3D printing is frequently viewed as a game changing technology that will revolutionise domestic computing and change the face of modern manufacturing. In fact, as a technology, 3D printing has been available for industrial use for almost 30 years (where it has been known by its less marketable name; “rapid prototyping”).However, the current excitement about 3D printing is the prospect of the technology being rolled out for mass use by domestic or small enterprise users. Putting a 3D printer in every home would change the way we view the digital and physical objects and lead to a host of new legal challenges.
What is 3D Printing?
3D printing is a form of additive layer manufacturing. It is novel insofar as plastic (or any other malleable material) is “printed” (extruded) onto a plane, in layers to form the desired shape. 3D printers allow for the conversion of electronic files (usually in the STL file format) into this physical form.
3D printing is a highly scalable and innovative technology and the price of 3D printers has come down massively in recent years. It seems set to continue to fall and the cheapest domestic 3D printer retails for around $1,000. At the same time, the technology behind it continues to improve and significant investment is being made in the area. Some commentators have compared today’s 3D printing community with the Homebrew Computer Club of the 1970’s Silicon Valley.
From a commercial point of view, 3D printers can reduce waste and also reduce product development times (i.e. in the rapid creation of models and designs). The ultimate aim of many 3D printing companies however, is the creation of a consumer market for 3D goods – where people download 3D products as files and print them at home.
Impact on IP Law?
A number of interesting intellectual property issues are raised by the widespread adoption of 3D printers. They can be summarised on a fairly high level as follows:
1) Trade Mark Law
European trade mark laws can be applied to protect any sign capable of being represented graphically, which can include words, designs, letters, numerals and “the shape of goods or of their packaging, provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings”. 3D printing could therefore be used as a means of creating a registrable “shape” or, on the other hand, could be used to reproduce the registered trade marks of others (e.g. in facilitating the printing of spare parts for branded goods).
Where the mark is registered, such copying and reproduction may constitute an infringement of the trade mark holder’s rights. Where a mark is unregistered but has established protection through prior commercial use, a case for infringement may also be made. Looked at objectively however, there is nothing particularly novel about these logical extensions of trade mark law and the same issues arose in theory when printers for desktop computers and word processors became more available for domestic use.
2) Passing Off
The common law tort of passing off may also have application to the product of a 3D printer. The essence of the tort is that a trader represents his product as those of another in a way that is likely to mislead the public. This has clear application where a 3D printer is used to create an item for sale which is confusingly similar to another trader’s goods.
The application of copyright law to the outputs of 3D printing will be very interesting. Copyright law could be brought to bear on the following activities:
- 3D designs for printing are distributed by way STL files (or other similar file formats). The design written into the file in code form will be covered by the copyright of its author (the coder or designer). However, as we have previously seen in the music industry, digital files are easily copied, replicated and distributed in breach of the copyright holder’s rights.
- Open-source files are also popular in the 3D printing world. Designs which can be purchased and used for free are distributed through websites such as thingiverse.com. While open-source files may be free to use (in terms of cost), some open source licences contain inherent restrictions on future commercial use in an effort to ensure that future works derived from the “free” code will continue to be made available to the open source community. Given the range of open source licence agreements that exist, a careful review is required to assess the extent to which such restrictions might “infect” the inputs and outputs of 3D printing.
- A sculpture is capable of protection under Irish copyright law as an “artistic work”. It is therefore possible that the copying and reproduction of a person’s sculpture (or any shape that would fit the originality criteria in the Copyright and Related Rights Act 2000) could be a breach of the original artist’s copyright rights. The definition of “sculpture” is somewhat vague under the act and a possible argument could be made that “sculpture” means something which is the result of “reductive” manufacturing (in other words, reducing material until the desired shape emerges) as opposed to “additive” manufacturing (which is the essence of 3D printing).The leading UK case on the issue is Lucasfilm Ltd v Ainsworth ( ECDR 6). Its applicability to the world of 3D printing (or not, as the courts may decide) will be telling.
- A piece of furniture or other artistic ornament might also be protected by copyright where it is a work of “artistic craftsmanship”. Like the term “sculpture”, the full meaning of the term “artistic craftsmanship” in the context of 3D printing will be interesting. For example, if a software programme simply reproduces an existing 3D work, could it be argued that there is no original artistic element capable of separate protection or, as is the case in photography, could a 3D printer create a new work capable of separate copyright protection?
4) Design Rights
The Industrial Designs Act 2001 allows for the protection of registered design rights. A “design” is defined as meaning “the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colour, shape, texture or materials of the product itself or its ornamentation”.
Lots of companies register designs to protect their creations (for example, distinctive packaging or bottling). A perfume or soft drinks producer may wish to register and protect the distinctive bottle shape that they are using. In such cases, the copying and reproduction of this design may constitute a breach of the rights of the holder of the registered design right.
Where a design is copied in the product of a 3D printer, the creator of the original design may also rely on their unregistered design rights under Council Regulation (EC) No. 6/2002. Of particular interest (to IP lawyers in any case) will be the possible application of the judgement in the case of Karen Millen v Dunne’s Stores ( 2 ILRM 368) to 3D products.
Where a design right can be so easily breached by so many users (similar to the way in which copyright in music is being breached online today), one begins to question how enforceable these rights will be in the future. It may be the case that some form of legislative relief will have to be introduced to give enhanced protection to design rights – though attempts at this in the music industry have largely failed. The Industrial Designs Act 2001and the Copyright and Related Rights Act 20000 also contain various exemptions for private or domestic use which could potentially exclude a large band of potential usage from the reach of rights-holders.
5) Patent Protection
There are a number of ways that operating a 3D printer could lead to breaches of patents:
- In the first instance, there is on-going litigation with regard to the actual technology in the printer itself (for example, 3D Systems Corporation has initiated an action in the US against Formlabs Inc. Details are here.
- It is also possible that the product of a 3D printer would breach an existing patent in and of itself as not all patents granted relate to highly intricate items.
The enforcement of patent rights will be difficult in these situations. Rather than initiating an action against one large defendant against whom the patent owner alleges infringement (traditionally, a large rival, perhaps an electronics or pharmaceutical company), the patent holder would have to try and enforce its rights against many hundreds or thousands of small defendants. To draw yet another analogy with the music industry, those seeking to enforce patents may initially seek to take actions against (for example) the manufactures of 3D printers (equivalent to say, Internet Service Providers in the music context).
There are echoes here of the cassette recording cases in the 1980s where manufacturers of high speed recording cassette decks were pursued by the music industry for contributory or joint infringement of copyright on the basis that purchasers of “double deck” cassette players were involved in widespread copyright infringement using blank tapes. The equipment manufacturers largely fought off those claims. However, one could anticipate a wave of similar litigation against 3D printer manufacturers once they begin to suffer a loss of market share to those who wish to adopt the “DIY” approach offered by 3D printing solutions.
The application of traditional product liability principles for printed products has not been widely discussed up to this point. The Liability for Defective Products Act 1991 places strict liabilities on the “producer” of a product. Whether or not a defective good which has been self-created by customer using a 3D printer would be covered by the Act remains to be seen.
“Once in digital form, things become easy to copy. This means protecting intellectual property will be just as hard as it is in other industries that have gone digital.” 2
As with so many new innovations in the IP space of recent years, enforcement of rights is going to prove very difficult (and in some cases perhaps impossible). The concerns and priorities of existing IP owners, 3D printer manufacturers and end users will continue to diverge over time. It will take a creative and careful approach to IP protection and enforcement to sift through the complexity. However, one thing seems inevitable - if and when 3D printing becomes ubiquitous in homes and workplaces, rights holders will face the same challenge as yesterday’s record companies.