The history of IP protection has been a cat-and-mouse game between developments in technology and the fashioning of appropriate laws, which need to find a balance between protecting the rights of those who advance the technology, on the one hand, and the interests of the public in their use of these developments, on the other. One need only recall the invention of the printing press in Europe, which enabled printers to make mass copies of an author’s work for potentially wide distribution. From that time to the present, the legal challenge has been how to regulate copying and reproduction in a manner that serves the interests of all concerned.
The latest manifestation is the rise of 3D printing and the ever-expanding possibilities that it offers for enabling the making of customized three-dimensional objects. The question that arises is how IP laws will fit into the 3D printing world.
As will be seen, there are not yet any firm answers.
Copyright in a 3D Printing World
From the point of view of copying, the principal legal means for protection has been copyright. While copyright law was initially developed to protect literary works, in time it has expanded its scope of protection to cover other categories of creative works, including artistic works –copyright has proved remarkably flexible in embracing new and diverse technologies. So how does copyright fit into the 3D ecosystem?
Let us begin with the output of a 3D printing, namely a three-dimensional object. Here, it might be surprising to learn that copyright does not provide broad protection in this regard. The reason is that for a three-dimensional object to be protected by copyright, it must meet certain requirements for originality. Stated otherwise, copyright protection will not extend to a useful object, which is typically protected under the IP laws by patents, if at all. Only limited categories of three-dimensional objects, such as “works of artistic craftsmanship”, are protected by copyright, depending upon the jurisdiction. The upshot is that many objects that are made by means of 3D printing will not likely enjoy copyright protection.
That said, copyright protection in the 3D printing world is not limited to the output of the 3D printing process. This can be seen by reference to the diagram below, which sets out the main actors in the 3D printing world.
Attention is drawn to the creators, purveyors and distributors of the digital design files that provide the instructions for the operation of the 3D printing device. Recall that copyright derives from the protection of books as literary works. As copyright law has developed, the scope of “literary works” has come to include computer software and other digitized information as a form of literary work, since it is comprised of words, letters and even numbers. This means that someone who wants to use a digital file in principle may need the permission of the owner of the file before he can download, distribute or otherwise copy the file for use by the 3D printing device.
It would seem, therefore, that copyright might provide a potent means to prevent unauthorized copying of the digital files (assuming that one can identify the unauthorized act of copying and who is carrying it out). If so, even if copyright will provide only limited use with respect to protecting a three-dimensional object made by 3D printing, perhaps more robust copyright protection might be provided with respect to the digital files. However, here, as well, the scope of copyright protection is uncertain. There are least two reasons for this.
The first is that the nature of the three-dimensional output of a 3D printing digital file may not only impact on the scope of protection for the object itself, but also on copyright protection for the digital file itself. The reasoning is that if the three-dimensional object is not protectable under copyright, allowing copyright protection in the underlying digital file would effectively confer copyright protection on the public domain object itself. This would circumvent the operation of copyright law and may be viewed as inappropriate.
The second focuses on the manner by which a digital file is created. There are two principal ways to do so. The first is to use a scanner suitable to turn an object into an appropriate 3D printing digital representation. The argument made in favor of protection of the 3D scan is that, even if the object scanned is not original within the meaning of the copyright law, such a scan may indeed require skill and significant labor. While this may be true, ever since the 1991 decision by the United States Supreme Court in Feist Publications, Inc., v Rural Telephone Service Co. 499 U.S. 340 (1991), the extent to which such a claim based on “sweat of the brow” tends to be rejected by courts in many countries. Thus, the argument goes, even if the scanned object meets the originality test for copyrightability, the file derived from the scan itself will not likely be protected.
The second way is to design an object using a computer-aided design (CAD) file, which serves as a form of “blueprint” for making the object in the 3D printing world. Here, as well, the question ultimately depends upon the nature of the underlying object, and whether there are sufficient “original” elements in the file to warrant separate protection. Of course, if the three-dimensional object itself meets the originality test for copyright protection, the argument in favor of copyright in the design file is immeasurably strengthened.
It must be emphasized that the foregoing discussion on copyright protection is still largely in the realm of analytical conjecture, with few court judgments to provide definitive guidance. Indeed, as more court decisions come down, the weight of such judicial authority may lead to a different direction more favorably disposed to copyright protection. Also, legislation may be passed to deal with the issue. The most that can be said is that 3D printing is raising novel versions of time-honored questions regarding copyright protection in the face of these technological advances.
This article is the 2nd in a series of three articles on the subject by Dr Neil Wilkof. The 3rd article in the series will be published next month, so stay tuned!
Dr Neil Wilkof
Dr. Eyal Bressler & Co
Speaker at GFIP 2015
Neil Wilkof is a member of Eyal Bressler and Co., Ramat-Gan, Israel, where he is engaged in both contentious and non-contentious IP matters. He has been ranked a leading practitioner in his field by various bodies and designated a Top 300 IP Strategist. He is currently a member of the Board of Directors of the International Trademark Association.
Mr. Wilkof is the author of numerous articles as well as several books, including Trade Mark Licensing, second edition with Daniel Burkitt (Sweet & Maxwell) and Overlapping Intellectual Property Rights, co-edited with Professor Shamnad Basheer (Oxford University Press). He also is the co-author, together with Professor James Conley and Peter Bican, of the WIPO-commissioned study, "Patents and the Public Domain." He serves as one of the contributors to the blog, IPKat. Mr. Wilkof has lectured in various places, including the United States, Singapore, India, England, Germany, the Netherlands, Switzerland, and Israel.