3D printing is moving from a narrow role as a prototyping technology to offer an exciting new spectrum of possibilities. From home printing for the consumer to high-end manufactured products in applications ranging from aerospace and automotive parts, medical and dental prostheses to fine arts and jewellery, the possibilities are widening all the time. Uniting digital manipulation with additive manufacturing, 3D printing offers huge potential for many sectors, with even digitally printed foods now being explored.
What are the legal challenges faced by this fast-growing technology?
3D printing makes use of Computer-Aided Design (CAD) files that embody the product design. A CAD file is easily copied and shared presenting new difficulties to the manufacturing sector similar to those currently challenging the creative industries.
Usually, copying an object that is protected by IP rights would amount to infringement. And the CAD file itself, if made by the product manufacturer itself, would qualify for its own form of protection. If unauthorised businesses infringe IP rights through use of 3D printing, IP right owners would normally be able to take enforcement action. But the issue of course, will be who to enforce these rights against. Should it be the producer of an unauthorised CAD file, the distributor of the file, an intermediary such as a print shop or the final customer? Where CAD files are illegally shared on the internet, enforcement is particularly challenging as has been seen in the music and film industries. Illegal sharing is quick and easy, often involving international networks of small-scale infringers. Rights owners may need to take action to shut down offending websites and require the removal of links, such as the widely reported takedown in 2015 of a file enabling users to print a replica of singer Kay Perry's “Left Shark” from the Shapeways website.
Commercial production of counterfeit products may become harder to detect and enforce because 3D printing can be done locally. This removes the need for products to cross borders, an important opportunity for the detection and impounding of counterfeits.
Where an object is printed by an individual for their own personal use, it may not be possible to enforce against them directly as a personal use exception to IP infringement may be available. In this situation those making available the infringing files would need to be tackled. And manufacturers and sellers of 3D printers could find themselves liable as contributory infringers of IP rights.
For the consumer industry, new business models, such as an online store or platform licensing CAD files may be a way forward. By providing a customer-friendly platform and a relatively cost-effective way for customers to obtain designs, IP right owners may be able to counter illegal downloads.
And when licensing the use of CAD files for commercial 3D printing, IP owners need to define carefully what types of use they are permitting, where and for how long. They should also address the return and removal of files embodying the designs once the licence comes to an end.
3D printing presents a new set of challenges around product liability. For “cheap and cheerful” products this may not be particularly significant. But where safety-critical items are sold the situation can be more complex. Consider the example of a car part printed from a design file made available by an OEM, printed locally by an automotive parts supplier, using equipment sold by a 3D printer manufacturer and materials by yet another business. If the part fails, each of these actors would be potentially liable. They may each be in different countries and so operating under different legal systems.
Strict liability systems such as that under the EU Product Liability Directive may automatically allocate liability in surprising ways, including suppliers of raw materials and any business that puts its branding on the product in its remit. Interesting to note that the EU's current consultation on updating the European product liability regime to meet the challenges of new technologies does not explicitly mention 3D printing as an area needing analysis.
Businesses that embrace 3D printing will need to ensure that their agreements include clear controls on how the technology is used (what printers and materials are deployed, for example) together with appropriate allocation of liability and indemnification provisions.
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