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Can the current framework of copyright and design lawsufficiently apply to the proliferation of 3D printing and

unlicensed sharing of design files over the Internet?

Graham Alexander1003690a

Submitted in partial fulfilment of the requirement for thedegree of LLB Scots law

School of LawCollege of Social Sciences

University of Glasgow


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Table of Contents

I Introduction Page 1

II 3D Printing Page 1- The Technology Page 2- The Threat to Intellectual Property and Convention Page 5- Benefits of 3D Printing Page 7

III Design Rights Page 7

A Registered Designs Page 8- The Law Page 8- Designs Excluded From Protection Page 9

- Infringement Page 10

B Unregistered Design Right Page 11- The Law Page 11

- Designs Excluded From Protection Page 11- Infringement Page 14

C Intellectual Property Bill Page 15- The Bill Page 15- Effect on Designs Page 15- Extending Criminal Offences to UDR Page 15

IV Copyright Page 17

A Copyrighted Works Page 17- The Law Page 17- Works of Artistic Craftsmanship Page 18- Infringement Page 19- Private Study Exception Page 21- Proposed Private Copy Exception Page 22- Repeal of Section 52 Page 23- Concluding Remarks on Copyright Page 24

B Copyright in Design Documents Page 25- CDPA Section 51 Page 25


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- Interface With 3D Printing Page 26- Concluding Remarks Page 28

V Facing the Issues of Online Infringement Page 28

A The Entertainment Industrys Reaction to Digital MediaPage 29- Introduction Page 29

- CDs Page 29- The Internet Page 30- Legal Response Page 31- Old Threats, New Rightsholders Page 33

B Surviving the 3D Printing Revolution Page 34

- Legitimate Sources of 3DPDFs Page 34- Digital Rights Management and Technical ProtectionMeasures Page 35

- Levies Page 37- Legal Changes Page 38- Conclusion Page 39

VI Concluding Remarks Page 39

Bibliography Page 41


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I Introduction

3D printing is an emerging technology that poses novel threat to intellectual property

rights in three-dimensional objects. Since 2010 the implications of 3D printing to UK

intellectual property law has received a small amount of academic attention1as well

as brief commentary2but the area remains contentious and in need of analysis. This

treatment seeks to explore the application and limitations of UK copyright and design

rights to the so called 3D printing revolution.3It will also focus on the issues which

will arise around digital distribution of artistic works and designs on the Internet with

reflection on similar issues faced by entertainment rightsholders following the

digitsation of music.

Patent law will also become relevant, but as it concerns itself more with novel

technical ideas than the aesthetic and expressive concerns of other intellectual

property rights it will require a greater improvement in 3D printing technology before

a real risk is posed. Accordingly patents will not form a part of this treatment.

II 3D Printing

1S. Bradshaw et al, The Intellectual Property Implications of Low-Cost 3D Printing, 2010, 7(1)

SCRIPT-ed, 5-31 (henceforth Bradshaw, 3D Printing), D. Mendis, The clone wars: episode 1 - therise of 3D printing and its implications for intellectual property law learning lessons from the past?,E.I.P.R. 2013, 35(3), 155-169 and P. Li et al, Intellectual property and 3D printing: a case study on 3D

chocolate printing, Journal of Intellectual Property Law & Practice, 20142Examples at A. Lachmansingh, 3D Printing: a new dimension for IP?, In House Lawyer. 2012, 200

(May), 23-25 and J. Richards, Life in 3D, Intellectual Property Magazine. 2012, Mar, 30-323

E. Barraclough, A five-step strategy for the 3D revolution., Managing Intellectual Property, 2011,214, 24-27


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3-D printing offers the realistic possibility that anyone, anywhere in the world

can produce any object they need on demand4.

The Technology

3D printing is a type of manufacturing, known also as additive manufacturing, which

allows for physical 3D items to be made, or printed, directly from a digital 3D design

file (hereafter 3DPDF5) in cross sectional layers. The technology is considered

additive as it involves only the adding of necessary material layer by layer whereas

many traditional manufacturing methods work in reverse by reducing a raw material

down into the desired shape and form for the product or part.

3D printing as an idea has existed since at least the 1970s6and has been realised since

the mid-1980s. In 1986 Chuck Hull, later founder of 3D printing company 3D

Systems, successfully patented stereolithography.7This is a method of manufacturing

which involves using light to solidify a fluid mediumlayer by layer until the desired

item is complete. This was the first 3D printing method to be made commercially

available. Many other methods have since been developed, some of which will be

discussed below in brief.

4C. Jewell, 3D Printing and the future of stuff, WIPO Magazine, 2/2013, 2-6, 2

5 This is the nomenclature, used here for consistency, adopted in the leading articles on 3D printingand UK intellectual property, see Bradshaw, 3D Printing and Mendis, Clone Wars6Daedalus, Ariadne, New Scientist, October 3

rd, 1974, 80 and W.K. Swanson, Method, medium and

apparatus for producing three-dimensional figure product,US Patent 4,041,476 (1977) (seehttps://www.google.com/patents/US4041476(accessed January 21, 2014))7

C.W. Hull, Apparatus for Production of Three-Dimensional Objects by Stereolithography, 1986 (seehttp://www.google.com/patents/US4575330, accessed January 21 2014)


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The printers that brought 3D printing to the attention of a more mainstream audience

were those of the RepRap Project.8The project embodies a series of 3D printers

designed to self-replicate by printing their own plastic parts and, in time, circuit

boards. The technology9used by the RepRap has been adopted and improved by

many companies and startups and constitutes the majority of current hobbyist 3D

printing technology.

3D printers work with many computer aided design tools and operate by slicing the

3DPDF into much smaller layers and printing each successive layer on top of each

other until the full model has been produced. The materials used can include plastic,

metal and sandstone among others, but plastic is the most common and cost effective

material typically used with current consumer printers.

Previously use of metals in 3D printing was highly cost prohibitive but in recent

months a $1,500 (under 1000) printer capable of utilising metals has been developed

at Michigan Technological University.10Although still outside what many consumers

consider now to be affordable this shows the technology is continuing to fall in price

and diversify. This 3D printer is open-sourced, much like the RepRap, and so can be

built by anyone and will most likely be harnessed and built upon by companies

eventually leading to the technology proliferating in the consumer market. The use of

metals over plastic allows for higher quality prints and a wider array of replication

abilities. In addition to the progress of metal 3D printing, a printer capable of printing

8RepRap http://reprap.org/wiki/RepRap (accessed March 10, 2014)

9A method whereby melted plastic is extruded layer by layer

10US researchers develop low-cost metal 3D printer

http://www.telegraph.co.uk/technology/news/10507574/US-researchers-develop-low-cost-metal-3D-printer.html(accessed February 6 2014)


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carbon fibre is due to launch in 2014.11Although this printer and its filament are

costlier12than the popular plastic printers, this new technology shows an evident push

towards diversifying the technology and improving the quality and viability of 3D

printed objects.

The intended purpose of 3D printers was to originally allow for quick manufacturing

of prototype products13by large-scale manufacturing businesses, however in recent

years the technology has been moving towards printing end-products on smaller

printers for domestic and commercial use. This is partly down to the expiry of early

patents alongside the falling cost of manufacturing printer components and their

filaments, in addition to new innovations in the technologies used to print.

According to technology research firm Gartner14, 2013 saw 56,507 low cost153D

printers sold and forecasts that the market will grow by just shy of 100% annually.

Although this growth is positive for the market the units sold are still relatively minor.

By contrast it is claimed that nearly 300,000 conventional two dimensional printers

are sold per day.16It is entirely possible, however, that these projections are too

conservative and instead we will see exponential growth of the market. This view is

bolstered by the fact companies akin to General Electric, Boeing, and governments

11World's first carbon fibre 3D printer on sale next month

http://www.telegraph.co.uk/technology/news/10603937/Worlds-first-carbon-fibre-3D-printer-on-sale-

next-month.html(accessed February 19, 2014)12

At $5000 and $550 (for the most expensive filament) respectively13

Reflecting this, the technology used to commonly be known as Rapid Prototyping.14

P. Basiliere et al, Forecast: 3D Printers, Worldwide (G00255101), Gartner, 27 September 2013,15

Classed in this report as under $100,00016

Still Hype Around 3-D Printing for Consumers, Says Report http://blogs.wsj.com/tech-

europe/2013/10/04/still-hype-around-3-d-printing-for-consumers-says-report/(accessed February 11,2014)


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across the globe are investing vast sums of money in additive manufacturing.17More

familiar consumer printing brands such as Hewlett-Packard are also planning to enter

the market.18

It is also pertinent to observe the consumer and hobbyist level trends such as that on

the crowdfunding19website Kickstarter, and the increase in printers showcased at the

2014 Consumer Electronics Show.20Many 3D printers have met great interest and

success through Kickstarter21and many are due to launch sometime in 2014, further

indicating the consumer market is diversifying and growing rapidly.

The Threat to Intellectual Property and Convention

3D printers have been compared to technologies such as conventional printers22and

personal computers23, with their migration from industrial application to expensive

enthusiast and hobbyist products, to finally becoming affordable and commonplace

consumer items. The 3D printer, in one form or another, may well fall into this cycle

and as a result become a highly disruptive product that should be on intellectual

property rightsholdersradars.

17T.A. Campbell et al, 3D Printing: Challenges and Opportunities for International Relations, 2013,

Council on Foreign Relations. Transcript available at http://www.cfr.org/technology-and-science/3d-printing-challenges-opportunities-international-relations/p31709(accessed February 17, 2014)18

Whitman: HP will enter 3D printing but not via acquisitionhttp://gigaom.com/2013/11/26/whitman-hp-will-enter-3d-printing-but-not-via-acquisition/19

the practice of funding a project or venture by raising many small amounts of money from a largenumber of people, typically via the Internet, Oxford Dictionary of English (Online Edition), (Oxford:2013)20

The State of 3D Printing and Scanning After CES 2014: The Push For Mainstreaming Beginshttp://makezine.com/2014/01/16/the-state-of-3d-printing-and-scanning-after-ces-2014-the-push-for-mainstreaming-begins/(access February 20, 2014)21

For examples see RoBo 3D Printer (1,251 backers, $649,663 raised) http://kck.st/RCGngC(accessed February 11, 2014) and FORM 1: An affordable, professional 3D printer (2,068 backers,$2,945,885 raised) http://kck.st/P4QWSw(accessed February 11, 2014)22

Bradshaw, 3D Printing, 623Mendis, Clone Wars, 158


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Much of the change may not occur with direct application to objects protected by

intellectual property rights. Consumer mentality may shift away from traditional

means of acquiring goods and have an indirect knock-on effect on rightsholders who

do not adapt, much like the digitisation of music shifted consumer views on the

consumption of media. A study by the Michigan Technological University24suggests

a 3D printer at current cost could pay for itself in as little as four months and almost

certainly within two years. This was based on the cost difference between buying

household objects and buying a printer and printing the items. Although the study

makes no comment to the comparative quality of the 3D prints and the traditionally

manufactured objects, it is clear to see, that given a requisite quality, consumer

mindsets about the nature and acquisition of many common goods could begin to tend

towards print rather than purchase. It is important for rightsholders to be aware of this

should they wish to retain the value of their intellectual property and maintain their

presence in a potentially varied consumer landscape.

In addition to 3D printing, 3D scanning is a technology that is rapidly advancing. 3D

scanning allows for a physical object to be converted into a 3DPDF without much

effort on behalf of the user. This technology paired with 3D printing has profound

implications for the digital dissemination of 3DPDFs derived from a physical work.

The intellectual property implications and the legality of such actions will be explored

below.

24

B.T. Wittbrodt et al, Life-cycle economic analysis of distributed manufacturing with open-source 3-D printers, Mechatronics, Volume 23, Issue 6, September 2013, 713-726


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The Benefits of 3D Printing

Benefits can be gained from 3D printing and distributed manufacturing25by the

rightsholders themselves. By selling or licensing their products in 3DPDF form the

costs of manufacturing, shipping, and associated wages are near non-existent and

delivery, although in different form is in essence, immediate. This is unlikely to

appeal initially to established designers and manufacturers but may allow for smaller

enterprises and individuals to succeed in a market where previously they were out-

priced and outcompeted. Distributed manufacturing also enables consumers to obtain

bespoke26and personalised 3DPDFs at minimal extra cost compared to obtaining

customised products from designers.

IIIDesign Rights

Design protection concerns itself with the appearance of, typically, commercial or

industrially produced products which often fall outwith the scope of copyright and

patent protection. Design protection comprises two types of intellectual property;

registered designs and unregistered design right (UDR), of which there are UK and

European variants. This treatment will focus on the domestic legislation for design

rights only.

25Manufacturing which occurs via domestic 3D printers following the distribution of a 3DPDF to

consumers26

The low cost bespoke market is booming as evidenced by the continued success of maker

community Etsy, see Etsy's secret? The 'Cult of Me' http://tech.fortune.cnn.com/2012/05/10/etsy/(accessed February 20, 2014)


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A - Registered Designs

The Law

Registered designs are regulated by the Registered Designs Act 1949 c88 (RDA) as

heavily amended in accordance with the Design Directive.27The right protects:

the appearance of the whole or a part of a product resulting from the

features of, in particular, the lines, contours, colours, shape, texture or

materials of the product or its ornamentation28

And goes on to define a product as:

any industrial or handicraft item other than a computer program; and, in

particular, includes packaging, get-up, graphic symbols, typographic type-

faces and parts intended to be assembled into a complex product29

As such the registered design right can protect the appearance of, and application of, a

design to a variety of products and so is a viable right for protecting many items such

as toys, models and smaller parts of more complex products.30The period of

protection for registered designs is a maximum of 25 years in five-year instances.31

Registration of a design 'gives the registered proprietor the exclusive right to use the

27European Parliament and Council Directive 98/71/EC on the legal protection of designs, OJ L

289/2828

RDA s1(2)29

RDA s1(3)30

H.W. Frandsen, Personal 3D Printing & Intellectual Property Rights How 3D PrintingTechnology Challenges the Effectiveness of Copyright and Design Law in Relation to the Protection ofObjects of Applied Art, University of Copenhagen, 2014, para 6.2.1 http://ssrn.com/abstract=2406626

(accessed March 14, 2014)31RDA ss8(1)-(2)


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design and any design which does not produce [] a different overall impression'. 32

This means the design is protected whether it is applied to its original product or not,

provided the impression is similar.

Designs Excluded from Protection

Designs must be 'new and [have] individual character'33, be 'visible during normal

use'34in the case of component parts of complex products and must not be 'solely

dictated by the product's technical function'.35Supplementary to s1C(1) is s1C(2)

preventing protection for dimensions or form dictated by a need to be incorporated in

a larger article. It appears therefore that items such as spare parts would largely fall

outwith protection. Even if such a part found itself protected, it would not be an

infringement in that design if it was used 'for the purpose of the repair of a complex

product so as to restore its original appearance'36.

It is clear then that many objects likely to be innocently 3D printed are unlikely to

also be protected as registered designs, however it is important to assess the

applicability of the law to home 3D printing and digital distribution as there will no

doubt be registered designs which people will seek to print and distribute via file

sharing platforms.

32RDA s7(1)

33RDA s1B(1)

34RDA s1B(8)

35

RDA s1C(1)36RDA s7A(5)


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Infringement

The registered design legislation does not explicitly mention protection of digital files

embodying a registered design, however, since the enactment of the Design Directive

the definition of a product, in which a registered design can rest, has included two

dimensional works of a graphic nature.37Combined with s7(1) it could be argued that,

as the impression produced by a 3DPDF intended for use with a 3D printer is not

different from that of the original design and registered design protection is not purely

concerned with physical design, 'a court would find that a [3DPDF] constituted a

'product' in which a design was incorporated38. Thus the sharing of a registered

design embodied in a 3DPDF could be an infringement by virtue of the fact that 'the

making, offering, putting on the market [] of a product in which the design is

incorporated or to which it is applied'39constitutes an infringing act. The only

instance where this would appear not to apply is to acts done entirely 'privately and

for purposes which are not commercial'40and so entirely individual copying and

printing of a registered design would not infringe the rights of the rightsholders.

It seems registered design protection may arguably provide some legal means through

which to pursue file sharers who distribute design files; provided such an act is in

some way pecuniary. As it currently stands, the law is favourable to the entirely

private 3D scanning and printing which may occur extensively following the

expansion of the 3D scanning and printing markets

37C. Waedle et al, Contemporary Intellectual Property, Third Edition (Oxford: 2014), para 8.21

38L. Caddy, Challenging CAD file sharing,Taylor Wessing LLP, 2013

http://www.taylorwessing.com/download/article_cad_file_sharing.html (accessed March 4, 2014)39

RDA s7(2)(a)40RDA s7A(2)(a)


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B - Unregistered Design Right

The Law

UDR, much like copyright, arises automatically and without registration. Introduced

in the CDPA in 1988 a design right subsists in designs defined as 'the design of any

aspect of the shape or configuration (whether internal or external) of the whole or part

of an article'41. The design must also, of course, be original in itself and not a copy of

a previous design. 'Time, labour and skill, sufficient to attract copyright protection' 42

has been suggested as an important aspect of determining an original design. Designs

are not original if they are 'commonplace in the design field in question at the time of

its creation'43. 'Infringement will arise if the allegedly infringing item is simply made

to the claimants design or if it is made substantially to that design44.

Designs Excluded From Protection

There are several exclusions from protection under design right. Firstly are designs

that result from 'a method or principle of construction'45, that being 'design dictated

solely by manufacturing technique or necessitated by sound engineering design'46.

Secondly UDR cannot subsist in any shape or configuration, which 'enable the article

to be connected to, or placed in, around or against, another article so that either article

41Copyright, Designs and Patents Act 1988 c48 (CDPA) s213(2)

42Farmers Build Ltd v Carier Bulk Materials Handling Ltd[2000] ECDR 42, per Mummery LJ at 56

43CDPA s213(4)

44Holyoak and Torremans,Intellectual Property Law, Seventh Edition (Oxford: 2013), 416

45

CDPA s213(3)(a)46Bradshaw, 3D Printing, 17


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may perform its function'47. Known as the must fitexception this excludes items,

such as mobile phone cases48and necessary aspects of spare parts for vacuum

cleaners49. Thirdly designs that are dependent upon the appearance of another article

of which the article is intended by the designer to form an integral part'50cannot

attract UDR protection. Termed the must matchexception, a useful example of such

an excluded design, as utilised by Bradshaw51and typified in case law52, is that of car

panelling. In this example a piece of bodywork is exempted as it forms an essential

part of the overall aesthetic of the larger article. Per the Dyson case such an

exemption does not extend to non-essential or pedestrian design such as aspects of a

vacuum cleaners overall appearance.53Finally, surface decorations are exempted

from design protection.54This exclusion exists as in most cases, surface decorations,

if protected, will be protected by copyright and so will not need the overlapping

protection of the inferior UDR.

It appears from these exemptions that many items, which may be susceptible to mass

household 3D printing, namely spare parts and mobile phone cases, may find

themselves exempt from protection under UDR in the first instance. In particular parts

of common or necessary design, for reason of fit, are likely to be unprotected.

However, there are many other examples of UDR protected designs55that will find

themselves protected under the UDR and vulnerable to being 3D printed.

47CDPA s213(3)(b)(i)

48Philip Parker and Others v Stephen Tidball and Others[1997] F.S.R. 680

49Dyson Ltd v Qualtex (UK) Ltd[2006] EWCA Civ 166

50CDPA s213(3)(b)(ii)

51Bradshaw, 3D Printing, 18

52Dyson v Qualtex,

53A. Michaels,The end of the !road for '!pattern spare' parts? Dyson Ltd v Qualtex (UK) Ltd,2006,

28(7), European Intellectual Property Review, 396-39854

CDPA s21(3)(c)55some mentioned in Bradshaw, 3D Printing, 18


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Infringement

There is no explicit allowance of private or non-commercial copying of designs as

there is with registered designs. However, s226(1) of the CDPA states:

The owner of design right in a design has the exclusive right to

reproduce the design for commercial purposes

(a) by making articles to that design, or

(b) by making a design document recording the design for the

purpose of enabling such articles to be made.

Thus 'there is no need for a private and non-commercial exception'56as the legislation

limits itself to only commercial exploitation.57An important question relating to the

digital distribution of 3DPDFs made from a design arises from s226(1)(b) CDPA. If it

is correct that design right can only be infringed commercially then the distribution of

3DPDFs cannot definitively be classified as infringement. For such a conclusion to be

drawn, the nature of the sharing would need to be assessed. If, as is the case of many

file sharing platforms, a file sharing platform acting as the conduit between suppliers

and downloaders of 3DPDFs has adopted a monetised advertising model it could be

seen to be a secondary infringer through s227(1)(c)58. Mendis notes the similarities

here with provisions relied upon to seek copyright remedies against file sharing

56Waelde, Contemporary Intellectual Property,para 9.79

57This is limited to immediate commercial intentions as an article made for domestic use later sold on

does not constitute infringement as '[t]he fact that the copying was not an infringement means that the

copy cannot be an infringing article' K. Garnett et al (eds), Copinger and Skone James on Copyright,

16th Edition, (London: 2010), 13-14758

'Design right is infringed by a person who, without the licence of the design right owner[] sells,

lets for hire, or offers or exposes for sale or hire, in the course of a business, an article which is, andwhich he knows or has reason to believe is, an infringing article.'


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platforms such as Napster, Grotkster, and The Pirate Bay.59It is possible that the

UDR provisions would function in a similar way. However s228 CDPA may provide

an arguable defence against secondary infringement as it excludes 'design documents'

from being 'infringing articles' at all for the purpose of secondary infringement 60.

Regarding primary infringement by individuals, it appears that in the absence of

financial incentives directly paid to users for sharing 3DPDFs that an argument of

primary liability under s226 could prove difficult due to the commercial requirement

of s226. Downloaders of 3DPDFs appear to be safe from the legislation provided

there is no commercial aspect to their printing.

Conventional thinking around UDR suggests that 'as a person is unlikely to make

many articles with a view to non-commercial purposes, it should in practice create

few problems.'61This interpretation of scale no longer holds in the 3D printing

revolution where replicating designs may become easier than it ever has been and

consumers are able to print their own items from unofficial design documents in a

cost-effective fashion. This in itself may not fall foul of the ethos behind the non-

commercial exception but the scale mentioned above brings with it the possibility that

design rightsholders will seek changes in the law that curb private use exemptions and

offer more protection in light of a digital interface with design right.

59D. Mendis, Clone Wars, 10

60

CDPA s228(6)61Garnett, Copinger and Skone James , 13-147


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C - Intellectual Property Bill

The Bill

The Intellectual Property Bill 201362(the Bill), as of March 17th, is a bill currently

passing through the Houses of Parliament. The Bill contains many amendments and

additions designed to update various intellectual property statutes.

Effect of the Bill on Designs

Of particular interest to registered design rightsholders should be that held in clause

13 of the Bill. Clause 13 will insert ss35ZA-35ZD into the RDA. These sections will

make intentional infringement of registered design right a criminal offence, similar to

the criminal copyright infringement already present in the law. This addition

supplements the remedial tools available to rightsholders where many have been

discontent with the efficacy of civil remedies which had proven ineffective against

multiple and persistent offenders who were well resourced and untroubled by

potential infringement cases63as well as the cost of civil proceedings.

Extending Criminal Offences to UDR

The inclusion of criminal offences could result in stronger deterrence for users of 3D

printers than currently exists under the civil-only remedies. Some members of

62Intellectual Property Bill [HL] 2013-14

63

The Consultation on the Reform of the UK Designs Legal Framework Government Response -April 2013, para 73, http://www.ipo.gov.uk/response-2012-designs.pdf(accessed February 1, 2014)


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Parliament have put forth the view 'that all design rights, whether registered or

unregistered, should be included'64within the sphere of criminal offences. As the

offence applies only to intentional infringement, it could be appropriate to extend it to

intentional infringement of UDR. Anti Copying In Design (ACID) has presented the

same suggestion more emotively. ACID claims that in the UK most designers 'rely on

unregistered rights therefore only including registered designs will affect very few of

them' and it would better serve the UK economy to extend clause 13 to UDR. 65This

idea has thus far been opposed due in part to the difficulty of proving intent where a

public register of rights is absent, as is the case for UDR. As a result it can be difficult

to evidence that any one design was intentionally copied from another. This seems at

odds with the criminal sanctions already available for certain deliberate copyright

infringements66as both UDR and copyright subsist automatically without registration.

This may be partly the result of evidential differences67making it more difficult to

prove infringement of UDR as well as a wider public exposure and understanding of

where copyright subsists. Unfortunately for UDR holders, the extension of criminal

offences has been shelved for the time being.68

If 3D printing does lead to wide spread printing of articles protected under UDR, the

argument for extending criminal offences to UDR may once again raise its head with

more convincing force if it has not already done so.

64Intellectual Property Bill Deb 30 January 2014, column 61

65ACID - #SupportClause13 for unregistered designs Facts & Figures

http://www.acid.uk.com/supportclause13-for-unregistered-designs-facts-figures.html (accessed March10, 2014)66

CDPA s10767

D. Mendis, Clone Wars, 16568HC Deb 12 March 2014, vol 577. column 337


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IV Copyright

A - Copyrighted Works

The Law

Copyright arises automatically upon the fixation69of an original work70. Fixation

originally related to the recording of the work in a physical form, but under modern

copyright law 'all new technological recording or fixation methods are automatically

included.'71A work in which copyright subsists is protected for the life of its author

plus 70 years72and as a result, copyright is a very desirable and powerful property

right to possess and enforce. Copyright can subsist in a wide array of works, specified

in s1 CDPA as:

(a) original literary, dramatic, musical or artistic works,

(b) sound recordings, films [or broadcasts], and

(c) the typographical arrangement of published editions.

Artistic works find themselves most susceptible to being 3D printed and so are the

most deserving of consideration. Artistic works, which are three-dimensional, are the

most relevant for this treatment. However, 3D printers could also print copyrighted

69CDPA s3(2)

70CDPA s1(1)

71

Hollyoak & Torremans p.20872CDPA s12(2)


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works as surface decorations or 3D versions of a 2D protected work73that infringe

copyright. Copyright conveys many rights upon the rightsholder74but those most

relevant to the advent of consumer 3D printers are the right to copy75and to

communicate to the public76as will be explored below.

Works of Artistic Craftsmanship and Sculptures

Artistic works are defined as 'a graphic work, photograph, sculpture or collage,

irrespective of artistic quality [] or a work of artistic craftsmanship'77, sculptures

and works of artistic craftsmanship being the two categories to merit consideration.

Works of artistic craftsmanship are not defined at all in legislation but have, in brief,

been accepted by judges to mean 'a work that combined aesthetic appeal with the skill

of a craftsman'78. Sculptures are defined circularly as 'a cast or model made for

purposes of sculpture'.

The term sculpture has received some judicial treatment79helping somewhat to clarify

the term. Mann J set out nine points of consideration that should be used in order to

determine whether a work is a sculpture.80The 'normal use of the word'81is of key

importance as well as a purpose, or partial purpose, of 'a visual appeal in the sense

73CDPA s17(3)

74see CDPA s16 and chII generally

75CDPA s17

76CDPA s20

77CDPA s4(1)

78S. Bradshaw, 3D Printing Legal Update, Comps. & Law 2013, 24(2), 31-34

79Most notably inLucasfilm !Limited and !others v Ainsworth and another[2011] UKSC 39 and the

preceding litigation80

Lucasfilm Limited and others v Ainsworth[2008] EWHC 1878 (Ch). para 11881Ibid at (i)


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that it might be enjoyed for that purpose alone'.82Additionally, and in keeping with

s4(1) CDPA '[n]o judgment is to be made about artistic worth'83. Mann Js points

were later supplemented courtesy of Jacob LJ in the first appeal84by a need for

explicit consideration of the artists intention for the objects in question to be seen as

visually desirable above all other function.85These are merely guidelines and it

remains difficult to assert with confidence where the scope of the term sculpture

begins or ends for the purpose of copyright protection.

Infringement

Setting aside the issue of the ambiguity and tautology surrounding the definitions of

works of artistic craftsmanship and sculptures respectively, it is reasonable to suggest

that works falling under both categories would be very desirable as printable objects

and so raise questions of right enforcement. It is also clear from trends in the artistic

world that 3D printing is increasingly being utilised in the making of artistic works

and sculptures86resulting in annual global events at which artists and designers

showcase their 3D printed works87. Such works are particularly vulnerable to

replication as their means of construction may be easily matched at the household

level.

Due to the typically static and visually appealing nature of three-dimensional works

of art, the home printing of such objects may not be subject to the pitfalls of build and

82Ibidat (vi)

83Ibid at (iv)

84Lucasfilm Limited v Ainsworth[2009] EWCA Civ 1328

85Ibidpara 82

86

S. Aragon, 3D Printing: The Future of Art?, Artmag, Jan/Feb 2014, 2487The 3D Printshow' http://3dprintshow.com/(accessed 31st Jan.)


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material quality that the printing of other more functional objects can suffer. As a

result, such works may find themselves being copied at a domestic level on a scale

that such works would never have risked being replicated before. Holders of artistic

copyright in 3D objects may seek to reassure their copyright is appropriately

protected and that enforcement mechanisms are present if necessary.

Copyright in artistic works is infringed by 'reproducing the work in any material form

[including] storing the work in any medium by electronic means'88and by

communication to the public defined as 'the making available to the public of the

work by electronic transmission in such a way that members of the public may access

it from a place and at a time individually chosen by them.'89As noted by Davis, '[t]his

right is of particular relevance to works distributed via the internet'90. Copyright

infringement of a work need not be exact; the statute includes infringement 'in

relation to the work as a whole or any substantial part of it'.91A test for substantial

copying was established by the House of Lords92to mean the infringer 'incorporated a

substantial part of the independent skill, labour etc. contributed by the original

author93.

88CDPA s17(2)

89CDPA s20(2)(b)

90J. Davis,Intellectual Property Law,Fourth Edition (Oxfrd: 2012) para 2.66

91CDPA s16(3)(a)

92

Designers Guild Ltd v Russell Williams (Textiles) Ltd[2001] F.S.R. 1193Ibidat para 64


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Private Study Exception

Chapter III of the CDPA94provides for many instances where copyright infringement

is allowed by the nature of the infringing act. Of relevance for the immediate future of

3D printing is the fair dealing exclusion of acts done for research or private study.95

Although limited in application this exception allows for copying of an artistic work

through 3D scanning, 3D printing or both when performed individually and non-

commercially in pursuit of study. This can include acts done throughout the course of

organised study by a researcher or student and acts performed as part of a hobby.96As

mentioned above, mainly hobbyists and artists as well as research and development

labs occupy the 3D printing landscape at this time; this is unlikely to drastically

change overnight. It is therefore possible that in the current market there exists a

blanket fair use exemption to most copyright infringement. As the technology

improves, proliferates, and becomes less expensive we may see infringement

occurring in a more diverse consumer landscape where the private study exemption

can no longer act as a blanket defence for household copying. As with the

entertainment industry and digitised media, it may not be cost effective to pursue

individual infringers and as such successfully preventing or discouraging the acts may

prove difficult if attempted through legislative and litigious means alone.

94Generally relevant are ss28-50

95CDPA s29

96You are allowed to make single copies or take short extracts of works when the use is for research

that you do not make any money from or for private study, for educational courses or even for use in

connection with a hobby. http://www.ipo.gov.uk/types/copy/c-other/c-exception/c-exception-research.htm(accessed February 6 2014)


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Proposed Private Copy Exception

Private copy exemptions are currently not features of UK copyright law, however, the

IPO has been discussing and contemplating the idea for many years97to the point that

they have proposed the addition of section 28B into the CDPA.98The proposed

section states that copyright 'is not infringed where an individual uses a copy of a

copyright work lawfully acquired by him to make a further copy of that work',

provided that it is for 'private use for ends that are neither directly nor indirectly

commercial'.

The implications of such a provision are not unique to 3D works susceptible to 3D

scanning and printing; it affects all works to a varying degree. The provision would

detract from the remedial routes available to a right holder for copyright infringement.

However, due to the impractical and cost-prohibitive nature of pursuing an individual

or small group of end-users for private copying, the position of rightsholders would

effectively be the same as is currently. It could be argued the provision merely seeks

to allow end-user activity that has long since occurred irrespective of its illegality or

has otherwise been licensed by rightsholders already

The explicit inclusion of a private copy exemption, though in theory weakening the

position of the rightsholder, will not likely encourage more private copying than

97Modernising Copyright: A modern, robust and flexible framework, Intellectual Property Office,

December 2012, 22 http://www.ipo.gov.uk/response-2011-copyright-final.pdf(accessed February 17,2014)98

Intellectual Property Office: Private copying, 7 June 2013, Annex A,http://www.ipo.gov.uk/techreview-private-copying.pdf(accessed February 17, 2014)


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already occurs and '[c]ommercial practice will not change as a result of introducing a

narrowly conceived private copying exception'99

Repeal of Section 52

CDPA s52 was a provision limiting copyright protection to 25 years where the artistic

work in question had been industrially exploited. Seemingly following theFlos100

case, where the CJEU held that Italy could not by statute deprive a work of copyright

protection it would otherwise enjoy101even where said work was a design that had

entered the public domain, the section was repealed by s74 of the Enterprise and

Regulatory Reform Act 2013 c24. The necessity of the repeal has been questioned102

but it has occurred regardless.

The existence of s52 allowed for the 3D printing of many commercial works such as

toys and many desirable 2D works as surface decoration. Its repeal results in a

consumer landscape where the position of the rightsholder is strengthened and the

works legitimately available to print at home severely restricted.

99M. Kretschmer, Private Copying and Fair Compensation: An empirical study of copyright levies in

Europe,The Intellectual Property Office, 2012, 8 http://www.ipo.gov.uk/ipresearch-faircomp-full-

201110.pdf(accessed February 19, 2014)100

Case C-168/09Flos v Semeraro101

Bradshaw, Legal Update, 33102

A. Maddison, If you want it cheap -Buy British!, AIPPI UK Event Report (Section 52: Should itstay or should it go?) http://www.aippi.org.uk/section52/report.pdf(accessed March 12, 2014)


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It is unclear whether s52 will return in a more proportionate103form or remain

repealed but the change is of definite benefit to copyright holders who rely on

industrial exploitation of their intellectual property for revenue.

Concluding Remarks on Copyright

Copyright offers expansive protection for the objects within which is subsists. 3D

artistic works in which copyright subsists are well protected by the system that has

matured with the assistance of the music and film industries. Although, issues do arise

when considering whether it subsists in the first instance due to the ill-defined and

narrow nature of copyright in 3D objects. It is possible that 3D printing, both in

potentially allowing more 3D artistic works to be replicated, could bring about a new

wave of judicial treatment relating to the still ambiguous definitions of s4 CDPA. It

may be possible for rightsholders collectively to lobby for change at a legislative level

through their own collecting societies104to clarify the definition or to expand its

scope.

Rightsholders currently have little to worry about due to a combination of the

prohibitive cost of 3D printing, the lacking quality of cheaper printers, and the

hobbyist nature of the technology. This will likely change but works will be protected

by copyright in the very least whilst right enforcement will remain limited by the

expense and evidential difficulties already faced by the entertainment industry.

103As required byFlos, para 56

104

for example Design and Artists Copyright Society, Artists Collecting Society or the FederationAgainst Copyright Theft Ltd.


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B - Copyright in Design Documents

Section 51

S51 of the CDPA has an uneasy and uncertain interface with the 3D printing

revolution that may merit judicial or legislative consideration. The section provides:

It is not an infringement of any copyright in a design document or model

recording or embodying a design for anything other than an artistic work or a

typeface to make an article to the design or to copy an article made to the

design.105

Further to this, a design document is defined, inter alia, as ' any record of a design of

any aspect of the shape or configuration (whether internal or external) of the whole or

part of any article, other than surface decoration [] in the form of [] data stored in

a computer'.106Notable is that this definition explicitly includes the type of file a 3D

printer relies on to print its end product and the type of file a 3D scanner would

produce. It is also important to note this only applies to documents created with the

original purpose of embodying a design and copyright does apply to artwork of

another purpose that existed prior to the design.107

In other words s51 prevents the indirect use of copyright in a design document where

a design right already subsists in the related object. Design rights offer protection for

105CDPA s51(1)

106

CDPA s51(3)107BBC Worldwide Ltd v Pally Screen Printing Ltd[1998] F.S.R. 665 Ch D


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up to 15 years108so it is understandable why rightsholders may wish to pursue the

argument of copyright infringement, in which protection subsists for life plus 70

years, following the expiry or exception of a design right. S51 seeks to prevent this

and fully distinguish design and copyright protection from one another.

Originally this provision was included in the CDPA 'to prevent the protection of

industrial articles such as exhaust pipes by copyright and instead provide protection

under the shorter and less protective UDR'109, intended to prevent manufacturer

monopolies in the spare parts after-market.110

This legislative solution to theBritish Leylandcase has resulted in confusing and

confused judicial response.111However 3D printing provides its own questions in

relation to s51 which must be resolved.

Interface With 3D Printing

A design document embodying a protected design is likely to be protected by

copyright itself providing it fulfils the requirement of originality. The question that

arises is whether the creation of a new 3DPDF from the end product falls under the

s51 exception or not. In the most likely and common instances, the act of 3D printing

will require some form of 3DPDF. Such a file could be made manually, acquired from

another source, or generated by the consumer using a 3D scanner. It is settled that

objects printed by 3D printers to the design document or embodiment of that

108CDPA s216

109 E. Derclaye, Flashing Badge Co Ltd v Groves: a step forward in the clarification of the

copyright/design interface, E.I.P.R. 2008, 30(6), 251-254, 251110

Following the decision inBritish Leyland Motor Corp v Armstrong Patents Co Ltd [1986] AC 577111Derclaye, Flashing Badge Co


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document are only open to remedies through design right infringement, and in many

cases such remedies will be exempted112, however the question remains as to whether

the unlicensed 3DPDF utilised by the printer infringes copyright in the original design

document.

The decision in the summary judgment casePallyholds that a defendant could have

an arguable defence under s51 for their indirect copying of design documents through

an observation or use of an article made to or related to that design document113.

Alongside thePallycase, Bradshaw114cites the allowance of reverse-engineering, in

terms of s51, as permitted in the case ofMackie Designs v Behringer115to support the

notion that unofficial 3DPDFs would be exempt. The Judge inMackie explicitly

endorses the view inPally116as convincing and appropriate. The relevance of this

case is uncertain as it deals with very particular circumstances. TheMackiecase deals

with a particular instance where the topography of a circuit board was observed and

recorded in lists and notes from which new circuit diagrams were created. It seems

that this does not create a direct parallel with the example of acquiring an exact design

document. Not least because the subject matter differs but also the mode of recording

the new design is an automatic process and lacks the depth and skill found in the

Mackiecase. It is likely that the relevance ofMackieis unimportant and that thePally

judgment suffices in establishing an arguable defence against copyright liability for

3D scanned 3DPDFs by labelling them indirect copies of the original and so

exempted from copyright protection by CDPA s51.

112specific point on UDR exemptions applying to piracy

113in this case the defendants had used televisual representations of 'Teletubbies' and photographs of

the costumes to indirectly copy the design document114

Bradshaw, 3D Printing, 24115

Mackie Designs Inc. v Behringer Specialised Studio Equipment (UK) Ltd & Ors[1999] RPC 717116Ibid, 724-725


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Concluding Remarks

The application of s51 to situations of unlicensed 3DPDFs derived from designs

means that the only remedies available for such acts would be those discussed above

under registered and unregistered design. This fact coupled with the exemptions of

private and non-commercial use to those design rights117leads to a legally uncertain

response to 3D scanning, digital distribution, and mass 3D printing of deign protected

items. This possibility is unlikely to please many established rightsholders as, given a

requisite advancement of 3D printing technology to the point where prints are viable

and comparable to the real deigns, potential customers may elect to acquire 3DPDFs

and print the designs themselves without fear or care of repercussions.

This is likely to result in lobbying and campaigns from designerscollecting societies

to reduce or limit the private use exemptions in the interests of, and perhaps in line

with, the proposed copyright exemption requiring a legitimate expression of the work

to be owned by the individual copying it

V Facing the Issues of Online Infringement

Copyright laws become obsolete when technology renders the assumptions on

which they were based outmoded118

117

mentioned at X118J. Litman,Digital Copyright, (Buffalo, NY: 2006), 22


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A - The Entertainment Industrys Reaction to Digital Media

Preface

It is neither possible nor necessary within this treatment to delve deeply into the legal

issues surrounding online infringement.119There are however several points which

bear relevance, particularly in the case of design rights, to this treatment and so will

be discussed below. For the purpose of this chapter the term entertainment industry

will be used to mean the music, film and TV industries as the legal and consumer

trends follow the same pattern overall.

CDs

Music made the transition from cassette tape to CD without much foresight for the

future implications. The personal computers around the time of the first music CDs

had about one-fifth of the storage capacity that is required to hold just one

uncompressed song.120It is therefore understandable that little concern was raised

about the risk of digital copyright infringement prior to the introduction of the

recordable CD in 1988. In addition, digital compression methods were developed

enabling music files to occupy much less space in a compressed form without

commonly discernible loss of quality. These developments, alongside general

improvements in personal computer and Internet technologies, soon 'opened up the

119For such a treatment see P. Ganley, Surviving Grokster: innovation and the future of peer-to-peer,

E.I.P.R., 2006, 28(1), 15-25 or A. Royle, Pirates Ahoy! Copyright and Internet File Sharing, NorthEast Law Review, Iss. 1, Vol. 1, 2013, 51-79120

30 Years Of The CD, Of Digital Piracy, And Of Music Industry Cluelessness

http://www.techdirt.com/articles/20121018/10023520751/30-years-cd-digital-piracy-music-industry-cluelessness.shtml (accessed February 27, 2014)


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possibility [] of the global jukebox'121by enabling the widespread and convenient

sharing of digital media at a scale not yet contemplated by the industry.122Instead of

adapting and embracing the technological advances, the entertainment industry was

hostile and sought to stifle and ignore those advances and consumer trends. Similar

issues were faced prior to this as a result of the development of time-shifting video

tape recorders123and twin-deck cassette recorders.124

The Internet

[T]he staggering pace of development of the internet has fundamentally

changed the rules of engagement with IP infringers [] that cannot be

policed using conventional means.125

The advent and rapid progression of Internet technologies has helped to incubate

online infringement since it first gained popularity in the late 1990s. Faster and more

reliable connections have given way to an online environment where all popular

digital media can be acquired with little difficulty or time.

121Waelde, Contemporary Intellectual Property,para 7.8

122Certainly a far greater threat than that targeted by the British Phonographic Industrys heavily

parodied and criticised Home Taping is Killing Music campaign, see K. McLeod, MP3s Are KillingHome Taping: The Rise of Internet Distribution and Its Challenge to the Major Label MusicMonopoly, Popular Music and Society Vol. 28, Iss. 4, 2005, 521531123

T. Wu, Copyright's Communications Policy,Michigan Law Review, 2004, Vol. 103, 278-366, 345et seq124

CBS Songs Ltd v Amstrad Consumer Electronics Plc[1988] A.C. 1013125

S. Helmer and I. Davies, File-sharing and downloading: goldmine or minefield?, Journal ofIntellectual Property Law & Practice, 2009, Vol. 4, No. 1, 51-56


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Legal Response

In response to these threats, the entertainment industry, through intense lobbying,

helped influence vast legal change of the copyright landscape in the form of, inter

alia, the WIPO Internet Treaties126, Infosoc Directive127and the Digital Economy Act

2010 c24 (DEA). Much of the lobbying power stems from the United States 128, as the

source of much of internationally consumed entertainment media129, but the resultant

changes typically find themselves embodied in international treaties or bilateral

agreements and are thus near-globally effective.

Contrary to global legislators, courts tend towards favouring new technologies130and

their benefits to consumers instead of increasing the scope of intellectual property

protection for rightsholders. As noted by one judge in the Grokster case:

The introduction of new technology is always disruptive to old markets

[] Yet history has shown that time and market forces often provide

equilibrium in balancing interests Thus, it is prudent for courts to

exercise caution before restructuring liability theories for the purpose of

addressing specific market abuses, despite their apparent present

magnitude.131

126The WIPO Copyright Treaty and WIPO Performances and Phonogram Treaty, see P. Goldstein et

al,International Copyright: Principles, Law, and Practice , Third Edition, (Oxford: 2012), para 3.1.4127

Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in theinformation society, OJ L 167/10128

Typically at the hands of the International Intellectual Property Alliance129

The Creative Media Industry in the United States http://selectusa.commerce.gov/industry-snapshots/creative-media-industry-united-states(accessed February 27, 2014)130

M. Dizon, Does Technology Trump Intellectual Property?: Re-Framing the Debate About

Regulating New Technologies, 2011, 8(2) SCRIPT-ed, 124-137, 126131Metro-Goldwyn-Mayer Studios, Inc v Grokster,Ltd 380 F. 3d 1154 (9th Cir. 2004), 1161. at 1167


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Changes to copyright law that have occurred in connection with the threat of online

infringement include the adoption of a new exclusive right of public

communication132, prohibition against circumventing protective measures133and the

mechanism of the copyright take down notice.134Take down notices have been

negatively received by many due to the ease with which they can be abused against

non-infringing works and as a bully tactic against weak innocent parties.135The DEA

introduced provisions136which compel Internet service providers (ISPs) to cooperate

with rightsholders 'whereby they work together to prevent and act upon copyright

infringement.137Following these changes, the power of copyright holders has

reached new heights in recent years and these benefits transpose onto copyright held

in artistic works susceptible to 3D printing and digital dissemination.

In spite of this increased power, online copyright infringement is still, albeit in

uncertain quantity138, a very prevalent phenomenon. It seems clear the legislative

changes brought about to combat online copyright infringement have not been

entirely effective. Consequently, the question arises as to whether legislation alone is

even 'capable of providing a practical means for preventing large-scale copying'139

carried out on the Internet.

132CDPA s20

133

CDPA ss296-296ZF, protection measures discussed in more detail below.134Pioneered by the US Digital Millennium Copyright Act (DMCA), the take down notice allows forpurportedly infringing material to be removed without liability on the intermediary hosting thematerial. The system has quasi-international effect due to the prevalence of US Internet domains. Now

replicated in EU law via Directive 2000/31/EC on electronic commerce, OJ L 178/1. See L. Peets andM. Young, Internet Piracy 10 Years On Online Enforcement and the DMCA, Landslide, Volume 1,

Number 4, 2009, 40-42135

R. Drath, Hotfile, Megaupload, and the Future of Copyright on the Internet: What CanCyberlockers Tell Us about DMCA Reform?,John Marshall Review of Intellectual Property Law,Vol. 12, 2012, 205-241, 230136

DEA ss3-18137

Waelde, Contemporary Intellectual Property, para 7.53138

I. Hargreaves, Digital Opportunity A Review of Intellectual Property and Growth, IPO, 2011,

69-72 http://www.ipo.gov.uk/ipreview-finalreport.pdf(accessed March 6, 2014)139Davis,Intellectual Property Law,para 2.110


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Old Threats, New Rightsholders

Although the technologies and relevant markets differ, much about the future of 3D

printing can be speculated from the experience of the entertainment industry and its

response to digital and digitised media and the subsequent file sharing which it

enabled.

Although technologically far from synonymous, it could be argued 3D printing as it

currently stands is situated at a similar point on the timeline between the old and the

new as were CDs and the fledgling internet. Where the threat of infringement posed

currently seems non-existent or inconsequential but given time, investment and

development, the threat may materialise to the surprise and panic of passive

rightsholders. In order to avoid this, rightsholders should be proactive both legally

and commercially in combating what they see as misuse of their intellectual property.

Artistic works protected by copyright benefit from the changes made in response to

infringement of digital media. The drawbacks to the application of copyright are not

unique and revolve mainly around the difficulty in catching infringers and the cost of

pursuing infringement in the civil courts.

Due to the novelty of 3D printing the law for protected designs is underdeveloped and

so it is difficult to determine whether file sharing of 3DPDFs embodying designs is

indeed infringement or not. Rightsholders will have to face the reality of large-scale

distribution of 3DPDFs embodying designs on file sharing platforms whereas prior

such a threat simply did not exist. The legal framework for both designs and patents


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was not considered in anticipation of digital distribution like copyright law was and,

as such the legislation is not explicitly framed to combat such distribution. The

application of the law as it stands has been considered above and it seems to present a

scenario where enthusiasts are relatively free to copy designs without repercussions

and digital dissemination of designs may be prohibited under the law but judicial

remedy will be outwith many rightsholders grasps.

B - Surviving the 3D Printing Revolution

Legitimate Sources of 3DPDFs

Following the success of Apples iTunes Store and the entertainment industrys

relatively recent approval of music and video streaming services such as Spotify and

Netflix, it is advisable that vulnerable rightsholders and their collecting societies

quickly seek to embrace the technology of 3D printing and the culture of distributed

manufacturing whilst maintaining some control over unlicensed copying through

considered application of protective measures.

Rightsholders used to traditional manufacturing and supply chains may be skeptical of

the prospect of offering up their 3DPDFs at a premium for print, though some are

already contemplating the premise.140Nevertheless, if the consumer market comes to

desire access to such a marketplace, rightsholders are unlikely to support the

convenient but illegitimate means offered by file sharing services.

140

Lego examines 3D printing to keep its finger on digital pulsehttp://www.ft.com/cms/s/0/af8cb090-a1e2-11e3-87f6-00144feab7de.html(accessed March 6, 2014)


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Several websites141already provide a platform upon which mostly free designs,

restricted only by Creative Commons licenses, can be easily shared and downloaded

for use with 3D printers. Rightsholders would need to build or endorse a similar

platform to enable distribution that was efficiently monetised and convenient to

consumers.

In providing official design files to consumers, rightsholders expose themselves to

inadvertently providing perfect digital copies for distribution via file sharing networks

and websites142but are more likely to preserve their customer relations and connected

sales if they adapt to the market rather than ignore it.

Digital Rights Management and Technical Protection Measures

One of the main features of the post-digital entertainment industry is the use and

abuse of digital and technical protection measures (DRM and TPM) to control use and

distribution of entertainment media. DRM is a general term used to describe any

digital mechanisms put in place to trace or control the use of digital works in ways

restricted by law143and beyond that.144

141Such as Thingiverse http://www.thingiverse.com/ (accessed March 13, 2014)

142The Pirate Bay has already created a 'Physibles' category for 3D design files. Although almost

exclusively containing copies of controversial 3D printed gun designs the move shows a clear intentionto provide access to 3DPDFs irrespective of the subsistence of intellectual property or not. see The

Pirate Bay launches crazy Physibles category for printing 3D objectshttp://venturebeat.com/2012/01/24/pirate-bay-physibles-category-3d-printers/(accessed February 20,2014) and Evolution: New category.http://thepiratebay.se/blog/203 (accessed March 3, 2014)143

CDPA s296ZG embodying Directive 2001/29/EC (Infosoc Directive) Art 7144Davis,Intellectual Property Law,para 5.58


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DRM and TPM have been extensively utilised in attempts to protect intellectual

property over the past three decades. From copy-prevention on CDs145to 'always on'

requirements in video games146and watermarking of digital files. The one thing in

common with many of these methods is the negative reaction from consumers when

DRM and TPMs are seen to impinge on the genuine and legal enjoyment of protected

works. Were the relevant rightsholders and their collecting societies to legitimate the

3D printing market with official 3DPDFs it would be sensible to learn from the DRM

mistakes of the past. Implementing DRM in general will always garner some level of

negative attention147but it is important to avoid alienating the wider consumer base

through invasive and perceivably unnecessary and accusatory protective measures.148

Concepts to disguise 3D objects have already been explored including a method that

warps 3DPDFs requiring a generated key to unscramble the data and produce the

intended model.149Although not produced for the purpose of DRM protection,

technologies akin to this could provide a way of officially licensing watermarked 3D

files that are only legitimately printable providing the user or printer is verified by

some unique verification code.

145This method has long since been abandoned due to consumer backlash

146That being near-constant license verification requiring periodic Internet access as in the case of the

recent game Diablo 3,'Diablo III' Fans Should Stay Angry About Always-Online DRMhttp://www.forbes.com/sites/erikkain/2012/05/17/diablo-iii-fans-should-stay-angry-about-always-online-drm/(accessed March 6, 2014)147

See generally anti-DRM group Defective by Design https://defectivebydesign.org/ (accessedFebruary 19, 2014)148

C. Doctorow, Digital Rights Management: A failure in the developed world, a danger to the

developing world,Electronic Frontier Foundation, 2005 https://www.eff.org/wp/digital-rights-management-failure-developed-world-danger-developing-world(accessed March 5, 2014)149

Software developed to disguise 3D printing files shared online

http://www.dezeen.com/2013/11/04/software-developed-to-disguise-3d-printing-files-shared-online/(accessed February 13, 2014)


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Despite how attractive DRM may sound to rightsholders Gabe Newell150commented

in 2011:

The easiest way to stop piracy is not by putting antipiracy technology to

work. Its by giving those people a service thats better than what theyre

receiving from the pirates151

and Apples Steve Jobs noted in 2007 that DRMs havent worked, and may never

work, to halt music piracy.152

Were DRM to be incorporated into such a system it would be pertinent for

rightsholders to bear past experience in mind and avoid incorporating too invasive or

restrictive DRM so as to maintain the good will of their customers.

Levies

Another option is that of a levy system on 3D printers and their filament.

Technological levies have been widely utilised in many jurisdictions, though not

explicitly in the UK153, in order for rightsholders to receive money from the consumer

purchase of certain technologies154that they argue can and are used to infringe their

150Managing director of Valve the company behind successful video games distribution service Steam

151From a talk given at the Washington Technology Industry Association TechNW conference,

transcript here: http://www.geekwire.com/2011/experiments-video-game-economics-valves-gabe-newell/(accessed February 13, 2014)152

S. Jobs, Thoughts on Musichttp://web.archive.org/web/20070207234839/http://www.apple.com/hotnews/thoughtsonmusic/(accessed March 14, 2014)153

Kretschmer, Private Copying, 29, Table 1154Such as digital storage devices, conventional printers and personal computers


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intellectual property rights or to act as compensation for private copy exemptions

where applicable.155

Due to the absence of levies for other technologies in the UK it is unlikely that 3D

printers will successfully be subjected to such charges.

Legal Changes

It is outwith the scope and purpose of this treatment to offer a specific framework for

changing legislation to better fit the needs of rightsholders in the face of 3D printing.

However, certain things can be suggested following the above analysis.

From the view of the rightsholders it is imperative that the perception of designs is

explicitly extended to their digital embodiment. Without this, as outlined above, it is

difficult to concretely say where the current law applies in the digital realm. It may

also be beneficial to modify and amalgamate the private and non-commercial

exemptions in line with the proposed CDPA s28B. This would create a unified system

that by design only exempts both private and non-commercial acts of copying derived

from a legitimately purchased work or design, meaning digital distribution on non-

commercial file sharing platforms, and the printing of such designs by third parties

would fall certainly fall under infringing acts.

Further call for changes will no doubt arise as the result of government reviews and

co-operation with rightsholders in the coming years, providing 3D printing continues

155Goldstein,International Copyright, para 11.2.2


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to grow and proliferate in the consumer market. Change to the law must not occur

without extensive consideration as there is a risk of failing to consider the position of

the consumer in favour of rightsholders.

Conclusion

The above mentioned changes can, and perhaps in some cases will, be carried out

both to deter and punish the copying of protected works through the medium of

inexpensive 3D printers and ensure that rightsholders can continue to profit from their

intellectual property in novel ways. It is important to learn from the lessons that the

music industry is only now beginning to acknowledge and to embrace disruptive

technology rather than ignoring or attempting to censor it.

VI Concluding Remarks

With the development and proliferation of 3D scanning and printing technologies

come inevitable risk to intellectual property. For the most part copyrights

development in response to digital media and online infringement allows for ample

protection for 3D printable copyrighted works. The main stumbling block will be the

difficulty of enforcing copyright against individuals involved in online infringement.

Designs are less well protected and in the case of online infringement there remains

uncertainty as to the presence of protection and how effective said protection can be.


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The best response by all manner of rightsholders to the 3D printing revolution is to

seek further necessary legislative protections and adapt their business models to

changes in the consumer landscape. The legal response to the digitisation of music

provides the important lesson that purely aggressive legislative`e and judicial

reactions to disruptive technologies are largely ineffectual and can alienate customers.

The focus of legislators and judges should be to balance the interests of the

rightsholders against the benefits of 3D printing to consumers and society as a whole.

While it is true that no one knows what the shape of the market for the technology

might look like156, 3D printing is on a course for the mainstream and rightsholders

need to keep up with things157to ensure they can continue to benefit from their

intellectual properties.

156Per T. Kurfess. in L. Hibbert, Send It To The Printer, Professional Engineering 25.9 (2012) pp31-