Retrospective - Breach of Trust in Intellectual Property

Intellectual property, in essence, carries its worth and value in the knowledge or ingenuity of the inventor, or the creation of the author of a work, not necessarily in the tangible (or at times, intangible) property that is created from that. With this comes a great deal of risk, in modern days in terms of industrial espionage or the accidental or intentional leaking of details related to books etc, which renders the subsequent intellectual property much less valuable or even worthless. Through this one can understand that a great deal of trust is often placed on those with special access to particular information or details, which can be broken and cause potential damage to the creator. The modern doctrine of breach of trust is well-established, but it stems its roots from the mid-19th century.

One of the first cases that dealt with breach of trust in relation to intellectual property was Prince Albert v Strange all the way back in 1849. The case concerned a collection of etchings and drawings made by both Queen Victoria and Prince Albert of various domestic subjects for their own enjoyment, subsequently being commissioned to be printed as a collection. These etchings were made in a private press, due to their personal nature and thus Prince Albert's wish was for them to remain fully private. William Strange was a printer and publisher in London who somehow obtained copies of some of the etchings, allegedly through the aforementioned private press where the etchings were commissioned from. The prints made by Mr. Strange were made from plates held by Prince Albert and Her Majesty, thus bringing their acquisition into question. Mr. Strange (and the other defendants) wished to print a catalog of the etchings under the title of "A Descriptive Catalogue of the Royal Victoria and Albert Gallery of Etchings", which contained detailed descriptions of 63 etchings with additional critique of those works. Mr. Strange argued that he had the right to publish the works, even though disapproved by the Royal plaintiffs, and the Court of Chancery had to decide whether he was indeed entitled to do so, thus dissolving the initial injunction granted to the plaintiffs.

The case brought about the consideration of property and trust in relation to that property. This is best illustrated by the comments of Lord Chancellor Cottenham, where his Lordship stated that "[t]he property of an author or composer of any work, whether of literature, art or, science, in such work unpublished and kept for his private use or pleasure, cannot be disputed". What his Lordship is clearly saying is a property right of trust (or privacy in a sense) in personalty which is created by someone. This applied, prior to the case, for example to personal correspondence in the form of letters. The defendant did not contest the ownership of the property by the plaintiffs, but still argued that any person who obtains such property would still have the right to publish it. Even though the defendant merely intended to publish descriptions of the works, the Court saw that this would be akin to the publishing of the etchings themselves from imprints, which the defendant would not be entitled to do.

Lord Cottenham agreed that the right of privacy in property did exist and that the defendant would not have the right to use and publish them even if he had acquired copies of those works. Although an interesting notion, what is of importance for us in the case at hand is whether there would be a breach of trust should the defendant have published the catalog; this being the need for the injunction itself.

An artist's rendition of the Royals' etchings

The potential breach of trust related to the actual possession of the etchings, which were potentially obtained through illicit means. Mr. Strange's possession of the etchings, in his Lordship's mind, had to have originated in a breach of trust, confidence or contract on part of the printer's employees or the printing press' owner (one of the other defendants in the case). How the etchings were obtained remains unknown, but as his Lordship observed, this would not matter as mere possession by Mr. Strange was enough to establish that fact. This was further expanded on by his Lordship, demonstrating this very point, using the case of Tipping v Clarke: "If the Defendant has obtained copies of [artistic works], it would very probably be by means of some clerk or agent of the Plaintiff; and if he availed himself surreptitiously of that information, which he could not have had except from a person guilty of a breach of contract in communicating it, I think he could not be permitted to avail himself of that breach of contract". Mr. Strange was subsequently denied the dissolving of the injunction due to this breach of trust.

The Court's observations do match a common law notion of copyright in unpublished works (something which even exists today); however the Court's observations could potentially extend to a right of privacy over property of confidential nature, irrespective of it being copyrighted work or not. Although the case is of little relevance in the sphere of modern breach of trust or confidentiality, it goes to show the importance of certain types of works, especially in relation to intellectual property.

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.