3D-printing – a new dimension to intellectual property rights

3D-printing is an exciting technology. It enables users to easily create prototypes, intricate designs, customized items and small production runs that would not be possible using traditional manufacturing methods. 3D-printing has been a hot topic in technology circles, but until recently it has been a fairly inaccessible and expensive technology. Now, more and more companies and even individuals can afford and operate their own 3D-printer. Virtually anything can be printed, provided that the materials and the blueprints (normally a CAD-file) are available. The potential of 3D-printing is in part due to the possibility for people to share information through the internet. Like any other digital file, a blueprint is easy to copy and send to others.

Opportunity or threat?

Although the technology offers many new opportunities, it might not be entirely without disadvantages. One issue is that individuals will be able to recreate products that have required expensive investments, which in turn might lead to reduced incentives for businesses to invest in R&D. Concerns have even been raised that the 3D-printer, and free access to blueprints on the internet, will make much industrial production redundant. This should particularly apply to companies that produce and/or sell products that are relatively easy to copy and that do not require unusual materials, for example spare parts, ornaments, tools and toys. Furthermore, the new production techniques will make it more difficult to determine who has created a particular product, and therefore, who is to be responsible for it.

The world of intellectual property rights is now starting to spin with speculation and concern about the impact that 3D-printing will have on the protection of intellectual property rights. Could the situation be compared with the entrance of the printing press, the copying machine or the tape recorder – or will it have an even bigger impact on intellectual property rights? So far the debate regarding the 3D-printer’s implications for intellectual property rights has, however, been limited in Sweden. Presumably since 3D-printer technology, in Sweden as elsewhere, is still in its infancy. In this article we will highlight some of the legal difficulties that might arise regarding 3D-printers and the current Swedish laws regarding intellectual property rights and infringement.

Copyright

The main issue with 3D-printing and copyright is the potential for widespread manufacturing of copyrighted objects independent of established markets in ways that cannot be detected, prevented or controlled. In Sweden, no registration is required (or even possible) for the creation to be protected from unauthorized use. If a person is copying a copyrighted creation, it constitutes an act of copyright infringement. In addition, it is illegal to help a person commit a copyright infringement.

Copyright infringement principles also apply to 3D-printing just as they apply to any other copyrighted material. 3Dprinting is to three dimensional objects what MP3’s and peer-to-peer sharing networks were to the music and the movie industry. These technologies were used to copy and exchange, in many cases illegally. Copying a copyrighted product using a 3D-printer would therefore appear to be impermissible. Furthermore, it is likely to be an offense to enable copyright infringement by distributing copyrighted blueprints online. Analogies can be made to the highly publicized Pirate Bay trial where the creators behind a BitTorrent site were sentenced, not for their own copyright infringement, but instead for enabling others to commit such an infringement.

At first glance, the Swedish Copyright Act may seem to provide a fairly comprehensive protection against unauthorized copying. There are, however, limitations. For one thing it is not all types of products that can get copyright protection, since the protection require originality and the products need to be regarded as a piece of art. Furthermore not all types of infringements are prohibited, and a person can use a 3D-printer to copy products for their own personal use.

Patent

Another potentially common subject of 3D-printing is patented objects or designs. Patents protect inventions which have been duly registered at the Swedish Patent and Registration Office (Sw.: Patent- och Registreringsverket). A patent gives the holder the exclusive right for a defined
period of time to use the invention in a commercial context. 

In terms of 3D-printing, patents come into play when the objects being printed are useful or functional objects. Granted, most patents are for complex products with a number of constituent parts, but there are some products that are capable of being produced by 3D-printing that are
patent protected. For instance, 3D-printing can produce complex items with moving parts that could have patent protection, such as certain medical devices. In addition, small parts could be 3D-printed and then assembled to form a patented product or used to replace broken parts from a larger patented product.

Unauthorized commercial production of a patented invention by 3D-printing can constitute a patent infringement by the user of the printer. Furthermore, a patent infringement is probably also committed, albeit indirectly, by the person who distributes without authorization patented blueprints online. In the latter respect, one can probably make analogies to the Pirate Bay case. Patent infringement is committed, in the same way as copyright infringement, only when copying is made for commercial purposes. Another limitation of patent protection is that it does not necessarily protect against unauthorized production of spare parts. If a patent relates to a product consisting of several parts, it may thus be possible to copy one or more of these parts, even though it is an infringement to copy the entire product.

Design rights

In some cases, objects may be protected by design rights. Design rights protect the appearance of a product or product part, especially in terms of lines, contours, colors, shape and texture. The protection for a design is normally obtained by registration (although the 3 year unregistered Community Design Right is also valid in Sweden) and it gives the holder the exclusive right to use the design in a commercial context.

Design rights will probably be the most useful form of intellectual property rights for the purpose of challenging 3D-printed products, since they are most readily found to subsist in everyday objects. However, design protection contains the same limitations as patents and copyrights, in that it does not protect against private copying for personal use. Another important limitation, distinctive for the design protection, is that it is not possible to protect such details in a product that are entirely determined by its function. This means that products such as spare parts and accessories rarely receive design protection.

Trademarks

A company’s trading name, brand names and logos can all be protected as registered trademarks (subject to certain rules for registration) or by establishment on the market . Regardless of how the right is obtained, it gives the holder the exclusive right to use the trademark in business activity. In certain circumstances, trademarks can also be registered for the shape of products, although this form of protection is notoriously difficult to obtain.

If a commercial 3D-printing service is reproducing a rights holder’s trademark on a printed object or printing an object that in itself is protected by 3D trademark, this would normally constitute trademark infringement. On the other hand, where a private individual prints an object which includes a registered trademark she is not normally committing trademark infringement, if doing so without a commercial interest.

The future

It has been said that change is the only constant and that is undoubtedly true when it comes to technological advancements, but as technology evolves so must the law. It may be possible under existing Swedish intellectual property law to hold responsible those who use the new 3D-technology and infringe other people’s intellectual property rights may. However, today’s legislation cannot prevent people from using their 3D-printers for their own personal use. As long as the 3D-printer is not in every person’s home this may not pose a threat for businesses. But such a threat may arise within the foreseeable future, at least for some business sectors.

One obvious way to tackle this is to change the law so that copying for personal use is also prohibited. However, while perhaps appealing in theory, such change is likely not realistic in practice, for example since it would be impossible to ensure that the law was respected.

Another possible way to go, is to impose special taxes on 3D-printers. This kind of solution was used by the Swedish government during the 80’s, in response to the potential threat that the cassette tape was to hurt the music industry. The tax was supposed to compensate the rights holders for their loss of income. Albeit a possible solution, this type of special tax for 3D-printers would pose some practical difficulties. The special tax on cassette tapes was facilitated by the existence of a central association for musicians (STIM), which manages and licenses all music rights in Sweden. No such association exists regarding other intellectual property rights and it would therefore be difficult to distribute the collected taxes. Furthermore, it would be difficult to assess how large a portion each respective rights holder should receive.

What the future might hold regarding the regulation of intellectual property rights is of course hard to predict, but to tackle the challenges ahead the legislator will have to be as inventive as the brains behind the 3D-printing technology.