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Inventing the Future: Intellectual Property and 3D Printing – by Matthew Rimmer

Photo: MakerBot, Creative Commons 2.0

A new technology – 3D printing – has the potential to make radical changes to aspects of the way in which we live.  Put simply, it allows people to download designs and turn them into physical objects by laying down successive layers of material.  Replacements or parts for household objects such as toys, utensils and gadgets could become available at the press of a button.  With this innovation, however, comes the need to consider impacts on a wide range of forms of intellectual property, as Dr Matthew Rimmer explains.

3D Printing is the latest in a long line of disruptive technologies – including photocopiers, cassette recorders, MP3 players, personal computers, peer to peer networks, and wikis – which have challenged intellectual property laws, policies, practices, and norms. As The Economist has observed, ‘Tinkerers with machines that turn binary digits into molecules are pioneering a whole new way of making things—one that could well rewrite the rules of manufacturing in much the same way as the PC trashed the traditional world of computing.’

Established in 2009, the Brooklyn company MakerBot ® is a leader in desktop 3D printing – with its technology, the MakerBot Replicator TM. The company explains the technology field in these terms:

 3D printing, also called additive manufacturing, means making things layer by layer according to a 3D design file. This differs from traditional manufacturing, such as machining, which often involves subtracting a material in order to achieve a certain shape. 3D printers have a history of being very large and expensive; however, MakerBot sells top-of-the-line 3D printers that are made, priced, and sized for the desktop. The MakerBot Replicator 2 Desktop 3D Printer measures 38 x 49 x 32 cm (14.7 x 19.1 x 12.8 in), making it ideal for a workspace or tabletop at home or in the office.

The company emphasizes: ‘Personalized manufacturing using a MakerBot Replicator™ opens up a world of innovation, customization and creativity’. MakerBot recommends: ‘Create your own 3D designs or download one of the thousands of models from Thingiverse.com, and turn your ideas into real, physical objects’. The company envisages: ‘With the MakerBot Replicator™, you can invent the future and also be a hero around the house’. The company suggests to its customers: ‘Design it, MakerBot it and give it away’. With breathless excitement, the company rhapsodizes: ‘With a MakerBot Replicator™, you’ve got an inexhaustible supply of awesome.’

Moreover, the company has established an intellectual commons: ‘At MakerBot’s website Thingiverse, MakerBot owners can access and contribute to a “universe of things”.’ The company explains the Thingiverse in these terms:

Thingiverse is a place for you to share your digital designs with the world. We believe that just as computing shifted away from the mainframe into the personal computer that you use today, digital fabrication will share the same path. In fact, it is already happening: laser cutters, cnc machines, 3D printers, and even automated paper cutters are all getting cheaper by the day. These machines are useful for a huge variety of things, but you need to supply them with a digital design in order to get anything useful out of them. We’re hoping that together we can create a community of people who create and share designs freely, so that all can benefit from them.

Thingiverse has a strict intellectual property policy, which emphasizes that the ‘company respects the intellectual property of others and asks that users of our Site and Services do the same’. Thingiverse emphasizes: ‘In connection with our Site and Services, Company has adopted and implemented a policy respecting intellectual property and other rights that provides for the removal of any infringing or unauthorized materials and for the termination, in appropriate circumstances, of users of our online Site and Services who are repeat infringers of intellectual property rights or who repeatedly submit unauthorized content.’

Technology writer Chris Anderson in Wired Magazine has written an appreciative piece entitled ‘The New MakerBot Replicator Might Just Change Your World.’ He notes: ‘You might think of 3-D printing as bleeding-edge technology, relevant only to geeks or high-end design workshops’. Nonetheless, Anderson contended that 3D printing is on the cusp of being a revolutionary technology – which will have a general application. He is full of optimism that the MakerBot Replicator will reach a wide audience, and offer desktop manufacturing:

Last year MakerBot raised $10 million from investors, including Amazon founder Jeff Bezos, to fund its expansion. It will need all that and more to compete with a host of other emerging low-cost 3-D printers, including Chinese devices and emerging copycat clones. The money is going into R&D, engineering, manufacturing, and a new corporate HQ—everything necessary to take a business that creates kits for hobbyists and scale it into a corporation whose products sell at Target. This is MakerBot’s Macintosh moment. Just as nearly 30 years ago Apple made desktop publishing mainstream, the aim with the Replicator 2 is to take something new to the masses: desktop manufacturing.

Anderson argues that ‘3-D printing has reached its inflection point, when it moves from the sophisticated early adopters to people who just want to print something cool.’ He envisages: ‘Soon, probably in the next few years, the market will be ready for a mainstream 3D printer sold by the millions at Walmart and Costco’ and ‘a 3D printer will cost $99, and everyone will be able to buy one.’ Others have been somewhat more sceptical, and have suggested that 3D printing is just a novelty; a fad; an over-hyped piece of new technology.

Intellectual Property

Intellectual property owners have been anxious about 3D printing, because they fear that it will enable the unauthorised reproduction of work protected by a variety of rights – such as copyright, patents, designs, and trade marks. The Economist has commented that such a reaction to the emergence of a new disruptive technology is entirely natural: ‘As with any disruptive technology—from the printing press to the photocopier and the personal computer—3D printing is going to upset existing manufacturers, who are bound to see it as a threat to their traditional way of doing business.’

The civil society group Public Knowledge, though, have become concerned that the technology of 3D printing will be the subject of lawsuits by intellectual property owners. The NGO observes: ‘Like the Internet before it, 3D printing has the potential to be a revolutionary, disruptive technology’. Public Knowledge recognises: ‘Because it allows people to create, copy, and modify objects, it will also have a large impact on our existing intellectual property laws.’ The group has sought to discourage the United States Congress from passing laws that would restrict or curtail 3D printing. Public Knowledge has sought to ‘work on connecting the entrepreneurs behind the incredible innovations of 3D printing to policymakers in DC so that their voice is heard and this exciting new technology has the chance to flourish without being stifled.’ Public Knowledge’s researcher Michael Weinberg has published a 2010 white paper on the topic It Will Be Awesome If They Don’t Screw It Up: 3D Printing, Intellectual Property, and the Fight over the Next Great Disruptive Technology.

Thinking about application of copyright law, Michael Weinberg notes: ‘While there are copyright implications for 3D printing, the fact that copyright has traditionally avoided attaching to functional objects – objects with purposes beyond their aesthetic value – may very well limit its importance.’ He comments: ‘Copyright law has long avoided attaching to functional objects on the grounds that patent law should protect them (if they should be protected at all).’  Nonetheless, Weinberg observes: ‘It is unavoidable that some functional objects also serve the types of decorative and creative purposes protected by copyright.’

There have, though, already been controversies over copyright law and the MakerBot. In 2011, Thomas Valenty used a MakerBot to design figurines – a war mecha and a tank for use in the game Warhammer 40,000. He posted the files on Thingiverse, which allowed other fans to share the instructions for printing these 3D objects. Noting the files, the Games Workshop – the maker of Warhammer 40,000 – sent a take-down notice to Thingiverse under the Digital Millennium Copyright Act 1998 (US). Clive Thompson observed of the conflict: ‘Thingiverse removed the files, and Valenty suddenly became an unwilling combatant in the next digital war: the fight over copying physical objects.’ The creator objected that the takedown of the files was unjustified, observing: ‘The models are mine. I created them from scratch… This was “fan-art”.’ Valenty noted:  ‘I believe the issue was with the distribution of the files that carry the likeness of their IP.’ This dispute between Thomas Valenty and the Games Workshop is a forerunner to future conflicts over copyright law, and 3D printing.

The case of 3D printing raises a range of copyright issues. There are, of course, threshold questions about copyright subsistence – particularly in respect of whether functional items might constitute copyright works, such as works of artistic craftsmanship. 3D printing and the sharing of files on sites such as Thingiverse raises fundamental questions about economic rights – such as the right of reproduction, and the right of communication to the public. There could be issues with respect to direct and secondary copyright infringement. The developers of 3D printing will need to take care to ensure that they do not ‘authorise’ copyright infringement – to use the language of the High Court of Australia in the iiNet case – or ‘induce’ copyright infringement – to use the formula of the Supreme Court of the United States in the Grokster case. There is a need to ensure that the net of secondary copyright liability is not cast too widely or indiscriminately. As Justice Breyer noted in the Grokster case, ‘copyright laws are not intended to discourage or to control the emergence of new technologies, including (perhaps especially) those that help disseminate information and ideas more broadly or more efficiently.’

The operation of safe harbours will be important for intermediaries – such as Makerbot. Copyright exceptions are also critically important. 3D printing technologies have been allowed to flourish in the United States under the broad protection provided by the defence of fair use. 3D printing technology developers in other jurisdictions with limited copyright exceptions – such as Australia – risk the threat of lawsuits for copyright infringement. That is why the Australian Law Reform Commission inquiry into Copyright and The Digital Economy is of critical importance. The question of remedies is also significant. Start-up ventures like MakerBot may have only limited capacity to withstand the costs of litigation, and remedies, such as damages and injunctions.

In my book, Digital Copyright and the Consumer Revolution: Hands off my iPod, I argued that there is a need to provide proper recognition of consumer rights under copyright law. In this context, it is worthwhile acknowledging that consumers – whether they be amateurs or professionals – could benefit from 3D printing in a variety of ways. 3D printing is open to a variety of uses. MakerBot notes: ‘The combination of high-resolution, massive build volume, increased build speed, and user friendly hardware and software make it the perfect machine for modeling, quick prototyping, tooling, short-run production applications, and just having fun making three-dimensional “things”.’ 14 year old student Murray Rosenbaum gives a sense of this potential in an enthusiastic piece in the Huffington Post:

I believe the MakerBot 3D printer is going to change the way people fix things, but also how they think. The MakerBot opens up a world of opportunity for children, adults, creators, thinkers, and overall anybody who is interested in creating something that want to see physically. I have this image that one day everyone is going to have three basic copying machines in a room, one replicator type device for repairs, one automatic sewing machine for clothing and such, and one organic paste/flavoring machine which will “print” food. A machine such as the MakerBot will change the entire world in such a way that has never happened before. The MakerBot will open peoples’ imaginations to a world that had never been available to them before it.

Michael Weinberg also wonders whether ‘3D printing may usher in a new golden age of remix culture.’ In this context, there is a need to ensure that consumers experimenting with 3D printing are able to make authorised and fair uses of copyright work.

In the field of patent law, there has been much controversy of 3D printing. Michael Weinberg observes that 3D printing could be used to create objects, which infringe patents:

Though patent protects fewer objects, and protects them for a shorter amount of time, in many ways it protects them more completely… There is no exception for independent creation in patent law. Once an object has been patented, all copies, regardless of the copier’s knowledge of the patent, infringe upon that patent. Simply stated, if you are using a 3D printer to reproduce a patented object, you are infringing on the patent. Even using the patented device without authorization infringes on the patent.

As such Weinberg is concerned that both the developers of 3D printers and the users of the 3D printers will need to exercise caution and restraint, so as not to infringe upon patents, particularly in respect of inventions in the field of manufacturing.

There has been controversy over the firm Intellectual Ventures – maligned by its detractors for being a patent troll – acquiring US Patent 8286236 in respect of a ‘manufacturing control system’. The abstract notes that this patent relates to: ‘Methods and systems for a manufacturing control system include but are not limited to identifying at least one object data file configured to produce an object by a manufacturing machine; confirming that an authorization code is associated with the object data file, the authorization code configured to be received by the manufacturing machine, the manufacturing machine adapted to receive the authorization code; and enabling the manufacturing machine to interface with the object data file only if the authorization code meets one or more predetermined conditions.’ This patent has been promoted as a means of addressing infringement of intellectual property rights.

There has been much concern that the patent will enable Intellectual Ventures to subject 3-D printing to strict controls, similar to Digital Rights Management. Paul Marks of the New Scientist is fearful of the patent: ‘One of the greatest benefits of 3D printing technology – the ability to make replacements or parts for household objects like toys, utensils and gadgets – may be denied to US citizens thanks to the granting of a sweeping patent that prevents the printing of unauthorised 3D designs.’ Iain Thomson in The Register objects to the broad claims in the patent: ‘Myhrvold’s patent could throw a spanner into what is still largely an open source movement, particularly as its language is broad enough to cover not just printing, but also “painting, engraving and/or tattooing by the manufacturing machine”.’

There has also been concern that a ‘manufacturing control system’ could be contemplated as a ‘technological protection measure’ under copyright law, and as such circumvention of such a measure would be subject to an arsenal of civil and criminal remedies.

3D printing could also pose issues in respect of trade mark law. Michael Weinberg of Public Knowledge notes: ‘If a 3D printer made a copy of an object and that copy included a trademark, the copy would infringe on the trademark.’ There has been much debate over trade marks in respect of shapes. Conceivably, 3D printing could pose particular issues in respect of potential infringement of shape trade marks – and other three-dimensional trade marks. For instance, Apple’s iconic products are protected, amongst other things, by shape trade marks. There could also be issues in respect of passing off and misleading and deceptive conduct – if there is confusion between products manufactured by 3D printing and the original models.

Significantly, 3D printing also poses fundamental challenges for designs law. For instance, the Designs Act 2003 (Cth) in Australia provides exclusive rights to owners of registered designs – which relate to ‘the overall appearance of the product resulting from one or more visual features of the product’. A ‘visual feature, in relation to a product, includes the shape, configuration, pattern and ornamentation of the product.’ 3D printing of products may impinge upon registered designs related to the appearance of products. Simon Bradshaw, Adrian Bowyer, and Patrick Haufe have been hopeful that non-commercial 3D printing of designs would not infringe design rights: ‘Purely personal use of a 3D printer to make items will thus not infringe a registered design, so long as the purpose for which the item was made was genuinely non-commercial.’

Given the past evolution of intellectual property law, manufacturers may also push for sui generis intellectual property rights to protect themselves against the perceived threats of 3D printing, and call for the amendment and revision of existing fields of intellectual property.

Conclusion

In conclusion, there is a need to consider the impact of 3D printing upon a wide range of forms of intellectual property. Simon Bradshaw, Adrian Bowyer, and Patrick Haufe comment upon the potential for the emerging technology:

Hitherto a technology limited to the production within industry of models or prototypes, 3D printing is, like the computer in the 1970s, becoming available to the domestic enthusiast. Like the home computer, personal 3D printing has the potential to radically change aspects of the way in which we live; we can even envisage a society where home manufacturing of many items is the norm. However, as with home computers, such developments may have wider effects. The convergence of the Internet, digitised music and media players has had dramatic consequences for music copyright. 3D printing technology may have similar implications for artistic copyright, design right, trade marks and patents, but in a rather more diverse legal framework.

Undoubtedly, in the future, there will be much litigation over 3D printing across a range of fields of intellectual property. The scale of such legal conflict will depend upon whether 3D printing is a breakthrough, revolutionary technology; a tool employed by professionals such as designers, engineers, and manufacturers; or merely a novelty.

There will be much pressure brought to bear upon legislators and policy-makers to reform the various species of intellectual property laws in light of the emergence of the disruptive technologies of 3D printing. Ralph Oman, a former United States Copyright Register, has taken the extreme position that ‘Commercial exploiters of new technologies should be required to convince Congress to sanction a new delivery system and/or exempt it from copyright liability’.  Arguably, though, technology developers and entrepreneurs should be shielded in part from intellectual property litigation as they bring valuable new technologies to market. Michael Weinberg of Public Knowledge comments:

Policymakers and judges will be asked to weigh concrete losses today against future benefits that will be hard to quantify and imagine. That is why it is critical for today’s 3D printing community, tucked away in garages, hackerspaces, and labs, to keep a vigilant eye on these policy debates as they grow. There will be a time when impacted legacy industries demand some sort of Digital Millennium Copyright Act for 3D printing. If the 3D printing community waits until that day to organize, it will be too late. Instead, the community must work to educate policy makers and the public about the benefits of widespread access. That way, when legacy industries portray 3D printing as a hobby for pirates and scofflaws, their claims will fall on ears too wise to destroy the new new thing.

There is a need to ensure that the full potential of 3D printing is not unduly stifled or thwarted by aggressive intellectual property litigation, or reactionary intellectual property law reform.

 

Dr Matthew Rimmer is an Australian Research Council Future Fellow, working on Intellectual Property and Climate Change. He is an associate professor at the ANU College of Law, and an associate director of the Australian Centre for Intellectual Property in Agriculture (ACIPA). He holds a BA (Hons) and a University Medal in literature, and a LLB (Hons) from the Australian National University. Rimmer received a PhD in law from the University of New South Wales for his dissertation on The Pirate Bazaar: The Social Life of Copyright Law. He is a member of the ANU Climate Change Institute, and has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, clean technologies, and traditional knowledge. He is the author of Digital Copyright and the Consumer Revolution: Hands off my iPod, Intellectual Property and Biotechnology: Biological Inventions, and Intellectual Property and Climate Change: Inventing Clean Technologies. He is the co-editor of Intellectual Property and Emerging Technologies: The New Biology.  

See also ‘The Olive Revolution: Australia’s Plain Packaging Leads the World‘ by the same author.

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