3D Printing 

March, 2013 - VICKY STILWELL

The BBC recently published a piece called ‘3D Printing Will Be the Next Big Copyright Fight’. It said this:  ‘That moment we’ve been hearing about for years – the one where futuristic-sounding 3D printing becomes ubiquitous – is actually upon us.’  It dealt with a topic that’s also referred to as ‘additive manufacturing’.  If you don’t know what 3D printing or additive manufacturing is, this is how Wikipedia describes it:  ‘A process of making a three-dimensional solid object of virtually any shape from a digital model. 3D printing is achieved using an additive process,  where successive layers of material are laid down in different shapes.’ Too technical ? Try this from an editorial that appeared in The Economist a while back: ‘First you call up a blueprint on your computer screen and tinker with its shape and colour where necessary. Then you press print. A machine nearby whirrs into life and builds up the object gradually, either by depositing material from a nozzle, or by selectively solidifying a thin layer of plastic or metal dust using tiny drops of glue or a tightly focussed beam. Products are then built up progressively adding material, one layer at a time: hence the technology’s other name, additive manufacturing.’ 

I understand that 3D printers can only handle certain materials like plastics, resins and metal at the moment, but that it’s only a matter of time before they will be able to create almost anything. 3D printing clearly has all sorts of socio-economic implications relating to things like employment and urbanisation. But it raises interesting intellectual property law (IP) issues too.  Some of these may be positive, in that it may be easier for inventors to create prototypes, thus speeding up the development process. On the other hand, 3D printers will almost certainly make things easier for copycats. 

So just what IP rights could be affected by 3D printing? Pretty much all of them it seems. Let’s start with the right that’s mentioned in the BBC article - copyright. Copyright is the right that exists in all manner of things, including written works, musical works, sound recordings and films.  One of the categories of protected works is ‘artistic works’. This term is defined in the Copyright Act to include paintings, drawings, sculptures and works of craftsmanship. The owner of the copyright has the exclusive right to reproduce (copy) the work, and this includes making a 3D version of it.  In the same way that a conventional printer can make a 2D version of a drawing or painting, so a 3D printer could make a 3D version of an artistic work like a sculpture. It’s worth pointing out that, although 3D printing may infringe copyright in the case of aesthetic works, it’s unlikely to do so in the case of functional works - there was a time when it was possible to claim that an ‘industrial drawing’ had been infringed through 3D reproduction (reverse engineering), but the Copyright Act was amended some years back to take functional works out of the realm of copyright.

That’s where design law comes in. In terms of the Designs Act, it's possible to get a design registration for a product design that’s aesthetic (one that appeals to the eye) or functional (one that’s necessitated by its function). In order to be registrable, the design must be new.  The design registration lasts for ten years in the case of a functional design and 15 years in the case of an aesthetic design. The owner of a design registration has the exclusive right to make articles embodying the design or any design that is substantially similar.  This means that anyone using a 3D printer to make copies of articles could certainly be infringing design registrations.

Patent law could be relevant too.  In terms of the Patents Act you can get a patent for a new invention, and this could cover all sorts of things like a mechanical device or some electronic apparatus. A patent lasts for 20 years and the owner of the patent has the exclusive right to make the invention. Anyone making a product with a 3D printer could therefore be infringing patents.

Even trade mark law could be relevant.  Most trade mark registrations are for words (brand names) or logos, but a whole range of things can be registered. In fact, the definition of the term ‘mark’ in the Trade Marks Act specifically includes ‘shape’.  Product shape trade mark registrations are fairly rare, partly because there are certain exclusions, and partly because it can be difficult to persuade the authorities that the shape in fact plays a distinguishing role. Nevertheless, such registrations exist, which means that 3D printing (coupled with trading in the goods) could infringe trade mark registrations.

The procedural aspects of IP may come into play too. The Counterfeit Goods Act, for example, creates ways of searching and seizing counterfeit goods, and of involving the police and customs authorities.  The act is limited to copyright and trade mark infringements in cases where the copies are either substantially identical to, or colourable imitations of, the originals. 

It's early days yet, but it's quite clear that 3D printing will add a new dimension to IP. It promises to be interesting!

VICKY STILWELL: Director in ENS’ IP Department ([email protected])



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