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Blockchains, Smart Contracts, Decentralised Autonomous Organisations and the Law

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9. Blockchains: Aspects of Intellectual Property Law
DANIEL KRAUS* & CHARLOTTE BOULAY**
Blockchains are at the source of numerous innovations, be it in the insurance, the financial or
the distribution sector, many of which are very promising. However, from the moment
innovative technologies appear the issue of the stimulation of their development arises. Most
of the time, blockchain-related innovations are developed in an open-source or free software
framework. Nevertheless, more and more patents have been filed on blockchain applications.
Hence, how are the philosophies driving blockchain communities and intellectual property
compatible? Are there any risks that arise from the filing of patents on the developments of
blockchain-based technologies and business methods? And finally, are blockhains going to
revolutionalize the intellectual property system itself? These are the issues that the present
chapter attempts to deal with.
Keywords: blockchain ; open source ; free software ; copyright ; patents ; trademarks ;
intellectual property
I. INTRODUCTION .............................................................................................................. 2
II. THE PHILOSOPHY BEHIND BLOCKCHAINS ............................................................. 4
A. Decentralization and distribution ................................................................................. 5
B. Transparency ................................................................................................................ 5
C. Immutability ................................................................................................................. 5
D. Different philosophical approaches.............................................................................. 6
III. THE PHILOSOPHY BEHIND INTELLECTUAL PROPERTY .................................. 7
IV. INTELLECTUAL PROPERTY PROTECTION FOR BLOCKCHAINS? ................. 10
A. Preliminary remarks ................................................................................................... 10
B. Copyright protection and blockchains ....................................................................... 10
1. General principles of copyright protection ............................................................... 10
2. Computer programs and copyright ........................................................................... 11
3. Databases and copyright ........................................................................................... 12
C. Open source and free software ................................................................................... 13
D. Patents and blockchains ............................................................................................. 15
* DANIEL KRAUS, Prof. Dr. iur, LL.M., Chair of Innovation Law, Director of the Center for Intellectual Property
and Innovation Law, University of Neuchâtel, Attorney at Law, Switzerland.
** CHARLOTTE BOULAY, BLaw/MLaw (University of Fribourg and University of Paris II Panthéon-Assas) &
MLaw (Aix-Marseille University), Doctoral Student and Research Assistant at the University of Neuchâtel,
Switzerland.
2
E. Trademark protection ................................................................................................. 17
V. BLOCKCHAIN TECHNOLOGY FOR INTELLECTUAL PROPERTY ...................... 19
A. Valorization of intellectual property rights ................................................................ 19
1. Preliminary remarks ................................................................................................. 19
2. Valorization of copyright ......................................................................................... 19
3. Valorization of patents, registered designs and trademarks ..................................... 20
B. Proof of right ownership ............................................................................................ 21
1. Preliminary remarks ................................................................................................. 21
2. Proof of copyright .................................................................................................... 21
C. Use of intellectual property rights .............................................................................. 22
1. Preliminary remarks ................................................................................................. 22
2. Trademarks ............................................................................................................... 22
3. Patents ...................................................................................................................... 23
4. Fight against counterfeiting and piracy .................................................................... 23
VI. CONCLUSION ............................................................................................................ 25
I. INTRODUCTION
No single day passes without blockchain making the headlines. Most of the time however, it
is not blockchain technology as such that is at the center of the attention, but cryptocurrencies,
and in particular Bitcoin, as one materialization of blockchain technology. Until recently,
Bitcoin accounted for most of the public’s attention. However, there is infinitely more to
blockchain. There are other cryptocurrencies and tokens, smart contracts and endless
possibilities of applications, be it in finance, insurance or logistics, just to name a few
1
.
Blockchain technology, no doubt, is, if not a technological revolution, at least a
(r)evolutionary way of doing transactions and hence, business, with the least possible
intermediaries and State intervention. As a technology whose impact is expected to be as
important as Internet in the 1990s and which will probably affect every aspects of our
economy, it attracts more and more economic actors wishing to take a part of the cake. Hence,
originally created to support the crypto-device bitcoin, the blockchain has now acquired a
different status: this technology serves all kind of products and services in the private, but also
1
A good illustration is the shipping business. A cargo’s journey is currently long and complex: many
stakeholders are involved (the producer, the customer, the ship owner, banks, etc.); insurances are high and
administration is heavy. The blockchain (in particular smart contracts) technology simplifies the process because
documents are sent very quickly (within several hours) to stakeholders and in a secure manner. Stakeholders can
watch in live the cargo’s progress and be immediately aware of the cargo ship’s condition (temperature, security
checks…). Eventually, the payment of custom duties can be automatized and therefore simplified. This has been
tested and proved to be functional. See e.g. Dmitry Zhdannikov, ‘Mercuria introduces blockchain to oil trade
with ING, SocGen’, Reuters, January 19, 2017, available at <https://www.reuters.com/article/us-davos-meeting-
mercuria/mercuria-introduces-blockchain-to-oil-trade-with-ing-socgen-idUSKBN1531DJ> (last consulted on
30.05.2018).
3
in the public sector
2
. As such, blockchain technology probably leads to the ultimate form of
shared economy, and certainly, to one that really deserves that denomination.
As applications based on blockchains multiply, ventures and challenges come to light.
Awareness about the number of legal issues to be dealt with increases simultaneously. Such
issues range from the protection of investors, the definition and execution of so-called smart
contracts, and applicable law. However, many intellectual property issues arise as well and
deserve attention.
The first issue is the role of intellectual property in the development of the blockchain
technology and in blockchain-based applications. Although based on an open source code,
several proprietary rights, in particular patents have been filed, especially regarding finance.
Nevertheless, patents are not the only intellectual property rights at issue. Trademarks are also
filed and, depending on their qualification and scope of protection, could curb innovation by
limiting access to newcomers. The question here is hence what kind of rights, proprietary or
not, will most stimulate the use of blockchains and the development of new applications.
The second issue relates to blockchains observed from the other side, i.e. not from the point of
view of developers, but of its users or customers. The issue is here in which way blockchain
technologies may serve the intellectual property system. As of now, blockchains are mainly
used as a way of defensive protection, i.e. putting technology in the public domain and hence
as state of the art. Several applications come to mind and are already at the center of
developments in that respect. But blockchains may also serve as a decentralized ledger for
unregistered intellectual property rights such as copyright or the unregistered EU Design. In
the future, blockchains could eventually replace or offer parallel ways of proving ownership
rights, eliminating or reducing the necessity of registration and hence of intervention of
national IP offices such as the United States Patent and Trademark Office or of regional ones
such as the European Union Intellectual Property Office (EUIPO). Same may be true for
intellectual property rights such as patents, trademarks or designs. At the enforcement end of
the chain, blockchains can finally also offer a way of tracking original and counterfeit
products and of ensuring better revenues to authors and interprets.
If not yet totally disruptive in the field of intellectual property, blockchain technology may
however upset the intellectual property system in the medium term
3
.
The present chapter suggests to proceed in four parts and to examine the intellectual property-
blockchain relationship from both perspectives. Part 2 presents the philosophy behind the
blockchain technology, and aims at understanding it functioning in an intellectual property
perspective. Part 3 focuses on the philosophy underlying intellectual property law. The idea
here is to show that, although the two philosophies may be considered as diametrically
opposed, they are, on the contrary, complementary. Part 4 then presents the impact intellectual
property including open source could have on the development of blockchain technologies
whereas, finally, part 5 tries to present the intellectual property-blockchain relationship from
the other perspective, i.e. by exposing how blockchains may contribute to the management
2
Vincent Fauchoux and Amélie Gouazé, ‘Pourquoi la blockchain va révolutionner la propriété
intellectuelle ? Application pratique au secteur de la mode’, Revue Propriétés intellectuelles n°65, octobre 2017,
p. 24.
3
More radical: Nicolas Binctin, ‘Quelle place pour la blockchain en droit français de la propriété
intellectuelle ?’, Revue Propriétés intellectuelles n°65, octobre 2017, p. 1.
4
and valorization of intellectual property rights in different fields. We conclude that, although
blockchains are mainly based on open source software, copyright, patents and trademarks will
play an important role in the consolidation of technologies; in an extremely competitive and
volatile context, the intellectual property architecture of particular blockchains will influence
the technologies which will impose themselves on the market and set the standards.
II. THE PHILOSOPHY BEHIND BLOCKCHAINS
Blockchain is generally described as a technology
4
but, as such, does not refer to a unique
definition. For some, it is a database
5
, for others a register
6
, or an open ledger
7
of information.
Although the technology may seem complex, the idea behind blockchains is simple. A
blockchain is an open ledger of information which is distributed and verified across a peer-
to-peer online network (…). Each transaction or block is transmitted to all of the participants
in the network and must be verified by each participant node solving a complex mathematical
problem”
8
. This database runs on millions of devices and is open to anyone. On blockchains,
anything, including value, can be transferred between economic actors, without the need for
intermediaries, as trust is not secured by a central actor, but by the fact that each transaction
appears on each and every device participating in the chain and building upon the precedent
block
9
. Blocks cannot be changed, as that would imply the modification of the entire chain on
the entire network
10
. Hence, and even in the absence of any intermediary such as a notary, a
bank, the State, an intellectual property office or, say, a collecting society, blockchains are
considered as secure, as its distributed, decentralized characteristic prevents any actor, be it
economic, social or an individual to cheat. This is due to three qualities that the blockchain
4
See for instance Célia Zolynski, ‘La blockchain : la fin de l’ubérisation ?’, Dalloz IP/IT, 2017, p. 385.
5
See Thomas G. Albert, ‘Fintech, biotech and digitalization: is Switzerland the new e-Eldorado ?’, Journal of
International Banking Law and Regulation, 32(8), 2017, p. 369; Mehdi Bali, ‘Les crypto-monnaies, une
application des blockchain technologies à la monnaie’, Revue de droit bancaire et financier, n°2, Mars 2016,
étude 8, n°3; Adrian Blundell-Wignall, ‘The Bitcoin Question : Currency versus Trust-less Transfert
Technology’, OECD Working Papers on Finance, Insurance and Private Pensions n°37, 2014, p. 8; Victor
Charpiat, ‘Le Bitcoin devient monnaie courante : les monnaies digitales entre transparence, régulation et
innovation’, Revue des Juristes de Sciences Po n°9, Juin 2014, 96, p. 2; Simon Jupp, ‘Blockchain’s bright
future’, Intellectual Property Magazine, August 2017, available at
<https://www.intellectualpropertymagazine.com/copyright/blockchains-bright-future-125985.htm>. This author
describes the blockchain technology as “a decentralized shared database”.
6
Pierre-Henri Thomas, ‘Blockchain, l’outil qui va révolutionner le business’, Plus magazine, 2 novembre 2017;
Vincent Mignon, ‘Le [B]itcoin”, un nouveau défi pour le juriste suisse ?’, Jusletter, 4 mai 2015, pp. 5-6 “(…) un
registre public (…) comparable à un “grand livre comptable”; Mustapha Mekki, ‘Les mystères de la
blockchain’, Recueil Dalloz 2017, p. 2160 n°4.
7
Mark Kalderon, Ferdisha Snagg and Claire Harrop, ‘Distributed ledgers: a future in financial services?’,
Journal of International Banking Law and Regulation, 31(5), 2016, p. 243.
8
Ruth Burtstall and Birgit Clark, ‘Blockchain, IP and the Fashion Industry’, Managing Intellectual Property, 23
March 2017, available at <http://www.managingip.com/Article/3667444/Blockchain-IP-and-the-fashion-
industry.html> (last consulted on 30.05.2018); see also the definition given by Mark Kalderon, Ferdisha Snagg
and Claire Harrop ‘Distributed ledgers: a future in financial services?’, Journal of International Banking Law
and Regulation, 31(5), 2016, p. 243 : “a distributed public ledger which records and verifies transactions in the
VC. The ledger is distributed across a network of computers which verify the authenticity of the record”.
9
Don Tapscott and Alex Tapscott, ‘The Impact of the Blockchain Goes Beyond Financial Services’, Harvard
Business Review, 10 May 2016, available at <https://hbr.org/2016/05/the-impact-of-the-blockchain-goes-
beyond-financial-services> (last consulted on 30.05.2018).
10
Vincent Fauchoux and Amélie Gouazé, ‘Pourquoi la blockchain va révolutionner la propriété
intellectuelle ? Application pratique au secteur de la mode’, Revue Propriétés intellectuelles n°65, octobre 2017,
p. 23.
5
technology enjoys and guarantees: decentralization and distribution, transparency and
immutability.
A. Decentralization and distribution
Until now, even though, thanks to the Internet, information has been made available to an
unlimited number of users, it is held by one or a limited number of persons or companies on
one or a limited number of servers over which that company or person has control. Such is
the case even in today’s digitalized society. Companies like Google, Apple, Facebook or
Amazon, but also Spotify or Netflix
11
store data in centralized server farms. Actors of the so-
called sharing economy such as Airbnb or Uber allow for transactions to take place between
service providers and users, but through a centralized infrastructure, software and interface,
controlled by their owners and for which the latter require a fee to be paid. Such a centralized
system still implies high transaction costs, borne by the user and the service provider, in favor
of the platform, the latter acting as an intermediary
12
. To the opposite, blockchains rely on a
network of computers and establishes a distributed ledger, allowing for shared and constantly
expanding recordkeeping
13
. Its distributed and decentralized characteristic profoundly impacts
traditional socio-economic processes, setting aside the need for central control
14
. It provides
the possibility of establishing and developing real, efficient and effective peer-to-peer
systems, allowing in turn for the development of a real shared economy with a shortened
value chain between providers and their customers. The distributed nature of blockchains also
provides security against hacking
15
.
B. Transparency
Each transaction appearing on the blockchain is identified by a code, which can be tracked.
As everyone has access to the blocks (in particular through the internet), the fact that a
transaction has effectively taken place and the moment at which it has taken place may be
verified. The transparent nature of blockchains hence also improves trust between members
16
.
C. Immutability
Robustness characterizes the blockchain technology, as the block of chains can in principal
not be modified: records are available in the ledger; they appear chronologically, and cannot
be changed
17
. This principle nevertheless needs to be nuanced in the case of forks, e.g. such as
11
Timm Böttger, Felix Cuadrado, Gareth Tyson, Ignacio Castro and Steve Uhlig, Open Connect Everywhere: A
Glimpse at the Internet Ecosystem through the Lens of the Netflix CDN, Queen Mary University of London,
London, 2017, p. 1.
12
Paolo Tasca and Mihaela Ulieru, ‘Blockchain as an Institutional Technology Spearheading an Equitable
Exchange Economy’, Elsevier BV SSRN Electronic Journal, January 2016 (consulted on 10.01.2018).
13
BSA Foundation, Blockchain Primer From Enabling Bitcoin to Blocking Blood Diamonds, November 2017,
p. 2.
14
Pierre-Jean Benghozi, ‘Blockchain : objet à réguler ou outil pour réguler ?’, La Semaine Juridique Entreprises
et Affaires n°36, 7 Septembre 2017, p. 2.
15
Patrick Smith, ‘Blockchain Technology and Intellectual Property: A New Way to Secure Creativity?’,
Andrews Robichaud Blog, June 21st, 2017, available at <http://andrewsrobichaud.com/blockchain-technology-
intellectual-property-new-way-secure-creativity/> (last consulted on 30.05.2018).
16
Ibid.
17
Pierre-Jean Benghozi, ‘Blockchain : objet à réguler ou outil pour réguler ?’, La Semaine Juridique Entreprises
et Affaires n°36, 7 Septembre 2017, p. 4.
6
the DAO hard fork that led to the separation between Ethereum and Ethereum Classic in 2016
or such as the Bitcoin Bitcoin Cash hardfork
18
.
D. Different philosophical approaches
From a philosophical point of view, it easily appears from the qualities of blockchain such as
described above that the technology seeks to be as open as possible, if not totally open. As a
decentralized and distributed network aiming at the reduction of transaction costs through the
elimination of centralized intermediaries, the need for a distribution as large as possible of the
technology appears clearly. The first blockchains were hence based on an open-source
philosophy and code, and such is still mostly the case. Examples include bitcoin, ether, or
IOTA. Licenses used for certain parts of the code may sometimes lead to evolutions or
derivatives which can be managed in a proprietary way (such as e.g. the MIT licenses).
However, the core and the technological ecosystem of blockchains (such as Ethereum) may
be forked. Such a system originates from the model of General Public License and is an
important vector of the open mechanism intrinsic to the free software model. The philosophy
behind blockchains is inspired form the mechanism that allowed the GNU/Linux system to
establish itself as a standard which nowadays has become essential to the market. This system
has allowed the development of numerous distributions of the Linux/GNU (or Linux + GNU)
which are adapted to specific situations but use the same kernel
19
.
However, private blockchains, sometimes also known as consortia, have appeared in parallel
to public blockchains: Access to such blockchains is restricted and is based on invitation
and/or on authorization. The latter is validated by the “network starter” or by a set of rules put
in place by the network starter
20
. One single institution may hence have control over the
quality and quantity of participants on the blockchain and can decide whether a competitor
can take part or not on a particular blockchain. Corda
21
, which focuses on financial services,
is an illustration of such a private blockchain. Corda was created by R3, a software company,
which to date unites 60 partners, including major financial institutions like Barclays, Deutsche
Bank or Société Générale
22
. Several patents have been filed on a system and method for
managing transactions in dynamic digital documents, covering smart-contract technology,
database, contract code and acknowledgement processes
23
.
There are also intermediate collaboration systems, such as the Ethereum Enterprise Alliance,
which currently counts around 150 participants, including Fortune 500 enterprises, start-ups,
academics, and technology vendors from a variety of business sectors, including technology,
banking, government, healthcare, energy, pharmaceuticals, marketing, and insurance
24
. Based
on an open source code, the Alliance aims at producing “the industry standard, open source,
18
For more information on the history of The DAO, see Simon Polrot, ‘Déploiement de THE DAO, « mère de
toute les DAO »’, ethereum France, 30 avril 2016, available at <https://www.ethereum-france.com/deploiement-
du-projet-the-dao-mere-de-toutes-les-dao/> (last consulted on 30.05.2018).
19
<https://en.wikipedia.org/wiki/Linux_distribution> (last consulted on 30.05.2018).
20
Praveen Jayachandra, ‘The difference between public and private blockchain’, IBM Blockchain Blog, May 31,
2017, available at <https://www.ibm.com/blogs/blockchain/2017/05/the-difference-between-public-and-private-
blockchain/> (last consulted on 30.05.2018).
21
<https://www.corda.net/> (last consulted on 30.05.2018).
22
<https://www.r3.com/> (last consulted on 30.05.2018).
23
See in particular US 20170301047 A1, available at <https://www.google.ch/patents/US20170301047> (last
consulted on 30.05.2018).
24
<https://entethalliance.org/members/> (last consulted on 30.05.2018).
7
free to use blockchain solutions”
25
. Even so, licencing conditions seem to encompass
limitations based on proprietary software, leading to a legal situation at the crossroads of
public and private blockchains. But beyond the issue of accessibility to background or
foreground intellectual property of the Alliance and/or of its members, the standard-setting
aspect of the Alliance might lead to dominance issues which will need to be solved
through fair, reasonable, and non-discriminatory (FRAND) licensing terms.
Blockchain is definitely something new, allowing for easier and cheaper ways of exchanging
commodities, services and ideas. It is probably too early to fully understand and validate the
philosophical dimension of blockchains
26
. What can however already be observed and needs
to be kept in mind as the role and place of intellectual property is examined in the
development of blockchain-based interactions (be they economic, social or political), is the
following: As decentralized and distributed ledgers, blockchains probably allow for the most
democratic and equalitarian way of doing business and exercising rights. In order to meet
their ideal, blockchains needs to remain as open as possible. This needs to and may very
well be reconciled with proprietary reflexes of some sectors of industry.
III. THE PHILOSOPHY BEHIND INTELLECTUAL PROPERTY
In an innovation-driven and competitive economy, intellectual property plays a central role.
At the same time, its place in such a disruptive evolution of ways of interacting between
humans as the one being induced by the emergence of blockchains appears to be challenged.
Seen as exclusive, proprietary or even monopolistic rights, intellectual property rights may be
considered to be totally in opposition with the core principals of blockchains
decentralization, transparency and immutability.
Intellectual property rights in particular patents, but, in a European perspective and in
particular for software, also copyright have evolved as instruments serving the purpose of
stimulating innovation through the grant of time-, territory- and object-limited protection to its
owner. Providing for exclusive rights and requiring the intervention of the State, intellectual
property rights, and in particular patents, have been considered to be the “second-best
solution” for the stimulation of innovation, the best solution being one in which no monopoly
is granted and in which the State does not intervene
27
.
Seen as instruments of protection, intellectual property rights are rightly considered as one
way of stimulating innovation. From that point of view, without an efficient protection,
creators would not take the chance to waste time and energy in inventions or creations that
could be copied by third parties, in particular competitors, as soon as they have been
disclosed. Only behaviors falling under provisions of unfair competition (imposed on World
Trade Organization Members by art. 39 of the Agreement on Trade Related Aspects of
Intellectual Property Rights (TRIPS)) could be prevented or stopped, making it difficult for
intellectual property owners to defend their ownership over their creations. For this reason,
intellectual property rights limit a general right to copy by granting the exclusive rights to its
owners to stop third parties from using their rights commercially without their authorization,
25
<https://entethalliance.org/> (last consulted on 30.05.2018).
26
For more information, see Melanie Swan and Primavera de Filippi, ‘Toward a Philosophy of Blockchain: A
Symposium: Introduction’, Metaphilosophy, Volume 48, issue 8, 10 October 2017, pp. 618-619.
27
Fritz Machlup, An economic review of the Patent System, U.S. Govt Print. Off., Washington 1958, p. 21.
8
be it in particular by selling, putting on the market, importing or exporting products or
services incorporating the intellectual property at stake. Of course, intellectual property rights
are only granted and may only exist if they fulfill certain conditions and if they do not fall
under an exclusion of protection.
Conditions of protection are set at a level which is considered by legislators to provide a
balance between the legitimate private interests of their owners (the possibility to exploit
normally their creation) and the public interest to have access to the intellectual property and
products or services incorporating said intellectual property. That would be (world-wide)
novelty, inventive step and industrial application for patents; and originality or individual
character for works to be protected by copyright and to which, at least in a European
perspective, software is associated
28
. The balance is also ensured by the exclusion of some
fields of technology from the protection of intellectual property. Inventions considered to be
contrary to public order may be excluded from patent protection by WTO member States (art.
27 TRIPS). Such exceptions generally cover inventions in relation with living organisms,
embryo stem cells or methods of medical treatment. It is difficult to imagine that inventions
related to blockchains would be excluded from patentability on such grounds. However,
potential patents on cryptocurrencies could theoretically be excluded on the grounds that a
currency that is not controlled by the State represents a danger to public order. According to
the G20, this does not seem to be the case for the time being
29
. However, some legal orders
also exclude business methods, presentation of information and software from patent
protection, considering that, although they may represent progress, they lack the technical
qualities necessary to be at all considered as inventions. Such is in particular the case of the
38 parties to the European Patent Convention (EPC), including all EU Member States (see art.
52 (2)(c) EPC). It is more realistic to consider that blockchains could be excluded from patent
protection on these grounds. Nevertheless, countries such as the United States of America
allow for the patentability of software and business methods, although the latter has been
limited by case law, as in Alice Corp. v. CLS Bank International, 573 U.S. __, 134 S. Ct. 2347
(2014).
Trademarks also play an important role in blockchains and in particular for cryptocurrencies.
Balance is however less of an issue, as the interests of trademark owners and users converge
in the prevention of the risk of confusion between products and services of one company with
product and services of other companies. A balance however needs to be found between
established actors and new entrants on the market. That is the reason for which generic terms
need to be maintained in the public domain and may not be monopolized by a person or a
company. Difficulties may however arise in the cases of forks, where the reference to the
older currency is used in the more recent currency, particularly in the case where the
community refusing a fork changes the name of the currency, whereas the forked currency
keeps the older brand. The Ethereum/Ethereum Classic fork provides an example of such a
situation.
Same is partly true for copyright. Copyright laws generally do not exclude any type of work
from protection, as long as the work is a creation of the mind and presents an individual
28
Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection
of computer programs.
29
Communiqué of the Finance Ministers and Central Bank Governors, G20 Meeting, Buenos Aires, 19-20
March 2018, point 9, available at <https://back-
g20.argentina.gob.ar/sites/default/files/media/communique_g20.pdf> (last consulted on 30.05.2018).
9
character or, as some legal orders put it, originality. But copyright laws generally foresee wide
exceptions to the protection of works, including in particular fair or private use. Included in
several international intellectual property conventions (see for instance art. 9 § 2 of the Bern
Convention, art. 13 TRIPS and article 10 of the WIPO Copyright Treaty), the triple step test
(which foresees that the reproduction of literary and artistic works may only be permitted (1)
in certain special cases, (2) provided that it does not conflict with a normal exploitation of the
word and (3) that it does not unreasonably prejudice the legitimate interests of the author)
however provides “limits to the limitations of a copyright holder’s rights
30
.
Depending on the degree of severity (or rather: lack of severity) with which conditions of
protection are applied and on the extent of protection, intellectual property may stimulate or,
to the contrary, block innovation. This has been identified, in the field of technology, as the
problem of patent thickets
31
. But the same risk occurs in the field of trademarks, where
combinations of signs is limited, in particular if some kind of subtle reference to the products
or services provided is to be made. One just has to look at brands (trademarks) of
cryptocurrencies to realize that the risk of confusion is high and often established in the eyes
of the public.
In order to limit the risk of intellectual property blocking innovation and access to newcomers
on the market, the intellectual property system foresees limitations to the effects of
intellectual property rights. Most of said limitations are of reduced interest in the field of
blockchains. That is certainly the case for limitations put in place in particular for the
pharmaceutical sector, and probably also for limitations such as private use. One could
however very well imagine that compulsory licenses could be applicable or foreseen in a
technology which is of public interest such as blockchains (see art. 31 TRIPS). But probably
one of the most important limitations intellectual property owners which have rushed in patent
and possibly trademark applications will have to accept is the first movers right to continue
using the technology or a trademark to the same extent they were until the patent or
trademark has been filed (prior use).
Intellectual property rights are also property rights and as such, may be licensed or assigned,
allowing for open and collaborative innovation
32
. Open innovation based on protected
intellectual property hence finds itself somewhere between a purely proprietary approach, the
much more open framework of open source or free software and a totally free setting in which
any innovation would be part of the public domain.
Even if only the second best solution, the intellectual property system’s philosophy is to strive
to strike a balance between the stimulation of innovation and the need to prevent a thicket of
30
Rachel Marusak Hermann, ‘IP Experts Focus On 3-Step Test In Copyright, Discuss Way Forward’,
Intellectual Property Watch, 21 December 2011, available at <http://www.ip-watch.org/2011/12/21/ip-experts-
focus-on-3-step-test-in-copyright-debate-way-forward/ > (last consulted on 30.05.2018); for more information
about the three-step test, see Susy Frankel and Daniel J. Gervais, Advanced Introduction to International
Intellectual Property, Edward Elgar Publishing, 2016, pp. 56-75.
31
Laure Marino, ‘Les patent thickets : du bouillon de l’innovation à la poudrière’, Le blog de Laure Marino
Droit IP/IP, 29 août 2014, available at <http://lauremarino.blogspot.ch/2014/08/patent-thickets-bouillon-
innovation.html> (last consulted on 30.05.2018).
32
See Christophe Caron, ‘Les licences de logiciels dits « libres » à l’épreuve du droit d’auteur français’, Recueil
Dalloz, 2003, p. 1556; Primavera De Filippi and Isabelle Ramade, ‘Les licences Creative Commons : Libre
Choix ou Choix du Libre ?’, in Camille Paloque-Berges, Benjamin Jean and Christophe Masutti (éd), Histoires
et cultures du Libre, Framabook, 2013, p. 4.
10
intellectual property rights from blocking innovation. Intellectual property rights are hence at
the crossroads of stimulation of innovation and broad access, including by competitors, to
new technologies. In a mainly open-source, but potentially ever more proprietary setting, a
subtle use of rights and of exceptions and limitations will prove to be a deciding factor for the
development of innovative blockchain applications. Novelty, inventive step, and even
patentability as such of blockchain applications are certainly going to be challenged more and
more. In an extremely competitive context, prior use will also prove to be an argument which
might save more than one innovative start-up in the field.
IV. INTELLECTUAL PROPERTY PROTECTION FOR
BLOCKCHAINS?
A. Preliminary remarks
Blockchains are a peer-to-peer way of interacting between parties
33
. Most of the time, they are
developed on open source licenses such as the MIT license (Bitcoin, Litecoin, IOTA),
sometimes on ISC license (Ripple) or a combination of licenses, depending on the software
that is licensed (Ether
34
).
However, more and more intellectual property rights are filed around blockchains and
blockchain applications. A google patent search for word “blockchain” led to 4016 hits, a
search using the word “cryptocurrency” led to 724 results, whereas the combination of terms
“wallet crypto” led to more than 9422 hits
35
. The effect of intellectual property protection
might vary from right to right, but may not only have a positive, stimulating one.
Opportunities and risks vary from one type of right to the other, depending on the private and
public interests at stake, the conditions and scope of protection, and of course on the
perspective from which blockchains are seen: a developer intending to disrupt the centralized
business models will not have the same perspective and, possibly, the same use of intellectual
property rights as a well-established company which sees its centralized business model
disrupted.
It is hence necessary to examine the role and potential effects on blockchain of each
intellectual property right separately starting from copyright (4.2), open source (4.3), patents
(4.4) and trademarks (4.5).
B. Copyright protection and blockchains
1. General principles of copyright protection
If conditions are fulfilled, software may be protected by copyright. Copyright law protects
literary and artistic works
36
as long as they have an individual or original character
37
. This
33
Banque centrale européenne, Virtual Currency Schemes, octobre 2012, p. 21.
<www.ecb.europa.eu/pub/pdf/other/virtualcurrencyschemes201210en.pdf> (consulted on 02.01.2018) and
referred to by Vincent Mignon, ‘Le « [B]itcoin », un nouveau défi pour le juriste suisse ?’, Jusletter, 4 May
2015.
34
<https://github.com/ethereum/wiki/wiki/Licensing> (last consulted on 30.05.2018).
35
<https://patents.google.com/> (last consulted on 30.05.2018).
36
Bern Convention for the Protection of Literary and Artistic Works of 1886 (as amended on September 28,
1979).
11
covers every production in the literary, scientific and artistic domain, whatever the mode or
form of its expression may be
38
.
Neither international conventions (in particular the Berne Convention and the TRIPS
Agreement) nor national legislation contain exhaustive lists of protected works. Nevertheless,
there is a common understanding that ideas, methods of operation or mathematical concepts
cannot be protected by copyright
39
as they lack individual character or originality. This is also
the case for works which are the result of chance, as no intellectual activity is involved
40
.
Derivate works may also be protected in their own right. However, the work used in the
derivative work is also protected, so that authorization for its use must be obtained, often in
exchange of a financial contribution; quite often, a moral contribution such as a reference to
the author of the prior work, as is the case in open source licenses, is considered as
sufficient
41
.
2. Computer programs and copyright
Computer programs do not exactly fit in either of the categories of works protected by
copyright. Nevertheless, software is considered as a work in the sense of most copyright laws.
The Copyright Act of the United States
42
defines computer programs as a set of statements
or instructions to be used directly or indirectly in a computer in order to bring about a
certain result
43
. Article 1 § 1 of the EU Software Directive 2009/24/EC of 23 April 2009
requires from Member States that they protect computer programs by copyright, as literary
works within the meaning of the Berne Convention for the Protection of Literary and Artistic
Works. For the purposes of the Directive, the term ‘computer programs’ includes their
preparatory design material
44
. In Swiss law, computer programs are expressly assimilated to
works
45
.
As a consequence, copyright generally protects computer programs
46
as long as some amount
of originality (or individual character) can be identified. This is precisely where the difficulty
lies. As such, individuality will always be difficult to prove, even for works of literature or
music. The individual character of a line of code is even more difficult to qualify. What
makes the originality of a line of code? Is it its length? The terms used? The result, effect or
functionality of the line of code? The latter may easily be excluded, as functionalities are not
37
François Dessemontet, Intellectual property law in Switzerland, Staempfli, 3rd ed., 2015, pp. 38-40; James
Palfrey, Intellectual Property Strategy, The MIT Press Essential Knowledges Series, Cambridge, Massachusetts
/ London, 2012, p. 147.
38
See art. 2 of the Bern Convention for the Protection of Literary and Artistic Works of 1886 (as amended on
September 28, 1979).
39
WIPO, What is copyright?, available at <http://www.wipo.int/copyright/en/> (last consulted on 30.05.2018).
40
Blaise Carron, Daniel Kraus, Yann Férolles and Mélanie Krüsi, Le droit d’auteur des planificateurs, Genève /
Zurich, 2015, p. 49.
41
François Dessemontet, Intellectual property law in Switzerland, Staempfli, 3rd ed., 2015, p. 53 n°116.
42
See Sec. 15 U.S.C 101 of the Copyright Act of the United States.
43
See another definition given by David Bainbridge, Introduction to computer Law, Longman, 5th ed., 2004, p.
xxxvi: a series of instructions which control or condition the operation of a computer”.
44
Art. 1 §1, EU Software Directive 2009/24/EC of 23 April 2009.
45
Art. 2 § 3 of the Swiss Copyright Act of 9 October 1992.
46
See for instance the WIPO Copyright Treaty (art. 4); the TRIPS Agreement (art. 10.1); the Council Directive
of 14 May 1991 on the legal protection of computer programs (91/250/CEE).
12
protected by copyright
47
. That is precisely where the weakness of copyright protection for
software and for blockchains lies: two different lines of code, each one considered as
original or having individual character, may lead to the same function. Therefore, even an
original line of code could lead to a program which would not be apprehended by copyright
law and be considered as perfectly legal, whereas a very similar piece of software would
appear on the market and, from a competition point of view, enter in direct (economic)
conflict with a software based on another individual code.
Accordingly, copyright protection for software may be considered of limited effect especially
in case of open source software
48
. This limited impact of copyright protection may be one of
the reasons for which software producers have often not been able to successfully rely on their
copyright protection in courts
49
. At the same time, the limitation of copyright protection to its
literary aspects, excluding software’s functionalities, might also be the main reason for which
open source works for software and has been successfully extended to blockchains.
3. Databases and copyright
From the point of view of their content, blockchains may also be seen as a collection of
material (blocks) arranged in a methodical (chronological) way and accessible by electronic
means. They may have common points with databases
50
. As a collection of independent
works, data or other materials arranged in a systematic or methodical way and individually
accessible by electronic or other means
51
, databases sometimes benefit from a sui generis
protection as regards their content, whilst their structure is submitted to the protection of
traditional copyright law
52
. Such is the case in the European Union. In other legal orders,
47
SAS Institute, Inc. (“SAS) v. World Programming Ltd. (“WPL”), [2010] EWHC 1829 (Ch); Pamela
Samuelson, Thomas Vinje and William Cornish, ‘Does Copyright Protection Under the EU Software Directive
Extend to Computer Program Behaviour, Languages and Interfaces?’, European Intellectual Property Review,
Vol. 34 Iss. 3 (2012), pp. 3-7.
48
Vikrant Narayan Vasudeva, Open Source Software and Intellectual Property Rights, Kluwer Law
International, 2014, p. 2.
49
Irene Bodle, ‘Software patents and the limitations of copyright law’, Web Analytics World, August 6, 2013,
available at <https://www.webanalyticsworld.net/2013/08/software-patents-and-the-limitations-of-copyright-
law-2.html> (last consulted on 30.05.2018); more nuanced: Joseph P. Liu and Stacey L. Dogan, ‘Copyright Law
and Subject Matter Specificity: The Case of Computer Software.’, New York University Annual Survey of
American Law 61, no.2 (2005): 203-236, available at <http://lawdigitalcommons.bc.edu/lsfp/536/> (last
consulted on 30.05.2018).
50
See Simon Jupp, ‘Blockchain’s bright future’, Intellectual Property Magazine, August 2017, available at
https://www.intellectualpropertymagazine.com/copyright/blockchains-bright-future-125985.htm> (consulted on
02.02.2018); Pierre-Jean Benghozi, ‘Blockchain : objet à réguler ou outil pour réguler ?’, La Semaine Juridique
Entreprises et Affaires n°36, 7 Septembre 2017, p. 4 : « Le premier principe tient à la distribution des bases de
données reliant chaque composant de la blockchain. »; Software.org BSA Foundation, Blockchain Primer
From Enabling Bitcoin to Blocking Blood Diamonds, November 2017, p. 2, available at
<https://software.org/wp-content/uploads/Software_Beyond-Bitcoin.pdf> (last consulted on 30.05.2018): the
blockchain is described as a database (“Distributed ledgers are built so that anyone with access to the database
can view its complete history”).
51
Art. 1 § 2 of the Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the
legal protection of databases.
52
See recital 60 of the Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on
the legal protection of databases.
13
copyright protects databases as such and their content, as long as the criteria of individuality
is fulfilled
53
.
Such could be the case of a ledger for a commercial register, for land and civil registries, or
even for intellectual property registries
54
. Such collections of information may already today
be qualified as databases; whether they are saved on a centralized server or on a decentralized
network of computers does not have a major effect on its qualification; same is true regarding
its protection, whether under a sui generis right or under copyright. Decentralization might
however play a role regarding liability in case of violation of the title of protection. The
person which, by hypothesis, would upload a work, say a piece of music without the
composers authorization on a blockchain would be liable for copyright infringement, just as
he would have been in a centralized peer-to-peer or streaming system. A diametrically
opposite situation would be the one where the systematics of the organization of a database
were taken over without authorization by the creators of another blockchain, in which case the
“owners” of the copied blockchain could impose their sui generis right or their copyright to
the infringers. One tricky issue here would of course be the identification of the “owners” of a
particular blockchain. As decentralized ledgers, open blockchains might be considered to have
no central authority and a decentralized control without any nominated administrators
55
. This
might make defense against infringers, but also against accusation of infringement, more
difficult than in the case of centralized databases such as the ones we have known until now
56
.
C. Open source and free software
It is often stated that blockchain technology is based on open source or free software. That is
partly true. Indeed, in the vast majority of cases, the source code can be modified by further
developers
57
. This philosophy is perfectly in line with the vision of Satoshi Nakamoto,
creator(s) of Bitcoin, the first blockchain
58
. But some blockchains are less open than others. A
more detailed analysis of some blockchain licensing policies shows that, even in the cases of
the most open licenses, the system relies on copyright. Although probably minimal, this
includes a certain risk that the one or the other participant in the community, at some point,
does not play the game and might use its copyright on a part of the ecosystem to block
competitors. Every developer in a particular blockchain will need to understand its intellectual
property environment and the web of licenses it is moving in. Examples of the Bitcoin and
Ethereum show that licensing policies may vary significantly.
53
See art. 2 § 3 of the Swiss Copyright Act of 9 October 1992 or art. 69 § 3 of the German Act on Copyright and
Related Rights of 9 September 1965.
54
Roger Aitken, ‘Bitland’s Africa Blockchain Initiative Putting Land On The Ledger’, Forbes, April 5, 2016,
available at <https://www.forbes.com/sites/rogeraitken/2016/04/05/bitlands-african-blockchain-initiative-
putting-land-on-the-ledger/#704259787537> (last consulted on 30.05.2018).
55
Nolan Bauerle, ‘What is the Difference Between a Blockchain and a Database?’, Coindesk, available at
<https://www.coindesk.com/information/what-is-the-difference-blockchain-and-database/> (last consulted on
30.05.2018).
56
On the important issue of the protection of personal data on a blockchain-based database, see chapter 10 of the
book.
57
Blockchain France, La Blockchain décryptée Les clefs d’une révolution, netexplo Observatory, 2016, p. 2.
58
Name of the (mythological?) author of the Manifest Bitcoin: A Peer-to-Peer Electronic Cash System”,
available at <https://bitcoin.org/bitcoin.pdf>. According to Nakamoto, A purely peer-to-peer version of
electronic cash would allow online payments to be sent directly from one party to another without going through
a financial institution”, p. 1.
14
Bitcoin is based on the MIT license, which allows any person obtaining a copy of the software
under that license, including associated documentation files, to deal in the covered software
free of charge and without restriction. This includes, without limitation, the rights to use,
copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the covered
software, and to allow persons to whom the software is furnished to do so as well.
Nevertheless, this use is subject to the respect of conditions: First, the copyright and
permission notices must be included in all copies or substantial portions of the software.
Second, the license is subject to a classical non-warranty clause according to which the
software is provided "as is", without warranty of any kind, express or implied, including but
not limited to the warranties of merchantability, fitness for a particular purpose and non-
infringement of third parties’ rights. The authors or copyright holders cannot be held liable for
any claim, damages or other liability, whether in an action of contract, of tort or otherwise,
arising from, out of or in connection with the software or the use of the software
59
.
It appears from the formulation of the license that it is based on the copyright protection
system. This requires further users to specifically examine whether the entire software is
covered by the open-source license or, if not, or which elements are.
The same type of license applies to cryptocurrencies such as Vertcoin and Litecoin.
Ethereum is based on a more differentiated licensing policy. This blockchain is both an open
source software and a free software in accordance with the definition of the Free Software
Foundation; no special treatment is given to any single entity regarding the copyright of the
software, the Ethereum Foundation included.
The source-code is not distributed ahead of binaries, putting all developers on an equal
standpoint as regards updates. The Ethereum software collection is distributed under several
licenses, which respect these rules, “partly to reflect the different thinking of the minds behind
different pieces of software and partly to reflect the need to adapt to real-world issues and
opportunities and lay out a strategy to provide the best possible future for the Ethereum
community”
60
. The fact that the core of Ethereum was released under liberal licenses reflects
the Ethereum Foundations’s desire to have Ethereum used in as many diverse environments as
possible, open source or closed, even if they require modifications to the software which
cannot be released to the public
61
.
In order to incentivize the members of the Ethereum-community to develop on and build out
software, the core is hence released under GNU Lesser General Public License v3.0
62
whereas
the applications of Ethereum are distributed under the GNU General Public License
63
.This
choice of licences is made in a way to allow developers in the Ethereum ecosystem not to be
limited by a software developed by the foundation. Licences are hence formulated in a way
that encourages the development of other software, whatever their level (node, App, etc.).
59
The MIT License, available at <https://opensource.org/licenses/MIT> (last consulted on 30.05.2018).
60
<https://github.com/ethereum/wiki/wiki/Licensing> (last consulted on 30.05.2018).
61
Ibid.
62
<https://www.gnu.org/licenses/lgpl-3.0.en.html> (last consulted on 30.05.2018).
63
Ibid.
15
Finally, the middleware of Ethereum is planned to be distributed under an Affero license
64
,
which should allow the free development of technologies and the linking to arbitrary
software, whilst incentivising feeding of back-end integration work back into the community,
in particular to ensure the interoperability with legacy systems. This type of licence should
allow the bridging between open and closed software, allowing developers to manage their
intellectual property whilst respecting the open source principles
65
.
Such a combination of licences on different pieces of software shows three aspects which
have to be kept in mind by developers: first, the notion of “free” covers the use of the code,
but not necessarily its price. Second, even within one blockchain environment, different
licences may cover different parts of the software so that each licence has to be examined in
its details, with varying rights and obligations. And third, such an environment might have
implications in an extremely competitive environment such as blockchains, especially at an
early stage; risks of copyright-based litigation ought not be underestimated, even in an open-
source environment. Even though most participants in blockchain communities share the
open-source and free software philosophy, some participants might try to impose copyright
protection on some parts of the ecosystem, possibly blocking its development
66
.
D. Patents and blockchains
Since the rise of the blockchain technology and the parallel development of financial
technologies (fintech)
67
, many banks and other financial structures have filed patent
applications. Amongst many examples, the one filed by US bank Goldman Sachs, which
claims protection for [...] methods for settling securities in financial markets using
distributed, peer-to-peer, and cryptographic techniques
68
includes a particularly broad claim.
Many other patents have also been filed
69
.
Patents are considered at the same time as a means of stimulating innovation and as a possible
burden to innovation, in particular where to many patents limit the freedom to operate of new-
64
<https://www.gnu.org/licenses/agpl-3.0.en.html>. See however Matt Savare, John Wintermute and Shailley
Singh, ‘Coders Beware: Licensing Issues Abound for Ether Apps’, Coindesk, Dec 6, 2017, available at
<https://www.coindesk.com/coders-beware-licensing-issues-abound-ethereum-apps/> (last consulted on
30.05.2018).
65
<https://github.com/ethereumproject/wiki/wiki/Licensing> (last consulted on 30.05.2018).
66
See Christophe Caron, Les licences de logiciels dits « libres » à l’épreuve du droit d’auteur français’, Recueil
Dalloz, 2003, p. 1558 n°10 : Le droit de divulgation est également concerné par cette licence. En effet, il est
stipulé que l'auteur de la modification doit ensuite distribuer le programme en indiquant clairement son apport.
Il n'en demeure pas moins qu'il lui est toujours loisible de tenir en échec cette obligation en exerçant, de façon
négative, son droit de divulgation et de décider de ne pas apporter, à la communauté du « libre », sa création
originale. Il en résulte que le simple exercice du droit de divulgation est alors susceptible de paralyser le
système. » ; Regarding the fluctuating trust relationship between stakeholders and the lack of coordination, see
Jean-Maxime Rivière, Blockchain technology and IP investigating benefits and acceptance in governments
and legislations, Bachelor’s Thesis, TUM School of Management of the Technische Universität München,
04.04.2017, p. 9.
67
Ruth Burtstall and Birgit Clark, ‘Blockchain, IP and the Fashion Industry’, Managing Intellectual Property, 23
March 2017, available at <http://www.managingip.com/Article/3667444/Blockchain-IP-and-the-fashion-
industry.html> (last consulted on 30.05.2018).
68
Patent application n°20150332395 delivered by the United States Patent & Trademark Office on November 19
2015.
69
See above, part II D p. 6.
16
comers (patent thickets)
70
. In addition, patentability of software is seen from different
perspectives, depending on which side of the Atlantic one stands. In the USA, software has
long been considered as a technical innovation. As long as conditions of patentability are
fulfilled that is novelty, inventive step and usefulness , software may well be protected by
patents. In Europe, software is not considered a technical innovation, and art. 52(2) European
Patent Convention expressly excludes it from patent protection. As software, blockchains
undergo the same diversity of approaches.
However, even though in Europe, software is assimilated to a piece of work and, as such, may
be protected by copyright
71
, patent protection is not totally excluded. Inventions involving
programs for computers can be protected in different forms of a "computer-implemented
invention". Claims which involve computers, computer networks or other programmable
apparatus where at least one feature is realised by means of a program are patentable
72
. A
computer program product is not excluded from patentability under art. 52(2) and (3)
European Patent Convention if, when it is run on a computer, it produces a further technical
effect which goes beyond the "normal" physical interactions between a program and a
computer
73
. A computer-implemented method using technical means (in particular a method
operating a computer) does not fall under the exclusion of art. 52(2) European Patent
Convention and may potentially lend technical character to the claimed subject-matter
74
. The
developer must have had technical considerations beyond "merely" finding a computer
algorithm to carry out some procedure in order for the program to be considered as a
patentable invention
75
. According to the EPO Guidelines for examination, the further
technical effect may even be known in the prior art
76
.
The EPO Guidelines provide some examples, specifying that “a further technical effect which
lends technical character to a computer program may be found e.g. in the control of an
industrial process or in the internal functioning of the computer itself or its interfaces under
the influence of the program and could, for example, affect the efficiency or security of a
70
See Carl Shapiro, ‘Navigating the Patent Thicket: Cross Licenses, Patent Pools, and Standard Setting’,
Innovation Policy and the Economy, MIT Press, 2001, Vol. 1 p. 119. Shapiro describes patent thickets as “A
dense web of overlapping intellectual property rights that a company must hack its way through in order to
actually commercialize new technology (p. 120); Laure Marino, ‘Les patent thickets : du bouillon de
l’innovation à la poudrière’, Le blog de Laure Marino Droit IP/IP, 29 août 2014
<http://lauremarino.blogspot.ch/2014/08/patent-thickets-bouillon-innovation.html> (last consulted on
30.05.2018).
71
Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection
of computer programs.
72
EPO, Guidelines for Examination, available at <www.epo.org/law-practice/legal-
texts/html/guidelines/e/g_ii_3_6.htm> (last consulted on 30.05.2018).
73
See EPO decision T 1173/97 of 1 July 1998, International Business Machines Corporation (IBM), concerning
the asynchronous resynchronization of a commit procedure.
74
See EPO decision T 0424/03 - 3.5.01 of 23 February 2006, Clipboard formats I / MICROSOFT, in particular
points 5.1. and 5.3, concerning the clipboard technology. See also EPO decision T 258/03 Hitachi, regarding an
auction method, according to which a method involving technical means may be considered an invention within
the meaning of Article 52(1) European Patent Convention (points 4.1 to 4.4); however, “method steps consisting
of modifications to a business scheme and aimed at circumventing a technical problem rather than solving it by
technical means cannot contribute to the technical character of the subject-matter claimed”(Headnote II and
point 5.7 of the reasons). See EPO decision T 1173/97 (Computer program product) of 1 July 1998 and EPO
decision G 0003/08 (Programs for computers) of 12 May 2010.
75
See EPO decision G 0003/08 (Programs for computers) of 12 May 2010.
76
EPO, Guidelines for Examination, available at <www.epo.org/law-practice/legal-
texts/html/guidelines/e/g_ii_3_6.htm> (last consulted on 30.05.2018).
17
process, the management of computer resources required or the rate of data transfer in a
communication link. A computer program implementing a mathematical method that itself
makes a technical contribution […] would also be considered to be capable of bringing about
a further technical effect when it is run on a computer
77
.
Blockchain technologies shall hence have to be tested against this specific aspect of
technicality. Once this aspect is considered to be given (which at least until recently has been
considered as less problematic, if at all, in the USA), blockchain technologies, as well as all
the products developed in a blockchain environment (such as e.g. wallets) shall also have to
be tested against ordinary conditions of patentability (novelty, inventive step, industrial
application). In the USA, blockchains must also be considered from the point of view of
business methods. A stricter approach by courts has been observed in the last years in
particular in the USA
78
.
For the time being, patents have been filed, but not yet granted in blockchain technologies. If
at all granted, all these conditions of protection represent the variety of possible grounds for
opposition blockchain pioneers will have at their disposal to challenge the patents. And
should patents be confirmed, proof of prior use will also allow blockchain pioneers to
continue using their technologies in the same way as they did until the patent was filed.
E. Trademark protection
The role of trademark protection in relation to blockchains should not be underestimated.
2017 has witnessed several hard forks, which lead to the creation of new tokens. Probably the
most famous ones are Ethereum classic in June 2016 and Bitcoin cash, or Bitcoin gold in
October 2017. Even more dramatic was the proliferation of ICOs, leading to the apparition of
more than 1000 cryptocurrencies in 2017
79
. Although numerous cryptocurrencies have
distinctive trademarks (registered or not), interestingly, many of them have names that could
be considered confusingly similar to existing crypto-currencies. Such uses of trademarks need
to be in line with the trademark licensing policies of the relevant blockchains or
cryptocurrencies.
BITCOIN has been registered as a trademark at the EUIPO in July 2011 already, under
classes 9 (Software for commerce over a global communications network), 35 (Electronic
commerce services, namely providing information about products via telecommunication
networks for advertising and sales purposes), 38 (Signal transmission for electronic commerce
via telecommunication systems and data communication systems) and 42 (Constructing an
internet platform for electronic commerce). One opposition had been filed, but was then
77
EPO, Guidelines for Examination, available at
<http://documents.epo.org/projects/babylon/eponet.nsf/0/D94333C1A028BC0AC12581C90057921F/$File/guid
elines_for_examination_2017_hyperlinked_en.pdf> (last consulted on 30.05.2018).
78
See in particular the Supreme Court decision in Alice Corp. v. CLS Bank International, 573 U.S. __, 134 S. Ct.
2347 (2014).
79
<http://www.fibonatix.com/blog/2017/12/12/the-cryptocurrency-market-rose-1200-in-2017-what-about-2018>
(last consulted on 30.05.2018).
18
withdrawn
80
. The trademark is also registered internationally, based on a Japanese registration
from 2015, although interestingly, it was refused in the USA
81
.
The use of the Bitcoin trademarks and logos are based on an open license
82
. As a
consequence, the trademark may be freely used by legitimate users of Bitcoins, such as e.g.
businesses accepting payment in that crypto-currency. However, illegitimate use could
potentially be blocked by the trademark owner. Nevertheless, a number of other trademarks
using the Bitcoin denomination have been filed by other applicants and registered; it is hence
legitimate to ask whether a lack of enforcement of the Bitcoin trademark might not lead, or
has not already led to its degeneration into a generic term.
Ethereum seems to have had a more proprietary approach until now. Ethereum foresaw two
kinds of affiliations allowing for the use of the Ethereum trademark for non-ethereum entities.
The first affiliation (“powered by Ethereum”) was strictly reserved to Ethereum Dapps, Apps
or technologies primarily developed on Ethereum, where Ethereum was an integral, majority
or key dependency part of the solution offering or operation, and where there was a
dependency on the single core Ethereum global consensus network. Such use required
approval by the Ethereum Foundation. The second authorized use was for approved regional
Ethereum Meetups. All other uses required specific authorization, whilst Ethereum clearly
stated it intended to enforce compliance with its guidelines
83
. Ethereum seems to be opting for
a more community-friendly approach, with the goal of being more supportive to the Ethereum
and, generally speaking, to the cryptography innovation ecosystem, whilst evaluating the
possibility of providing a special seal for use by approved people or entities in relation to
specific activities such as advocacy or fund-raising
84
.
The Bitcoin and Ethereum trademark registrations represent perfect examples of the way
innovation may be fostered through the combination of an open and of a proprietary
environment; at the same time, it also brings to light some risks. Whereas open source will
allow competitors to enter the market with new or different solutions (improved blockchains,
competing smart contracts, atomic swaps, blockchains for the internet of things or any other
further development of the blockchain technology), trademark protection may be legitimately
used or not - to prevent third parties from free-riding on the notoriety of a platform. The
ownership of a trademark will also allow to react to cybersquatting activities in relation to the
name of a blockchain, cryptocurrency or token on the internet. A first Uniform Domain-Name
Dispute-Resolution Policy (UDRP) case ordered that the <projectethereum.com> domain
name be transferred to the Ethereum Foundation
85
. Numerous more such cases are to be
expected in the future.
80
Registration No 010103646, available at <https://euipo.europa.eu/eSearch/#details/trademarks/010103646>
(last consulted on 30.05.2018).
81
International Registration No 1288610, available at <http://www.wipo.int/madrid/monitor/en/> (last consulted
on 15.04.2018).
82
<https://en.bitcoin.it/wiki/Promotional_graphics> (last consulted on 30.05.2018).
83
<https://web.archive.org/web/20150906200819/https://www.ethereum.org/brand> (last consulted on
30.05.2018).
84
<https://www.ethereum.org/brand> (last consulted on 30.05.2018).
85
Stiftung Ethereum (Foundation Ethereum) v. Domain Privacy Service fbo registrant, available at
<http://www.adrforum.com/domaindecisions/1746664.htm> (last consulted on 30.05.2018).
19
V. BLOCKCHAIN TECHNOLOGY FOR INTELLECTUAL
PROPERTY
A. Valorization of intellectual property rights
1. Preliminary remarks
Blockchain technology raises more and more attention due to its characteristics, namely
distribution, transparency and decentralization. This last characteristic could bring several
benefits to intellectual property rights, such as a register of property ownership, contracts and
transactions and the facilitation of proof of ownership
86
. Nevertheless, an intellectual property
system based on blockchains also raises issues regarding the role of the State and, obviously,
the principle of territoriality.
There are two ways of considering the role of blockchains in intellectual property: the first
one is to consider it as a useful security tool. This view is probably too limited considering it
does not reflect the entire potential of the technology. The second role that could be given to
blockchains is currently less widely spread, but may sooner or later become reality:
blockchain could become a sustainable element of proof, recognized by tribunals, and
therefore by the State. Indeed, the relationship based on trust would be transferred from the
State to the blockchain as all stakeholders (i.e. judges, lawyers, plaintiffs, defenders, etc.)
would accept blockchains as strong evidence. Such a pattern could lead to the end of the
notion of territoriality in intellectual property. Such days are however probably still far away.
But blockchain technology may have a more direct and immediate impact on intellectual
property rights in the framework of their valorization. As such, blockchains could bring
additional income to the intellectual property right holder, that is, if this technology is adopted
by the relevant stakeholders.
2. Valorization of copyright
The fields of music and films provide good examples to see to what extent blockchain may be
useful for copyright. There are currently two major ways to distribute music or films. The first
one is the so-called subscription model: a company such as Netflix, which offers streaming
options for home television audiences, is based on that model. Users pay fees to the platform
in order to watch films or series. The second way is the advertisement-based model
symbolized by YouTube, the well-known video-sharing platform. Users do not pay any fees
but accept to watch advertisements on the website in order to be able to listen to music or
watch videos. Advertisers pay fees to the sharing platform when their advertisement appears
on it
87
.
Blockchain technology may disrupt these models and help artists by creating a direct link
between them and the consumers
88
. Artists could benefit more directly from their right of
86
Software.org BSA Foundation, Blockchain Primer From Enabling Bitcoin to Blocking Blood Diamonds,
November 2017, p. 2 (last consulted on 30.05.2018).
87
Primavera De Filippi, ‘Blockchain-based Crowdfunding: what impact on artistic production and art
consumption’, 2016, available at <https://hal.archives-ouvertes.fr/hal-01265211> (last consulted on 30.05.2018).
88
Marie Soulez, Killian Lefèvre and Clara Zlotykamien, ‘La blockchain serait-elle l’avenir de la musique ?’,
Revue propriétés intellectuelles n°65, octobre 2017, pp. 29-30.
20
distribution and obtain more royalties through a direct remuneration obtained with each act of
distribution or communication of their work. In particular in the music and film industries,
where streaming platforms play a major rule, the existence of a distributed ledger would be
particularly helpful
89
. Smart contracts, i.e. computer programs based on blockchains that
regulate and automate the relationship between parties
90
, would make the slip payments
faster, more transparent and more secured
91
. It could also lead to the disappearance of the
intermediary between artists and consumers
92
. Hence, the role played by collecting societies
might need to be redefined in the future.
Such models are already starting to be reality. Singular DTV is a typical example of a
company based on blockchain technology, with an objective of decentralizing the
entertainment industry, thus giving artists and creators the possibility to manage their rights
without intermediaries
93
. Another example can be found in the field of photography with a
project developed by Kodak. This company specialized on imaging
94
aims at providing
professional and amateur photographers with a tool to protect their copyright by the means of
a blockchain platform. The idea here is to provide photographers with the possibility of
registering old and new photographs on a platform. The system aims at facilitating
management of their rights by the photographers themselves: the payment should be
immediate, the process of sale secured and the right ownership on the photographs preserved.
Moreover, the system should be able to manage the post-licensing process when unlicensed
usage of images are detected
95
.
Such illustrations lead to the assumption that the blockchain technology is promising in the
field of copyright as it strengthens the position of the intellectual property right owner in a
way that artists maintain a better control over their work
96
.
3. Valorization of patents, registered designs and trademarks
Blockchain technology could also help better valorize other intellectual property rights,
mainly through a more direct, effective and efficient management. For instance, patent,
trademark and design license agreements could be the object of smart contracts based on a
distributed ledger technology. The execution and control of these license agreements would
therefore be facilitated with speedy smart contracts that could be programmed to ensure the
respect of the contractual obligations, such as the payments of royalties to the intellectual
89
Jill Richmond, ‘How Blockchain Technology Can Transform Royalty Payments’, Nasdaq, May 09, 2017,
available at <http://www.nasdaq.com/article/how-blockchain-technology-can-transform-royalty-payments-
cm786646> (last consulted on 30.05.2018).
90
Hans Rudolf Trüeb, ‘Smart Contracts’, in Pascal Grolimund, Alfred Koller, Leander D. Loacker and Wolfgang
Portmann (eds), Festschrift für Anton K. Schnyder, 2018, p. 702.
91
Marie Soulez, Killian Lefèvre and Clara Zlotykamien, ‘La blockchain serait-elle l’avenir de la musique ?’,
Revue propriétés intellectuelles n°65, octobre 2017, p. 30.
92
Simon Jupp, ‘Blockchain’s bright future’, Intellectual Property Magazine, August 2017, available at
<https://www.intellectualpropertymagazine.com/copyright/blockchains-bright-future-125985.htm> (last
consulted on 30.05.2018).
93
See the website: <https://singulardtv.com/> (last consulted on 30.05.2018).
94
The project’s name is KODAKOne. It is developed by Kodak in collaboration with WENN Digital.
95
Kodak, available at
<https://www.kodak.com/us/es/corp/press_center/kodak_and_wenn_digital_partner_to_launch_major_blockchai
n_initiative_and_cryptocurrency/default.html> (last consulted on 30.05.2018).
96
Nicolas Binctin, ‘Quelle place pour la blockchain en droit français de la propriété intellectuelle ?’, Revue
Propriétés intellectuelles n°65, octobre 2017, p. 19.
21
property right holder
97
, without which access to and use of the licensed technology could
automatically be denied.
Possibilities provided by blockchain technology to register intellectual property rights
(especially copyright) seem even more promising compared to the benefits of blockchains for
other intellectual property rights. Indeed, the blockchains technology covers important
systemic failures in copyright such as the proof of creatorship and fair share of royalties.
B. Proof of right ownership
1. Preliminary remarks
One of the advantages of blockchains is that it provides an easier way of proving the
ownership of rights, including IP rights. In reality, the most difficult challenge for the
copyright holder or the unregistered design right holder is to demonstrate that it was the first
to create the work. Indeed, a better solution allowing for the proof of the date of creation of a
work has been actively searched for a long time. In providing an unforgeable date of creation
and use of these rights, the blockchain is certainly an interesting solution for determining
ownership
98
. As the Coalition of Automated Legal Applications
99
states, it is a permanent,
time-stamped, decentralized, immutable storer of information
100
. For an unregistered right
with such a long protection (generally 70 years after the death of the author, 50 years for
software), such characteristics are of particular interest.
2. Proof of copyright
The blockchain technology is an efficient way to determinate the date of the intellectual
creation, which are otherwise difficult to establish
101
. Determination of authorship is a thorny
question, often source of litigation. Except in some countries such as the USA, Canada, the
United Kingdom or Kenya where a system of registration exists, copyright presents
weaknesses in terms of proof. Indeed, compared to patent, design or trademark, there is no
system of registration for copyright. The copyright protection starts when the work is created:
that is the so-called “automatic principle” provided by the Bern Convention at article 5 § 2.
Therefore, recording this right on a distributed ledger could bring to the holders a solid proof
concerning the origin of their creation
102
.
97
Birgit Clark, ‘Blockchain and IP law: a match made in crypto heaven?’, WIPO Magazine, February 2018,
available at <http://www.wipo.int/wipo_magazine/en/2018/01/article_0005.html> (last consulted on
30.05.2018).
98
Ibid.
99
Coala (i.e. coalition of automated legal applications) is a group of researchers coming from diverse
backgrounds (lawyers, computer scientists, etc.) working on the topic of blockchain. For more information, see
<http://coala.global/> (last consulted on 30.05.2018).
100
Coala, How Blockchains can support, complement, or supplement intellectual property working draft, May
2016, p. 5.
101
Nicolas Binctin, Quelle place pour la blockchain en droit français de la propriété intellectuelle ?’, Revue
Propriétés intellectuelles n°65, octobre 2017, p. 19.
102
Ruth Burtstall and Birgit Clark, ‘Blockchain, IP and the Fashion Industry’, Managing Intellectual Property,
23 March 2017, available at <http://www.managingip.com/Article/3667444/Blockchain-IP-and-the-fashion-
industry.html> (last consulted on 30.05.2018).
22
Blockchains could also set, once and for all, the proof regarding the work’s content and
information regarding the transfer of ownership. The system would bring more transparency,
which is currently missing
103
.
Typically, the blockchain technology could help in the music field because a decentralized
register could keep track of music information (date of the creation, records of assignments,
etc.)
104
. Moreover, collective rights management organizations
105
would have the possibility
to gather information in order to protect more effectively the copyrights.
Blockchain technology could also help solving the tricky issue of orphan works
106
, i.e.
creations which are still protected by copyright, although the creator is unknown or cannot be
located. Blockchain technology could be an interesting tool, allowing the chain to be traced
back to the creator of the orphaned work. Orphan works would actually not be a
preoccupation anymore.
C. Use of intellectual property rights
1. Preliminary remarks
One major issue in industrial property law is the demonstration of the use of rights, a
necessary condition for the preservation of the monopoly right granted by the State. Indeed,
the first use of the right or more generically its genuine use in trade are often difficult to
prove, because the issue is neglected by right owners and is suddenly an issue at a later stage,
often already in front of courts. Blockchain technology could help solve this problem as all
tracks of intellectual property rights would be recorded on the decentralized ledger.
2. Trademarks
Thanks to a strong registration system, there is no issue concerning the registration of
trademarks. However, there are currently very few tools helping right holders to show that
they were the first to use a trademark in the appropriate classes of goods or services or, at all,
that they do use the trademark. Therefore, blockchain technology could prove to be
particularly interesting for trademark owners as the (first) use of the sign in commerce would
be recorded in the distributed ledger
107
.
103
Nicolas Binctin, Quelle place pour la blockchain en droit français de la propriété intellectuelle ?’, Revue
Propriétés intellectuelles n°65, octobre 2017, p. 19; Simon Jupp, ‘Blockchain’s bright future’, Intellectual
Property Magazine, August 2017, available at
<https://www.intellectualpropertymagazine.com/copyright/blockchains-bright-future-125985.htm> (last
consulted on 30.05.2018).
104
Simon Jupp, ‘Blockchain’s bright future’, Intellectual Property Magazine, August 2017, available at
<https://www.intellectualpropertymagazine.com/copyright/blockchains-bright-future-125985.htm> (last
consulted on 30.05.2018).
105
These non-profit companies manage the artists copyrights and negotiate with the exploiters of author’s rights
agreements.
106
Coala, How Blockchains can support, complement, or supplement intellectual property working draft, May
2016, p. 8.
107
Birgit Clark, ‘Blockchain and IP law: a match made in crypto heaven?’, WIPO Magazine, February 2018,
available at <http://www.wipo.int/wipo_magazine/en/2018/01/article_0005.html> (last consulted on
30.05.2018).
23
Other uses reflecting the trademark activity could also be recorded in the decentralized ledger
such as licenses, giving a third party (the licensee) the possibility to use the trademark held by
the licensor for specific products or services, these specifications being the object of smart
contracts.
3. Patents
Blockchain technology may also be interesting to prove the use of patents. Similar to
trademarks, protection concerning the file of patents is already satisfactory since information
is recorded in official databases of international and national intellectual property offices.
Nevertheless, collecting information on works of researchers and their inventions may be
facilitated if blockchain technology were used. For instance, laboratory notebooks could
become forge-proof documents, helping researchers hold records of their works in progress
108
.
Currently, these notebooks need to be improved in terms of reliability and completeness
109
.
Hence, blockchain technology could improve secured information contained on these
digitalized notebooks as they would be secured in an immutable ledger
110
.
One threat however has to be pointed out: the record in an open ledger of data related to the
potential patentable subject matter may bring the invention into the public domain. Indeed,
every user of the blockchain would have access to the block within which this information is
registered. Therefore, the criteria of novelty would no longer be fulfilled, making the patent
application at least useless, at most unpatentable. The issue could possibly be dealt with if
only the most basic biographical information relating to the patent was registered on the
blockchain and not every detail of the invention would be revealed.
4. Fight against counterfeiting and piracy
Due to a strong competition, reinforced by the development of new technologies, intellectual
property rights are more and more exposed to counterfeiting (the illegal copying of an original
product) and to piracy (the illegal copying of works covered by copyright). The music
industry is a good illustration of how a blockchain could be a useful tool to combat such
unlawful practices. Artists could prove the authorship of their work also in the framework of
their enforcement, as relevant information related to their works would be registered on
blockchains. Therefore, they could provide all information regarding their creation (e.g. date
of the work’s creation and potential licenses), all accessible on the decentralized ledger. This
would constitute a major advantage considering that the intellectual property right holder
would spare time and money in litigation.
Fight against counterfeiting could also be improved, if brand protection measures would
benefit from the blockchain technology. This technology may be of particular interest in case
of a supply chain: this chain is often complex due to the number of stakeholders such as
108
Institut national de la propriété industrielle, available at <https://www.inpi.fr/fr/proteger-vos-creations/le-
cahier-de-laboratoire/le-cahier-de-laboratoire> (last consulted on 30.05.2018).
109
Jean-Maxime Rivière, Blockchain technology and IP investigating benefits and acceptance in governments
and legislations, Bachelor’s Thesis, TUM School of Management of the Technische Universität München,
04.04.2017 p. 8.
110
Vincent Fauchoux, ‘En matière de propriété intellectuelle, la blockchain présente l’avantage de couvrir toute
la zone de l’avant-brevet - propos recueillis par Gaëlle Marraud des Grottes’, Revue Lamy Droit de l’immatériel,
décembre 2017, p. 2.
24
subcontractors that are involved. A decentralized ledger may help identifying and proving
counterfeiting activities since every track regarding a product (such as contractual documents
and transactions) would be registered, and so secured, on the decentralized blockchain
111
. As
an example of a practical application of the blockchain, in the field of textile, a chip
containing information in form of metadata (such as the origin or composition of the good)
could be attached to the product. This would be then stocked on a platform based on
blockchain technology and provide the product with an identity card, and thus be a useful tool
for producers and consumers who need to know the origin and characteristics of the
product
112
. Custom officers would encounter less problems concerning the product’s origin,
allowing them to verify the authenticity of the good by scanning the chip. Hence, the
protection of trademarks against unlawful behaviors would be strengthened
113
.
Collective
114
and certification marks
115
could also benefit from decentralized ledger
technology
116
. Indeed, whether the conditions laid down in the contractual conditions of
collective and certification marks are respected or not, would be easily controllable thanks to
the traceability process provided by blockchain technology. This would facilitate the detection
of unlawful use of collective and certifications marks
117
.
Therefore, the traceability of goods seems to be more effective through a distributed ledger
technology. Such a system will certainly greatly help stakeholders (customs official,
producers, consumers, etc.) identify the authenticity, or not, of IP protected products
118
. In
addition to providing trust in the business world, blockchain technology can hence very well
help reducing the number of counterfeit and pirated products in circulation.
111
Kevin O-Marah, ‘Blockchain Heats Up’, Forbes, July, 20, 2017, available at
<https://www.forbes.com/sites/kevinomarah/2017/07/20/blockchain-heats-up/2/#37a34d866ae0> (last consulted
on 30.05.2018); Birgit Clark, ‘Blockchain and IP law: a match made in crypto heaven?’, WIPO Magazine,
February 2018, available at <http://www.wipo.int/wipo_magazine/en/2018/01/article_0005.html> (last consulted
on 30.05.2018).
112
Some examples with the companies VeChain (a product management platform) and BDID, which acts in the
field of drugs.
113
Simon Jupp, ‘Blockchain’s bright future’, Intellectual Property Magazine, August 2017, available at
<https://www.intellectualpropertymagazine.com/copyright/blockchains-bright-future-125985.htm> (last
consulted on 30.05.2018).
114
According to the WIPO, collective marks are “signs which distinguish the geographical origin, material,
mode of manufacture or other common characteristics of goods or services of different enterprises using the
collective mark <http://www.wipo.int/sme/en/ip_business/collective_marks/collective_marks.htm> (last
consulted on 30.05.2018).
115
According to the WIPO, certification marks are signs which certify that the product fulfills some established
standards <http://www.wipo.int/sme/en/ip_business/collective_marks/certification_marks.htm> (last consulted
on 30.05.2018). Examples of certification marks are FAIRTRADE and Wollmark.
116
WIPO, available at <http://www.wipo.int/sme/en/ip_business/collective_marks/certification_marks.htm> (last
consulted on 30.05.2018).
117
Birgit Clark and Ronda Majure, How is Blockchain Changing The Trademark World?, August 2017, p. 16,
available at <http://www.compumark.com/event/blockchain-changing-trademark-world/> (consulted on
15.02.2018).
118
Birgit Clark, ‘Blockchain and IP law: a match made in crypto heaven?’, WIPO Magazine, February 2018,
available at <http://www.wipo.int/wipo_magazine/en/2018/01/article_0005.html> (last consulted on
30.05.2018).
25
VI. CONCLUSION
At first sight, blockchain technology and intellectual property law may seem to be at odds, as
the philosophies they are based on appear to differ: The blockchain technology is mainly
based on open source and open software, whilst the intellectual property law system rather
relies upon a proprietary system. Blockchain strives to limit the intervention of the State,
whereas intellectual property, at least for registered rights, is based on trust provided by the
central intervention of the State authority granting the right. Such a clear-cut distinction is
however not accurate. On the contrary, intellectual property and blockchains are
complementary. In the future, they will live side by side and influence the development of one
another.
First, because the development of blockchains will partly benefit, partly be influenced by
intellectual property. They benefit from intellectual property by the fact that open source, and
even open software, are based on the copyright system, which allows for a very far-reaching
application of the freedom to contract, and hence of limitations to the right-owners privileges,
even at the stage of commercialization. In the best cases, this allows developers to benefit
from all improvements that have been made to existing blockchains. Even in the case in
which patents were to be granted on blockchains, freedom to research, fair (and possibly even
compulsory) licensing could allow for an extended access to blockchain technologies,
although not as extended as in the case of mere copyright protection, as free
commercialization would not be covered. Of course, intellectual property rights could also
negatively influence the development and use of blockchains, if they were to be used in a way
to block competition. However even so, instruments such as FRAND licensing and rights of
prior users could intervene in favor of competition.
Trademarks, depending on the generosity (or lack of generosity) in licensing policies may
also play an important role in the diffusion or, on the contrary, on the restriction of use of the
technology. Indeed, it clearly appears that intellectual property rights constitute an important
aspect of blockchains that needs not be underestimated by developers, on the contrary.
If intellectual property plays a role in the development of blockchains, it is at least as true to
say that blockchains will serve intellectual property. Said is certainly already true in the field
of copyright, and may be more limited as of now but with a clear potential in the field of
patents.
In the field of copyright, blockchains and smart contracts may help authors secure and
valorize their rights. By uploading a picture or a song on a blockchain, authors will be able to
show their ownership, manage licenses through smart contracts and monetarize their work,
whilst retributing each contributor for their work. On the long run, blockchains may represent
a viable alternative to collecting societies, and the management of trademark and design
licenses may also be eased through by the use of smart contracts.
Patents, as registered rights, may benefit less directly from blockchains. The role of the State
is still central in building trust as to the validity of the register, but this may change in the long
run. Within a shorter term perspective, blockchains will allow for the provision of evidence of
prior use through digital and unforgeable records of companies’ and research institute’s
innovation processes.
26
The role of, and the perspectives offered by intellectual property rights, as well as the risks
they may represent to a smooth development of blockchain and blockchain-based
technologies must be kept in mind by developers. At the same time, Blockchain technology is
undoubtedly of strong interest for intellectual property owners and users.
The above allows us to conclude on a positive note: blockchains and intellectual property can
have a bright collaborative future in the interest of society.
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G. Tomasi di Lampedusa was an Italian writer from Sicily who lived in the first half of the last century when Italian society was on the verge of change. At that time, the need to blur the line between the rich and the poor, the noble and the bourgeoisie was strong and widespread. The latter were gaining their ‘place’ in high society: someone who was born the son of a farmer could indeed die as the owner of buildings and land. This was a deep shock for those noblemen who had always relied on the past glory and wealth of their ancestors; accepting that something was changing meant they had to welcome the ‘newcomers’ and blend in with them. With this picture of society in mind, G. Tomasi di Lampedusa, described the ability of a person to adapt to the status quo, writing: “Changing things so everything stays the same”. Those who were not capable of accepting change and acting accordingly, risked indeed failing and losing everything.
Chapter
The fourth industrial revolution hints at technological advances that could disrupt entire industries. Already glimpses of the disruptive force can be seen with the advent of technologies such as cryptocurrencies, blockchain, adaptive and predictive algorithms and the use of big data. The smart contract has emerged from these technological advances as a sophisticated self-executing computer program with the capability of automatically adapting itself throughout the contract life cycle to achieve the contractual objectives of the parties. Smart contracts are fully autonomous, self-evolving and dynamic processes in the formation, interpretation and management of contracts. Smart contracts could also remove the need for trusted third party intermediaries in commercial transactions, and thereby fundamentally alter the traditional approach to contract theory, practices and dispute resolution processes. Smart contracts will likely be incorporated into commercial transactions in some way, shape or form but the extent of such integration remains uncertain. This new paradigm of contractual theory and practice certainty will bring about different challenges and opportunities as the legal and commercial world grapples with the ethical and philosophical issues of controlling a contracting system that, at its core, is intended to liberate transactions from central control.
Article
Current Awareness - Volume 19 Issue 3 - Katherine Read, Laura Griffiths
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The EU has yet to develop definitive policies for the crypto-economy, and this article argues that policy development should follow a ‘systemic’ and not ‘sectoral’ approach. This is because the crypto-economy is not merely a financialised space and new productive activity is occurring that would benefit from more holistic policy development than regulation focused on securities and investments. This article proposes that the EU should develop policy for the crypto-economy based more broadly on innovation policy and perhaps feed into the Single Market project
Book
Carron Blaise et al., Le droit d'auteur des planificateurs - Un guide sur le droit d'auteur et autres droits de propriété intellectuelle à l'attention des architectes, des ingénieurs et des spécialistes du droit de la construction, Zurich, 2015, 163 p. Lors de la planification d’un ouvrage, l’architecte ou l’ingénieur peut être confronté à diverses questions concernant son droit d’auteur. Le présent ouvrage identifie les problèmes théoriques et pratiques relatifs à cette matière et propose des solutions. La première partie rappelle les prestations typiques du planificateur et expose les sources du droit d’auteur. La deuxième partie examine les conditions de la protection conférée par le droit d’auteur, tandis que la troisième partie traite des effets de cette protection, en insistant notamment sur la question épineuse du transfert des droits d’auteur au maître de l’ouvrage. Le livre, riche en références jurisprudentielles, combine habilement théorie et pratique et s’adresse tant aux architectes et ingénieurs qu’aux juristes actifs en droit de la construction.
Coders Beware: Licensing Issues Abound for Ether Apps
  • John Wintermute
  • Shailley Singh
<https://www.gnu.org/licenses/agpl-3.0.en.html>. See however Matt Savare, John Wintermute and Shailley Singh, 'Coders Beware: Licensing Issues Abound for Ether Apps', Coindesk, Dec 6, 2017, available at <https://www.coindesk.com/coders-beware-licensing-issues-abound-ethereum-apps/> (last consulted on 30.05.2018).
Blockchain, IP and the Fashion Industry', Managing Intellectual Property
  • Ruth Burtstall
  • Birgit Clark
Ruth Burtstall and Birgit Clark, 'Blockchain, IP and the Fashion Industry', Managing Intellectual Property, 23 March 2017, available at <http://www.managingip.com/Article/3667444/Blockchain-IP-and-the-fashionindustry.html> (last consulted on 30.05.2018).
Foundation Ethereum) v. Domain Privacy Service fbo registrant
  • Stiftung Ethereum
Stiftung Ethereum (Foundation Ethereum) v. Domain Privacy Service fbo registrant, available at <http://www.adrforum.com/domaindecisions/1746664.htm> (last consulted on 30.05.2018).
How Blockchain Technology Can Transform Royalty Payments', Nasdaq
  • Jill Richmond
Jill Richmond, 'How Blockchain Technology Can Transform Royalty Payments', Nasdaq, May 09, 2017, available at <http://www.nasdaq.com/article/how-blockchain-technology-can-transform-royalty-payments-cm786646> (last consulted on 30.05.2018).
La blockchain serait-elle l'avenir de la musique ?', Revue propriétés intellectuelles n°65
  • Marie Soulez
  • Killian Lefèvre
  • Clara Zlotykamien
Marie Soulez, Killian Lefèvre and Clara Zlotykamien, 'La blockchain serait-elle l'avenir de la musique ?', Revue propriétés intellectuelles n°65, octobre 2017, p. 30.
Blockchain's bright future', Intellectual Property Magazine
  • Simon Jupp
Simon Jupp, 'Blockchain's bright future', Intellectual Property Magazine, August 2017, available at <https://www.intellectualpropertymagazine.com/copyright/blockchains-bright-future-125985.htm> (last consulted on 30.05.2018).
Quelle place pour la blockchain en droit français de la propriété intellectuelle ?', Revue Propriétés intellectuelles n°65
  • Nicolas Binctin
Nicolas Binctin, 'Quelle place pour la blockchain en droit français de la propriété intellectuelle ?', Revue Propriétés intellectuelles n°65, octobre 2017, p. 19;
How Blockchains can support, complement, or supplement intellectual property -working draft
  • Coala
Coala, How Blockchains can support, complement, or supplement intellectual property -working draft, May 2016, p. 8.