3D printing – IP panicking?

Written on 6 Apr 2017

Much excitement has been generated by the potential for users of 3D printers to infringe IP rights of all kinds.  A patent or design right over a product will not prevent it being printed; if the scanned original includes a company logo, that is likely to turn up in the printed copy.  And copyright, if it subsists in the object, is likely to be honoured in the breach just as it is for digital music.

So how will the current suite of IP rights, and their owners, stand up to the challenge of 3D printed objects?  And what can manufacturers start doing about it now?

How significant is the problem?

Additive manufacturing, or “3D printing”, is reaching the everyday world through an unusual combination of stealth and hype.

Real value is indeed being generated, but largely behind the scenes: the most substantial application in commercial value terms is product prototyping. Once the prototype is perfected, the production version is still manufactured by traditional techniques, since these remain the most cost-effective for mass production. Furthermore, BMW has confirmed, having trialled 3D printing components, that printed versions of existing parts cannot match their traditional component tolerances.  Essentially, 3D printing is a good way to reproduce a component designed to be 3D printed; but not otherwise.

The technology is also in use for a range of medical purposes where customisation is essential to the project: in dental laboratories or for producing prosthetics such as knee implants, cranial patches, maxiofacial implants.  None of these products is likely to be counterfeited.

But on the hype side, the emergence of 3D printers priced for consumer use is leading to high expectations that consumers will be able to scan and then print spare parts for their household equipment, create dazzling novelty items or models of their favourite online gaming characters, and generally bypass the frustrations of tracking down a replacement for something that is right in front of you.

Reality cannot, so far, meet these demands.  Consumer 3D printers handle a limited range of materials in an even more limited range of colour options, usually none.  Further, although handheld scanners are readily available, they do not produce a data file capable of immediately being fed into a printer to recreate the object scanned.  Instead, the would-be printer needs to clean the data and ensure gaps are adequately patched. Even a simple object may take numerous iterations to reproduce in workable form.  For the present, these devices are no threat to manufacturers’ spare parts monopolies.

Accordingly, today very little value is being eroded through counterfeiting products by 3D printing.

In time, though, developing products to be produced entirely through 3D printing will enable manufacturers to make enormous savings by reducing the need for stocking inventory of more mass-market products as well.  Consequently, the costs of tooling, warehousing and transport will also fall, total carbon footprint will reduce and supply chains will be simplified.  At that point, counterfeiting may start to be more of an issue.

Nevertheless, the fact that the limitations of current devices limit the attraction of copying is no reason to be complacent as to the impact the next and future generations of printers may have.

Are intellectual property rights effective?

It has never been respect for the laws that prevents consumers from copying.  Intellectual property laws were formulated in an era when the principal barriers to copying were the need to invest in tools – printing presses, industrial equipment – and physical distribution networks.  Once digital reprographics became widely available, copying became endemic, and new enforcement strategies had to be devised to limit its impact.  But since at first these devices were too expensive for home use, enforcing remained relatively straightforward: the owner of the photocopier was potentially responsible for users’ infringements.

As soon as devices for reproducing recorded music became consumer products, even this avenue of defence ceased to be effective.  Back in the 1980s, the House of Lords exonerated Amstrad from liability for copying of copyright works by users of its tape-to-tape recorder, since the recorder was capable of non-infringing use, and Amstrad’s advertising made plain that Amstrad did not intend the device to be used for infringing.  Many countries, though not the UK, responded by permitting private copying while simultaneously introducing a levy system to compensate rights holders for the copying which privately-owned devices were assumed to be used for.

When music moved online, enforcement became even harder; new distribution models such as peer-to-peer made it harder to target a single central individual or organisation in order to stop the flow.  Rights holders unable to stop piracy at source have in turn sought remedies such as website blocking orders, to close the channels through which internet users access pirate materials.  Even this solution is imperfect, for all concerned: – new websites pop up, subscribers are aggravated, and the intermediaries face ever-increasing cost.

Is intellectual property law fit for a truly digital age?

The trajectory followed over copyright piracy is likely to recur as regards the remaining IP rights, if infringement by individuals through 3D printing becomes large-scale, since the major IP rights which businesses use to protect 3D products – patents, trade marks, registered and unregistered designs – are all subject to defences exonerating acts done privately and non-commercially.

Even where the copying is commercial, design law in Europe is subject to exceptions such that design aspects necessary for the technical functions of a product and also aspects which enable a part to fit with or match a complex product of which it is to form a part, do not infringe.  And patent law, at least in the UK, is subject to a defence permitting repair of a patented product, provided that such repair falls short of re-making the product. 3D printing a component for repair therefore may not infringe.

Consequently, if consumers take to the creative potential of 3D printing and begin to develop skills in scanning and creating the necessary data files, IP rights may not be able to stop them.

IP protection against 3D printing is therefore likely to come down to the question of trading in data files representing the object, rather than in goods. If the ultimate producer of the product is a printing bureau making multiple copies for different customers, then clearly selling the data file to the bureau is contributing to their infringement and the data file supplier would be jointly liable.  But if the end-producer is an individual and does not trade in the products he or she prints, then the person providing the file, even for profit, is not abetting or procuring any infringing activity.  If ultimately every household has a 3D printer which accepts standard format printer files and can make the necessary range of products, IP laws may be unable to prevent third parties profiting from creating and trading in printer data files.  Instinctively, this feels unfair to the rights holder which invested in the research and development necessary to create the original product, and adaptation of the law could be required.

Whether this is likely to happen is another matter of course: 3D printing is unlikely ever to be quite as simple as downloading a pirate music track; and how many households which own a sewing machine or work bench routinely use them?

But assuming the private use defences are adapted, the position is still potentially more complex than the challenge of enforcing copyright over pirated music or films which, to be of any use, have to be identical to the right holder’s original.  Consumers may embrace printed products which are not exact replicas but adapted in some way – say, a washing machine dial with the surface form of the face of a cartoon character.  Data representing the functional substructure of the original may have been used to create a working part, but does it represent a substantial part (and therefore an infringement) of the original, once the visible surface has been remodelled?  Even where a less radical redesign is involved, creating a data model may or may not infringe, while the redesigned version may qualify for its own copyright – potentially as a work of joint authorship.  This will depend on the precise degree of copying, new design and integration in each case.

Further, it is unlikely to be worthwhile in either cost or reputational terms to attempt to police and enforce against individuals, each of whom is committing only one infringement of a particular right.  Levy schemes, however, have thrown up many market distortions such that some countries which originally introduced them have since rescinded them.  The potential for such distortion is more obvious still in respect of 3D printers which are not limited to cookie-cutter replication and may be bought and used primarily as tools for legitimate design experimentation, or printing exclusively products whose designers permit such reproduction through sites such as Thingiverse.

What should manufacturers be doing to start preparing now?

Manufacturers need to consider carefully when electing to move to 3D printing as a staple manufacturing process that in designing products and components to be suitable for 3D printing, the immediate costs savings are not the only factor.  The downstream market for repairs, spares and counterfeits may be transformed simultaneously, so a strategy for addressing that result needs to be in place at the same time.

The obvious strategy is to exploit possession of the original design files, by not just making available but actively promoting files for the printing of spares for parts which regularly fail at a price which makes it more attractive for consumers to buy that file than explore what options may be available from third parties.  Help desks could be set up to assist consumers making the files work on whatever form of printer is available to them.  Above all, the potential for higher quality printed parts based on a guaranteed (encrypted, watermarked) original file needs to be demonstrated to consumers whose natural tendency may otherwise be to choose solely on price. Finally, information security over the development, storage and transmission of those files needs to be a high priority, since otherwise it will not be long before “genuine” copies are also circulating in competition.