For those who don’t know what 3D printing is, it is an understatement for me to say that you have probably missed out on hearing about this decade’s (dare I say century’s?) biggest innovation and invention.
There are printers that print images 3D to the eye. But this is not what people normally refer to as 3D Printers. Put very simply, 3D Printers take images and virtual designs made using computer software and then produce physical 3D objects based on these images. Sounds amazing? It is. (You can see demos of how this is done on YouTube.)
With growing development and use of 3D printers and materials that can be used for the products, its convergence with the legal world is increasingly acrimonious.
Analyzing a hypothetical
Take a situation where your child wants a toy, say a Barbie. All parents will attest that children’s toys are now ridiculously expensive. Instead of going out and buying one, you use an image of a Barbie doll and make a replica relatively simply using designing software on a computer and get the 3D printer to make the product for you. You save money, the cost of travel, taxes, and you also have the satisfaction of making the toy yourself, and knowing you can make several others.
As a lawyer what immediately strikes you as odd about the hypothetical described above?
– Assuming that the Barbie doll is protected by copyright, there is clear cut copyright infringement. In any situation where the product is being made as a replica of what already exists in the physical world, it is the copying of an expression rather than an idea. If so, will the makers of the 3D Printer be held liable for contributory infringement? (A similar argument can be made for patent and design infringement and use of trademarks on products).
– Further, if the product is a children’s toy such as a doll, are the materials used safe for children? In other words, what are the product liability issues involved? And who is held liable? The person designing the product? The company supplying the materials for the 3D Printer? Will the makers of the 3D Printer be held liable for contributing to the making of the product?
Supporters and Opposition
All over the world now, and especially in the U.S., there have been increasing discussions on what sort of policy ought to be framed for use of the 3D printer. The momentum has increased because of several reasons, but the competing themes are largely supporting free innovation and fear.
(1) A fear that intellectual property laws will be infringed more than ever before. The situation is reminiscent of the Betamax, Napster, Grokster and Torrent cases where there is a definite use of this article of commerce for “substantially non-infringing uses”, but is impossible that the makers of 3D Printers will have no knowledge that their product could be used to create infringing items.
(2) A fear that sky is the limit when it comes to 3D printing. While this may seem out of place as a negative aspect, there is a very real possibility that 3D printers could be used for purposes far more dangerous than first envisioned. There already there are organizations that are aiming to produce weapons such as low cost guns using 3D printing. Will they need gun licenses? How can any government keep track of such manufacture?
However for the same reason that sky is the limit, makers of 3D printers believe that this invention will revolutionize the manufacture of products – leaving it in the hands of a common man without a college degree or specialist knowledge in design or engineering. Several makers of 3D printers also believe that this will spur innovation beyond anyone’s imagination, and would like it to be open source.
The main concern I believe will be because private non-commercial use of products even if infringing are usually ignored by right holders. If 3D printing is used in every home for nearly every need, as I believe it will be one day, this private use will wipe out market transactions and drastically affect the economy forcing right-holders, legislators and courts to re-consider their position on private non-commercial uses.
Construction of products using 3D design has already begun for several uses (and patent applications) in different areas including bone augmentation and structure or, if you’re Google, 3D printed pasta!
Intellectual Property Ventures has already filed a patent application for a software that detects whether the product being produced infringes any known intellectual property rights. There are arguments that this sort of software can be hacked easily, but at least it is a start.
For those who believe that there ought not to be any copyright infringement at all in cases where the creator is not the company owning the copyright, rightly or wrongly – this is not the position of the law today. Where works are created independently of the copyright owner but with the knowledge that a similar or same article exists, there is usually no defence to copyright infringement. (Similar arguments apply to trademark and design infringement. In case of patent infringement, independent creation is no defence anyway).
Perhaps just like the DMCA and Chapters 12 and 13 of the Information Technology Act in India, there needs to be exceptions carved out statutorily determining who can be held liable with infringing uses of 3D printers.
So, just as the internet, 3D Printing will cause problems, but will undoubtedly solve numerous more. Even if you are currently sitting in opposition, think quick; there is no escaping the truth.
3D printing is tomorrow’s reality.
And India needs to get a headstart and brace itself for tomorrow.