We are happy to announce the publication of three outstanding IP LLM dissertations in the CREATe Working Papers series.
The authors of outstanding dissertations: Gabriele Cifrodelli, Eleonora Maroni and Tiarnan Cahill, are recent graduates of the LLM in Intellectual Property & Digital Economy, a programme offered by the University of Glasgow Law School and led by CREATe. The dissertations were selected by the CREATe teaching team following the nominations of IP LLM supervisors. The criteria guiding our choice were simple: we wanted to recognise excellent, well-researched and inquisitive work of our students. By publishing the dissertations in the Working Paper series we would like to bring those outstanding pieces of research to a wider academic community and to inspire our new students when preparing their own dissertations in the future.
The dissertations of Gabriele, Eleonora and Tiarnan represent a wide range of topics, however, they are all linked to the contemporary debates concerning the relationship between intellectual property regulation and digital technologies: artificial intelligence, 3D printing, and blockchain.
In his dissertation titled Patent System and Artificial Intelligence: Towards a New Concept of Inventorship? (CREATe Working Paper 2021/12) Gabriele argues that artificial intelligence (AI) cannot currently be considered an inventor for the purposes of the patent law. For now, only “aided by AI” inventions exist, and in the future when “AI-generated” inventions become a reality, the patent system will require reform and the adaptation of a tailoring approach, with different levels and lengths of patent protection.
Eleonora’s dissertation, The 3D printing: the notion of use in trade mark law under pressure (CREATe Working Paper 2021/13), considers the possibility of trade mark infringement in home-3D printed objects. She argues that whereas such uses remain largely unaddressed by trade mark law, the sale and sharing of CAD files used for 3D printing qualifies as the use of a trade mark in the course of trade and can result in trade mark infringement, making CAD online marketplaces liable.
In Online Service Providers and blockchain: undermining copyright goals? (CREATe Working Paper 2021/14) Tiarnan enquires whether the functioning of online service providers (OSPs) challenges copyright’s ability to i.e. facilitate creativity and ensure fair remuneration for creators, and if the use of blockchain technology could bring change in that regard. He concludes that whereas OSPs pose significant problems to copyright’s goals, blockchain has a great, to this day untapped, potential to shift balance of power in the creative markets.
The full text of all three dissertations is available here.
Patent System and Artificial Intelligence: Towards a New Concept of Inventorship?
The objective of this work is to answer the question whether an AI can be considered an inventor, as can a human, through a methodological approach which analyses different documents that are mostly secondary sources, but also case-law and legislation. The answer is negative: there is no such thing as a new concept of AI inventorship for now.
In particular, although there have been attempts by some authors – defined as the “classic literature” – to consider AI as creative and thus capable of generating inventions (the so-called “AI-generated” inventions), a more careful “technical” literature states that AI systems operate through a different intelligence than the human one, and this philosophical difference can be practically envisaged not only in the current case-law of the EPO, but also in the way machines operate in our reality. Indeed, the computational problem solving mechanism requires the human contribution, especially in the phases of abstraction/modelling, defining an algorithm and programming. Therefore, even the most sophisticated soft-computing methods, such as ANNs and EAs, cannot be considered autonomous.
However, this work will not completely underestimate the possibility that in the future there could be something such as an AI inventorship. Unfortunately, not only the very important incentive justification but also other classic IP theories (fairness, personality, and culture) would not be compatible with this hypothetical AI inventorship. As a consequence, the current patent system should be reformed through the implementation of a tailoring approach. The problem is that, in order to do so, legislators and judges should be aware of the optimal patent strength of each industry. However, the information about R&D costs, risk of failure, and level of innovation, is very difficult to obtain. Given this impossibility to reform the patent system, other ways through which AI inventorship can be protected will be mentioned.
3D printing: the notion of use in trade mark law under pressure
The new frontier of manufacturing, 3D printing, makes it easy to fabricate objects of any kind with the sole help of a 3D printer and CAD files. This may prove attractive for consumers who may be willing to engage in the home-production of objects. At first glance, this may not seem problematic for trade mark law: in its innocuous version, 3D printing simply enables consumers to customise their goods and to escape the standardisation of products provoked by the current prevailing business model.
However, home-3D printing also has a dark side as it may enable consumers to easily replicate products incorporating trade marks. It is reasonable to assume that consumers will not engage only in the private use of 3D-printed objects. Admittedly, they are likely to display some of them in public. This implies that products bearing trade marks will start circulating directly outside the points of sale and this may induce consumers to mistakenly assume that goods, which in fact are 3D-printed, come from the trade mark proprietor. How trade mark law is going to deal with this phenomenon is far from clear.
To evaluate this, this study reviews the present notion of infringing use under UK and EU laws, taking into account case law and academic literature, with a view to assessing whether the concept of use can be stretched to cover home-3D printing. The approach to this research is disillusioned: if it is true that 3D printing should be welcome for its role in fostering consumer empowerment, it is crucial to remember that it may also deprive consumers of some of the advantages they derive from the trade mark system. This latter aspect is often overshadowed by the positive effects of 3D printing.
This study finds that infringement in relation to home-3D printed objects embedding trade marks can be found only in limited cases. By shifting attention to the digital environment, this study concludes that infringement is more likely to be found when private individuals engage in the sale or share of CAD files embedding trade marks. Furthermore, it argues that, under certain circumstances, online platforms displaying CAD files should be held liable for infringement.
Online Service Providers and blockchain: undermining copyright goals?
This thesis will analyse whether online service providers critically undermine the functionality/goals of copyright, and to what extent blockchain technology can assist or entrench any arising issues. Analysis will begin with online service providers (OSPs) and provide a breakdown of how platforms interact with users, copyright, and the relationship between all three. Moving forward, analysis will continue by looking at the fundamental aspects of blockchain technology, and how these interact with OSPs in providing potential solutions or in fact posing more questions to copyright. Finally, this thesis will conclude that, through overriding desire for commercial control and growth, there are aspects of OSPs that do undermine copyright. Meanwhile, blockchain has the potential to alter the status quo, and galvanise copyright in favour of the innovator, re-calibrating the balance of power away from intermediaries. However, too much of the potential of blockchain is subject to theory or imperfect technological advancements, which ultimately means that blockchain currently cannot substantially reinforce or assist copyright in relation to problems posed by OSPs. With that being said, whilst OSPs present several significant problems to the functionality/goals of copyright, overall, such platforms do not critically undermine copyright. OSPs have encouraged unparalleled content creation and secured substantial revenue opportunities for innovators by nurturing primary and secondary markets.