Surviving Technological Change: Towards More Coherent Regulation of Digital Creativity Through EU Copyright and Design Law

A wave of disruptive technologies, in the form of technologies such as 3D printing technologies, 3D modeling and scanning technologies, and AI technology, are changing the playing field for the creative industries, creators, and right holders. Underlying these technologies, there are two fundamental transformations, whose effects are important for the creative industry and the legal community– namely, the digitalization of physical objects and designs, and the digitalization of human creativity.

These two technological shifts are increasingly blurring the line between the physical and digital world. For the proper function of IP law, the law should be able to regulate both worlds. The problem is: How we can fit digital designs and digital creativity into our current regulative framework, which is still in some cases built on the assumption that creation is done by a human being using physical tools and that protected objects exist only in the physical world. This raises the question whether current intellectual property law in the EU, especially copyright and design law, can adequately regulate digital designs as well as properly incentivize and protect digital creativity.

To answer this question, the dissertation provides an in-depth analysis of some of the major challenges that the digitalization of design and design process creates, mainly within the European copyright and design law system. It does so by taking a legal dogmatic approach and analyzing the problem against the background of theories regarding law and technology and traditional justifications of IP law. The examination focuses on three specific technologies: 3D printing, AI technologies, and video games. The dissertation argues that, in most cases, EU copyright and design law are able to regulate digital designs and seem to be ready to deal with the challenges caused by the digitalization of design and creativity.

This dissertation makes several recommendations towards a more coherent and technologically neutral approach regarding digital designs and digital creativity in the context of EU copyright and design law. In many cases, digital designs depicting purely functional objects and AI generated works should not receive copyright protection due to the lack of originality. However, despite the normative arguments against giving protection, there is a possibility that the technological change in the form of digital designs and creativity will broaden the normal scope of copyright protection, making it overinclusive. The dissertation suggests that if protection is seen as necessary, it should be sought 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.