The Requirement For Fixation In Copyright ' Self-Proclaimed Bitcoin Inventor Succeeds In Establishing Serious Issues To Be Tried On Appeal

• Published date: 27 July 2023
• Subject Matter: Intellectual Property, Technology, Copyright, Fin Tech
• Law Firm: Herbert Smith Freehills
• Author: George McCubbin, Rachel Montagnon, Andrew Moir, Charlie Morgan, Simon Bushell, Ajay Malhotra, Philip Lis, Rafael Lawrence and Dan Huang

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

The proceedings

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

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

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

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

Decision at first instance

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

The judge had not disputed that a literary work could be recorded in software, including a file format, but expressed his view that "Not all file formats are equal". Some file formats contain "sufficient content (and not just structure) to sustain a claim to literary copyright", but others may not. Meade J had found that the claimants had not filed any evidence to the...