Intellectual Property Implications of Low-Cost 3D Printing
* Article: S Bradshaw, A Bowyer and P Haufe, "The Intellectual Property Implications of Low-Cost 3D Printing", (2010) 7:1 SCRIPTed 5
"Throughout recorded history most people who have wanted a household article have bought or bartered it from someone else – in past times an artisan or trader, more recently a seller of mass-produced products. With few exceptions (such as some clothing) it is rare that any of us make such articles for ourselves these days. That may soon change. Thirty years ago only dedicated enthusiasts would print their own photographs or edit and reproduce their own newsletters. The advent of the home computer, and in particular of low-cost high-quality printers, has now made such things simple and commonplace. Recent developments in producing affordable and hobbyist-friendly printers that can reproduce three-dimensional rather than just flat objects may mean that printing a toast-rack or a comb becomes as easy as printing a birthday card.
Any lawyer familiar with copyright and trade mark law can see, however, that printing one’s own birthday cards could, depending on the source and nature of the images used, infringe a number of intellectual property (IP) rights. Tempting as it may be to copy and use a picture of a well-known cartoon character, the resulting cards would very likely be an infringement of the copyright and perhaps trade marks owned by the relevant rights holder. But what if someone uses a printer capable of producing a mobile phone cover bearing such an image? Or reproducing a distinctively-styled piece of kitchenware? What about printing out a spare wing-mirror mount for your car? Do these uses infringe IP rights?
In the first part of this paper, we review the history of 3D printing and describe recent developments, including a project initiated by one of the authors to bring such printers into the home. We then examine the IP implications of personal 3D printing with particular reference to the bundle of rights that would typically be associated with a product that might be copied."
"Might, however, the promise of low-cost 3D printing be constrained by IP law? Surely, it might be thought, home 3D printing of household items might infringe such rights as copyright, design right, trade marks or patents? The second part of this article will examine such questions. To illustrate the legal issues in question it will consider a hypothetical manufacturer, Acme, which produces a range of goods. Acme’s products are protected by various IP rights, such as design right, copyright, patent and trade mark. A consumer, Bridget, owns various Acme products, but finds that additional items, or spares or accessories for the ones she already has, are expensive. Being a 3D printing enthusiast, she creates 3D designs for such items and uses her personal 3D printer to print them out. She also shares her designs over the Internet with Charlie, who downloads them and prints his own ersatz Acme products. What of Acme’s rights, if any, have Bridget and Charlie infringed?
Such questions have received surprisingly little attention. A comprehensive literature search for legal references to “3D printing”, “rapid prototyping” or related terms found few matches; one referred to the copyright in 3D printing reconstructions of archaeological finds25 whilst another briefly noted 3D printing as facilitating the overseas manufacture of patented products. Even searching within 3D printing engineering journals found only one article considering the prospect of widespread Internet-enabled dissemination of design files, whilst the sole relevant UK case report concerned ownership of copyright in commissioned models; their production by 3D printing was entirely incidental.
Sections 3 through 7 of this paper are a first attempt to fill this gap. Based on the LLM dissertation of one of the authors (SB) they aim, from the perspective of EC and UK IP law,29 to identify where widespread low-cost 3D printing may impinge on IP rights or where IP law may constrain its development. Perhaps surprisingly, under UK law it transpires that in the scenario presented Bridget and Charlie may not have infringed Acme’s IP rights. Purely personal use of 3D printing to make copies of household objects and spare parts does not infringe the IP rights that commonly protect such items, such as design protection, patents or trade marks. However, there are areas, such as the reproduction of artistic works, where IP rights such as copyright may be infringed. The advent of low-cost 3D printing may therefore pose challenges to several communities: manufacturers, who may be unable to enforce design protection against private users of 3D printing; artists, who may see a new forum for infringement of works previously difficult to copy, and users of low-cost 3D printing, who may face confusion as to what is legitimate and illegitimate use of the technology.
There are four main classes of IP rights that may be infringed by using a 3D printer, which may be divided into those which require registration and those which arise automatically (unregistered rights):
1. Copyright is an unregistered right that protects mainly artistic and creative works.
2. Design Protection exists in both registered and unregistered forms and protects the distinctive shape and appearance of items (in particular those that are mass-produced).
3. Patent is a registered right that protects novel and innovative products such as mechanisms or pharmaceutical compounds.
4. Registered Trade Marks serve to inform consumers of the origin (and by association, reputation) of goods.
English common law also provides the action of Passing Off against acts that might confuse customers as to the origin of goods.
This paper will briefly introduce each right and focus on the extent to which it may be infringed by use of a 3D printer and the potential legal defences for such infringement. More detailed discussion may be found in relevant educational and practioner texts, to which reference will be made as appropriate.30 These rights interact and overlap; in particular the interaction between design protection and copyright has been the subject of much judicial interpretation. It is therefore convenient to consider design protection first."