Challenges of Intellectual Property Laws Posed by 3D Printing
3D printing, also referred to as additive manufacturing, is a process of creating solid objects from any file (3dprinting.com, n.d.). The main difference between conventional manufacturing and 3D printing is that this new process entails adding thin layers of diverse sizes to form the object that the files contain, while the conventional process involves cutting pieces and assembling them to create the new object. This new way of creating objects with unprecedented ease and affordability (compared to heavy machinery with conventional manufacturing) has the potential to boost innovation and customization of existing objects.
However, this new revolution of inventions brought by this technology also poses new challenges to Intellectual Property (IP) laws in all of its main areas, such as copyright, patent law, and design law. The main concern of the World Intellectual Property Organization (WIPO) regarding 3D printing is that its use can easily lead to copying any existing object, regardless of whether there is authorization from the owner of the object’s rights (Malaty, 2017). Hence, the WIPO posed the question of whether current laws are ready for the challenges these technologies will bring or if there needs to be reformation to resolve more clearly the potential invention conflicts caused by 3D printing. This article will explore current challenges with 3D printing and whether the current law addresses them or not.
The first and most obvious concern is the ease of copying original objects and their design using digital files for 3D printing. However, current copyright laws deal clearly with this issue as they protect the originality of the source object and the right of the creators to reproduce it. Hence, no matter if other people use digital files to create a 3D copy of an existing protected object, copyright laws will give protection to the original creators. Thus, even if it was created from a different source (the digital file) and with a different process (3D printing) if the new object is similar to the source one, there is no ambiguity in copyright laws to protect the original creator’s IP rights.
The other copyright challenge is how to give adequate protection to digital files used in 3D printing, as there might be two different parties involved in the 3D printing process, the digital file author, and the prototype author. For example, what would happen if someone designs and prototypes 3D shoes, but delegates the effort of transferring that prototype to a digital file, such that the 3D printer can produce the final object (in this case the shoes)? In such cases, the WIPO has suggested that authors of digital files used for 3D printing can also get their invention protected under copyright laws, similar to software protection.
The rationale behind this is that the author of the digital file might make an individual intellectual effort to translate the prototype’s idea into a digital file, and as such, the digital file itself is a creation. Hence, the file’s author can seek copyright protection against unauthorized reproduction of the digital file. This determination gives clarity regarding who owns the digital files’ copyright, and it also distinguishes clearly between prototype and digital file authors.
Another case is when the object created from a 3D printer has a patent. In this case, the WIPO has determined that it will heavily depend on the local IP laws of the country where the patent was filed. Some laws, including the one in Mexico set by the Mexican Institute of Industrial Property (IMPI due to its Spanish acronym), indicate that it is prohibited to supply or offer to supply the means to use an invention without authorization. Hence, whoever holds the patent rights can be protected against sharing the digital file used to print the 3D object, as this would be considered a supply of means to use the invention. In this case, since the digital file was and still is essential for the invention reproduction, the patent law protects the invention author.
The WIPO has also identified people that only use 3D printers as a hobby for creation and inventions. Since they can technically access digital files, they might be at risk of unknowingly infringing IP laws, whether from copyright or patent protections for the file or the end object itself. In this case, the WIPO has suggested applying copyright principles that say that there might be exceptions of protection when the reproduction case does not pose an invention exploitation threat or it does not damage the interests of the protected author or patent holder. This means that as long as the reproduction of 3D objects done by hobbyists remains private (i.e., for personal use), their use of files for printing existing 3D objects might not conflict with copyright or patent laws.
Another interesting consideration of this special case about hobbyists is whether they should be charged a small compensation fee since normally some countries levy a fee for private uses of an invention to make up for the small loss that the protected author might have. However, this measurement has been controversial among intellectual property lawyers and experts as some consider this measurement extreme, especially when they consider that these are indirect, unintentional, and complicated technical law infringements that may not damage the rights holder's interests. More importantly, they also consider that since this is still an early-stage special case of 3D printing, the imposed fees might hinder and partially stop potential innovations and inventions that may arise from hobbyists playing with this new technology.
The last relevant stakeholders to consider are the owners of 3D printers. WIPO experts say that there might be a case to treat them the same way as music producers, as both enable others to produce objects or music creations through their financial investments. Hence, the challenging dilemma with their treatment lies in whether they have a right to claim an IP right on the inventions produced by their own object, or whether even if they own a 3D printer, the end object is not related to them, and as such, they will be unable to have any IP claims on inventions produced by their printer. This issue is still ambiguous and unresolved by the WIPO. However, it is certain that depending on the IP status of these stakeholders, there can be more and new implications for all the other ones and their IP claims on inventions and objects generated by 3D printers.
Whether it is digital file authors, prototype creators, or owners of 3D printers, it is a reality that the use of 3D printers is exponentially growing by all sorts of users. This quick scalability and adoption of the new technology highlight the massive potential for innovation and the creation of millions of new objects. Moreover, this new technology macro trend also brings the potential for new reformations to IP laws caused by the new challenges posed by it.
While there might not be clear answers from IP laws for some special use cases of 3D printers, there are still many new developments that guide new users and protect their inventions. For example, Thingiverse is a platform that allows object creators to select the right type of license for their digital file or 3D creation. Hence, if a hobbyist creates an object that directly impacts their business, he can select a license with a copyright that protects the use and reproduction of the invention, while if he just created something for fun, he can select one that makes the file open source for everyone to continue experimenting with it. This scenario highlights how users of 3D printers can benefit from open-source creations, while also keep being incentivized to generate innovations from this technology using existing and new IP laws and frameworks.
References
- https://www.wipo.int/wipo_magazine/en/2017/01/article_0006.html
- https://www.wipo.int/scp/en/exceptions/replies/mexico.html
- https://3dprinting.com/what-is-3d-printing/
- https://www.3dnatives.com/en/3d-printing-and-intellectual-property-are-the-laws-fi t-for-purpose-150320235/#!
By. Margarita Guerrero