3D printing and the future of intellectual property

Feb 12, 2019

Written By Sophie Nevrkla & Becky Kells

We live in an age where sharing online is easier than ever, and with new 3D-printing technology, physical objects can now be constructed from a three-dimensional digital model. As reproducing and replicating products illegally becomes more and more common, how does IP law fit into the digital age?

In our increasingly digitalised age, things move fast. As scientific progress increases day by day and futuristic sci-fi movies feel increasingly contemporary, the law has a tough job on its hands keeping up. As technology rapidly advances, 3D printing in particular poses challenges for intellectual-property law, which must adapt to the continually shifting scientific landscape in order to stay relevant.

3D printing—or additive manufacturing—involves making three-dimensional solid objects from a computer-aided design (CAD) file. These can either be designed through modelling software such as blender, or pre-existing CAD files made by other users can be found on websites such as Thingiverse and Shapeways. The finished design is then exported to a 3D printer using specialised software, and specialised layers of molten material are layered gradually—from the bottom of the design to the top—to form a finished object. The most common material used is plastic, though anything from metal, concrete, food or even human cells can be involved in the manufacturing process, to create products ranging from guns, houses and chocolate bars to human limbs or organs for transplants.

Although this technology has been around since the 1980s, what used to be high-end, expensive technology reserved for large corporations has become more accessible in the form of low-cost, high-performance printers, placing the technology firmly into the hands of the consumer. Though the technology remains very much in the developmental stage, the commercialisation of 3D printing makes it increasingly difficult to police IP law. CAD files are digital and can be shared over the internet and downloaded for free, legally or illegally. It’s a similar dilemma to the one faced by the music industry around the turn of the century, when music files could be shared through sites such as LimeWire, Tixati or Kazaa— even if they are protected by a patent, trademark or copyright. As 3D printing becomes more and more popular, we could move to a time in which printing objects at home becomes more common than purchasing them in shops.

In our modern culture of convenience, 3D printing poses a major threat to inventors and manufacturers. Every time a copy of an invention is printed in a home or business, it represents a loss of a potential sale to a patent holder.

In the past, individuals who have created and managed illegal downloading websites or, for example, played music on pirate radio, have been prosecuted. Their websites have been banned under the Copyright, Designs and Patents Act 1988, which gives creators of literary, dramatic, musical and artistic works the right to control the ways in which their material may be used. But, as is the case with home 3D printing, if the end user is the manufacturer themselves, unless the patent owner is aware that the manufacturer is using a 3D printer to reproduce their invention, how would they be able to stop them from copying it? 3D printing makes manufacturers out of consumers: the two become one and the same.

It also creates issues with trademarks, copyrights, patents and design rights. Copyrights refer to 2D creative works—an artistic work or a photograph, for example. If an artistic design was printed onto an object using 3D printing, it could breach copyright. A patent refers to an invention, so any original invention reproduced by a 3D printer may be protected by patent law. Design rights protect the shape of a product and its external qualities, and trademarks protect recognisable brands—both of which could be reproduced using a 3D printer.

Both creative ideas and original inventions could be manufactured and mass-produced by 3D printer owners—regardless of how stringent the intellectual owner or patent holder is. The question of how to protect the inventors, artists and intellectual owners, and 3D printer users with non-criminal intentions, is a difficult one to answer.

A blurred boundary

Until recently, it’s been easy to divide the world in two: the physical world and the digital one. We’ve been litigating the physical world for centuries, but the digital world is less prescriptive. 3D printing starts off as a digital entity and quickly becomes physical, which creates a blurred boundary between the two—and a challenge for litigators.

As it stands, 3D printing means creating a base file, deciding upon a medium to share it, then making it available as a 3D download—for a fee or otherwise. It’s hard to track an object if its blueprint is digitised and uploaded for printing, and lawmakers are right at the start in establishing penalties as well as accountability in this area.

3D printing will enable the creation of products at the point of demand, rather than in factories,” says Richard Vary, a Partner at Bird & Bird specialising in technology patent litigation. “This means the licensing models will need to change. It will no longer be sufficient to license designs at the manufacturer level. Counterfeiting will be harder to police as counterfeit products will not need to cross borders. This will require IP lawyers to adapt enforcement and protection strategies.”

3D printing doesn’t just create issues with the reproduction of exact items. A 3D-printing enthusiast might print logos and designs onto their creations, using ideas that intellectually belong to someone else. They could produce models in the likeness of an existing design or shape. 3D printing has brought huge scope to create, and with it huge scope to break the law— knowingly or unknowingly.

The current status

At the moment, any object printed without prior authorisation is covered by copyright law, so the intellectual owner can take legal action against the illicit reproducer. Design rights also protect the physical form of an object and how it looks; while trademark registration can protect the reproduction of things such as shape and logo reproduction. A patent protects technical function. Therefore, all aspects of an item are covered. Under creative-commons licensing, there are a number of different licences, each ascribing a different usage ability to the product. Take an image, for example. The owner could license it for reuse with modification—allowing for another person to reuse that image, adding or changing it to suit their needs or intentions. They could also label it for reuse without modification; so, a person would be unable to make any changes if they want to use that image.

The other important distinction within creative-commons licensing is labelling for commercial reuse and labelling for non-commercial reuse. Commercial reuse grants anyone using the photo to do so for commercial ends, with all the commercial benefits. Non-commercial reuse prevents use in these contexts. A user of the picture might benefit personally, but cannot do so on a commercial level. Creative-commons licensing also applies to 3D printing.

“Reputable websites include files that are subject to Creative Commons licenses, which makes them free to use subject to certain conditions,” Christopher J. Higgins, a senior associate at Orrick, told 3D-printing website 3dnatives.com, which offers news and advice to 3D-printing enthusiasts. “Provided those conditions are met, then the end user should not have to worry about potential infringement. If you purchase a design file, and assuming that the website legally obtained the file, that gives the consumer the rights to download and use the file for its intended purpose.”

This should, in theory, protect people whose objects are at risk of being printed on a mass scale for commercial ends, or being modified from the original and then printed. In practice, it’s more complex. Reputable websites have policies in place to handle breaches of copyright, such as putting the accuser in touch with the accused and taking down CAD files until the issues are resolved. Another tactic involves embedding a copyright symbol deep within a model rather than on its exterior to avoid removal or tampering.

This is all well and good, but when it comes down to policing the sharing and download of these files, tactics are in their infancy. Owners of base files for objects would need to prove that someone was using a 3D printer to reproduce their design. In reality, they might not even be aware that their design is being stolen.

With patent owners, the situation is slightly different. Patent owners can sue any company or person who induces others to infringe. A website selling the CAD files for a patented product to be 3D printed is one example. 3D-printer manufacturers are likely to be exempt from legal action, so long as they can prove their printers are intended for legitimate purposes.

Additionally, patented items tend to be complex mechanical inventions, not yet within the scope of 3D printers. While it’s certainly something to bear in mind for the future, in reality the mass reproduction of patented items on 3D printers isn’t yet a large-scale issue.

Reform?

A main point of contention in 3D printing is ownership. The multi-faceted process involves multiple, potential owners: a person who has the idea for an object, a person who digitally designs and models it, and a person who ultimately prints that object.

This could, in time, lead to a blurred boundary in how we view copyright and patent, as ideas and inventions become further blurred by the convoluted manufacturing process. The slippage between the digital and physical worlds has, arguably, blurred the boundary between ideas and inventions. “Value rests in the design of the object, rather than the object itself,” Deloitte’s insight report into 3D printing, by Matt Widmer and Vikram Rajan, found.

Other issues

This blurred boundary between ideas and inventions in itself raises further issues. “Modified illegitimate copies can be made that lack the robustness of the original but still maintain its markings, thus damaging brand reputation,” Widmer and Rajan found. In other words, a product’s CAD file might start off as a sound product, but if elements are changed in the manufacturing process, the value and functionality of the product may decrease.

Another potential danger is the production of illegal items. Plans for weapons could be made publicly available without a clear stance on who would be at fault: the uploader, the producer of the printed item, the website hosting the CAD file, the intellectual owner—or a combination of all four.

As it stands, intellectual owners and 3D-printing enthusiasts no doubt share a concern: that the law will be strong enough to protect them.

Commercial Insights