Click here to watch the podcast.
We're joined once again by Hayden Delaney, who is a Partner in the Intellectual Property and Technology Group at HopgoodGanim. Hayden thank you so much for joining us again.
Thanks for having me Kate.
Hayden in a scenario that we're likely to see increase over the next few years, HBO has been forced to demand that a designer stop selling unauthorised sword covered iPhone docks which were inspired by the popular series Game of Thrones; what's at play here?
Yeah it's an interesting scenario this one Kate, I've got to say being the massive Game of Thrones fan that I am, I'd actually like to take it one step further and see if I can get my own sort of life size version of the Iron Throne as my desk chair or something like that, but as you say HBO here have really rained on the parade a little bit and have come out sort of almost looking a little bit like the series villains the Lannisters from the show, but I think there's no doubt that we're going to see plenty more scenarios like this in the future, it's just you know yet again another example of a new technology disrupting long established business models, and as usual we're seeing that it's IP law that's at the front line of the battle. But as to what's at play I think it really is a perfect storm of cheaper 3D printing devices which are becoming increasingly available to end consumers and users are simply finding innovative ways to put these devices to good use as we've seen with the Game of Thrones fans doing with the iPhone docks here. In many ways it's the same story we've heard when you know we think of things like Kazaa or even CD burners or even the humble photocopier these were all once disruptive technologies at some point in time, which you know challenged IP laws and the law had to adapt in some ways. But the real question is where the balance lies, right owners obviously need to be able to take steps to protect their IP and consumers as always are going to want what the consumer wants. And in this case I think what might be different is that in the past the rights owners were always able to really use copyright as a highly effective tool to enforce against these new technology and it might be a little bit more of a challenge this time around with 3D printers.
Well that brings me perfectly to my next question. What can rights holders do to protect themselves?
Well I think what makes 3D printers a little bit different is that rights holders are going to have to take a more holistic view to protection rather than just relying on say copyright like some have in the past when we've seen things like the Kazaa case. So because no one type of IP is going to offer a blanket protection for all scenarios we're going to need to look at other types of IP potentially to come in and fill the gaps, so we're thinking about things like registered designs or patents of course, but even using trade mark law appropriate to ensure protection is afforded and even potentially you know other sort of quasi related legal forms of action like misleading and deceptive conduct or passing off. Just thinking about copyright a little bit more the reason I say that it can't be relied upon as the sole legal tool is that copyright protection has always been less generous in terms of the protection it affords when we're talking about physical objects being reproduced as opposed to traditional two dimensional or digital types of designs or works. And the reason for this in Australia anyway is because the copyright designs overlap provisions which basically make it a defence in certain instances for people who copy or reverse engineer 3D articles, especially when they're produced on an industrial scale. And just thinking about copyright in terms of the Game of Thrones example I think this example here it would be an instance where copyright could offer some protection, but thinking about some scenarios if the designer in question for instance actually copied some CAD plans or designs which actually belonged to HBO then I think there's no doubt that an infringement would have occurred, but assuming that he made his own CAD designs in this instance, we'd need to look at a few tricky questions. So firstly we'd have to look at whether the work that was allegedly copied the actual Iron Throne design, whether that's been industrial applied for instance, and if HBO hasn't been producing its own merchandise on – or has been producing its own merchandise on an industrial scale then that could be an issue. Secondly if it was produced on an industrial scale HBO in order to enforce its copyright would have to show that the work in question, effectively the work of artistic craftsmanship again it might be possible here in this instance because it’s a fairly sort of intricate design, but you know people who are selling more mundane every day commercial objects are going to be less likely to satisfy this requirement. And if they couldn't then they're going to have to as I say look at other legal doctrines to afford protection where copyright simply won't provide that type of protection.
And just finally Hayden is legal action the only approach for rights holders, or could they perhaps take a lesson from the music industry and try to think of new and more innovative ways of approaching this?
Kate I think alternatives to litigation are always a good idea to consider, particularly when we're talking about new technology such as 3D printers, we've often seen the practical reality is that working with these technologies rather than against them often is the best practical solution. Now of course litigation is always going to have to be an option in certain instances particularly for serious you know commercial scale infringements, but in the long term trying to enforce against end consumers is not going to be a viable course of action, it's just going to be far too big a problem, that no one's going to really be able to practically enforce it in that manner, so if we think back to other types of disruptive technologies in the past, and I mentioned MP3s and digital music earlier, we can see that companies like Apple for example who have really embraced this technology with its iTunes store, offered a legal alternative, have you know found quite a good way to sort of resolve some of this tension between the new technology and IP laws. So if companies were to think a little bit laterally and start providing or licensing their designs for use with 3D printers via some sort of consumer platform like iTunes then I think that might be a really good way to help sort of resolve some of these problems. Ultimately I think experience has always told us that if you can give consumers a legal alternative which is better than the less legal alternatives and charge a reasonable price for it, then I think it's always a powerful practical solution to consider.
Yeah it certainly is, and it will be interesting if we do indeed see a design store available for 3D computers. Hayden as always pleasure talking with you thanks for joining us.
Thanks a lot Kate.