A predicted boom in 3D printing could create a tangled web of intellectual property (IP) issues as it becomes cheaper and easier to copy designs and make knockoffs, according to some IP experts.
3D printing opens a cheap new way to quickly make copies of IP. With the ability to post 3D print files online for others to download, there is potential for an Internet piracy situation akin to the one the music industry faced with Napster and other file-sharing services.
Intellectual property owners should review whether their designs for objects are fully protected, said Hamish Fraser, a partner at the law firm Bird & Bird who specialises in technology and IP issues.
“The piracy issues are fairly huge,” he told Computerworld Australia. “The bigger question is – have you got rights you can protect?
“There’s an issue of people who may not have realised they’re not protected, and now it’s a whole lot easier to copy what they’re doing."
Matthew Rimmer, an intellectual property academic and associate professor at the Australian National University College of Law, said that IP owners must assess both threats and opportunities brought by 3D printing.
"Companies should always be worried about new innovation," he said. "3D printing has opportunities for IP owners, and it also presents challenges and threats.
"There are some huge opportunities in terms of reducing some of the logistics costs and things like that. If you use 3D printing to make things, there could be huge efficiencies and economic benefits that you could derive."
But there are many legal issues, too, he said.
"You have the full gamut of IP issues. It's copyright, it's patents, it's trademarks, it's designs – perhaps it's even things like trade secrets as well. 3D printing cuts across all the various domains of intellectual property.
"That will be very challenging both for businesses and IP lawyers."
The rise of 3D printing
While 3D printing remains cost prohibitive for the average consumer, the prices are rapidly dropping and the quality of output is improving, said Fraser.
Some desktop 3D printers retail for only a few hundred dollars. The M3D Micro, an inexpensive 185mm cube printer, is now available to pre-order for $349. However, more advanced professional machines may still cost in the hundreds of thousands of dollars.
Consumers who don’t want to own a 3D printer will still be able to print designs by paying a small fee at stores offering 3D printing services, said Fraser. Office supplies retailer Staples has trialled such a service in some of their stores in the US.
As a result of these developments, many IP owners who have never had a problem with infringement could soon find their designs copied without permission, he said. In many cases, this action could be completely legal.
“It may not be piracy in the way we’ve seen with music in that it might be perfectly legitimate copying of people’s notional intellectual property.”
This is because, in Australia, copyright protection of a design is lost when it is industrially applied by making a certain number of copies. However, Fraser said it might still be possible to gain protection by registering the design.
The IP attorney predicted there will be an increase in the number of registered designs, which to date is a form of copyright protection that he said has been relatively overlooked.
“It might be something that people need to do more of to stop people.”
The legal landscape
An ongoing review before the Advisory Council on Intellectual Property, commenced in 2012, has asked if designs law should be reformed.
"Some argue we need stronger designs protection" because the current regime is "unattractive compared to copyright law and patents law," said Rimmer.
"Others argue we don't want an anachronistic regime like designs law holding back some of the innovation in relation to 3D printing."
Fashion is one area that would be subject to the industrial application issue raised by Fraser, but where some argue there should not be IP regulation, said the academic, citing an argument by Christopher Sprigman in the New York University law professor's book, The Knockoff Economy. Sprigman wrote that fashion flourishes when people copy and build off of others’ designs.
In addition to the design protection inquiry, there is a debate over whether Australia needs new copyright exceptions such as a defence of fair use, Rimmer said. The Australian Law Reform Commission (ALRC) has recommended a fair-use defence to promote competition and innovation.
There have not yet been many legal disputes involving 3D printing, as it is still a nascent technology, Fraser said. However, with businesses are beginning to invest in the technology, the issue is likely to become more prominent in the next three to four years, he said.
Rimmer said there have been a few "skirmishes" related to take-down notices over designs based on copyrighted IP. However, he said these have largely been lawsuits that have not been followed through or significantly tested in court.
The 3D printing issue has raised some interest in federal parliament. Jim Chalmers, a Labor MP from Rankin, Queensland, wrote a 2003 op-ed in <I>The Guardian</I> that noted potential legal challenges ahead:
This goes further than just the question of intellectual property. 3D printing and similar technologies have led to a further blurring of the lines between goods and services. There are challenges for global trade as a result, associated with measurement, assigning property rights and responsibility for quality assurance.
Chalmers concluded, however, that "the opportunities dwarf the challenges":
Australia needs to set itself up to take advantage of the opportunities presented by these new technologies. By defining our role in new global value chains and mastering the technology via investment in education and broadband, we can use our greatest asset – the creativity, adaptability and innovation of our population – to create a new generation of broad-based prosperity here at home.
Who’s at risk?
The supply chain industries are most at threat from 3D printing, but it’s really anyone who owns intellectual property, Fraser said. “It’s kind of everybody,” the lawyer said.
Manufacturers could attempt to get ahead of the threat by selling licences for print files to designs, he said. Nokia has recently tried this approach, releasing a 3D printing kit allowing customers to quickly design and print custom covers for Lumia 820 smartphones.
Rimmer also highlighted this approach to 3D printing by some big IP owners, including Disney.
"Some companies like to try to associate themselves with the maker movement and 3D printing for promotional purposes.”
At minimum, 3D printing represents an issue for which IP owners should pay close attention, said Fraser.
“There is no doubt that in the right hands 3D printing is an important technology and a natural evolution that can and almost certainly will disrupt existing manufacturing ecosystems the way music and print industries have been affected,” he said.
“However companies also need to understand the need for renewed vigilance in terms of protecting their existing IP and also consumers from potentially poor quality replicas.”
Rimmer agreed there some comparisons to what Napster did to the music industry, but also highlighted a key difference.
"The complexity with 3D printing is that it can be used for both authorised and unauthorised purposes, so it's not going to be as clear-cut as peer-to-peer sharing."
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