UK Government should deal definitively with copyright issues on LLM/GenAI training data whilst adopting a positive vision for LLMs to ensure UK does not miss “AI goldrush” – recommends House of Lords Committee

Large language models (LLMs) and generative AI (genAI) will produce “epoch defining changes comparable with the invention of the internet“, stated the House of Lords Communications and Digital Committee as it issued its report  “Large language models and generative AI” today (2 February 2024). The Committee concluded that the “goldrush” opportunity that AI presents requires the UK Government to adopt a more positive vision for LLM’s in order “to reap the social and economic benefits, and enable the UK to compete globally”. Key measures suggested include “more support for AI start-ups, boosting computing infrastructure, improving skills, and exploring options for an ‘in-house’ sovereign UK large language model” as well as devising a solution to the copyright disputes that the use of data without permission for the training of the AIs is currently generating.

The Committee sets out 10 core recommendations, as it says: “to steer the UK toward a positive outcome”. These include measures to boost opportunities, address risks, support effective regulatory oversight – including to ensure open competition and avoid market dominance by established technology giants – achieve the aims set out in the AI White Paper, introduce new standards, and resolve copyright disputes.

The Committee calls on the Government to support copyright holders, saying the Government “cannot sit on its hands” while LLM developers exploit the works of rightsholders.The Committee Chair is quoted on the key role of copyright issues:

One area of AI disruption that can and should be tackled promptly is the use of copyrighted material to train LLMs. LLMs rely on ingesting massive datasets to work properly but that does not mean they should be able to use any material they can find without permission or paying rightsholders for the privilege. This is an issue the Government can get a grip of quickly and it should do so.

The report “rebukes” tech firms for using data without permission or compensation, and says the Government should end the disputes over copyright and AI in this context “definitively” including through legislation if necessary. The report calls for a way for rightsholders to check training data for copyright breaches, investment in new datasets to encourage tech firms to pay for licensed content, and a requirement for tech firms to declare what their web crawlers are being used for.

Chapter 8 of the report deals specifically with copyright issues, in particular concluding:

•  In response to this report the Government should publish its view on whether copyright law provides sufficient protections to rightsholders, given recent advances in LLMs. If this identifies major uncertainty the Government should set out options for updating legislation to ensure copyright principles remain future proof and technologically neutral (paragraph 247).
• The voluntary IPO-led process is welcome and valuable. But debate cannot continue indefinitely. If the process remains unresolved by Spring 2024 the Government must set out options and prepare to resolve the dispute definitively, including legislative changes if necessary (paragraph 249).
• The IPO code must ensure creators are fully empowered to exercise their rights, whether on an opt-in or opt-out basis. Developers should make it clear whether their web crawlers are being used to acquire data for generative AI training or for other purposes. This would help rightsholders make informed decisions, and reduce risks of large firms exploiting adjacent market dominance (paragraph 252).
• The Government should encourage good practice by working with licensing agencies and data repository owners to create expanded, high quality data sources at the scales needed for LLM training. The Government should also use its procurement market to encourage good practice (paragraph 256).
• The IPO code should include a mechanism for rightsholders to check training data. This would provide assurance about the level of compliance with copyright law (paragraph 259)

See the House of Lords Communications and Digital Committee’s announcement here.

The IPO working group began meeting on 5 June 2023 to look at identifying, developing and codifying good practice on the use of copyright, performance and database material in relation to AI, including data mining (previous plans for a legislated text and data mining exception to copyright infringement having been withdrawn in March 2023 – see our post here). However, progress towards a voluntary code appears to have been very difficult, with the code previously having been expected to be finalised in autumn 2023.  The House of Lords Committee recommendation for the process to be taken back by Government if no code is forthcoming in the next few months is well timed, although the publication of this report may give further incentive to reach a conclusion.

Rachel Montagnon
Rachel Montagnon
Professional Support Consultant - London
+44 20 7466 2217
Heather Newton
Heather Newton
Of Counsel - London
+44 20 7466 2984
Victoria Gettins
Victoria Gettins
Trainee solicitor, IP
+44 20 3 6929648

 

The IP in AI: Can patents protect AI-generated inventions?

In this instalment of our series The IP in AI, we consider whether patents can be awarded for inventions made by AI systems, and the challenges faced by patent law in protecting innovation in an AI-enabled world.

Read the full article here

For more on the developing area of intellectual property protection and risks for AI and ML systems, follow our blog series The IP in AI.

 

Key contacts

Aaron Hayward
Aaron Hayward
Senior Associate, Australia
+61 2 9225 5739
Anna Vandervliet
Anna Vandervliet
Senior Associate, Australia
+61 2 9322 4868
Byron Turner
Byron Turner
Solicitor, Australia
+61 2 9322 4155

Bryce Robinson
Bryce Robinson
Solicitor, Australia
+61 3 9288 1155

Rachel Montagnon
Rachel Montagnon
Professional Support Consultant, UK
+44 20 7466 2217
Heather Newton
Heather Newton
Of Counsel, UK
+44 7809 200 246
Maximilian Kucking
Maximilian Kucking
Senior Associate, Germany
+49 211 975 59096
Peng Lei
Peng Lei
Partner, Kewei, China
+86 10 6535 5151
Alex Wang
Alex Wang
Patent Attorney, China
+86 10 6535 5156

Series: The IP in AI

Uses of machine learning and AI are expanding rapidly, and IP rights play a critical role in both regulating the use of AI and protecting the rights of inventors and creators. In this series, we will explore the key challenges governments worldwide are currently grappling with in order to provide the right level of protection to AI and ML systems.

Continue reading

UK Select Committee recommends legislation on AI including to establish and enforce rights of IP owners

The UK Science, Innovation and Technology Select Committee (which recently conducted an inquiry into the impact of AI on several sectors) has published The Governance of Artificial Intelligence: Interim Report  (pdf  here).  The report identifies 12 challenges of AI, including that for intellectual property, and recommends legislation during this parliament (ie before the general election due in 2024). The Select Committee expresses concerns that the UK will fall behind if there are delays, given the moves made by the EU and US to regulate AI already. On IP it recommends that where AI models and tools make use of other people’s content, policy must establish the rights of the originators of this content, and these rights must be enforced.

The need for regulation now and the establishment of an international forum on AI:  The report encourages the UK Government to go direct to legislation on AI regulation rather than to apply the approach set out in its white paper of March 2023. The white paper used five principles to frame regulatory activity, guide future development of AI models and tools, and their use – but these principles were not to be implemented via statute but were to be “interpreted and translated into action by individual sectoral regulators, with assistance from central support functions“.

The report recognises that although the UK has a long history of technological innovation and regulatory expertise, which “can help it forge a distinctive regulatory path on AI“, the AI white paper is only an initial effort to engage with AI regulation and it’s approach risks the UK falling behind given the pace of development of AI and especially in light of the efforts of other jurisdictions, principally the European Union and United States, to set international standards.

The report suggests “a tightly-focussed AI Bill in the next King’s Speech would help, not hinder, the Prime Minister’s ambition to position the UK as an AI governance leader. Without a serious, rapid and effective effort to establish the right governance frameworks—and to ensure a leading role in international initiatives—other jurisdictions will steal a march and the frameworks that they lay down may become the default even if they are less effective than what the UK can offer.

An international summit on AI safety is expected to held in the UK in November or December, will also be key and the report recommends invitations being extended to as wide a range of countries as possible to create a forum “for like-minded countries who share liberal, democratic values, to ensure mutual protection against those actors—state and otherwise—who are enemies of these values and would use AI to achieve their ends.”

12 essential challenges of AI identified: The report identifies the challenges of AI in general and twelve essential challenges that AI governance must address if public safety and confidence in AI are to be secured: – including IP at challenge 8:

  1. The Bias challenge. AI can introduce or perpetuate biases that society finds unacceptable.
  2. The Privacy challenge. AI can allow individuals to be identified and personal information about them to be used in ways beyond what the public wants.
  3. The Misrepresentation challenge. AI can allow the generation of material that deliberately misrepresents someone’s behaviour, opinions or character.
  4. The Access to Data challenge. The most powerful AI needs very large datasets, which are held by few organisations.
  5. The Access to Compute challenge. The development of powerful AI requires significant compute power, access to which is limited to a few organisations.
  6. The Black Box challenge. Some AI models and tools cannot explain why they produce a particular result, which is a challenge to transparency requirements.
  7. The Open-Source challenge. Requiring code to be openly available may promote transparency and innovation; allowing it to be proprietary may concentrate market power but allow more dependable regulation of harms.
  8. The Intellectual Property and Copyright Challenge. Some AI models and tools make use of other people’s content: policy must establish the rights of the originators of this content, and these rights must be enforced.
  9. The Liability challenge. If AI models and tools are used by third parties to do harm, policy must establish whether developers or providers of the technology bear any liability for harms done.
  10. The Employment challenge. AI will disrupt the jobs that people do and that are available to be done. Policy makers must anticipate and manage the disruption.
  11. The International Coordination challenge. AI is a global technology, and the development of governance frameworks to regulate its uses must be an international undertaking.
  12. The Existential challenge. Some people think that AI is a major threat to human life: if that is a possibility, governance needs to provide protections for national security

In relation to challenge 8 on Intellectual Property and Copyright – the report comments that “Some AI models and tools make use of other people’s content: policy must establish the rights of the originators of this content, and these rights must be enforced” and that whilst the use of AI models and tools have helped create revenue for the entertainment industry in areas such as video games and audience analytics, concerns have been raised about the ‘scraping’ of copyrighted content from online sources without permission.

The report refers to “ongoing legal cases” (unnamed but likely a reference to Getty v StabilityAI) which are likely to set precedents in this area, but also notes that the UK IPO has begun to develop a voluntary code of practice on copyright and AI, in consultation with the technology, creative and research sectors, which guidance should “… support AI firms to access copyrighted work as an input to their models, whilst ensuring there are protections (e.g. labelling) on generated output to support right holders of copyrighted work”. The report notes that the Government has said that if agreement is not reached or the code not adopted, it may legislate.

The withdrawal of the proposed text and database mining exception, following pressure from creative industries, is noted, but also that other parties have commented that this now “… prevents the UK from capitalising on the diverse, agile and creative benefits that AI can bring to the UK’s economy, its society and its competitive research environment”.

On the Liability challenge (9) the report considers that if AI models and tools are used by third parties to do harm, policy must establish whether developers or providers of the technology bear any liability for harms done.

For more on the IP in AI see our series of blog posts here.

Rachel Montagnon
Rachel Montagnon
Professional Support Consultant, UK
+44 20 7466 2217
Heather Newton
Heather Newton
Of Counsel, UK
+44 7809 200 246

The requirement for fixation in copyright – Self-proclaimed Bitcoin inventor succeeds in establishing serious issues to be tried on appeal

As we reported in February, Dr Craig Wright, who claims to be the inventor of Bitcoin, is asserting three Bitcoin-related copyright claims against a number of entities.  The earlier decision considered the question of whether or not Dr Wright could serve the proceedings on defendants out of the jurisdiction – which requires that there is a serious issue to be tried on the merits of the claim.  For the reasons set out there, Mr Justice Meade disagreed in relation to Dr Wright’s claims of copyright in the Bitcoin File Format (BFF).  Dr Wright appealed this decision to the Court of Appeal, and it unanimously allowed the appeal on 20 July 2023.  The decision on appeal contains some interesting commentary on the requirement for fixation in copyright claims, which we discuss further below.

The proceedings

As set out in our earlier report, Dr Wright claims to have authored the Bitcoin White Paper in 2008, created the Bitcoin File Format, and mined the inaugural block in the Bitcoin Blockchain – the so-called ‘Genesis Block’.  He has commenced proceedings alleging infringement of:

  • database rights in the Bitcoin blockchain;
  • copyright in the Bitcoin White Paper; and
  • copyright in the Bitcoin File Format (BFF).

Issues 1 and 2 will proceed to trial in January 2024.  The Court of Appeal’s decision in this case concerns whether or not copyright subsists in the BFF.

Mr Justice Meade had earlier found that there was no serious issue to be tried as to the subsistence of copyright in the BFF, in particular as there was no evidence to suggest that the BFF was ‘recorded’ in the Genesis Block, or any other block in the blockchain. In other words, it did not meet the requirement of “fixation” embodied in section 3(2) of the Copyright Designs and Patents Act 1988 (CDPA), and thus leave to serve out of the jurisdiction was denied.

Decision at first instance

At first instance, and as discussed in our earlier report, Meade J had that the claimants had no real prospect of establishing that copyright subsisted in the BFF because it had not been “recorded, in writing or otherwise” in accordance with section 3(2) of the CDPA.

The judge had not disputed that a literary work could be recorded in software, including a file format, but expressed his view that “Not all file formats are equal”.  Some file formats contain “sufficient content (and not just structure) to sustain a claim to literary copyright”, but others may not.  Meade J had found that the claimants had not filed any evidence to the effect that the Genesis Block (or any other block) contained content which defines the structure of the Bitcoin File Format, as opposed to “simply reflecting” it.  While each block conforms to the structure of the Bitcoin File Format, the structure of the Bitcoin File Format is not “fixed in a copyright sense in a material form in any of those blocks”.

Court of Appeal decision

In an elegant review of the law of copyright in relation to software, Lord Justice Arnold concluded that there were a number of flaws in Meade J’s reasoning, which led to the Court of Appeal allowing Dr Wright’s appeal.

  • Arnold LJ held that the judge’s statement that “no relevant ‘work’ has been identified containing content which defines the structure of the Bitcoin File Format” confuses the work and the fixation – the work Dr Wright relied on (the BFF) had been clearly identified.  The question of how and when that work was fixed is a different one.  Dr Wright’s case is that the work was fixed when the first block in the Bitcoin blockchain was written on 3 January 2009.
  • It is not necessarily correct that, for fixation, there must be content which defines the structure of the BFF, finding that “As the judge clearly appreciated, the work in which Dr Wright claims copyright is a structure.  It is quite correct that the work, that is to say, the structure, must be fixed in order for copyright to subsist in it; but it does not necessarily follow that content defining (or describing or indicating) the structure is required in order to fix it.  All that is required is that the structure be completely and unambiguously recorded.”
  • Arnold LJ found that the judge had not applied the test laid down in the CJEU decision C-310/17 Levola Hengelo BV v Smilde Foods BV (2018), which asks whether the fixation relied upon by Dr Wright made the BFF identifiable with sufficient precision and objectivity.  Dr Wright had contended that the fixation upon which he relied satisfied this test and had provided evidence in support that third parties have been able to deduce the structure comprising the BFF from the blocks in the Bitcoin blockchain.
  • Arnold LJ said that the judge did not consider the rationale for the requirement of fixation:  “As I have explained, it serves two purposes: to evidence the existence of the work and to delimit the scope of protection.  Dr Wright contends that the fixation upon which he relies serves both these purposes.  The first block in the Bitcoin blockchain evidences the existence of the Bitcoin File Format and enables the scope of protection to be determined.  Dr Wright again relies upon the evidence that third parties have been able to deduce the structure comprising the Bitcoin File Format as supporting this.  I again consider that this evidence supports Dr Wright’s case“.

In light of these findings, the Court of Appeal concluded that Dr Wright had a real prospect of successfully establishing that the fixation requirement for copyright to subsist was satisfied and so allowed the appeal.

For the purposes of the proceeding, Dr Wright had prepared Schedule 2 of the Particulars of Claim, which describes the components of the Bitcoin File Format.  This was prepared in 2022, well after the alleged creation of the copyrighted work, and thus Meade J did not consider that it could be used to fulfil the requirements of fixation.  However, the Court of Appeal presumed that Dr Wright was not relying upon Schedule 2 as satisfying the fixation requirement.

The court did, however, note that the fixation of copyright can be ephemeral (giving the example of an author who extemporises an original literary work orally before an audience, which is recorded digitally but the recording is deleted).  The same, seemingly, could apply to the BFF.  So in finding in favour of Dr Wright, the court mused that “It is an interesting question whether Dr Wright could, in the absence of any earlier fixation, rely upon Schedule 2 as satisfying the fixation requirement for the purposes of subsequent infringement claims, but it is not necessary for present purposes to explore that question”.  It will be interesting to see how this plays out in the future.

Wright & Ors v BTC Core & Ors (Rev1) [2023] EWCA Civ 868 (20 July 2023) (bailii.org)

Authors

George McCubbin
George McCubbin
Senior Associate - London
+44 20 7466 2764
Rachel Montagnon
Rachel Montagnon
Professional Support Consultant - London
+44 20 7466 2217
Andrew Moir
Andrew Moir
Partner - London
+44 20 7466 2773
Charlie Morgan
Charlie Morgan
Partner - London
+44 20 7466 2733
Chris Bushell
Chris Bushell
Partner - London
+44 20 7466 2187
Ajay Malhotra
Ajay Malhotra
Partner - London
+44 20 7466 7605
Philip Lis
Philip Lis
Senior Associate - London
+44 20 7466 2286
Rafael Lawrence
Rafael Lawrence
Associate - London
+44 20 7466 3036
Dan Huang
Dan Huang
Trainee - London
+44 20 7466 2925

 

The IP in AI: Does copyright protect AI-generated works?

In this instalment of our series The IP in AI, we take a look at the extent to which copyright and other rights currently provide protection for output generated by AI systems, including how concepts of ‘authorship’ and ‘originality’ may need to be adapted to meet the rapid growth of generative AI.

Read the full article here

For more on the developing area of intellectual property protection and risks for AI and ML systems, follow our blog series The IP in AI.

 

Key contacts

Aaron Hayward
Aaron Hayward
Senior Associate, Australia
+61 2 9225 5739
Anna Vandervliet
Anna Vandervliet
Senior Associate, Australia
+61 2 9322 4868
Byron Turner
Byron Turner
Solicitor, Australia
+61 2 9322 4155

Rachel Montagnon
Rachel Montagnon
Professional Support Consultant, UK
+44 20 7466 2217
Heather Newton
Heather Newton
Of Counsel, UK
+44 7809 200 246
Peng Lei
Peng Lei
Partner, Kewei, China
+86 10 6535 5151
Alex Wang
Alex Wang
Patent Attorney, China
+86 10 6535 5156

Giulia Maienza
Giulia Maienza
Associate, Europe
+44 20 7466 6445
Michael Dardis
Michael Dardis
Solicitor, Australia
+61 3 9288 1173

The IP in AI: Can IP rights protect AI systems?

With the expanding popularity of ML and AI systems, developers and investors expect those systems to be protected from unauthorised use by others.

Providing suitable protection to encourage and reward investment in the creation of intellectual property – but balancing that against the rights of the public to use those creations – is one of the core aims of the intellectual property system. Striking this balance correctly has proved difficult in this emerging area of technology, and considerable uncertainty remains in legal systems around the world as to the extent of protection afforded to ML and AI systems.

Read the full article here

For more on the developing area of intellectual property protection and risks for AI and ML systems, follow our blog series The IP in AI.

Key contacts

Aaron Hayward
Aaron Hayward
Senior Associate, Australia
+61 2 9225 5739
Anna Vandervliet
Anna Vandervliet
Senior Associate, Australia
+61 2 9322 4868
Byron Turner
Byron Turner
Solicitor, Australia
+61 2 9322 4155

Rachel Montagnon
Rachel Montagnon
Professional Support Consultant, UK
+44 20 7466 2217
Alex Wang
Alex Wang
Patent Attorney, China
+86 10 6535 5156

Giulia Maienza
Giulia Maienza
Associate, Europe
+44 20 7466 6445
Peng Lei
Peng Lei
Partner, Kewei, China
+86 10 6535 5151
Sophie Yates
Sophie Yates
Solicitor, Australia
+61 455 304 922

UK withdraws plans for broader Text and Data Mining (TDM) copyright and database right exception

The UK Minister for Science, Research and Innovation has stated in Parliament that the UK Government will not be proceeding with an extension to the UK’s text and data mining exception that would have allowed much broader access to materials needed for machine learning and to train AI systems, which had been proposed in 2022 following the UK Government’s consultation on changes to IP legislation that might be necessitated by the advent of AI. This means that the only exception for TDM will remain its use for non-commercial purposes, which in turn may mean that AI developers are more cautious about doing R&D work in the UK than they might have been if the broader exception had been pursued.

What is text and data mining?

Text and data mining (TDM) typically refers to the use of computational techniques to analyse large amounts of information to identify patterns and trends. Data mining systems work by copying works to extract and analyse the data they contain. However, unless permitted under a licence or an exception (or the material is out of copyright term protection), making such copies can constitute copyright or database right infringement.

Consultation on AI and IP

In 2022, the UK Government’s Intellectual Property Office (IPO) published its response to its consultation on whether changes to patent and copyright legislation might be required to better protect technology created by artificial intelligence.

One of the three specific areas considered was the “licensing or exceptions to copyright for text and data mining, which is often significant in AI use and development“. The two other areas were (i) copyright protection for computer-generated works (CGWs) without a human author, and (ii) patent protection for AI-devised inventions – in respect of both of which the Government concluded there were no changes to the law required at the current time (see our blog post for more on this).

What was proposed on TDM?

In its response to the consultation, the Government stated its intention to introduce a new copyright and database exception which would allow text and data mining “for any purpose” although rights holders would “still have safeguards to protect their content, including a requirement for lawful access“.

The Government’s proposal was in line with its stated ambition to make the UK “a global centre for AI innovation” and part of its wider National AI Strategy. The exception would “ensure the UK’s copyright laws are among the most innovation-friendly in the world“, it said.

The introduction of an exception which allowed TDM for any purpose would have meant rights holders no longer being able to charge for UK licences for TDM of material that was already available legally. However, whilst no formal draft of the exception was published, the requirement for lawful access would have meant that rights holders would be able to choose the platform on which they make their works available, and the basis upon which they charge for access.

It is also worth noting that the proposed exception was not intended to permit any copying of copyright works or databases; it would have been limited to making a copy of the work for the purpose of carrying out computational analysis of the data recorded in the work.

Reversal and tension between the creative industries and the IPO

On 1 February 2023 however, George Freeman MP, the UK Minister for Science, Research and Innovation stated in a debate on AI in the House of Commons that the IPO’s proposal to introduce a general TDM copyright and database exception would not be proceeding.

This move was foreshadowed on 17 January 2023, when the House of Lords Communications and Digital Committee (the “Committee”) issued a report on the creative industries in which it recommended that the IPO “pause its proposed changes to the text and data mining regime immediately“. The Committee further recommended that the IPO conduct an impact assessment on the implications of the proposed changes to the TDM regime for the creative industries. The Committee took evidence from academic experts and industry groups such as the Creative Rights Alliance (CRA). The CRA told the Committee that a robust IP and copyright regime is vital for growth in the creative sector and that “without creators’ rights to copyright protection over the works they create there is little incentive to invest in their own future careers“.

The Committee suggested that the IPO’s proposed changes “take insufficient account of the potential harm to the creative industries” and that whilst developing AI is important, “it should not be pursued at all costs“. Julia Lopez MP, the Department for Digital, Culture, Media and Sport minister, stated that she was “fairly confident” that the IPO’s TDM proposals were “not going to be proceeding“.

The existing UK approach to TDM and that of other jurisdictions

The current UK legislation already provides a copyright exception for TDM under s.29A of the Copyright, Designs and Patents Act 1988 (CDPA) for non-commercial research of copyright works to which a person already has lawful access. This position falls short of the exception proposed in 2022 as it is limited to research for a non-commercial purpose and does not apply to database rights.

Countries and territories that have introduced copyright exceptions for TDM, citing reasons such as attracting AI development to those locations, include the EU, Japan and Singapore.

When the EU amended its TDM rules by introducing a change to support commercial mining, the new regime included an opt-out. The relevant Directive provides that the exception for reproduction and extraction of works for the purposes of TDM applies on the condition that the use of works “has not been expressly reserved by their rightholders in an appropriate manner, such as machine-readable means in the case of content made publicly available online“. The UK IPO on the other hand, had sought to introduce a regime that could be used for all commercial purposes without an opt-out, although with protections for rights holders.

The UK’s shelved proposed exception was similar to the approaches taken in Japan and the US in providing a broad scope of TDM exception, although the latter relies on the “fair use” doctrine in place of a specific TDM exception. Singapore had similarly relied on a “fair use” exception provided for in the Singapore Copyright Act but now has a specific exception which applies to reproduction and communication rights of any use including commercial use. In Australia, there is currently no specific exception in the Copyright Act for TDM and the copying, digitisation, or reformatting of copyright works without permission may give rise to copyright infringement.

Authors 

Rachel Montagnon
Rachel Montagnon
Professional Support Consultant - London
+44 20 7466 2217
Sungmin Cho
Sungmin Cho
Trainee solicitor - London
+44 20 7466 3365

 

Self-proclaimed creator of Bitcoin can proceed with claim that Bitcoin branch networks breach his intellectual property rights

Dr Craig Wright claims to be the inventor of Bitcoin and to have authored the Bitcoin White Paper in 2008, created the Bitcoin File Format and mined the inaugural block in the Bitcoin Blockchain – the ‘Genesis Block’.  Despite the Bitcoin White Paper having promoted de-centralisation, Dr Wright is now seeking to prevent others from using his alleged intellectual property.

A recent decision of the English High Court, Wright v BTC Core [2023] EWHC 222 (Ch), means that Dr Wright can continue his claims in relation to his alleged database rights over the Bitcoin blockchain and copyright in the Bitcoin White Paper and can serve proceedings on the defendants out of the jurisdiction. The court concluded that – assuming the facts are as alleged by Dr Wright – those two claims are arguable. However, it dismissed a claim for copyright in the Bitcoin File Format as unarguable.

It remains to be seen what the outcome of this case will be (including whether this decision will be appealed to the Court of Appeal) and what implications (if any) it will have for the continued operation of the Bitcoin branch networks, BTC and BCH.

In another claim brought by a company of Dr Wright’s, Tulip Trading Ltd v van der Laan [2023] EWCA Civ 83, the Court of Appeal recently overturned a decision of the High Court that there was no arguable claim that developers of a blockchain network owe users a fiduciary duty. Our analysis of Tulip can be accessed here. Continue reading

Real Estate Guide to IP – Updated for 2023

In conjunction with our Real Estate division, the Herbert Smith Freehills London IP group has published a guide to the intellectual property issues that can arise in relation to real estate.

It can be the case that sites or buildings are purchased without necessarily considering fully whether the underlying intellectual property assets are being transferred and what future access or control the new owner may need, or the vendor wish to retain.

Key areas may include access to and rights to copy and use plans, or any marketing materials showing layouts or photographs of the property which the purchaser may wish to reuse. The control of the website for the building including the domain name should be considered, as well as more obvious things like the branding of the building or use of the name under which it was previously known. Social media accounts and any apps connected to the property will also need to be assessed and control gained when ownership of the real estate is transferred.

Here are a few questions those involved should be asking:

  • Does your property have a distinctive name or logo?
  • Is there a website or an app associated with your property?
  • Is there content on that website or app that the new owner would like to reuse or control?
  • Are there social media accounts that specifically relate to the property? Do these need to be transferred or deactivated?
  • Are there architectural plans that might be needed for redevelopment or planning applications?
  • Are there marketing materials which might be needed by the new owner?

Read our Real Estate Guide to IP for answers to these and many other intellectual property issues that can arise in relation to real estate.

Authors

Jonathan Turnbull
Jonathan Turnbull
Partner, IP, London
+44 20 7466 2174
Kathryn Oie
Kathryn Oie
Of Counsel, Real Estate, London
+44 20 7466 3897
Rachel Montagnon
Rachel Montagnon
Professional Support Consultant, IP, London
+44 20 7466 2217
Heather Newton
Heather Newton
Senior Associate, IP, London
+44 20 7466 2984