe for awarding AI on its own authorship nor creatorship.

Be it as it may the thesis is dealing with interesting and important issues. It is most stimulating and well-argued. If you are interested in how IP tackles technological advances and how the latter stretch existing law the thesis is a must read.