• 3D printing and intellectual property

While the seemingly thorny 3D printing issue has only reared in the UK in the last few years, the technology itself has been developing steadily since the 1980s. Machines with the ability to print objects came to the attention of mainstream consumers here in the UK and become more of a concern for businesses as a result in 2013 when the first commercial 3D printers came to the UK high street.

Though you’ll still struggle to find a 3D printer on sale for under £500 there’s every chance the cost of this technology will continue to come down.  Last February patents protecting one area of 3D printing – laser sintering – expired, leading to widespread speculation that 3D printing is about to enjoy a boom. With this in mind, we consider the intellectual property implications that come as 3D printing becomes more widespread.

3D printing: the potential problems

With most 3D printers still hovering around the £1,000 price tag it’s unlikely we’ll be seeing them appear in the study of every home very soon, which in turn means we probably won’t see people disregarding copyright and design rights en masse by printing reams of objects illegally at home.

However, people can hire the machines or even head to 3D printing cafes, like the makerscafe in Shoreditch.

Under s.60 of the Patents Act individuals are able to make a patented product on the condition it is for non-commercial private use.

Similar provisions exist in respect of registered design under s.7A of the Registered Designs Act 1949 and at s.244A CDPA88 in respect of UK unregistered design right owing to a recent change in the law brought about by the Intellectual Property Act 2014.

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This means you could use a 3D printer to reproduce your favourite bracelet in the event that you lost the original, but you wouldn’t be able to gift one for your friend’s birthday or set up a shop selling exact replicas you’d made the same way.

Of course, history tells us that consumers don’t necessarily adhere strictly to rules like this, a peek at our recent post about digital music piracy and the future of streaming raises many points that are relevant for consideration with respect to 3D printing.

Websites could offer files for download allowing customers to produce counterfeit products either at home or through hire of a 3D printer. If these were files that contained information related to products protected by design rights, copyright or patents, would reproduction would equate to a prosecutable infringement? It seems to depend upon the purpose of the reproduction.

Certainly reproducing items in the course of trade complete with a registered trademark would also count as an infringement under s.10 of the Trade Marks Act 1994, under which a person infringes a registration if they ‘affix’ a registered trademark to goods ‘or the packaging thereof’.

got-iphoneThus, one crafty tactic that a rights owner could employ is to reproduce their trademark at various parts of a product such that if faithfully reproduced then trademark infringement occurs.

However, if the act of reproduction is performed by an individual and is for non-commercial private use then there seems to be no infringement of patent, trademark and design rights occurring.

Any other possible infringements seems to lie in the reproduction of the file describing the design, presuming that this is protected by copyright. This reinforces the importance of using confidentiality agreements with business partners and staff in order to try to avoid the potential leaking of files.

In the US, a number of 3D copyright cases have been prosecuted using the Digital Millennium Copyright Act including a high profile example in which HBO sought to stop the famous Iron Throne from the Game of Thrones being replicated as phone chargers created through 3D printing.

Future opportunities and obstacles

ball-597523_640In many ways 3D printing has placed industries and manufacturers at a crossroads. The technology itself could benefit manufacturers by providing reproduction efficiency savings but just like industries such as music before, manufacturers need to consider the implications of 3D printing on their wider business model beyond production. One company who appears to be taking stock of their options is the Lego Group, who has reportedly obtained printing patents that may allow customers to print their own bricks at home and is comparable perhaps to streaming or legal music downloads.

As 3D printers get smaller and cheaper and therefore more obtainable and mobile, there is most certainly a risk that they may become the tool of choice for counterfeiting gangs but from a legal perspective it is file-sharing and at home downloading that is the biggest potential problem on the horizon. If someone chooses to download files in order to make illegal copies – does the liability sit with the downloader, the site that shared the files or perhaps the owner of the printer if they are a third party?

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Again there are precedents set by the media industry. The Amstrad CBS Songs case suggests that suppliers and providers of 3D printing equipment are unlikely to be held to account.  The next steps are certainly for industry to consider how they can best take advantage of this technology themselves and how to protect themselves from its potential impact with consumers in a way that considers and includes those who may be tempted to disregard IP rights.

Just as the music industry managed to monetize the downloading of music it is now time for product manufacturers to work out how to monetize 3D printing.