The second horseman of the IP Apocalypse: 3D Printing (and the demise of copyright and design rights)

By Joren De Wachter

1. What is 3D-Printing?

A 3D-printer is a machine that builds objects, by adding very tiny layers of material on top of each other. It “prints” in three dimensions, using a process called “additive manufacturing”.

The cheapest 3D-printers are now available for less than €500, and they can print objects such as coathangers, teacups, decorative elements like cufflinks, toy cars, or Christmas decorations at a negligible cost. More importantly, and historically more relevant, 3D-printing has had a very serious impact on product design and prototyping. A prototype that, fifteen years ago, would cost €50,000 and take three months to produce, is now produced in three days at a cost of €500 (and tomorrow in three hours for €50).

And the technology continues to boom and evolve fast. New materials are added, printers become more reliable and faster, layers of construction become smaller, and ever more sophisticated objects can be built.

The impact of the 3D-printer on society at large has been compared to that of the PC – arguably, it may be bigger.

This is because the social impact of 3D-printing is profound – it marks a fundamental shift in the way we manufacture things. Consumers will no longer buy what is available in the shop (or online) – they have the capability to become their own designer, and to have objects personalized. While, of course, not everyone will become good enough at Sketchup, Google’s Open Source 3D design software, to design their own jewelry, the classical industrial concept of designing one object and then reproducing it exactly the same for all its customers will come under severe pressure.

It will fundamentally change the value of the concept of a “copy”, and it will modify how we look at the value of “design”. Which leads us naturally to the IPRs that deal with these issues, copyright and design rights.

2. Impact of 3D-Printing on Copyright.
2.1. How can Copyright apply to objects in 3D-Printing?

There are a number of aspects of 3D-Printing technology where new questions on copyright will arise.

Copyright in digital files?

The first is around copyright in the digital files that instruct the 3D-Printers. An object can only be printed if it is defined in a digital file, that will instruct the 3D-Printer how to print it. Formats used include e.g. the “.stl” files commonly used by the low-end consumer market 3D-printers provided by businesses such as Makerbot, Ultimaker, 3D-Systems, Amazon, etc.

It is obvious that when a person constructs such a 3D design on a computer, using software such as Sketchup, the design itself as represented on a screen, will be under copyright, typically of the person who made the design (or their employer). Also, the code of the Sketchup file will arguably be under copyright, since it is the result of the human operator instructing the design software.

However, things become less clear when an object is scanned. Such scans are automatic; they are made by 3D-scanners (who also become increasingly available at very low costs) or by using an App for smartphones. When such scan is made by a machine, the resulting file comes into existence without any human creativity involved in the process of creating the code in the digital file. Arguably, no copyright would arise in such file.

Therefore, it may not be so certain whether digital files of printable objects are actually under copyright.

Copyright on objects?

Most objects are without copyright. There is no copyright in a table, or in a ring shape, or a coffee cup. Copyright can exist in physical objects, but only on those aspects of the physical object that are not linked to their function, and to the extent such aspect is an expression of the person who designed it.

While in the past, this question was considered relatively insignificant, and relatively easy to address (mainly because industrial production processes are capable of being controlled by court action), this will change fundamentally when everyone can make, and copy, anything.

The distinction between the function of an object, which is without copyright, and a particular shape or design, which can be under copyright, is crucial to addressing this question. But it is often not an easy question to answer.

What is a copy?

While this may look like an easy question, it is not necessarily certain that a digital file of an object (although it allows a 3D-printer to generate a copy of that object) is itself a copy of that object. The digital file is not a copy of the object, just like a painting of a pipe is not, itself, a pipe.

While some analogies could be said to exist (e.g. a digital version of a song is considered a copy of a song), this question remains currently open. Indeed, while a digital version of a song is sufficient to play it or listen to it, this is not necessarily true for the digital scan of an object – the object must still be printed, and, arguably, it is the printed version that is the copy, not the digital file.

Moreover, a key aspect of 3D-Printing technology is the capability to modify the digital file, and to personalize objects. The ability to copy is only the starting point – the real value is in the potential to change, at virtually no cost, and reproduce something that is not a copy, but a modified version.

2.2 Value of Copyright in 3D-Printing

But even if we assume copyright will fully apply to the results of 3D-scans or to any aspect of a digital file of an object, 3D-Printing still poses a number of fundamental challenges to copyright.

Role of Creative Commons and Open Source Hardware

A number of platforms have come into existence where people can post, exchange or buy digital files of printable objects, in many materials and designs, for many applications. A lot of those files are made available under Creative Commons licenses, and particularly the “attribution – share alike” license.

This has a similar effect as the “copyleft” gpl Open Source license – the work covered by the license is effectively protected against the exclusive, monopolistic effect of copyright, and the free use of the file is guaranteed.

In addition, many low end consumer-oriented 3D-printers are built using Open Source Hardware, such as Arduino boards as their controller.

As a result, the market is flooded with designs and technology that, from an economic perspective, is made available under business models that have exactly the opposite purpose as that of copyright: rather than trying to block copying of files and functionality, such copying and sharing is actively encouraged, and the applicable creative commons and open source licenses prevent classic copyright approach from applying.

DRM and the experience of the content industry

In theory, it is of course possible to apply protective technical measures to prevent the copying of digital files used for 3D-Printing. If we assume that copyright applies, then “Digital Rights Management” (DRM) techniques could be introduced into the 3D-Printing ecosystem. Indeed, Intellectual Ventures, the well-known patent troll (or non-practising entity, as they are sometimes more politely called), has applied for a patent on such DRM system for 3D-Printing.

Yet, the experience from both the music and the publishing industry is that DRM does not work, and is systematically abandoned.

As with the content industry, we will find that the value of 3D-Printing does not lie in the ability to block others from copying content or functionality. The opposite is true: much more market value is created by the sharing of content and functionality.

The value of personalization and industrial production

A substantial aspect of the value that 3D-Printing brings to manufacturing is the ability to personalize objects. The industrial revolution has allowed us to manufacture many objects at very low costs; however, the price we paid as a society was the loss of the ability to really buy the products we want.

Only exact copies, made possible through a mechanical production process, could be made available at such low cost.

3D-Printing changes that paradigm – it becomes possible to have artisanal, personalized objects, manufactured at the same low cost (or, as the technology continues to evolve, even lower cost) as industrial copies.

As a result, the very concept of copyright, which charges for the ability to copy or reproduce something in exactly the same way, comes fundamentally under pressure. Rather than adding value for manufacturers, copyright risks becoming a stumbling block to adoption and success.

2.3 Conclusion on 3D-Printing and Copyright.

3D-Printing will continue and expand the onslaught of Information Technology on the copyright system.

Business models in content (music, video, books) rely less and less on copyright.

The digitization of the manufacturing process will further reduce the economic importance of copyright – even when that copyright is legally-technically used in creative commons or open source methods to deny the economic model based on copyright-based artificial scarcity.

3. 3D-Printing and Design Rights

Design is at the heart of 3D-Printing. The technology enables fabulous new ways of designing objects, and is already used very intensively in the fashion industry.

However, design rights were set up well before 3D-Printing became a generally available technology – and it shows.

As an example, we can quote the EU Regulation of 2001, which defines the exclusive right of a Community design as follows:

“1. A registered Community design shall confer on its holder the exclusive right to use it and to prevent any third party not having his consent from using it. The aforementioned use shall cover, in particular, the making, offering, putting on the market, importing, exporting or using of a product in which the design is incorporated or to which it is applied, or stocking such a product for those purposes.
2. An unregistered Community design shall, however, confer on its holder the right to prevent the acts referred to in paragraph 1 only if the contested use results from copying the protected design. The contested use shall not be deemed to result from copying the protected design if it results from an independent work of creation by a designer who may be reasonably thought not to be familiar with the design made available to the public by the holder.”

The key word we need to look at to understand how outdated this legislation is, is the word “product”.

Design rights are based on the fundamental assumption that the intellectual effort of producing a design can only be monetized through the sale of copies of products into which that design is incorporated.

As so often with legislation, this is an assumption that is not clearly spelled out – it is assumed obvious.

And “obvious” assumptions are the most difficult ones to address, in those cases where technology has made the unwritten but fundamental assumption irrelevant, or, worse, wrong.

One of 3D-Printing’s fundamental shifts is that it alters this assumption. The effort of creating a design will no longer be monetized through sales of copies of the product incorporating the design – because the marginal cost of production of such copy will drop to zero.

As a result, the way the value of design will be monetized will shift – from product to service.

Design is, of course, not the first economic activity where this kind of shift has taken place. We see it happen all around us, e.g. in the way software shifts from a product to a service (the now famous acronym SaaS or “Software as a Service” reflects this shift).

In a similar way, 3D-Printing will push the monetization of design from “Design as a Product”, to “Design as a Service”. People will still pay for design – it is not easy to come up with nice designs, that follow the latest trends. But the monetization of the added value will shift from the products incorporating the design, to the service of creating the design itself.

As a result, design rights such as the ones defined by the EU regulation will wither away even more, to the point where they will cease to be relevant from an economic perspective.

[This post originally appeared at JorenDeWachter.com.]

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