26 September, 2013

3D Printing and Potential Intellectual Property Issues

Who would have thought that the day would ever come when a person could create a three-dimensional model on a computer of basically anything your mind can conjure up, and a machine would make a physical version of that item in hours. This was the stuff science fiction was made only a few decades ago, but has since become a reality. Not only that, but with the emergence of sub-100 dollar 3D printers this is clearly an option for any domestic printing aficionados to use without the bulk and expense of older versions of this technology. This progression does however raise the question in any legal professional's mind; can 3D printing infringe intellectual property laws?

3D Printing and Copyright

Rick was not happy with his real face
As most objects which are printed using the aforementioned technology are small  figurines or sculpture type objects, items which have no functional use but only serve as aesthetically pleasing or to fulfill the need to have a physical representation of a certain character or shape. Objects like this are protected under copyright as sculptures, or any equivalent, with most common law countries having provisions protecting them (Australia, UK, US and Canada). Clearly should a person endeavor to print a 3D object representing a character or object which is protected by copyright, they would be liable for infringement. One has to note that this is still subject to enforcement, and arguably no copyright holder would bother in enforcing their rights over individuals should they print a figurine or two for their own personal enjoyment. Where the issue changes into a viable one in terms of enforcement is when the technology is used for the production and selling of such items, with a recent example being 3D figurines from the popular video game franchise Final Fantasy. In such instances there is incentive to protect the rights that are given to copyright owners, and rightfully so.

This protection can potentially be avoided however, as in the UK afford all artistic works (which includes sculptures) protection for a term of 25 years from its initial exploitation, after which their copying would be wholly legal. This period ends on the last calendar day after the period has ended, starting from the day it was first marketed. Looking at this any artistic works which have been marketed, figurines and such, after 1988 would be okay to print. No such provisions exist in other common law countries.

3D Printing and Trademarks

In Australia and the UK for example trademark legislation largely deals with the use of trademarks and not their creation per say. This use refers to its use in conjunction with different goods or services from the original, and not just their creation for personal enjoyment. This 'personal use' of trademarks has not been directly argued in court; however the rejection of commercial use has been noted in the creation of any registered trademarks. In the judgment of Arsenal v Reed, mentioned above, the Advocate General took the position that trademarks could be used for the creation of items where the person gains no material advantage in their creation. Clearly therefore the printing of any trademarked object for personal use would not infringe trademark legislation, at least in such instances.

Conclusion

3D Printing even enables the creation of cars
Although discussed very briefly above, one can note that 3D printing does pose a challenge to both the judiciary and the legislature in the protection of intellectual property. At the time of their creation no legislature would have conceived that 3D printing would ever become a reality, and rightfully so; even today this seems like complete science fiction, at least to this writer. In addition to copyright and trademarks the technology does pose challenges to patents and designs, albeit more on the latter than the former, due to the possible creation of both unregistered and registered designs.

As the technology becomes more common and the quality of the goods it produces get better the judiciary will eventually have to deal with the subject matter more extensively. Arguably some level of personal 'creation' should be allowed without it infringing intellectual property rights, but that does still undermine the economical interests of parties wishing to benefit from the sale of such items. Will 3D printing ever become a household commonality? Arguably this will take years, even decades, but as it stands today the technology is more of a niche curiosity than a prevalent tool for domestic replication. Until then the need for extensive judicial consideration remains minor.

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