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First-year law student Shinelle Leo looks at last year’s cultural film phenomenon

No matter where in the world you were in the summer of 2023, it was impossible to escape the ‘Barbenheimer’ phenomenon. Whilst one movie is a pink-themed, post-modern take on a blonde doll navigating the human world, the other is a pensive and striking biopic based on the ‘Father of the Atomic Bomb’. Many may have watched both purely for their love of cinema, however keen legal heads would have been curious to consider the legalities preceding the films. Both pictures have a fascinating legal framework covering intellectual property (IP) protection and historical legislation.

Trademarks, trade secrets and Mattel

According to BrandFinance, the Barbie brand has a market value worth USD$701 million in intellectual property. It is well-established that their owners, Mattel, intend to protect all Barbie creations. Mattel has developed the IP profile for Barbie by registering trademarks and copyright protection globally including 23 registered trademarks in the EU and over 30 registered in the UK, including the name ‘Barbie’, variations of the logo, Barbie’s iconic boyfriend ‘Ken’ and now, trademarks for the phrases ‘Kenough’ and ‘Mojo Dojo Casa House’.

The chronicles of ‘Barbie pink’

Mattel owns a range of trademarks for different features of Barbie. One irrefutable feature of not only the brand itself, but also the movie, is the substantial usage of the colour pink including the introductory song being named ‘Pink’. Although theoretically impossible to trademark an entire colour, Mattel does have (unofficial) protection for a specific shade of pink- Pantone 219C. This has been consistently used when portraying Barbie and has arguably achieved ‘acquired distinctiveness’. This is where, for a trademark to be claimed, it has to have become ‘distinctive’ resulting from its use in the market to the extent that consumers recognise the trademark in relation to a particular good or service. Mattel has attempted to register a trademark for the ‘Barbie Pink’ with the US Patent and Trademark Office in over 100 categories — although this is yet to be officially trademarked.

The acquired distinctiveness of ‘Barbie pink’ was further argued by Mattel when they sued Rap Snacks, alleging that they infringed on the trademark rights of Barbie. This was not just for Rap Snacks using the name ‘Barbie’ in ‘Barbie-Que Chips’, but also for using their famous pink on its packaging. Mattel argued that this would cause consumers to associate the defendant’s products with the Barbie brand. However, the case was ultimately dismissed as Rap Snacks agreed to stop selling the product.

A Barbie girl in a Barbie world?

Mattel is also keen to protect the usage of the name ‘Barbie’ being used by other parties. In 1997, they sued the band Aqua for their song ‘Barbie Girl’ as they published the song without gaining Mattel’s prior consent to use the doll’s name. As the song became increasingly popular, Mattel sued MCA Records, Universal Music International, and other parties involved in distributing the song. The lawsuit claimed trademark infringement and dilution; dilution refers to the use of a trademark that is relatively similar to an existing famous mark causing consumer confusion.

The trial Court held that the song was unlikely to diminish the Barbie trademark. According to the Court, it was unlikely to allude consumers into believing that Mattel was affiliated with the song as the song was a parody, giving it protection under the First Amendment. Ultimately, when Warner Bros released the Barbie movie in 2023, Mattel prioritized not only the licensing of the Barbie marks, but also the usage of the quality of these marks’ by third parties.

Barbie vs Bratz: the trade secrets saga

One unfamed IP concept is that of trade secrets which refers to confidential information being bought and sold. In 2004, Mattel sued for misappropriation of their trade secrets by MGA (the brand that created Bratz) as they claimed one of their former doll designers had developed the idea for the Bratz dolls and allegedly taken this idea to MGA using the insider knowledge they had gained of the Barbie ecosystem. Mattel won the trial in 2008 and was awarded $100 million in damages which was then appealed by MGA, who went on to win the appeal. They claimed that it was Mattel who had allegedly misappropriated MGA’s trade secrets by committing corporate espionage on their marketing plans and planned product concepts. MGA received $85 million in damages, at which point both sides had ended up spending over $100 million in legal fees.

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Film rights to Barbie

With regard to the film, there exist film rights which are rights under copyright law that allow a film-maker to create a film based on an existing property or idea. Entertainment mogul, The Warner Brothers Company currently enjoys the film rights to Barbie as they were the ones to pursue the film’s creation. Prior to this, Sony intended to create the Barbie movie for release in June 2018. However, their rights expired in in 2019 as writers Amy Schumer and Kim Caramele were undecided on the direction the movie should take. This is where the Warner Brothers stepped in to push forth the live-action film which generated for them a $1.5 billion profit.

Mattel’s Barbie brand is protected by a raft of IP rights. It is evident that with the heightened attention to the Barbie brand following the release of the Barbie movie, Mattel is not only benefitting from stringent IP protection but given its history, is similarly likely to be cautious in pursing intellectual property litigation for the use of their name, logo and colour.

Oppenheimer’s impact on patents and legislation

Christopher Nolan’s highest-grossing biopic, Oppenheimer, has piqued the interest of many viewers to delve deeper into the details of the Trinity Test and the aftermath of the Japanese bombings. What may be unknown to many is that Dr. Oppenheimer and his team at Los Alamos filed for several patents which would cover aspects of the technologies used to create the atomic bomb including a ‘neutronic reactor’ and a ‘low impedance switch’.

Patent protection for the Manhattan Project

Patents are a prominent form of IP protection that cover new inventions and allow the owner to pursue legal actions against those who use their inventions without their permission. They played a key role during the Manhattan Project; the U.S. Department of Energy filed several patent applications to the Patent Office during the Project. These applications were being directed to a secret division in Virginia because patenting atomic bomb technology presented obvious security concerns. More importantly, the threat of espionage created fear that other nations would deduce that the United States was developing a bomb. They would be stamped secretly and secured in one of the patent office’s vaults, and remain classified until later in the 1950s.

Without the use of this process, the security of the Manhattan Project would have been undermined, as each patent application laid out all the workings of each technology using terms that other engineers could potentially replicate. To further protect its security during the Project creation process, all of the information was disguised with code names to prevent any replications.

When the U.S. Congress became aware of the patent filings during a 1946 Congressional hearing, Captain Robert A. Lavender testified that they were seeking patent protection to avoid any other inventors filing speculative patents which had the potential to impede the U.S. Government from using atomic technology. Today under the U.S. quid-pro-quo law, ‘how to build an atomic bomb’ is publicly available.

Oppenheimer: A ‘loyal citizen’?

A predominant portion of the storyline of the movie focused on Oppenheimer’s security hearing. A total of 24 charges were brought against him. These were twofold: the majority claimed that he was associated with communists during WWII and had subsequently given conflicting testimony to the FBI. The secondary charges held that he consistently opposed the atomic bomb’s development, contesting it even when President Truman ordered them to continue with the Project. Ultimately, he was declared a ‘loyal citizen’, however, a 2-1 majority revoked his Atomic Energy Commission security clearance.

The impact of the bombings in Japan paved the way for new legal frameworks surrounding atomic weapons. This prompted other nations to recognise the need for control over their own atomic weapons after learning of the destructive consequences of those used in Japan. This led to the creation of the Non-Proliferation Treaty which intended to cease the Nuclear Arms Race and segregated countries into ‘Nuclear Weapon States’ and ’Non-Nuclear Weapon States’. This treaty set an international precedent for cooperation between the two categories of states.

The creation of these atomic devices required existing legislation to be amended to accommodate it. The complexities of nuclear information required the Espionage Act of 1917 to be amended to cover atomic energy information and forbidden informational categories. Acts such as the Defence Act 1911 which regulated government secrets no longer sufficed in encompassing the complexities of nuclear information.

Conclusion

Several legal lessons can be taken away from both movies. The dogged persistence of Mattel in protecting its rights to Barbie, emphasises the importance of IP rights in protecting a well-reputed brand. Oppenheimer’s atomic inventions created the need for an unprecedented legal paradigm. It is not only exciting for the public to get two blockbusters on the same day, but can also create a legally significant impact on the entertainment industry — one which can be fascinating to uncover.

Shinelle Leo is a first-year LLB student at The University of Manchester with a keen interest in intellectual property especially with matters concerning the entertainment industry.

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Music of many genres relies on a shared language and a set of basic tools to be understood by its listeners. Indeed, music academics have noted that music without a certain amount of “redundancy”, created by features common to many songs, often alienates listeners.

 How, then, should songwriters continue to create when essential elements of their shared musical language are being claimed under copyright? This is the issue at the crux of debates around how music copyright needs to adapt in the digital age.  This was most recently illustrated in the High Court battle between chart-topping singer Ed Sheeran and singer-songwriter Ed Townsend’s heirs, who alleged that Sheeran had infringed copyright in his popular ballad Thinking Out Loud. This piece will explore the background to the case, before considering the implications that lie ahead for intellectual property and music law.

Background: The Ed Sheeran case

Townsend co-wrote the 1973 sexual liberation anthem Let’s Get it On with American R&B and soul singer Marvin Gaye, and it was Townsend’s estate and rights holders who filed suits claiming that Sheeran copied the song in his track, Thinking Out Loud. These suits were filed in the US, so we will be discussing American copyright law.

There are two cases concerning Let’s Get it On and Thinking Out Loud. The focus of this article will be the second of these cases, brought by Townsend’s estate and his biological daughter, Kathryn Griffin Townsend. This case was tried in May 2023, although Griffin Townsend originally filed for copyright infringement in 2018. Sheeran sought to dismiss the case on the grounds that US copyright law only protects the sheet music of Let’s Get It On, that the songs are not sufficiently similar, that their shared elements constitute common musical elements, and that although Griffin Townsend is Townsend’s biological daughter, she was later adopted.

This plea of dismissal was rejected by Judge Stanton, for the reason that there were too many similarities to allow for “a judgement of non-infringement as a matter of law”. The trial concluded in May 2023, having been delayed by a similar case involving Led Zeppelin’s Stairway to Heaven and the Covid-19 pandemic.

There are several key issues in this case. For starters, the two songs are under different copyright laws. Let’s Get it On was released in 1973, so it is under the 1909 rather than the 1976 Copyright Act in the US. The 1909 Copyright Act required that a musical work be submitted to the US Copyright Office as a notated musical score, rather than as a recording. By contrast, the 1976 Copyright Act, which went into effect on 1 January 1978, does allow for the copyrighting of recordings. This meant that whilst jurors could listen to the Thinking Out Loud recording in the trial, they were only allowed to listen to a computer-generated recording of Let’s Get it On.

Moreover, it is not possible to copyright an idea, only its “tangible expression”. US copyright law specifies that copyright does not protect “any idea, procedure, process, system, method of operation, concept, [or] principle” embodied in the work. Proving copyright infringement rests on demonstrating that the defendant copied the work in question and that the copying was “improper”, meaning that the defendant copied a substantial amount of protected material. This can involve demonstrating that the defendant had reasonable access to the copied material and showing that there is a substantial degree of similarity between the works in question.

If these conditions are fulfilled, the defendant must prove that they did not copy the work, by relying on defences such as independent creation.

The arguments

Both sides employed musical experts to make technical arguments for and against infringement. The case for infringement focused on the similarity of a chord progression. The musical expert for the plaintiffs, Alexander Stewart, noted the similarity between the off-beat rhythm to which the chord progression is played in both songs. He claimed that the combination of this chord progression with the off-beat rhythm only occurs in one other song, an obscure cover of Georgy Girl from 1966. The plaintiff’s lawyer also played a video they termed a “smoking gun”, in which Sheeran performs the two songs in question as a mash-up.

Sheeran’s team vehemently argued against the claims of infringement. The defence drew upon musicological details and also capitalised on Sheeran’s personality. Indeed, whilst neither Gaye nor Townsend were alive to participate in the trial, Sheeran was able to take the stand, playing his guitar and singing.

There were three key points to the defence’s musicological argument:

Firstly, they argued that the chord progression was so generic that it was unprotectable by copyright. They claimed that it was a musical “building block”, and as such any musician could use it freely. Lawrence Ferrara, the defence’s musicologist, demonstrated this by citing the progression’s appearance in educational materials, such as “How to Play Rock ’n’ Roll Piano” (1967).

Secondly, the defence argued that the combination of the rhythm and chord progression was not unique, and Ferrara gave six examples to show this.

Thirdly, Sheeran demonstrated that there was a subtle difference between the two chord progressions. The second chord in Sheeran’s progression differs by one note to that in Let’s Get it On. Although these two chords have the same function in the progression, making them the musical equivalent of synonyms, this difference undermines the similarity.

The defence also addressed the issue of the mash-up video, noting that mash-ups are a frequent element of Sheeran’s live performances. Sheeran demonstrated this on the stand by performing Thinking Out Loud and moving through three different songs, including Shania Twain’s You’re Still the One and Bob Dylan’s Just Like a Woman.

Outcome and implications

The jury ruled in favour of Sheeran after three hours of deliberation. The Townsend family intends to appeal. This decision is important in the context of the recent rise in popular music copyright infringement cases. This rise could be due to developments in technology. On the broadest level, online streaming has made available not only millions of songs written today, but also a huge historical musical catalogue. This makes conscious copyright infringement easier and unconscious copyright infringement more likely.

Further, there is a growing trend in the integration and reuse of older artistic objects in digital culture. Another reason for the increasingly litigious atmosphere relates to the relatively recent market activity in catalogue ownership, driven by publishing houses such as Primary Wave. This means that publishing houses encourage their artists to use samples of the catalogues they own, thereby furthering a culture of repurposing and recycling in popular music. In addition, these publishing houses have motivations to bring lawsuits against artists they feel infringed on material they own.

Sheeran’s case is only the latest in a string of high-profile music copyright litigation that has emerged in recent times. Other notable cases include that brought by Gaye’s heirs against Robin Thicke and Pharrell Williams in 2015 (Gaye’s estate was eventually awarded $7.4 million in recuperative damages), and the accusations of copyright infringement levelled at Led Zeppelin and Katy Perry in 2020 and 2022 respectively (both successfully defended their cases). The rise in case numbers and the increasingly complex nature of such music copyright litigation pose several questions going forward.

Today, the most distinctive aspects of a song frequently rest in sound and production rather than melody or lyrics. Perhaps an amendment to the 1976 Copyright Act reflecting this would protect the features that are becoming the most original and characteristic part of songs, whilst allowing for a shared musical language. Secondly, we are living in a digital age where reusing and referencing other artistic materials is both easy and popular. Some have suggested that we need new legal frameworks to allow artists to benefit from this practice, rather than focusing on eradicating it.

 Katrina Toner is a composer and music graduate from Cambridge University. She is currently studying for a master’s degree at The Julliard School and is an aspiring lawyer.

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At the moment it seems like the whole world is shocked to discover the colossal leap artificial intelligence (‘AI’) has made, since the release of ‘ChatGPT’ by the Elon Musk-founded company OpenAI last month.

I asked the newly-released software what effect it thinks AI will have on UK copyright law, and this is what it had to say:

“It is difficult to predict the exact impact that AI will have on copyright law in the UK. However, it is likely that the use of AI in creative industries, such as music and art, will raise questions about the ownership of works created by AI. There may also be discussions about whether AI itself can hold copyrights for works it creates. It is possible that the UK government will need to update copyright laws to address these issues.”

I must stress there was no human involvement in the creation of that answer and it has not been edited. When computers are capable of creating coherent and reasonable answers to complex questions, it’s only a short step to their ability to author literary works of their own. This specific computer programme specialises in its understanding of language and has the potential to change the face of many industries. It follows OpenAI’s previous AI image generator, ‘DALL-E 2’, which was capable of instantly generating artwork including photo-realistic images based on user prompts.

Copyright laws allow the creator of a work to be the sole owner of that work, therefore they have the sole rights to sell or reproduce their idea. These rights can be claimed by the author of the work under section 9 of the Copyright, Designs and Patents Act 1988 (‘CDPA’) which describes an author as the person who “created” the work. This work could be: literary work (e.g. a book or script), entrepreneurial work (e.g. a film or sound recording), or other works which are detailed in the Act. The Act itself considers in the instance of a literary work being computer-generated “the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.” This is a confusing assortment of words that essentially means the author of a work written by an AI will be the writer of the prompt that encouraged the AI to write it.

Different categories of copyright works have different requirements to be protected. For example, entrepreneurial works have no requirement for originality, in contrast to literary works which section 1 CDPA requires are “original”. The meaning of original is undefined in the Act but is understood to mean the original work of the author — this conflicts with the provisions under section 9 which allow the author to take credit for the computer-generated work in spite of it not being their own work.

Some suggest it would be a logical solution for a computer-generated work to be held separately to a human-written piece as an entrepreneurial work as opposed to a literary one. This would be similar to how the law treats sound recordings and musical copyright which are substantially the same but with a difference in authorship requirements and, consequently, a difference in the level of protection afforded to them.

Whilst others question whether AI-created works should be entitled to copyright protection at all. Eventually, this school of thought boils down to understanding the fundamental purpose of intellectual property law. Ultimately, when a human protects their work this is because they want to be the sole beneficiary of the products of their own time, effort and imagination. A computer-generated text, song or artwork does not derive from the same process, consequently, why should it be afforded the same protection?

On the other side of the coin, the implications of AI are not limited to computer-generated literature flooding the shelves of bookshops and AI art hanging on the walls of the Louvre. Machine learning algorithms are already being implemented by companies such as YouTube to automate the process of copyright enforcement. These algorithms can quickly and accurately scan vast amounts of content, comparing it against known copyrighted works to identify potential infringements. This has made it easier for copyright holders to enforce their rights and protect their works from unauthorised use, but has also raised concerns about the potential for false positives and other errors in the process.

Overall, the impact of AI on copyright is clearly complex and multi-faceted. While the technology has brought about many positive changes, including making it easier to identify and enforce copyright infringement, it has also raised a number of challenging legal and ethical issues. As AI continues to advance and become more widely adopted, it is obvious that these issues will continue to evolve.

The UK is in the minority when it comes to recognising the early potential for the composition of copyright works without the need for a human author and legislating on it. Many other jurisdictions, such as the USA, will have issues with this growing technology now the public have free access to this tool. In the USA, for a copyright to be satisfied, cases have established the work must be created by a human author using a modicum of creativity. It’s hard to say which approach will stand the test of time but it is obvious that the foundations have been laid for a new normal for creative industries.

Jonathan Binns is an aspiring barrister and recent law graduate, currently undertaking the BPC at The University of Law, Leeds.

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On 15 April 2021 Marks & Spencer (M&S) launched legal action against Aldi, claiming that its ‘Cuthbert the Caterpillar’ cake infringes its trademarked ‘Colin the Caterpillar’ cake.

Everyone knows M&S’ Colin the Caterpillar cake — the so-called “national tasty treasure” was originally launched 30 years ago and has not significantly changed in design since 2004. Colin the Caterpillar is a popular, fun and favourite cake for any event, even weddings — my brother was in charge of choosing the cake for his wedding, and he chose two of M&S’ famous insect replicas. Yes, really.

Due to Colin’s popularity, M&S filed an application for a trademark for ‘Colin the Caterpillar’ in the United Kingdom and European Union on 8 October 2008, under class 30, which relates to various types of food. The application was later registered as a trademark in April 2009. This means that Colin the Caterpillar is a protected intellectual property right and M&S can bring an action for infringement to anyone else who attempts to use this trademark. Since M&S began selling Colin the Caterpillar cakes, other retailers have followed suit and sold similar caterpillar cakes, including all of the ‘big four’ supermarkets, Asda, Morrisons, Sainsbury’s and Tesco, using names such as ‘Curly the Caterpillar’ (Tesco), ‘Clyde the Caterpillar’ (Asda) and ‘Wiggles the Caterpillar Cake’ (Sainsbury’s). So, why has M&S lodged a claim with the High Court specifically against Aldi?

M&S has argued that the close similarity of Aldi’s Cuthbert the Caterpillar cake “rides on the coat-tails” of Colin’s honourable reputation (a classic trademark infringement phrase — remember L’Oréal v Bellure?). Therefore, M&S have stated that this amounts to passing off; the law of passing off prevents traders from misrepresenting their goods or services as that of another trader. M&S believes that Colin has a distinctive character and reputation, especially due to the fact that Colin is a central piece (or slice, if you will) of the company’s partnership with Macmillan Cancer charity. As a result, M&S believes that Aldi’s duplicate cake may be unfairly benefitting from the well-known strong reputation that Colin holds.

The central issue is whether Aldi’s product is close enough to cause confusion among customers and that incorrect assumptions could be made that it originates from, or is connected to, M&S. For example, if the product is purchased from an Aldi store, the packaging branded ‘Cuthbert the Caterpillar’ is removed and the primary school party staple is laid out on a table — this could confuse or mislead guests of its origins. Aesthetically speaking, both are choco-covered log cakes with decorative sweets adorned on top. Further, if consumers are to be disappointed with Cuthbert, this could detriment Colin’s reputation that M&S has worked so hard to build over the years, due to the similarity of the products. As an upmarket store, perhaps M&S is concerned about the fact that Aldi is clearly producing a more affordable version of the product and the implications that this may have on M&S’ glowing reputation as a business overall. Would you go with Cuthbert to save that £2?

Aldi’s Cuthbert cake is still available on its website (renamed ‘Holly Lane Caterpillar Cake’) and has been on sale in Aldi stores since 2019. If M&S’ case is successful, Aldi will have to remove their version of the caterpillar cake from sale permanently and agree not to sell any similar products in the future. Ever. However, this seems to imply that Aldi would get off lightly, as M&S has not specifically divulged that they will be seeking monetary reimbursement or compensation for losses — i.e. any Colin sales lost by virtue of customers purchasing Cuthbert instead.

On the flip side, Aldi appear to be making light of the situation, taking to social media with jokes and puns… possibly implying that they don’t believe M&S will be successful in their claim. Or perhaps just trying to not damage their reputation by making the public laugh and gaining support that way. I must admit I’ve had a chuckle at some of their recent Twitter activity and seen many re-tweets claiming that Aldi’s social media manager deserves a pay rise. Some examples of their recent tweets include “Cuthbert has been found GUILTY… of being delicious”, “This is not just any court case, this is… #FreeCuthbert” and “Marks & Snitches more like”.

Packaging update. #FreeCuthbert pic.twitter.com/XDSnhpvjmj

— Aldi Stores UK (@AldiUK) April 16, 2021

Sammy Hacklett graduated in law from the University of Southampton in 2018. She currently works as a paralegal at Eversheds Sutherland.

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In his 1928 work La conquête de l’ubiquité, Paul Valéry noted: “we must expect great innovations to transform the entire technique of the arts, thereby affecting artistic invention itself and perhaps even bringing about an amazing change in our very notion of art”. NFTs (non-fungible tokens) have become an unlikely innovator in the art world.

NFTs are a method of tokenising an asset, where a token is a digital unit of value recorded on a blockchain. These tokens can represent a variety of things and obey different rules. The nature of a token depends on the standard (a set of rules decided by developers) that is applied to it. Popular standards include the ERC-20 standard for fungible (something that is not unique and therefore divisible) tokens on blockchain Ethereum’s infrastructure, whilst the ERC-721 standard is often used for non-fungible (unique) tokens. Here’s a useful video that provides some more information on NFTs.

An ‘authentic’ digital canvas

So, how can NFTs be applied in the art world? Digital art is attached to an NFT which is minted online and then traded in a variety of marketplaces. NFTs have had two important effects. First, they have provided a sense of ‘authenticity’ to digital art. Second, they have created a potentially useful online canvas for digital artists to share a new genre of performative artworks.

Because NFTs are unique tokens, they provide a sense of authenticity to digital art in a copy-and-paste internet world. Ever since the Renaissance’s cult of individualism, as theorised by Jacob Burckhardt, authenticity has played an important role in art. Before the Renaissance, as Alexander Nagel has argued, forgery of an artwork did not exist because a work’s value did not stem from its originality and authenticity. It is only in the Renaissance that artworks could be considered deficient if they were not the ‘authentic’ product of a certain artist. The artist had suddenly become an important quality of the artwork.

NFTs encode this sense of ‘authenticity’. Therefore, if you find some of the recent valuations of NFTs absurd, it is the fault of the marketplace for art, not NFTs. It is this ideology of valuing a work on its creator’s reputation rather than on the artwork’s aesthetic value alone that has seen NFTs of Jack Dorsey’s first tweet being valued at $2.5 million (£1.8 million), a video of Banksy’s work Morons being burnt selling for $380,000 (£272,000) and the digital artist Beeple’s collage ‘Everydays: The First 5000 Days’ selling for a record-breaking $69.3 million (£50 million) yesterday.

just setting up my twttr

— jack (@jack) March 21, 2006

Because NFTs can provide an aura of authenticity for digital art, they have become an ideal canvas for digital artists to create a new type of performative digital art. Consider Jack Dorsey’s NFT tweet. It is just a screenshot of his tweet, something that anyone can make and therefore has little value. So, what makes it art? Is it inherent to the tweet itself? Or did Jack Dorsey become an artist (and his tweet art) when he created the NFT of his tweet? Is the act of selling his tweet an artistic performance that can be qualified as art?

This issue cannot be definitively settled, but I am inclined to agree with the argument that considers minting an NFT as an artistic performance (the digital equivalent of when Marcel Duchamp signed a urinal “R. Mutt” and placed it in a context where it could exhibit an artistic aura). Regardless of your opinion, it certainly adds an interesting twist to the “can you copyright a tweet?” debate. With such a broad range of NFT art (take a look at what’s on offer), it will be interesting to see if copyright is given an equally broad scope.

Get me a lawyer!

The utility of NFTs regarding intellectual property (IP) rights, however, seems far less convincing. The problem is that owning an NFT does not automatically grant you ownership of an original work. From a copyright perspective, an NFT is just a digital receipt indicating that you own a version of a work. Buyers’ perceptions about what they own do not necessarily meet the legal reality and companies involved in these transactions are not transparent.

As scholar Catalina Goanta has pointed out, Decentraland (a virtual world where land is represented in NFTs) has contradictory statements about the IP rights of its NFTs. It claims that it is a “virtual world owned by its users”. However, according to Article 12.1 of its Terms of Use, Metaverse Holdings Ltd (the company that provides Decentraland users with many important features) owns “all title, ownership and Intellectual Property Rights” on the site.

This lack of clarity over buyers’ IP rights has not stopped users spending millions on virtual land NFTs, with some suggesting that it could be at the forefront of a virtual real estate boom in the near future. Dapper Labs Inc., the Canadian company behind the first popular use of NFTs CryptoKitties, has done the most to resolve these IP issues by creating an NFT License. Drafting issues aside, this goes some way towards making buyers realise they are not purchasing the copyright but just a form of licensed content.

New intellectual property?

Whilst legal scholars have been quick to point out the legal holes in NFTs, we should not ignore the cultural and technical novelty of these unique tokens. Although IP rights are few and far between for NFTs, IP law may have to respond to the consequences of this NFT craze.

There could be significant benefits for artists who want to maximise their profits from the use of their work. As discussed earlier, artists can choose to mint their NFT according to different standards. Therefore, if you wanted to receive royalties whenever the rights to your work was used, you would opt for a token that laid down such rules (as it happens the ERC-1190 standard does this). And, as Valéry predicted, innovation could change our understanding of what art is and therefore what does and does not deserve copyright protection.

It remains to be seen whether NFTs will live up to their hype. Regardless of whether the future is a world with a developed NFT art market or angry crypto art collectors litigating for a violation of consumer protection (or both!), there will likely be some interesting legal issues on the way.

William Holmes is a penultimate year student at the University of Bristol studying French, Spanish and Italian. He has a training contract offer with a magic circle law firm.

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On 19 June 1421, the Republic of Florence granted Filippo Brunelleschi a three-year exclusive right to build and make use of his new type of boat “Il Badalone” on the river Arno in Florence. Although Brunelleschi’s boat did not survive its first outing and sank in the Arno, the legacy of his 1421 patent lives on today. The subsequent developments in intellectual property (IP) rights amongst the Italian city states are considered to be the progenitors of modern IP law. The Italian Renaissance’s principal heritage is embedding the concept of human ‘genius’ into our understanding of authorship and inventorship.

These foundations are now being shaken by recent technological innovations. Artificial intelligence (AI) has seen machines independently create art, music, literature and several useful inventions. The rise of the machine author and inventor has raised questions about whether a patent should be granted or copyright protection should subsist for machines’ creative productions. So, to what extent do we owe these IP problems to the Renaissance? Are there insightful parallels between the Renaissance’s development of IP and our present situation? And is it time to break with the past and redefine our IP laws?

Authorless and inventorless

For copyright to subsist under the UK’s Copyright, Designs and Patent Act 1988 (CDPA), a work must be original. The test for originality (both before and after the Court of Justice of the European Union’s (CJEU) Infopaq decision) is inextricably linked to authorship; the author is the legal person responsible for the original elements of a work. At present, AI cannot be considered an author because it does not have legal personhood.

The CDPA, however, was the first piece of legislation that introduced provisions for copyright protection in computer-generated works. The CDPA, in section 178, defines computer-generated works as works where there is no human author and provides a solution to this absence of human authorship in section 9(3). The author of a computer-generated work is “the person by whom the arrangements necessary for the creation of the work are undertaken”.

This, however, raises the question of whether the person (or persons) making the necessary arrangements for the creation of the work can meet the standard of originality required of an author, considering that they are only facilitating the AI’s creativity. Perhaps the efforts of making such arrangements is enough? Or, alternatively, can we objectively assess an AI’s originality compared to human standards? This remains to be tested in court.

Similar issues arise surrounding inventorship and legal personhood in patent applications for AI inventions. As I explain at greater length here, whilst an AI could satisfy the definition of an inventor, its lack of legal personhood is again problematic. This is because inventorship is inextricably connected to ownership (the inventor is the owner of a patent by default). But in order to be able to own or assign ownership to someone, AI would need to have legal personhood.

The lawyers working on the Artificial Inventor Project are currently testing this by filing patent applications for the creativity machine DABUS’s inventions in several different jurisdictions. The most promising sign the project has received was when the High Court’s 2020 ruling noted that “DABUS has “invented” the inventions” and the law may “cater for future developments, including developments that were — until they surfaced in litigation — unforeseen”. However, for now, AI’s creations remain authorless and inventorless in the eyes of the law.

From ars to ingenium

Underlying these issues is a broader question: why should IP law only reward human creations? The reason we are asking this today is, in large part, thanks to the way IP law was developed in Renaissance Italy.

Intellectual property law in the Italian city states was born out of two tensions. The first was a clash between the guild communes and talented entrepreneurial individuals. The guild communes (groups that specialised in certain crafts such as glass-making) passed on craft knowledge through apprenticeship schemes. On becoming an apprentice, you were forced by the guild to take an oath of secrecy that would prevent you from spreading guild knowledge to rivals. City states vigorously enforced this. Florence and Venice threatened those who fled the city’s guilds with capital punishment, whilst the cities of Lucca and Genoa would richly reward anyone who murdered a fugitive artisan.

Ironically, this protectionism created an attitude of ownership towards the intangible property of craft knowledge. Unwittingly, the guilds had developed the concept of intellectual property. And disparities in knowledge and ability eventually gave rise to individual entrepreneurs like Brunelleschi who refused to abide by the guild system.

The second tension was between man and machine. Society redefined the nature of its abilities in the face of cheap mass production. Under the sway of Renaissance humanisms’ focus on the individual, many types of craft knowledge came to be “treated as forms of ‘knowledge’ rather than mechanical skill”. Ars (mechanical skills collectively practised within guilds) became ingenium (forms of knowledge in an individual’s mind). The focus shifted from the collective and mechanical to the individual genius of the mind.

Accordingly, Brunelleschi argued in his patent request that he should have exclusive rights to his boat on the grounds that the machine was “the fruit of his genius and skill”. Similarly, the 1474 Venetian patent statute granted monopolies for “any new and ingenious device”, explaining that it aimed to attract individuals “who have the most clever minds, capable of devising and inventing all kinds of contrivances”. This justification for IP rights that centred on the unique genius of an individual’s mind has evolved into our concepts of authorship and inventorship.

The death of the author?

The DABUS case has highlighted the limited nature of this definition. As the High Court ruling explained: “To take a somewhat extreme example, were an alien from outside the galaxy to present itself before the courts of England and Wales, I would like to think that it would not be denied legal personality simply on the grounds of unforeseen extraterritoriality. The courts are well able to differentiate between an alien artefact (say a meteorite, a thing) and an alien (which if capable of interacting as a natural person, is or ought to be a person).” But the trajectory that Brunelleschi’s patented boat set IP law on is now preventing this natural progression for the innovations of our time. However, just as new technology redefined Renaissance Italy’s notion of authorship, will AI now redefine our understanding of authorship and inventorship?

There are two things that the Brunelleschi’s patented boat can teach us. First, that our understanding of what being an author or inventor means is based on a 600 year-old definition. Second, that a society’s interaction with new technology inevitably redefines the society’s understanding of itself. It remains to be seen if the birth of creative AI will be the death of our 600-year-old author and the inventor. If so, perhaps then copyright can subsist for AI works and patents can be granted for AI inventions.

William Holmes is a penultimate year student at the University of Bristol studying French, Spanish and Italian. He has a training contract offer with a magic circle law firm.

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At the Turkish Grand Prix, Lewis Hamilton secured a record equalling seventh Driver’s World Championship, a feat shared only by the legendary Michael Schumacher.

This followed Hamilton’s team, Mercedes-Benz, winning a seventh consecutive Constructor’s Championship at the previous event at Imola. Mercedes’ dominance in the sport is evident. Having re-entered in 2010, the German manufacture, who are based at Brackley in the UK, had a steady first few years back in the sport. However, the 2014 season saw the introduction of a significant rule change which has become known as the V6 turbo hybrid era. Mercedes has won every driver’s and constructor’s championship since.

Formula 1 is the pinnacle of motorsport, where the difference between winning and losing is measured by tenths, and sometimes hundredths of a second. It is a sport where there are millions of pounds worth of prize money on the line. Therefore, teams work tirelessly to maximise the performance of their cars, be it aerodynamics or engine power. Why then, are the teams in F1 not perpetually locked in a public patent war in a bid for supremacy? Why hasn’t Mercedes (who arguably have the best car) patented their innovations that are at the forefront of technological advancements?

If you look deeper, you will actually find that Formula 1 and intellectual property don’t mix.

What are patents?

In the UK, patents are subject to the Patents Act 1977. Patents are available for most industrially applicable processes and devices. In contrast to copyright, patent protection does not arise automatically on creation of a work. An application must be filed and then granted for protection to arise. Once obtained, they permit the inventor to stop third parties from using the invention.

There are also various international conventions which provide international protection. Examples of those that are currently in force are as follows:

• Agreement on Trade-Related Intellectual Property 1994
• Community Patent Convention 1975
• European Patent Convention 1973
• Patent Co-operation Treaty 1970

There is also the Unified Patent Court (UPC). The UPC settles disputes relating to European patents.

Why should you seek patent protection?

In many cases it takes time for a new technology to take off, and the benefit of some protection from competitors at the outset is very worthwhile commercially. Failure to protect the innovation before its details are published can severely limit, or even wholly undermine, the scope of protection under patent laws or as a trade secret under the law relating to confidential information.

The law isn’t everything

The lack of patents in F1 has been covered previously. James Allen, the BBC News F1 Correspondent, quoted a “senior F1 engineer” stating:

“The lack of patents in F1 is quite simple. It’s because if a team takes out a patent on a design, that then locks in an advantage the other teams cannot access. Therefore, the other teams will simply vote it out through the FIA Technical Working Group process by the end of the season in question.”

F1 is governed by the Fédération Internationale de l’Automobile (FIA). Each year the FIA outline the sporting and technical regulations for the upcoming season. Many teams rely on loopholes within the technical regulations to improve their cars’ performance. However, F1 is fundamentally for entertainment purposes. For F1 to be entertaining, it is arguable that fans would want as many teams competing for race wins as possible. If one team had a consistent advantage over the rest, the sport would become predictable. If a team patented an invention and it was clear that the invention subject to the patent was a clear cause for the competitive edge of the team, then the FIA would rule it illegal for the following season. Essentially, making the patent worthless.

Look no further than the current season and Mercedes’ introduction of Dual Axis Steering (DAS). DAS changes the alignment of the front wheel of the car and is controlled by the driver by pulling and pushing on the steering column. It is used to aid tyre warm up. Yet, the FIA has already clarified the rules making this system illegal for next season.

Another reason is time constraints. As protection only arises once the patent request has been approved, there is time in which other teams can develop similar processes or inventions to negate any tactical advantage.

It is worth noting that F1 is a world championship, covering a vast array of territories. To have the benefit of patent protection, an inventor would have to have applied, and been granted, a patent in each territory. This comprises domain spanning across the globe including; Australia, Singapore, Abu Dhabi, the UK and the USA. Making separate patent applications would be a lengthy and expensive process. There is a more convenient option of utilising the Patent Co-operation Treaty 1970, however that process can take up to 18 months to complete. Thus, rendering any potential technical advantage minimal upon completion.

Ultimately, teams choose to protect their innovations with secrecy not patents. The need to disclose the process when applying for a patent would likely cause the team to lose its competitive edge. Trade secrets, on the other hand, are information which hold a commercial value because they are, by their very nature, a secret.

Conclusion

Action sometimes overshadows inaction. Law is not the only consideration; commercial awareness is key. With the ever-changing landscape of F1, unless the invention can be tailored for use in other areas of the company, such as on-road vehicles, patents are not the best tools, all things considered. It is important to not only focus on the law and the benefits that it can provide. The business’ interests need to be considered, along with an understanding of the industry in which they operate and what their ultimate goals are.

With a major rule change coming in 2022, in a bid to even the playing field once again, who will come out on top? Which team will lead the way in innovation? Who will be the next champion of the world?

Benjamin Ramsey is a first class law graduate from Northumbria University. He completed the BPTC as part of his degree and was called to the bar in 2018. He currently works as a county court advocate for LPC Law, and is actively seeking pupillage.

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Twitch hit the news back in August when artists confronted Jeff Bezos over royalty disputes.

The Amazon-owned live streaming platform — recognised for its use of unlicensed music as background to video game playthroughs, eSports competition broadcasts, and other creative content — came under fire by music labels and artists after rights holders issued 2,500 ‘takedown notices’ against videos featuring their music.

Appearing before Congress earlier this year, Amazon CEO Bezos could not answer on whether Twitch allowed users to stream unlicensed music.

Now, months on, Twitch is still unlicenced by major record companies, choosing instead to strike deals with independent artists and labels. Their rights-cleared music catalogue launched at the end of September.

Twitch is not the only social media platform to have suffered takedown notices from the music industry. TikTok — which has rarely left the news following President Trump’s bid to ban the platform in the United States, which led to lengthy competition and Oracle winning the bid to buy the video-sharing app from Chinese owners ByteDance — revealed in its transparency report that it received 3,345 copyright takedown notices in 2019 alone. Instagram Reels could follow soon.

Relevant copyright law

So, what’s the issue? Copyright is a proprietary right which protects the expression of ideas through the Copyright, Designs and Patents Act (CDPA) 1988. Section 1(b) of the CDPA protects sound recordings — surely those who make the music should have full rights to it?

Many disagree. The original notion of copyright law stems from the Statute of Anne 1709 which aimed to encourage public learning through the creation of a public domain, where people could freely access previously restricted content. Today, copyright law must balance the interests of the creators and those of the public when protecting intellectual property rights. Yet, copyright protection has become increasingly more difficult to enforce since the rise of digital media, with copyrighted material being easily accessible over free-streaming sites.

For music, this problem first emerged when the Apple iPod converted music to digital files, kickstarting digital music retailing and leading to a host of copyright cases against platforms such as Grokster and StreamCast in 2005. According to a 2010 report by the International Federation of the Phonographic Industry (IFPI), the rise of hosting sites led to a global decrease of 30% in music sales between 2004 and 2009, despite a 940% increase in digital sales in that time. The music industry blames piracy for this fall, with global music piracy costing just the US economy $12.5 billion in economic loss every year.

But if we look back to the original aim of copyright, the intention was to protect not only the author but the public. Lawmakers recognised cultural development required access to existing productions and the opportunity to use and be influenced by past creativity. There is a strong line of argument that no new song is original — they are all created from influences. This was evident in the copyright cases against Katy Perry, Ed Sheeran, Sam Smith and a long list of other musicians, meaning it isn’t just amateur creators that are being stifled by copyright law.

More recently, there seems to have been a shift in direction as Nicki Minaj won the first part of her copyright battle against Tracy Chapman. Chapman alleged that Minaj’s track ‘Sorry’ contained interpolations from Chapman’s ‘Baby Can I Hold You’. Minaj originally removed the track from her album, ‘Queen’, after Chapman refused to grant her permission to use the song, however a copy of the unreleased track found its way to New York radio DJ, Funkmaster Flex, who broadcasted it on air.

Minaj argued her use of Chapman’s song constituted fair use — a legal defence to copyright infringement — and the judge agreed that prohibiting artists from experimenting with pre-existing songs would limit creativity and stifle innovation. This is an unusual decision: precedent usually sides with the original creator, as seen in the landmark case involving Robin Thicke and Pharrell Williams over their ‘Blurred Lines’ song and most subsequent cases. The law in this area is generally so strong that most artists choose to settle and name the original creator as co-author to avoid litigation.

There is an issue with enforcing copyright against music, however, and it’s one that has been outlined by musician and lawyer, Damien Riehl, and programmer, Noah Rubin. They discovered that there were only a finite number of melodies, so copyright infringement in music is inevitable. If the Minaj case represents a shift in attitude towards music, it is unlikely to spread far because most artists will continue to settle and avoid lengthy cases and potential reputational damage.

I’m not arguing artists should relinquish all rights to their work: it would be unfair to expect creators to keep producing new work if they had no control over who could access, use, or distribute it. However, the fact that copyright cases against musicians has led to a notable increase in musicians taking out insurance and a decrease in new singles from emerging artists surely proves how copyright is stifling creativity?

The value of social media

Platforms such as Twitch and TikTok are a breath of fresh air for creativity, and both have played a key role in the music industry: TikTok is credited for ‘Old Town Road’ by Lil Nas X being one of the most successful songs of 2019 after its remix was widely used on the platform, and one of the reasons why The Weeknd’s ‘Blinding Lights’ was number one in the UK for eight weeks, Germany for ten weeks, and Australia for eleven weeks. Artists themselves have been using these platforms to promote their content as a cost-effective way of reaching an audience of millions, and the musicians behind many of the viral songs on TikTok are overjoyed with the way their music is used to create new content. Saweetie, the artist behind TikTok ‘Tap In’ dance challenges, has commented that she enjoys when users use her songs as background music, because it shows they “really like the song”. Using a song in a video should therefore be seen as a positive to the music industry as it evolves in the digital era, not as a threat to traditional forms of broadcasting.

Does anybody really watch TikTok or Twitch as an alternative to streaming the same song on Spotify, YouTube or playing it on a CD? Plus these platforms could be seen as free marketing for musicians. So, why must the TikTok generation be deprived of our dance routines and amateur remixes, and Twitch users of their music compilations? If Bezos doesn’t know whether or not the music is licensed, how are Twitch users supposed to know that the music they’re using is unlicensed and could result in their video being taken down? The user experience is sure to decrease if advertisements are increased to counter the costs of licensing music, and these platforms could find themselves losing users, but is this justifiable?

As it stands, music law appears to be stifling creativity from both ends: from the musicians battling copyright claims as a result of similarities to their influences, to the creators on TikTok and Twitch having their videos removed for including unlicensed music. Copyright is failing to strike the right balance between creators and the public, and with there being no end to new ways of getting around licenced material, some allowance for the new breed of creators should be made.

Alice Wills is a third year law and media student at Swansea University.

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In Mediaeval times, animal trials were far from a trivial matter.

At great expense to the state, animals were held in custody before trial and provided with a state-funded defence counsel. Animal defence lawyers had long hours and challenging cases. And for some, it was even the ticket to the top. The French lawyer Bartholomew Chassenée’s defence of the rats of Autun in 1522 brought him such great renown that he ended up in a position equivalent to the role of Chief Justice.

But why were animals treated in this way by the law? Then, animals had certain rights and duties restricted and others maintained. This led to Mediaeval animal’s curious status as partial legal persons. They could be subject to criminal and civil prosecutions but were still property by law. This allowed the legal system to respond to any harms caused by the animals, whilst still allowing their owners to use the animals for their economic benefit.

Today, new technology, such as the artificial intelligence (AI) “creativity” machine DABUS, has developed the ability to act autonomously. Despite this, AI technology is not a legal person (bar the exception of the AI-humanoid Sophia’s Saudi Arabian citizenship). If AI can independently cause harm, like the Mediaeval animals, surely it should be able to face criminal and civil charges for its actions?

So, does AI require some form of legal personhood? And, if so, what is the best model for this? Does the Mediaeval model of partial legal personhood for animals provide a helpful template?

Inventors inventing inventors

In October 2018, the physicist and engineer Dr Stephen Thaler filed UK, US and EU patents for two new inventions: the neural flame and the fractal container. However, both of these inventions were not created by Thaler, but his AI “creativity” machine DABUS. In these patent applications, Thaler named DABUS as the inventor, but himself as the owner of the patents.

Thaler’s patent applications ask two questions: “can a machine be an inventor?” and, if so, “who owns the patents?”. In response to the first question, the UK Intellectual Property Office’s (IPO) Hearing Officer reasoned, “I have found that DABUS is not a person… and so cannot be considered an inventor”, whilst the European Patent Office (EPO) explained “an inventor has to be a human being, not a machine”. This is due to a lack of clarity in the law on who can be an inventor.

The second question (“who owns the patents?”), however, highlights how AI’s absence of legal personhood is even more fundamentally problematic. At the moment, inventorship is legally coupled with ownership. By default, the inventor is the owner of the patent unless it is assigned to another entity. But because DABUS is not a legal person, it cannot own or assign ownership of the patents to anyone.

Accordingly, as noted by the UK IPO, Thaler “is still not entitled to apply for a patent simply by virtue of ownership of DABUS, because a satisfactory derivation of right has not been provided”. The key to resolving the conflict between inventorship and ownership, in DABUS’s case, is to define the machine’s rights and duties.

Method in Mediaeval madness

In this scenario, the Mediaeval model of partial legal personhood offers a practical solution. It uncouples the rights and duties of a non-human entity to allow DABUS to have partial legal personhood, but still be property.

It is clear that granting AI the full status of a legal person would be undesirable for those who work to create technology like DABUS. Developing this sort of technology is complicated and expensive. If autonomous AI was granted full legal personality, entrepreneurs hoping to develop commercial versions of this technology could no longer own their inventions.

Furthermore, the deincentivisation of the development of AI technology might not only be detrimental to entrepreneurs. If academics’ claims that “powerful AI systems could hold the key to some of the mega challenges facing humanity — from the cure for cancer to workable solutions for reversing climate change” prove to be true, the underdevelopment of AI could be detrimental to society too.

Crime without punishment

At the same time, the Mediaeval model of partial legal personhood intends to install liabilities on its non-human entities. This means that DABUS, rather than Thaler, would face civil or even criminal prosecution for his machine’s inventions. Surely any harm caused by the neural flame or the fractal container could not be considered Thaler’s fault since he did not create the inventions?

However, incorporating non-human entities for the purpose of liability begs the question of how to satisfactorily punish autonomous non-humans. Today, the only legal entities that do not have people behind them such as the Whanganui, Ganga and Yumuna Rivers, Lake Erie and Ecuadorian ecosystems were not intended to make them liable for lawsuits. Instead, legal personhood gives these entities enforceable rights for the purpose of their ecological protection. With other non-human legal entities, such as corporations, this is not such a problem. The law can look behind the artificial entity to the humans responsible using the legal remedy called ‘veil-piercing’. This is not without its own faults, but it largely resolves the issue of using non-human entities as shield from the law.

Mediaeval animal trials had a human-like flexibility regarding criminal sentencing. A case where a man was accused of sexually assaulting a donkey was brought to court in 1750. The donkey was spared as “she had not participated in her master’s crimes of her own free will” — similar to the principle of consent. Accordingly, the man responsible for the sexual assault was sentenced to death. In 1457, a sow was sentenced to death for killing a five-year-old. However, her five piglets, who were party to the same crime, were spared on account of their immaturity — a similar principle to juvenile sentencing.

Currently, such human-like criminal sentencing feels both inappropriate and unsatisfactory and is therefore highly problematic for AI’s status as a legal person. But it is not impossible. A system of legal sentencing for autonomous robots may become clearer when such technology is more deeply embedded in our societies.

That’s just how we do things

Many have questioned why Mediaeval societies held such unpractical animal trials. Some have concluded that these trials were just a part of religiously-motivated, “superstitious and ritualistic” Mediaeval madness. But others attribute the unusual trials to cultural norms.

The great cost, effort, and, as Chassenée’s success proves, legal rigour around the animal trials suggest that this was more than just entertaining theatre. It is clear that animals were more culturally embedded in the preindustrial agrarian Mediaeval society than today. Farming account books suggest that farmers in the seventeenth century spent up to 16 hours a day with animals. This may have increased the likelihood that people could derive a sense of justice or injustice for animal cases which is reflected in some of the judgments.

In the UK today, urbanisation and the widespread rise of factory farms and mega farms has led to a different sentiment towards animals. It is, perhaps, therefore unsurprising that animals no longer enjoy the right to be defended before a court. Moreover, these Mediaeval trials are reflected in our culture as a form of show trial entertainment in the BBC film (starring Colin Firth) The Hour of the Pig, which is based on Chassenée’s career.

Culture and politics play a large role in deciding legal personhood, which is often a mere reflection of prominent social sentiments. This may explain why culturally important rivers, environmentally important rivers and ecosystems, and certain religious texts are the latest non-human entities to join the legal persons club. The hardwiring of technology into society may have a similar social effect. But for now, this remains the realm of imagination such as is envisioned in the Oscar-winning film Her.

Conclusion

Legal personhood is defined in relation to humanity. Non-human legal entities inevitably complicate this. But it would be a mistake to ignore the potential harms that can be caused by non-human entities, due to stubborn attachment to a very human law. In the case of DABUS, the Mediaeval model offers a solution. But most importantly, it underlines how culture often precedes practicality. Mediaeval animal trials provide an example of where it seems that a society critically engaged in determining what rights and duties would be appropriate for their animals. AI machines like DABUS may continue to make such practical debates prevalent, so our society can evaluate the most desirable form legal personhood (if necessary) for AI.

William Holmes is a penultimate year student at the University of Bristol studying French, Spanish and Italian. He has a training contract offer with a magic circle law firm.

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Does copyright law recognise AI-generated works? Traditional copyright law protects the original creations of authors, which include artists, composers and other creators. An author of a work is defined as the person who creates it, with additional clarification for particular types of work — for example, the producer of a sound recording is deemed to be its author. For a literary, artistic, dramatic or musical work, which includes software, to qualify for copyright protection the work must be “original”. Case law provides that for a work to be original it must be its “author’s own intellectual creation”.

The threshold for originality is low; but crucially it requires the exertions of a human author. Without a human author, the work cannot be original. If a literary, artistic, dramatic or musical work is not original, then no copyright subsists in the work (section (1)(a) of the Copyright Designs and Patents Act 1988 (CDPA)).

We already accept that authors may use tools, including computer software, to assist in the creation of their works. An example is a photographer using automatic settings and timers on a camera. The fact that the photographer used automatic settings and did not press the shutter button at the moment the photo was taken does not preclude him or her from being an author of an original photograph.

UK copyright law goes further and acknowledges the possibility that works could be “computer-generated” defined as “generated by computer in circumstances such that there is no human author of the work” (section 178 (CDPA)). Section 9(3) CDPA provides that the author of a computer-generated work is deemed to be the person “by whom the arrangements necessary for the creation of the work are undertaken”. Continuing the photography analogy, if it were debatable whether merely rigging up a motion sensitive camera was enough to make someone an author of photographs it takes, section 9(3) might clarify the position.

Who, if anyone, is the author?

If we assume that an AI tool has acted sufficiently independently of any human that the identity of the author in a normal sense is unclear, and section 9(3) may therefore apply, the answer to the question whether copyright can subsist in an AI-generated work depends on whether it is obvious who is the human “by whom the arrangements necessary for the creation of the work”. In the short term this is likely to mean whether a human user of the AI tool is the author of works created, or whether it is the original programmer of the AI tool.

As AI becomes more advanced, and the tasks allocated to AI allow the AI system more freedom to make its own decisions, it may become increasingly difficult to say with certainty who created or made the arrangements necessary for the creation of a given work — or indeed whether anyone made the necessary arrangements at all. In the scenario where the AI is fully autonomous, if no person made the arrangements necessary for the creation of a work which requires originality for copyright to subsist, then no copyright could exist in the work as there would be no author.

Would high-level instructions of the operator suffice for authorship, would the role of the programmer of the AI system need to be factored in, or would we have to concede the work was created without any human intervention at all with the consequence that the work is not protected by copyright? This could have dramatic consequences for a party seeking to monetise works generated using AI tools.

Leigh Smith is a senior associate in Clifford Chance’s intellectual property team. He will be speaking alongside other Clifford Chance lawyers at this evening’s ‘Artificial intelligence and the law’ event. The event is now fully booked.

Follow @ccgradsuk

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As Elon Musk, the CEO of SpaceX, has sent his Tesla to space, international space law has become more important than it ever was.

Ever since the launch of Sputnik 1, the first artificial Earth satellite, in 1957, questions regarding the legal jurisdiction of space have surfaced. The Space Age started with competitive nations rushing for the moon, one after another. That was when the United Nations recognised the need for a guideline to maintain peace.

The very first UN body concerned with space was the Committee on the Peaceful Uses of Outer Space (COPUOS), which was made permanent in 1959. This signaled that the international government and law-making process surrounding space law had begun.

The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the ‘Outer Space Treaty’) was signed and enacted in 1967. To date it has 105 state parties and 89 signatory states. The Outer Space Treaty has laid a formal framework for nations regarding peaceful exploration of space. Some of its key principles include:

– Space is free for all nations to explore, and sovereign claims cannot be made.
– Space activities must be for the benefit of all nations and humans.
– Nuclear weapons and other weapons of mass destruction are not allowed in Earth orbit, on celestial bodies or in other outer space locations.
– Individual nations are responsible for any damage their space objects cause. Individual nations are also responsible for all governmental and non-governmental activities conducted by their citizens. These states must also “avoid harmful contamination” due to space activities.

The 1967 treaty made it official that outer space is for everyone and anyone can explore it. This allows the private sector to step right in and explore its possibilities. As we step into an era where commercial spaceflight is becoming a reality, challenges are coming our way. Privatised space travel will raise many complicated legal issues.

The Federal Aviation Administration of America is already in the process of establishing licensing and safety criteria for private spacecraft, a process that will continue to evolve as the industry matures. Space companies, legislatures and courts will need to address questions of liability in the event of accidents, the enforceability of liability waivers, insurance requirements, and the sufficiency of informed consent for passengers. Indeed, Florida, New Mexico, Texas and Virginia have already passed laws limiting the liability of space tourism providers under state tort law.

In 2015, the American Senate passed the bill ‘H.R. 2262’, also known as the US Commercial Space Launch Competitiveness Act. The bill is entitled: ‘An Act to facilitate a pro-growth environment for the developing commercial space industry by encouraging private sector investment and creating more stable and predictable regulatory conditions, and for other purposes.’ Under one provision of H.R. 2262, commercial companies get the rights to any resources that they collect from celestial bodies.

As new avenues of space expedition open up, it’s vital existing laws make room for them. But changes to legal framework shouldn’t just be the preserve of developed countries like the US. It is high time for the governments of other nations to invest or encourage private entities to explore space travel, too.

Aiman Khan is an apprentice advocate from Bangladesh who completed his law degree at the University of London.

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Late last month, it was reported that Sergio Canavero — a controversial doctor who believes a new form of surgery he’s spearheaded could hold the key to immortality — had completed a “successful” head transplant on a human corpse. Canavero hopes his HEAVEN surgery, shorthand for “head anastomosis venture”, will be performed on living patients in the near future.

Though of course the “success” of last month’s feat has limits, most obviously because the transplanter and transplantee were dead, talk has turned to whether this head (or body) transplant will be a success when conducted on a living person. Common arguments made by healthcare professionals against the procedure include the permanent damage to the brain and other organs due to the lack of blood flow while conducting such a trial. Bioethicist Arthur Caplan described it as “rotten scientifically”, while a doctor of neuroscience, Dean Burnett, complained:

“Doctors have, in recent years, ‘reattached’ a severely damaged spinal cord in a young child, but the key-word is ‘damaged’, not ‘completely severed’; there’s enough connection still to work with, to repair and reinforce. And this is with a young child, with a still-developing nervous system better able to compensate. Even taking all this into account, and the advanced state of modern medicine, the successful procedure was considered borderline miraculous.”

He continued: “So, to attach a completely severed spinal cord, a fully developed adult one, onto a different one, one that’s maybe been dead for days? That’s, what, at least four further miracles required?”

Canavero — who last year called his monkey experiment a success, though it never involved the connecting of the spinal cord and the monkey never regained consciousness — is sticking to his plans of a living human head transplant. And, if it does go ahead, the lack of legal discussions by medical lawyers is worrisome.

The pressing question to be asked is: What is the legal identity of the person once (and if they do) wake up from such a surgery? After creating a hybrid of person A and person B, who is this person C we’d have in front of us? Who has legal responsibility over this person?

Important questions of personhood aside, there’s also looming confusion about whether healthcare professionals should, and to what extent be allowed to, conduct such innovative surgical interventions. After all, the focus for any surgery should be whether the potential risks can be justified; it seems appropriate to ask these questions when considering the purpose of this research.

Are their criminal implications if the surgery fails? What sort of criminal charges will be presented for the doctors? Lawyers for the doctors would likely argue this surgery was done with the informed consent of the patient, but can consent ever be truly informed with a new procedure like this?

It seems it is not by accident this research and surgery is taking place in China. The country is notably lenient when considering claims for medical malpractice. One recent example of this is reports China mass harvested the organs of executed prisoners. On this, a former Chinese deputy health minister said:

“There is zero tolerance. However, China is a big country with a 1.3 billion population so I am sure, definitely, there is some violation of the law.”

A dose of reality is required when considering human head transplants. It is already hard to find enough people to donate liver, lungs, heart and other organs, let alone an entire body. And even if this surgery is a success, the funding of such could only be covered by those with the funding and resources to do so.

Instead, it is far more justifiable to fund research on spinal cord injuries and other pressing issues such as cancer than to seek out whole body donations for the gain and most likely glory of few without any concrete evidence that this is furthering to the quality of patient lives. Perhaps this is China’s way to push its ‘home of innovation’ mantra? Or perhaps this story is just a further reminder that lawyers need to keep up and have new discussions on the day-by-day furthering of technology.

Whatever your views, it seems the law is still longing for answers to the questions written by Mary Shelley two centuries ago in her world-famous novel, Frankenstein: “Who was I? What was I? Whence did I come? What was my destination?”

Ceylan Simsek is a University of Greenwich law graduate and an LPC student at BPP University.

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It is no news that 3D printing has the potential to change our world as much as the internet has over the last two decades.

The industry — at least in the domestic market — is barely a few years old, but the technology is already signalling an age where we can assemble, out of thin air as it were, tools and toys at the push of the button.

Daihatsu, a Japanese manufacturer of small cars and a subsidiary of Toyota, announced on 20 June 2016 that it would begin offering car buyers the opportunity to customise their vehicles with 3D-printed parts. For drivers with more modest budgets, this offers the kind of individual tailoring of vehicles hitherto restricted to the luxury limousines and sports cars of the super-rich.

Earlier this year as well, The Economist reported the emergence of recent advancements in bioprinting, and the possibility of having 3D printed human body parts like kidneys, ears and livers. As yet, such “bioprinting” remains largely experimental. But bioprinted tissue is already being sold for drug testing, and the first transplantable tissues are expected to be ready for use in a few years time.

However, uncertainty remains about the legal implications these advancements present. Apart from the apparent intellectual property implications (the manufacture of counterfeit goods may infringe copyrights, trademarks or patent rights) there is a more nuanced implication on product liability in tort law, and even the implications on DNA evidence for printed body parts.

How does it work?

There are at least seven core technology types of 3D printers mostly focused on making products out of plastics (polymers), metals, ceramics and wood. 3D printing, or ‘additive manufacturing’, is a process of making 3D solid objects from a digital file.

The creation of a 3D printed object is achieved using additive processes. In an additive process, an object is created by laying down successive layers of material until the object is created. Each of these layers can be seen as a thinly sliced horizontal cross-section of the eventual object.

It starts with making a virtual design of the object you want to create. This virtual design is for instance a CAD (Computer Aided Design) file. This CAD file is created using a 3D modelling application or with a 3D scanner and it is believed that with the way technology is fast developing, future versions of smartphones will probably have integrated 3D scanners.

3D designs can be created through a CAD software or they can be obtained from third parties, such as on online platforms that provide printable designs. What is more, if you have a 3D printer at home, you can download the blueprint and re-create your own products.

Where does product liability lie?

3D printing presents challenges with regard to potential tort liability. English law imposes civil liabilities for parties involved in the manufacture and distribution of defective goods. Apart from the common law tort of negligence which requires a proof of negligence following the popular case of Donoghue v Stevenson, the tort of product liability is governed by the Consumer Protection Act 1987 (CPA), which implements an EU directive in this area of law and gives consumers a right to recover damages from manufacturers or importers of a defective product which causes death, or harm to the claimants or their properties.

The CPA imposes strict liability on manufacturers of defective products and this means that claimants can sue for compensation without having to prove that the manufacturer was negligent. It is merely necessary to prove that the product was defective, and that any injury or damage was most likely caused by the product. Subject to some statutory defences, manufacturers and distributors may be liable to compensate claimants for death or injury that results from defective products.

However, the advent of 3D printing has multiplied the number of possible “products” and scrambled the traditional “manufacturer”-based chain-of-sale concept on which strict liability has been based. International law firm Reed Smith in a white paper highlighted the possible scenarios which 3D printing engages:

1. Defective original product used to create the digital design;
2. Defective original digital design;
3. Defective digital file;
4. Corrupted copy of downloaded digital file;
5. Defective 3D printer;
6. Defective bulk printing material used in 3D printer;
7. Human error in implementing the digital design; and
8. Human error in using the 3D printer and/or materials.

In other words, it will be more difficult for claimants to prove which party in the supply chain should bear the liability for the defective product. Accordingly, the parameters of tort liability may need to be redefined once again to account for new technologies and new supply chains, where traditional “manufacturing” processes are carried out by entities elsewhere in the chain of sale.

Leave me your DNA and I’ll 3D print out your face

The developments in 3D printing also have great implications for our privacy, genetic surveillance and forensic evidence analysis. EVERY year about 120,000 organs, mostly kidneys, are transplanted from one human being to another. But a lack of suitable donors, particularly as cars get safer and first-aid becomes more effective, means the supply of such organs is limited. One promising approach is to print them — through bioprinting.

Living cells could be sprayed through the nozzles of inkjet printers without damaging them. Today, using multiple print heads to squirt out different cell types, along with polymers that help keep the structure in shape, it is possible to deposit layer upon layer of cells that will bind together and grow into living, functional tissue.

Already 3D bioprinting allows orthopaedic surgeons to print artificial bone from a scan of the patient, printing existing surgical materials to precisely the right shape to replace missing or damaged bone. For example, the technique has been recently used to create skull implants for people with head trauma and a titanium heel to replace a heel bone that had been eaten away by cancer.

But amidst these innovations lurks the implication for our privacy and forensic evidence analysis. On 1 June 2013, working with the DNA bits left behind by strangers — from cigarette butts and fingernails to used coffee cups and chewing gum — a Brooklyn artist created life-sized masks by using a 3D printer after feeding the DNA samples into a computer programme.

Whether we find this cool or creepy, DNA-profiling experimenting and bioprinting raises a number of legal issues that we should all be concerned about. To what degree does the DNA we leave behind in public spaces belong to us? Does a facial mask without a name raise the same issues as a photo? In either case, what exactly is our expectation of privacy?

Similarly, when it becomes possible to have printed ears, skins, fingers and livers, to what degree will the finger prints and blood samples from these ‘objects’ represent the personality of the individuals involved? How will the proliferations of creating human body parts in our rooms be regulated? And what probative value should be accorded to DNA evidence and finger prints found in crime scenes?

Concluding thoughts

It may be argued that 3D printing is the single most important innovation in the last two decades. The possibility of being able to create entire human organs lends credence to this point. For kidneys, Roots Analysis, a medical-technology consultancy, reckons that that should be possible in about six years. Livers, which have a natural tendency to regenerate anyway, should also arrive reasonably soon. Hearts, with their complex internal geometries, will take longer.

However, despite the huge benefits that these innovations promise, its workability depends largely on a strong regulatory system and the ability of the law to anticipate these changes. Possibilities abound, but the law must need to keep pace with the changes quickly.

Omotayo Akorede is a final year law student at Bangor University.

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A debate is raging on social media.

It all started when the founder of Channel Awesome, Doug Walker, asked “Where’s The Fair Use?”. When he posed the rhetorical question, Doug was voicing his dissatisfaction with the state of international copyright law — a sentiment that was shared by his 500k subscribers.

Since then, the hashtag #WTFU has not stopped trending on Twitter, causing lawmakers around the world to take notice.

The campaigners’ message is that online content producers need greater protection from unwarranted claims of copyright infringement. They are frustrated that copyright law is not keeping pace with technology, leaving vloggers in a vulnerable position. Buoyed by the movement, the United States Copyright Office has been inundated with thousands of requests to change The Digital Millennium Copyright Act 1998. If the campaigners are heard, the current system — which, they feel, forces websites to take down user generated content (UGC) unfairly — is in for a serious overhaul.

Not to be mistaken for a typo in a chain of text messages, #WTFU questions one of the most frequently misinterpreted areas of copyright law — the US doctrine of “fair use”. It is this legal principle that, in certain circumstances, allows third parties to make use of copyright protected material without the rights holder’s permission. The exception is sometimes relied on by online creators to make educational videos, critique other peoples’ work, add commentary, or report the news.

Across the pond, a number of public consultations are underway to bring the EU’s single market up to speed with the fast-moving digital world. The objective of these consultations, which cover a wide range of copyright matters, is to respond to the main challenges posed by the new digital environment and ensure that the EU copyright framework supports innovation, harnesses the full potential of the single market, fosters economic growth, and promotes cultural diversity.

Throughout the discussions so far, a significant number of concerns have been raised by people having problems when sharing UGC online. These commentators cite a lack of clarity in the existing legal framework for the average person. According to them, the ambiguity in this area makes it difficult for individuals to assess what they do from a compliance perspective. Others say it is difficult for users to know when their uploads may be covered by licences between internet platforms and right holders, and the exact terms of these licences, of which end users are not part.

If legislative change is required to find a solution, law makers need to decide on the best approach. Some wonder if the existing exceptions (parody, quotation, incidental use and private copying) should be mandatory across all member states or if a new exception should be introduced to cover transformative uses. Others suggest that a solution could be to introduce a formal fair use principle in EU copyright law.

At the moment, the position on fair use is not the same throughout the EU. In the UK, for example, the concept of “fair dealing” is the next best thing. This exception is limited to research and private study of a non-commercial nature, criticism and review, quotation, and news reporting. In addition, parody, caricature and pastiche sometimes fall under the same umbrella. Unlike the related US doctrine of fair use, fair dealing cannot apply to any act which does not fall within one of these categories, effectively narrowing the protection for online content producers.

However, what’s important to remember is that an internet user’s expectation to copy, modify and distribute works online is likely to differ significantly from their expectations in the real world. Closing the gap between the virtual and the physical is a challenge that policy makers have struggled with for decades and, ultimately, it may prove too difficult.

Instead, the world is moving towards a copyright system that leans heavily on government guidance, accepted industry practices and precedent decisions by the courts. Despite these obstacles to reform, what’s clear is that creators of UGC have an important role to play in shaping the future of copyright law. The fair use debate rages on.

Jonathan Dack is an associate in Mayer Brown’s London intellectual property team. He is leading the firm’s CL-IPs project.

Brush-up on intellectual property law with Mayer Brown’s crash course on copyright and fair use:

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