Who is in the right with 3D printing?

3D printing or copying poses potential problems for manufacturers and designers anxious to protect their rights, but could be an opportunity rather than a threat, as Flemmich Webb reports

It’s a transformative technology that’s shaking up the manufacturing world. 3D printing, or additive manufacturing as it is known in its industrial application, has the potential to allow anyone with computer-aided design (CAD) files, a 3D printer and printing materials, typically plastic and metal powders, to make products and components wherever they are based.

But while there are many efficiency benefits, there is one thorny issue that companies, lawyers and governments are only just beginning to grapple with: the intellectual property (IP) issues raised by 3D printing. If the technology allows anyone to make anything anywhere, how can companies, designers and inventors protect their IP rights?

Design rights protect the shape and the way products are configured. These split into four: UK and EU registered designs last for 25 years and require the filing of a design; UK unregistered design rights last ten to fifteen years and this is automatic as long as the design is original and not solely functional; EU unregistered design rights last three years and are also automatic if the design is new and individual.

Trademarks are effectively used to protect a company’s brand. Patents protect how an invention, which must be novel and inventive, works. Copyright protects literary, artistic, musical and dramatic 2D works, as well as some 3D works such as statues.

ILLEGAL ACTION

In the industrial sector, existing IP protection law means that replicating products for commercial gain, by any means including, by association, 3D printing is, on the whole, illegal. Under patent law, for example, printing or disseminating copied products for monetary gain is an infringement and the printer could be sued.

The same is true for design rights, although where 3D printing is used to make spare parts the law is less favourable for rights holders. Design features that enable one product to be functionally fitted or aesthetically matched to another are specifically excluded from protection and can be copied.

In terms of trademark law, it is an infringement to apply the trademark to copied items and sell them with it on. Copyright law protects items that fulfil the classification criteria – again, it is an infringement to copy something that is rights-protected, and not just for commercial gain.

In terms of consumer 3D printing, the copying of products is generally allowed as long as it’s for personal use and not for monetary gain. Under patent law, for instance, it is legal to print patented goods at home for personal use. Design rights and trademark laws are not broken if someone is printing a product for their own use.

CHANGE IN THE LAW

Copyright law has recently changed. It used to be an infringement for a consumer to copy an artistic work by printing a replica without permission from the copyright owner, for both commercial and private use. Because, in reality, this was flouted all the time – copying a CD, for example – the government brought in the Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 on October 1 this year. This means it is now legal for a person to print a copy of, say, an item of copyrighted handcrafted jewellery that they have purchased for private, non-commercial use. They could not print it off for a friend without infringing copyright, however.

Under patent law, printing or disseminating copied products for monetary gain is an infringement and the printer could be sued

Manufacturers are facing similar issues to those the music industry faced a few years ago. The advent of digital music made it simple to share songs with friends without buying them. Initially, the music industry tried to fight it, using the law to close down file-sharing sites and suing some individuals who were sharing music. This strategy became expensive, unenforceable and a public relations disaster, so the industry changed tack and embraced new business models, which have made buying music for a nominal fee more attractive than illegal file-sharing.

While, currently, the quality of home 3D printing is arguably not yet good enough to replicate products of the same quality, precision and durability as the originals, that time will come – in about ten years, according to some experts.

Legal action is starting to hit the courts already, though. In the United States, Thomas Valenty used printed copies of Games Workshop’s Warhammer range and uploaded the files to Thingiverse, a 3D printing file-sharing site. Games Workshop won the case against Thingiverse, which had to remove the file, by complaining that Mr Velenty’s designs infringed its IP rights.

The manufacturing sector has a decision to make: whether to vigorously protect IP rights through the courts, as the music industry did, and risk annoying its customers or embrace new business models.

“With 3D printing, the problem is not so much about infringement of your IP rights, it’s more about the increasing competition,” says Ludmila Striukova, a senior lecturer of innovation management at University College London. “Anyone can now become a designer and a maker. This is what companies should be worried about.”

In this context, some see a sole or primary focus on protecting IP rights as misguided. The thinking is that, if manufacturers embrace 3D printing as an opportunity, they could head off IP infringement before it becomes a problem.

“Businesses need to work out how to engage with private 3D printers in a way they can start to monetise,” says Adam Rendle, senior associate at law firm Taylor Wessing. “They could build additional relationships with their customers by supplying additional products and services, such as CAD designs, printing and printing materials. If companies have a legitimate offering that’s good enough, there won’t be as much incentive for people to infringe IP rights.”