In the past three years, we have witnessed extraordinary growthin the amount of legal practice at the intersection of law and 3D printing.
Forinstance, since 1990s the National Aeronautics and Space Administration (NASA)has been investing in 3D printing, and the military has joined the bandwagon tofund projects fo 3D printed food, clothing, skin, weaponry and equipment. Givenits long-term potential to re-shape the legal system, as far as the ways inwhich the laws are already moving 3D printing into courtrooms and legislatures.The story of the first 3D printing-related copyright takedown request is a casein point. A designer named Ulrich Schwanitz created a 3D model for an opticalillusion called a “Penrose triangle.” He uploaded his design to a website,Shapeways, that allows designers to sell 3D printed objects and invited thepublic to purchase a copy in the material of their choice. He also, for betteror worse, both claimed that creating this design was a massive designachievement and refused to tell anyone else how he made the object.Purely artistic physical objects will be protected bycopyright as sculptural works.
This category would include things like 3Dmodels of characters from movies, video games, and comics. That does not meanthat every reproduction of those objects will be infringement, but it does meanthat many will. However, as the Penrose triangle story suggests, theintersection of 3D printing and copyright is often not a clean one, and thesituation tends to get complicated quickly.As 3D printing and demonstrating develop in prevalence, it islikely that we will see more organizations and people accepting they have acopyright for an outline or protest and requesting expulsion of unapprovedforms. While most modern songs, movies, and pictures are protected bycopyright, the same cannot be said for physical objects. For that reason, whena site receives a takedown request it may be wise to at least consider if theobject is protected by copyright in the first place. Sometimes the intersectionof 3D printing and copyright is a clean one.In fact, A 3D printer is essentially able to re-create anymodel of an object when provided with the specifications.
The problem of patentinfringement is not new when a new technology is introduced to the market. Inthe case of Sony Vs Betamax (alsoknown as the videotape format war), it was feared that the VCR would lead torampant copyright infringement because folks at home could potentially copytelevision shows or movies, and display them. The Supreme Court determined thatthe VCR was capable of substantial non-infringing purposes.1 Manyobjects are not protected by copyright and thus, are protected by patentrights. But, Patent owners face daunting challenge of asserting their propertyrights against an international multitude of anonymous infringers. Firstly, Patentlaw strictly defines infringement to include anyone who manufactures aninvention without authorization, whether for a commercial or a private purposeand secondly, the 3D printing process’s digital nature establishes thetechnology within a realm already plagued by rampant piracy, where millions ofindividual violations occur within a single day. Of course, patent owners couldtry to prosecute each infringer, assuming they have the ability to track Butthis approach would require more time, money, and resources than most patentowners would presumably want to spend.
Also, most physical objects are notreally new or nonobvious enough to secure patent protection. Of those truly newand nonobvious objects, only a portion of them are worth the trouble ofpatenting. And of those that actually have been granted patent protection, onlya small portion will still be protected under patent’s 20-year term. The resultof all of this is that only a small portion of the objects coming out of a 3Dprinter will actually be protected by intellectual property: those objectsprotected by copyright and some number of useful objects protected by an activepatent. The rest – those objects that do something but are unprotected bypatent – will be free to be used by anyone for any purpose.China has the necessary intellectual property laws in placeto manage potential IP issues that will challenge the growth of 3D printer useand manufacturing.
China’s first trademark law was enacted in 1982, andin 2001 it amended Article 8 of the Trademark Law of the People’s Republic ofChina to include three-dimensional objects. The Patent law in the PRC presentlycontains provisions which willprotect 3D designs. In Article 2 of the PRC Patent code,designs may include a shape, as well as colour, pattern or combination of same.Therefore, it is protected against infringement whether it is manufactured viaa 3D printer, or by a traditional manufacturing method, so long as the item isregistered as a design with the Chinese Patent Office. PRCCopyright law protects artistic works and arguably 3Drepresentations of same.
Article 22 of the PRC Copyright codeincludes many defenses that would most likely be applicable to a consumer usinga 3D printer to replicate artistic work 61. Such defences include privateresearch and study 63. Copyright infringement will be addressed by Chinesecourts.
In early 2003, The Beijing High People’s Court ruled againstChinese toymaker, Coko Toy Company, based in the northern Chinese city of Tianjin,and in favour of Lego, a Danish toy company, in a copyright infringementlawsuit that was based on “made-in-China” copies of Lego’s castles and pirateship designs. Lego claimed that it was “the first time that the Chineselegal system has delivered a judgment that confirms copyright protection ofindustrial design/applied art”.1 Sony Corp.
of Amer. v. UniversalCity Studios Inc., 464 U.S. 417 (1984).