Algorithmic Arts, Aesthetic Progress and Patent Law

Digitalization of technology challenges the traditional view according to which the subject matter of patent protection is utilitarian, and art and aesthetical objects are often excluded. The current merging of aesthetic arts and utilitarian technology makes us question the place of aesthetic creation in patent law, in particular whether it should continue to be excluded from patent protection. The chapter begins with the question whether the exclusion reflects a particular theory of art according to which utilitarian objects and aesthetic objects are essentially different, and the incentives that both require for their creation are different. This chapter argues that overlaps may be unavoidable. In order to test this thesis, the chapter identifies three cases of hybrid subject matters where the utility and aesthetics are merged and argues that the way to deal with the dilemma of overlaps and exclusion may be to introduce general open norms and principles of protection rather than specific rules.