October 26, 2020

3D printing and the issues for rights holders

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dezeen_3D-printed-dress-by-Michael-Schmidt-and-Francis-Bitonti_12From Walker Morris

The growth of 3D printing

It has been reported that Boeing has recently filed a patent application related to the 3D printing of replacement aircraft parts. This is part of a trend of an increasing number of filings of patent applications related to 3D printing. We are also starting to reach the point where private individuals and businesses may be starting to think seriously about buying a 3D printer. In other words, 3D printing is beginning to enter the mainstream.

3D printing presents both an opportunity and a problem for rights owners. On the plus side, it could facilitate the production process and will enable products to be customised to meet individual demand: customers will want to buy a 3D printer and start using it to customise the latest brands and products to their taste before “printing off” at home. On the other hand, it will also be easier for counterfeiters to create replica copies. There is also a risk that the use of personal printing at home could reduce demand for genuine designer goods and could even devalue brands.
The intellectual property implications in the UK

Patent, trade marks and copyright are all potentially affected by 3D printing. However, the most obvious place to start is designs.
Designs

Registration of a design is comparatively quick and easy (and is surprisingly often overlooked). Designers should consider very seriously applying to register their designs, if they have not done so already.

The Registered Designs Act 1949 provides a regime for the protection of designs against copying by third parties. More specifically, it states that registration of a product protects the “appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture or materials of the product or its ornamentation”. A product for these purposes is any industrial or handicraft item.

However, the component parts of a complex product can only be protected as a registered design if they are visible and are of a novel and industrial design. Also, designs that are dictated by their technical function cannot be protected as registered designs, nor can they be protected where the features of a product must be reproduced in the form that they are in, in order to fit with a product to which they are connected or in which they are incorporated. These are important exemptions and will cover many items that would be obvious candidates for 3D printing. The difficulty will be working out whether the exemptions apply.

Designs may also be protected by unregistered design right, although the protection afforded is less than with registered designs. Like copyright, this right arises automatically and without the need for registration. Unregistered design right subsists in the shape and configuration of an item but not its method or principle of construction nor its surface decoration. The design must be original. Features that are required for it to be “connected to, or placed in, around or against another article so that either article may perform its function” (the ‘must fit’ exemption) are excluded as are features that are “dependent upon the appearance of another article of which the article is intended by the designer to form an integral part” (the ‘must match’ exemption).
Copyright

Copyright exists in “works of artistic craftsmanship” and also in sculptures (among other types of work). The work need not demonstrate originality in order to benefit from copyright protection; commonplace works may be protected. Recent case law [1] suggests that in order to benefit from copyright as a work of artistic craftsmanship or as a sculpture, the work must have been created principally for its artistic merit. This is an important narrowing of the scope of copyright protection; many every-day articles will not be covered. However, graphic designs on the surface of such an item may be protected by copyright – all of which is relevant to 3D printing.
Patents

The use of a 3D printer to make a copy of a patented item will prima facie constitute patent infringement. However, there are exceptions where the copying is done for private, non-commercial purposes and also for purposes of experimentation.
Trade marks

Trade mark registration can protect designers where any trade mark is copied by 3D printing, notably any logos incorporated in or affixed to the product. It is possible that eventually we will see less importation of counterfeit goods – given that the counterfeiters will be able to make replicas more easily rather than, as at present having to rely on low cost labour for the creation of the replica and then move the goods across borders. This may necessitate a change of enforcement strategy on the part of the rights holder.
Enforcement

A risk for rights owners with 3D printing may be peer-to-peer (P2P) file-sharing, an issue that has troubled notably the music and film industry. The sharing of digital files would enable the easy, unauthorised reproduction of designer works. There are already websites offering downloads free of charge of files to print non-designer objects. We have seen recently the grant of blocking injunctions against Internet Service Providers to prevent access to websites providing copyright (and trade mark) infringing content. It may be that we begin to see the same in respect of designs.
Conclusion

It is early days, of course, and there is no guarantee that 3D printing will take off – there is an argument that consumers are still struggling to get to grips with 2D printing, and the technology, at least at the consumer level, is still relatively unsophisticated. However, the emergence of 3D printing is an issue that rights holders need to keep an eye on. A good starting point is a design registration.

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[1] Lucasfilm Ltd v Ainsworth [2010] FSR 10. In that case, Stormtrooper helmets used in the Star Wars films did not benefit from copyright protection in the UK.

SOURCE: http://www.walkermorris.co.uk/3d-printing-and-issues-rights-holders

IMAGE: homeshop3dprinting.com

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