Doctoral thesis: Digital works are not always entitled to copyright protection

In his doctoral thesis entitled “Surviving Technological Change: Towards More Coherent Regulation of Digital Creativity Through EU Copyright and Design Law” Mikko Antikainen examines how technological change in the form of digitalisation challenges our ability to regulate digital creativity and digital designs through EU IP law.

Antikainen claims that 3D printing, 3D scanning, and AI technologies are causing two fundamental transformations: the digitalisation of physical objects and designs and the digitalisation of human creativity. The effects of these are disrupting for the creative industry and legal community.

”The digital transformation in the form of digital designs and digital creation is not  unproblematic, especially for artists, designers, and right holders. Although the digitalisation of designs and creativity offers a powerful tool for the creative industries and designers, it also increases the economic and legal uncertainty, and a new threat of large-scale piracy.”

According to Antikainen this technological change is also challenging the current regulative framework which is still in some cases built on the assumption that creation is done by a human being by using physical tools and that protected objects exist only in the physical world.

”Although digitalisation blurs the line between human-created and machine-generated works, in most cases, copyright law can deal properly with digital creativity on a case-by-case basis.”

In fact, in many cases, digital designs depicting purely functional objects and AI generated works should not receive copyright protection due to the lack of originality. Creating digital works with different techniques can be a time-consuming task and require great skill and labour, but they do not contribute to the originality considerations if free and creative choices are not present in the creation process.

Antikainen argues, however, that the need to determine originality on a case-by-case basis creates a challenge to the contemporary copyright law due to the mass scale on which works can be created, personalised, and used, enabled by the digitalisation. This might broaden the normal scope of copyright protection, making it overinclusive.

One solution to prevent this would be to seek protection through other means than copyright protection, such as design protection. This avoids fundamentally changing and distorting the concept of originality and the purpose of copyright law to protect human creations.

You can read the whole thesis via this link Opens in new window .

Contact details:
Mikko Antikainen
E-mail: mikko.j.antikainen@jyu.fi
The public defence takes place on 5 November 2021 at 12 p.m.(EEST). The subject is intellectual property law. The doctoral defence will be held by video conference. You can access the video conference via Teams via this link Opens in new window .

Opponent: Professor Dinusha Mendis, Bournemouth University
Custos: Professor Nari Lee.