3D printing: a legal challenge

Written on 17 Dec 2015

The 3D printing technique has recently gained a significance that transcends the limits of the importance the traditional printing techniques had as an informative factor. 3D printing has, from the outset, become a factor increasingly relevant in the design and manufacture of spare parts and materials in areas such as engineering.

It is no secret, nor a matter reserved for experts, that three-dimension printing (“3D printing”) has become an essential tool for the planning, design and manufacture of pieces and materials intended for multiple uses and in various fields, such as engineering or construction. The industrial practicalities of the 3D printing technique are numerous and cover a wide range of needs: it exponentially reduces the manufacturing timings; 3D printing allows physical checks of the parts designed and tests on their resilience, which represents quite a qualitative leap forward in relation to digital techniques that have been developed during the last few years.

Such a technical step forward has drawn the attention of different sectors such as the manufacturing and development of medical components that can be protected under intellectual property rights. As a consequence of this, 3D printing techniques have in turn posed a challenge from an intellectual property rights point of view.

While traditional printing may consist in the fixation of a protected work on a different medium and, therefore, a reproduction of the work – which would mean the exercise of one of the exploitation copyrights conferred upon right holders – that may have may have identical or significantly similar consequences in the case of 3D printing. Moreover, since a three-dimensional digital design can be fixed in any given material by the 3D printing technique, this may lead to illegitimate reproductions of the work that may infringe copyrights owned by third parties.

Likewise, the 3D printing of digital graphic designs may involve the infringement of industrial property rights of third parties. Specifically, patent rights, three-dimensional trademark rights and industrial designs rights may potentially be the most affected. It should be borne in mind that the infringement of these rights must be measured considering their use and the ability of such a use of to cause some damage and represent an abuse of these rights. Thus, the mere printing may not infringe third party rights if that printing or reproduction is kept for solely private and personal use, without any commercial purpose.

As for the actors involved, particularly the manufacturer/marketer of the 3D printer, it should be taken into account that the Spanish Copyright laws on software protection would be applicable to them (either by restriction or by protection) to the extent that, since the software included in the 3D printer can be owned by the manufacturer/marketer, illegal actions or activities in terms of intellectual property and/or industrial property can be carried out by end-users of those printers. Therefore, in order to be released from any liability in this regard, manufacturers/marketers should limit the possible uses that end users may perform on 3D printers.

In this regard, it is worth noting that some software developers have developed mechanisms to protect designers and their designs in relation to the 3D printers existing in the market. Thus, the designers will have the chance to protect their creations by entering a code into their three-dimensional design/creation that will be detected by the software of the printer as a “protected design”, making it possible to check whether the user has obtained the design lawfully and also to determine the number of copies that you may be authorised to print.

Furthermore, 3D printing may also lead to an increase in the value of the concept of three-dimensional trademarks, which protects three-dimensional shapes of any object that can be represented graphically and used to distinguish the products of a company in the market.

In conclusion, and notwithstanding the outcomes of legal practice in the short run, it will be of particular interest to see how manufacturers/marketers of 3D printers address the issues outlined here and what the reaction of judges and courts is in this regard.