With the 3D printing market growing at such a fast rate, numerous legal challenges arise from the technology going mainstream - most importantly around intellectual property.
3D printing or additive manufacturing (AM), is forecast to continue growing in the years to come, according to almost all reports out there. Earlier this year, IDC said that global spending on 3D printing will be nearly $12 billion this year, an increase of 19.9% over 2017. It expects that worldwide spending will reach nearly $20 billion by 2021. Markets and Markets, predicts that the 3D printing market will be worth $32.78bn by 2023.
While this means that there is a huge opportunity for many businesses to exploit 3D printing, it also means there are numerous legal challenges arising from the technology going mainstream – most importantly around intellectual property.
Why does it matter?
The concept of 3D printing begins with different dimensions that are put into a system which that can then produce a physical object. However, the technology relies on one key thing: a digital file. It is this file or files that create the issue – because by having a digital computer-aided design (CAD) file and the right 3D printing machinery, it’s very easy to copy and reproduce products, even if they’re protected by a patent, trademark or copyright. The increasing number of consumers and smaller manufacturers that have access to AM mean that it is incredibly hard for businesses to be aware of infringement, and to prove it.
Under intellectual property, there four main areas that those involved with 3D printing need to know about; design rights, copyright, trademarks and patents.
Of these, it is the former two which are of most interest.
Design rights protect the shape and configuration of products. What separates these from copyright products are that they aren’t as artistic to be considered under copyright legislation. The rights can be registered, but any product in the UK that has an original design and is not purely functional will automatically be given unregistered design rights which last for several years. There are exceptions for spare parts and accessories that enable the technical function of a product.
When it comes to copyright, Fernando Hernandez, MD for Europe of XYZprinting explains that there are three main activities that could cause issues.
“The first is 3D scanning an existing object in which copyright subsists and then uploading this 3D file and printing a copy of it. For example, a user can scan a Disney figurine and 3D print it, even though it won’t have the same quality as the original in most cases,” he says.
“The second is by designers creating 3D files which recreate copyright works – such as a 3D design which replicates an artist’s statue, which can then be downloaded and 3D printed. The third is 3D design files of any type being downloaded without the permission of the copyright owner,” he states.
According to Hernandez, there is now a debate on whether this activity should be prevented or controlled by manufacturers of 3D printing hardware or software. However, currently, it would be very difficult for a 3D scanner manufacturer to know whether one of its users is scanning copyright work to create a replica or immortalising their own clay structure as a 3D file to print.
“As artificial intelligence and image recognition technologies develop, there many be a point at which operators of 3D design stores are able to identify when a file is a replica of copyright work. However, this policing by technology companies will still not account for how the consumer intends to use the file, and whether this use is copyright infringement or falls under an exemption,” he says.
Hernandez believes that the debate should start with understanding how 3D objects are treated and then considering specific legal regulation created around it.
He urges manufacturers to not make any limitations over what users can do with their devices, as he says this is the responsibility of each region’s legislation.
The problem is that, like many technologies, legislation takes a while to catch-up. Hans Z Abuildstrom, partner at Mazanti-Anderson Korso Jensen, Globalaw, explains that the Danish government, for example, has not launched any initiatives in respect of amending the Danish Copyright Act, and therefore 3D printing and the challenges associated with it will be handled under the current legislation.
“In my opinion, copyright protection will be given to the author of the CAD file, if they have taken decisive and independent creative choices in the making of it,” he says.
In German law, to decide whether there has been infringement, someone must distinguish between the technical design and instruction for the 3D printing (the design plan) and the printing result (the product).
“With regards to the printing result, the general rules apply: the reproduction of products protected by copyrights, trademarks or industrial property rights are – unless authorised – infringements of such rights, and, by extension, the infringer can be held liable,” says Oliver Foerster, attorney-at-law at Huth Dietrich Hahn.
Foerster explains that with the ‘design plan’, copyright law is likely to apply, given that the design plan can be classified as a ‘scientific or technical representation’ under German copyright law. So, using design plans published on the internet may infringe the copyright of the designer.
“The reproduction of a butterfly knife or a gun by 3D-printer, for example, is a criminal offense and is punishable by a prison sentence of up to three years. The publication of a design plan for the 3D-printing of a butterfly knife or a gun, however, is not a criminal offense – yet,” he explains.
Learning from music and film industries
The dilemma facing both legislators and those who want to protect their intellectual property can learn from the dramatic effect that technology made on the music and film industries in the 90s.
There are parallels as music and movies could suddenly be shared across the internet in the 90s in the same way that CAD files can today. A big difference however, is the blurring of lines between what constitutes as copyright and what constitutes a patent. Patents are reserved for protecting the way an invention works. Right now, printing a sophisticated mechanism on a mass scale is not a huge issue, but in the years to come some experts believe that copyright could merge with patent rights, or at least have a major overlap. Therefore, those making new products should seek to get both copyright and patent protection, and 3D printing techniques should be considered by all IP owners in future patent applications.
This then leads to the biggest change of all; a shift of value from an object towards information related to an object’s AM design. Think of the big changes this could mean in terms of a supply chain; companies could try to 3D print products that they previously outsourced; however, the reality is that there will be new forms of intellectual property law in place soon enough to ensure that those who have innovative, specialist products of their own can’t be ripped off. The only questions remaining is when will these new laws and regulations come in place, and will they be future-proof for a time when mainstream 3D printing becomes even more sophisticated?
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