How successfully might 3D printing be assimilated into intellectual property regimes?

Introduction 3D printing is the technical process of using a digital blueprint to produce a physical, three-dimensional object. In contrast to traditional manufacturing processes, in which objects are made by cutting, carving or other subtractive methods, 3D printing is so named because it involves the addition of materials, layer upon layer. Whilst the use of 3D printers at the industrial level can be dated to as far back as the 1980s, decreasing cost and technological improvement have meant that 3D printers are gradually becoming a more viable commodity for the ordinary household. In the coming years, we might therefore expect 3D printing technology to follow the model of personal computers, which shrunk in both size and price before reaching mass adoption. Indeed, the 3D printing market is already large and set to grow: from $1.7 billion today to $3.7 billion by 2015, according to a Business Week report (Kharif 2012). Given its wide variety of uses, the technology is also already posing a number of legal and political quandaries. Defense Distributed, a firm aiming to use 3D printing to manufacture guns, uses a promotional video to pose the question, Can 3D printing by subversive? If it can, it will be because it allows us to make the important things Not trinkets, not lawn gnomes, but the things that institutions and industries have an interest in keeping from us (www.defcad.com). Yet the truly subversive potential of 3D printing may not emerge from the prospect of unregulated homemade guns, but from the broader challenge to intellectual property that 3D printing poses and the Internet facilitates. In contrast to the rise of personal computers, 3D printers are becoming mainstream devices at a time when the Internet is embedded in the everyday life of billions of people. The disruptive challenge of 3D printing must therefore be viewed in this context. The rapid, anonymous and decentralised dissemination of information that the Internet permits has already posed enormous challenges to a wide range of information-based industries. Foremost among these is the entertainment industry, which has employed a combination of legal, political and technological efforts aimed at preventing the spread of copyrighted material online. Whilst the technical and legal contours differ greatly, the implications of 3D printing for intellectual property regimes will undoubtedly come to resemble the entertainment industrys struggle against the unauthorised sharing of music and films. If manufacturers like toy-makers, for example, perceive in 3D printing a threat to their business models as grave as filesharing proved to record companies, it will be in their commercial interest to invest huge resources to tip the law in their favour. 3D printing could therefore bring about a second war over intellectual property in the digital era. This paper presents the perspectives of the two parties who might become engaged in such a war. Following a brief overview of the conceptual challenge 3D printing poses, the first perspective is that of the amateur hobbyists and enthusiasts who are already

using 3D printing technology in a plethora of creative ways. This section argues that, in the context of existing intellectual property regimes, ordinary users of 3D printing are well placed to defend a wide range of uses of the technology as legal, so long as the uses are personal, not commercial. The second part of this paper considers the perspectives of rights holders. Given that current law favours a generous range of personal use of 3D printing, it asks what rights holders could do, through the imposition of legal, cultural and technological measures, to tip the balance of the law back in their favour and limit the legality of various uses of 3D printing which might be seen to threaten traditional business models. This paper is necessarily speculative. Just as many of the sweeping societal changes that the world wide web has wrought could not have been predicted with any certainty at its inception, a contemporary analysis of 3D printing must acknowledge that current use of the technology is subject to significant augmentation in the years to come. Nevertheless, the paper approaches the subject holistically, aiming to account for many of the ways in which the technology might be utilised in the future. Neither the disruptive economic power of 3D printing nor the implications of retaliation by rights holders should be underestimated. As Lawrence Lessig demonstrates in Remix (2009), the last great intellectual property conflict over entertainment file-sharing brought serious collateral damage to wider society. For example, given the countless young people involved in file sharing, Lessig questions what it means to live in a society where an entire generation is raised as criminals (p.xvii). As such, this paper concludes with a brief normative argument in favour of a more equanimous legal approach to the 3D printing challenge, with a more nuanced understanding of the idea of creation than legal regimes permit at present. The Challenge and the Opportunity: reconciling 3D printing to existing intellectual property law The rise of 3D printing poses both a challenge and an opportunity for legal systems: the challenge of reconciling existing law with the conceptually novel aspects of 3D printing, and the opportunity to rethink how intellectual property issues are treated in the new information society. Countering the current perception of personal computers and the Internet as a seedbed of intellectual property violation will necessarily be at the core of such a redefinition. As Michael Weinberg points out in a 2013 paper on 3D printing and copyright, the direct connection that many people make between digital and copyright is largely the result of historical accident (p.1). In making this assertion Weinberg rests on two premises. Firstly, the things that were hitherto easiest to create with computers, like music, videos and photos, are the sorts of items that, because of their creative character, were typically covered by copyright. Secondly, Weinberg notes, the way computers distribute things by copying was exactly the behaviour that copyright regulated (p.1). Perceptions of intellectual property in the digital era have been shaped by this direct connection, and it is these perceptions that 3D printing may come to remodel.

The central reason why 3D printing as a phenomenon has such potential to shift perceptions is in its implicit retort to Nicholas Negropontes (1996) claim that the change from atoms to bits is irrevocable and unstoppable (p.4). Negroponte predicted the shift from physical to virtual in many walks of life that personal computing and the Internet would introduce, whether in the digitization of swathes of books or in the rise to ubiquity of the iPod. 3D printing brings the focus back to the physical, whilst still relying on the Internet in its capacity to transfer data around the world, allowing collaboration and exchange. More pertinent to the scope of this paper than this philosophical shift, however, are the legal ramifications of the rise of 3D printing. Not least because of the sheer breadth of uses to which 3D printers can be put, the debates over intellectual property that emerge are likely to be even more complex and nuanced than the earlier digital copyright fights. 3D printing involves more areas of intellectual property law, including patents and trademarks, each with different traditions and definitions in law. A comprehensive assessment of 3D printing and intellectual property law must take into account each of these areas. 3D printing and intellectual property from the users perspective The first part of this paper sets out the argument that if and when disputes over intellectual property rights arise, ordinary users of 3D printing are well placed to defend a wide range of personal, non-commercial uses of the technology. Of course, many of these findings are tentative, and could be overturned by new interpretation or legislation, but an exploration of law as it currently stands is an important place to start. Given the wide range of uses that 3D printing can be put, this section looks at each type of intellectual property law in turn and shows how users can defend their personal, non-commercial use. Copyright Copyright, as commonly understood, allows for the protection of creative works. The exact definition of copyrightable materials will likely differ in both statute and interpretation across different jurisdictions, but the Berne Convention, an international agreement for governing copyright, applies to literary and artistic works (Article 2). As such, there may be some scope for 3D printing technology to facilitate violation of copyright. Copyrighted sculptures, for example, or popular characters, could be reproduced as, or as part of, 3D objects. There are however a number of ways in which the legal power of copyright is mitigated in the case of printing 3D objects. Above all, a 3D printer cannot produce many sorts of copyrightable material, such as music and film; the legal status of a 3D-printed music box, which could produce a copyrighted tune through the plucking of tuned teeth, would certainly prove an interesting test case however.

Although, as Weinberg notes, copyright has traditionally avoided attaching to functional objects (2010, p.6) and most manufactured objects are purely functional, many objects also have artistic elements. Therefore, courts have been forced to generate rules for deciding the extent of copyright applicability over part-functional, part-artistic items. In the United States, this is known as severability. An act of Congress declared that severability could be applicable in physically or conceptually terms (H.R. Rep. No. 1476, 94th Congress). Physical severability is relatively straightforward, but as Weinberg describes, courts have not agreed on a uniform way to think about conceptual severability different circuits have different tests (2013, p.9). These tests tend to involve analysing the interplay of artistic and functional features, requirements and motivations in an objects manufacture. Once this analysis has been performed, only the separable elements are deemed copyrightable. Whilst it is complicated and its implementation unclear, severability is an important process by which claims of copyright violation in 3D printed objects can be weighed by courts even for objects which appear mostly functional in purpose, for example furniture decorated with copyright-protected artwork. In other cases and in other jurisdictions, however, copyright appears to be less of a threat to 3D printing. In the UK, for example, both precedent and statute appear to offer leniencies. The 2008 case Lucasfilm v Ainsworth, for example, a court found that the Stormtrooper helmets designed for use in a Star Wars film were not in fact protectable by copyright, as the reason for their creation was utilitarian. Therefore as Bradshaw et al (2010) note, it appears that following Lucasfilm, copyright protection [in the UK] is confined to objects created principally for their artistic merit (p.22). If this precedent holds, it would seem to allow users of 3D printers greater freedom in their use. In addition, the CDPA contains a provision limiting to 25 years artwork copyright that has been marketed by the copyright holder. This 25-year term is of a much shorter duration than standard copyright protection. After this period the work may be copied by making articles of any description which can freely be taken to market too (CDPA, Article 52). These examples help to illustrate how, in existing law, there is for a balance between the protection from copyright for new creations and protection by copyright for existing rights holders for 3D-printed objects. A final point with regard to copyright and 3D printing is the question over the status of the source file which 3D printers read in order to print an object; in other words, a digital prototype, usually in the .cad file format. Concepts in both American and British law would seem to allow that .cad files are not generally subject to copyright. The American merger doctrine stipulates that if an idea can only be expressed in one way, this expression is not protected by copyright. This leads to the conclusion that designs are only protected by copyright to the extent that they go beyond the utilitarian requirements of designing a useful article (Weinberg 2013, p.14). In the British case, although case law suggests that a .cad file could be protected by copyright, as a design document its copyright is not infringed by using it to make an item (Bradshaw 2010, p.25).

This discussion of .cad files demonstrates the conceptual complexities associated with 3D printing and copyright, as well as showing how the ability of the Internet to disseminate information can complicate matters further. As this section has explained, this complexity may offer more leverage for courts to interpret existing case law in a balanced way with respect to the rights and freedoms of all involved. However, whilst this comparison between 3D objects and music and film can be drawn in terms of copyright, the next section features a fundamentally different sort of intellectual property with different legal consequences for 3D printing. Patents The system of patenting differs from copyright in many ways. Firstly and most obviously, patents protect useful rather than creative works. In the definition provided by the Agreement on Trade-Related Aspects of Intellectual Property Rights (hereafter TRIPS), patents are in principle available for any inventions, whether products or processes, in all fields of technology (Article 27.1). However, there are a number of reasons why patents are less common for useful articles than copyright is for creative works. Firstly, patents are generally only available for novel, inventive items. The TRIPS agreement says patents should involve an inventive step (Article 27.1), and United States law stipulates that patentable articles should be new and useful with nonobvious subject matter (35 USC 101, 103). Therefore whilst copyright is applicable to any creative work, no matter its merit, the field of objects which can be patented is much narrower. Secondly, patents are typically registered rights, in that applicants must apply to a Patent Office, whereas copyright applies automatically. Finally, patents generally persist for a shorter duration, usually twenty years as stipulated by TRIPS (Article 33), in comparison to copyright which is generally much longer and continues to grow: the US Copyright Term Extension Act passed in 1998 increased copyright by a further 20 years. In summary, then, compared to a copyright, a patent is hard to get and does not last very long (Weinberg 2013, p.2), so patents are thus much rarer. However, once patents are granted, they can actually be more stringent, because any duplication is automatically an infringement. Moreover, as Landes points out, simultaneous or nearly simultaneous discovery or invention is much more common in the case of [patentable] ideas than in the case of [copyrightable] expression (2003, p.295). The greater value of patents therefore justifies the race to obtain them before competitors. As a result, patents are more strictly enforced: in US law, for example, there are no exceptions for fair use or personal use of patented items that have been copied.

Nonetheless, there are ways in which provisions in various jurisdictions may allow greater scope for use by 3D printers than might be expected, even for the limited number of real-world items which are patented. Firstly, even in the US, copying unpatented parts of a patented invention is not a violation of the larger patent (Weinberg 2010, p.8), as when using patented items in an inventive new way. This may allow, in principle, some room for experimentation, which is significant in light of the remix culture that has taken hold in the Internet era. Secondly, prosecuting patent infringement is difficult, as the bar for proof is set high. Patent holders need to establish that a patented item was recreated physically, which will often prove challenging. Moreover, whilst US law allows for the possibility of contributory infringement whereby third parties can be held responsible for the sale of components for use in a patented item the fact that 3D printing hardware and software can be put to all manner of non-infringing uses will likely make it difficult for patent holders to establish wilful blindness on the part of equipment supplies (Richards, 2012, p.31). Finally, other jurisdictions offer more exemptions from patent infringement. Patent law in the UK, for example, allows for the private and noncommercial replication of a patented product. British courts are yet to rule on whether this exemption would extend to allowing the uploading a .cad plan of a patented item online (Bradshaw, 2010, p.27). As with copyright, what emerges from this discussion of patents is firstly that courts are yet to rule interpret legislation to provide definitive answers, and that, even within the limited sphere of patented objects (strictly speaking, the patented ideas that lie behind the objects) exemptions exist that might make life simpler for the personal, non-commercial user of 3D printing. Trademark and trade dress A trademark is a word, symbol, or other signifier used to distinguish a good or service produced by one firm from the goods or services of other firms (Landes 2003, p.166). As such, trademarks are only tangentially related to intellectual property. The main purpose of trademarking is to allow firms to establish consumer confidence in their goods, and copying a trademark is not an automatic infringement: only entering the market can trademark law be enforced. It is therefore easy to see that for domestic, non-commercial use, replicating trademarks through 3D printing would not constitute trademark infringement. In fact, this is an area in which domestic 3D printing holds a real advantage: one cannot mislead oneself as to the origin of a product one has themselves created, so in this instance the entire economic rationale for trademark disappears. The same principle applies to trade dress, which as a form of trademark also aims to protect consumers from confusion over the visual appearance of a product. US law thus explicitly talks of trademark infringement in terms of use in commerce (15 USC 1114), although as has been noted, this definition of commerce has been expanded over time (Weinberg, 2010, p.8).

The Internet serves as a complicating factor here. Whilst it is true that one cannot mislead oneself, one can certainly mislead the downloaders of a prototype on a 3D file hosting sites like Thingiverse. For example, uploading a prototype for the famously shaped Coca Cola bottle, complete with logo, which would be protected by both trademark and trade dress, could in theory allow misunderstanding. However, the distinction between uploading something for free rather than charging for it may prove significant, as it is apparent that trademark law is yet to catch up with the idear of non-commercial yet non-personal use of an object with trademark. The preceding section has explained how, in each core area of intellectual property, existing statute and case law in various jurisdictions can be seen to allow great freedom to the ordinary users of 3D printing technology in their adaptation and reproduction of protected works. However, given the disruptive potential that 3D printing has, intellectual property rights holders are unlikely to shrink from fights over how these rights are interpreted by courts. Moreover, they may seek legal, political and technological solutions to strengthen their rights and their enforcement. The next section describes what form such attempts may take. 3D printing and intellectual property from the rights holders perspective Much of the preceding discussion of the intellectual property regime was necessarily speculative in part because courts are yet to rule on some of the crucial questions that 3D printing technology raises. This is hardly helped by the relatively glacial pace of the legal system compared with the technology industry. As such, the primary locus of attention for rights holders going forward will likely be courts and legislatures. Particularly in common law systems such as the United States and the United Kingdom, rights-holding corporations may argue for more stringent judicial interpretation of intellectual property rights. Of course, the potential for sweeping new legislation or changes to international treaties should not be ignored either. In the case of copyright, perhaps the best opportunity for an expansion in intellectual property rights rests with the severability process. As noted above, at present the severability process prevents an item that contains creative elements from becoming copyrightable in toto. However, one approach might be to try to effect a change in how severability is determined by judges, to allow copyright to expand to protect the entirety of a functional object. As Weinberg notes, even small changes between severable and not severable may have massive ripple effects for cop yright on objects (2013, p.13). As has been shown, copyright lasts much longer than patent and need not be novel or non-obvious; shifting the legal protection for essentially useful objects from patents to copyright would greatly strengthen control. Legislation that changes not merely the strength but the scope of copyright would not be unprecedented: the US Architectural Works Protection Act of 1990 enabled the copyrighting of the overall form of buildings.

With respect to the patent system, rights holders could utilise contributory infringement to protect their rights. As explored above, contributory infringement allows for the prosecution of those who sell goods or services that they know to facilitate patent infringement. In much the same way as Napster was sued for contributory infringement of copyright in protected music, so websites like Thingiverse and Defcad might face litigation for facilitating the dissemination of the plans for patented (or indeed copyrighted) objects. Such sites, as well as the manufacturers of 3D printing hardware, may enjoy greater protection from the law, however. Courts may find that the potential for non-infringing use of 3D printing websites and hardware mean that liability for infringement does not hold. Nonetheless it will be interesting to see how Thingiverse and Defcad respectively fare, as Thingiverse has shown a willingness to comply with takedown notices relating to copyright infringement, while Defcad has taken a more radical approach in rejecting such claims. Corporations may also see trademarking as a powerful tool to protect famous brands and designs from imitation, especially given their theoretically limitless duration of applicability. Corporations may even seek to introduce limits on the private, personal production and use of objects subject to trademark or trade dress, now that the production process can be performed in the home. Clearly, corporations well-versed in the vagaries of intellectual property law will be able to argue for gradual shifts in how courts interpret and enforce rights, and those with access to the corridors of power in Washington and Brussels will no doubt push for stricter legislation in response to the rise 3D printing. Another way in which legislation could be used as a constraint on 3D printing would be the imposition of a levy on sales of the 3D printing hardware. Levies have been used in European countries such as Germany for the sale of recording devices, personal computers and MP3 players, so applying this to 3D printers would not be unprecedented. Levies have been justified on the grounds that compensation is due to rights holders for copies made of copyrighted materials. This could have a significant impact on the nascent 3D printing industry: Weinberg suggests that if rights holders are able to force 3D printing companies to forfeit a percentage of their sales as compensation the industry may very well stall before it reaches a mass market audience (2010, p14). However, once again the sheer diversity of possibility for the use of 3D printers would seem to undermine the principle behind such a levy. 3D printers can be used to infringe upon various intellectual property rights, but plenty of objects are unprotected, and moreover, some objects can be created from scratch without any copying. In any case, Richards suggests that it seems hard to envisage such a levy being imposed anytime soon in view of the general nervousness with respect to IP enforcement at present (p.32). Not all responses need be legal: as with the fight over entertainment copyright, technological measures backed up by law could also have an impact. As Lessig has

argued, such changes to the architecture within which systems operate can have powerful consequences, noting that the self-execution inherent in code-based regulation allows the unseemly [to] be done without constant human agency (2009, p.342). However, there are substantial practical objections to the introduction of this sort of constraint. As Adams and Brown note in Keep Looking, in terms of entertainment copyright, it is difficult to see how media players could take account of all of the [uses] of a work that would be considered by courts (2009, p.6). This problem would be even more intractable in the case of 3D printing, given the wide range of legal provisions and exemptions laid out above. In particular, many of these exemptions relate to the use, commercial or personal, of a product after printing, so how could a 3D printer predict such usage? Moreover, given that 3D printers are often used to produce reverse-engineered designs, the use of a digital watermark or signature would not be workable (Bradshaw, 2010, p. 30). The final way in which use may be constrained is norms. Norms play a quiet but important role in the uptake and assimilation of new technology. One approach rights holders may take is to try to equate all uses of 3D printing with infringement. As such, rights holders may try to stigmatise .cad filetypes in much the same way as MP3 files (Weinberg, 2010). This could dissuade users from risking it and adopting the new technology for fear of litigation. However, this approach may backfire, as there are no guarantees that norms will set in as planned. For example, in the case of entertainment copyright, young users simply normalized and internalized illegal music downloading: a 2006 report found that downloading was the most common criminal offence committed by 10-25 year olds, and that nearly two thirds knew that such activity was illegal (Adams and Brown, 2009, p3). Nonetheless, the development of norms around 3D printing will still have an impact, and competing norms and narratives surrounding use of the technology may emerge. The power of norms can be seen in the Penrose triangle case. A disgruntled user issued a takedown notice to Thingiverse, after an optical illusion model he had created was replicated and shared by another user. Thingiverse complied with the request even though the model was arguably beyond the scope of copyright (Weinberg, 2013, p.7). The notice and take down approach fostered by the Digital Millennium Copyright Act threatens to extend into the substantial realm of unprotected and unprotectable objects. As a response, Weinberg argues for the 3D printing community to develop its own strong cultural clarity in terms of how to deal with contentious questions over intellectual property (p.22). How sites and users react to intellectual property claims will heavily influence the willingness of rights holders to attempt to exercise questionable control in the future (p.22). Conclusion: the elusive creator? This paper has presented the rise of 3D printing from two perspectives: that of enthusiastic domestic users of the technology and rights holders threatened by its rise.

The paper found that existing legal regimes allow a sphere of non-commercial use. This might be surprising in light of the swift prosecution of violators of music and film copyright in the past decade, even for personal use. Nonetheless, rights holders might fight back, arguing for more stringent interpretation of existing statute or the imposition of new laws limiting the use of the technology and protecting intellectual property rights. In other words, the fight over 3D printing and intellectual property, if the copyright war of the last decade is anything to go by, is likely to become fierce and costly for all involved. No matter how the case law develops however, this paper has shown how this new technology poses not merely a challenge but an opportunity for a fresh understanding of intellectual property in the Internet era. Western intellectual property has long privileged the role of the creator in isolation, and this paradigm stretches far around the world, embedded in institutions like the World Trade Organization thanks to the the TRIPS Agreement. A contrasting narrative of intellectual property, however, emerges from writers such as Umberto Eco, who reminds us that the author is not the only source of the creativity that creates the work (Mayer-Schnberger, 2005, p.14). The collaborative creativity associated with 3D printing is practical and demonstrable. Underpinned by the Internet, 3D printing holds great potential to allow ordinary people to remix the world around them, by making virtual files through scanning real-life objects, and disseminating prototypes online for modification. As this paper has shown, the legal system at present is relatively permissive of such endeavours, particularly in the case of patents, which, even in the rare instances in which they are applied, are flexible in allowing others to modify and build upon unpatented aspects of protected items. Perhaps therefore 3D printing offers a new legal framework within which the culture of remixing may thrive. Regardless of when and on what grounds the inevitable legal battles are fought, this paper has shown how 3D printing is an interesting case study of the impact that new technology can have on a legal system and an economy ill-prepared to deal with such a disruption. The power of the Internet in allowing the sharing of information between users around the world has raised the stakes in this regard, such that even seemingly innocent and personal examples of violation may over time pose a substantial threat to various industries. The battle over 3D printing has barely begun, but it seems certain to represent another significant milestone in the debate over intellectual property in the digital era.

References Adams, Andrew A. and Brown, Ian (2009). Keep looking: the answer to the machine is elsewhere. 2009. Computers & Law, 19(6): 32-35. Bradshaw, S., Bowyer, A. and Haufe, P. (2010) The Intellectual Property implications of low-cost 3D printing. ScriptEd, 7 (1). pp. 5-31. Kharif, Olga (2012). 3D Printer Makers Aim at Home Market. Retrieved from < http://www.businessweek.com/technology/3d-printer-makers-aim-at-home-market01092012.html> Landes, William M. and Posner, Richard A. (2003). The Economic Structure of Intellectual Property Law. Cambridge, MA: Harvard University. Lessig, Lawrence (2009). Remix: Making Art and Commerce Thrive in the Hybrid Economy. London: Penguin. Mayer-Schnberger, Viktor (2005). In Search of the Story: Narratives of Intellectual Property. 2005. Virginia Journal of Law and Technology, 10(11): 1-19. Negroponte, Nicholas (1995). Being Digital. New York: Knopf. Richards, John (2012). Life in 3D. Retrieved from <http://www.ladas.com/BULLETINS/2012/030-032-IPM-March_2012-Feat.pdf>. Weinberg, Michael (2010). It Will Be Awesome if they Dont Screw it up: 3D Printing, Intellectual Property and the Fight Over the Next Great Disruptive Technology. Retrieved from <http://www.publicknowledge.org/files/docs/3DPrintingPaperPublicKnowledge.pdf> Weinberg, Michael (2013). Whats the Deal with Copyright and 3D printing? Retrieved from <http://www.publicknowledge.org/files/What%27s%20the%20Deal%20with%20Cop yright_%20Final%20version2.pdf>