IPR & 3D Printing — The Legal Treatment To Disruptive Technology


Someday after I am dead, scientists will recreate my brain with a kind of three-dimensional printing press and use it to create new quotes by me, instead of phone ones like this.

— Albert Einstein

Touted as disruptive, three-dimensional printing popularly called 3D printing is a technology that allows production of objects from digital files. The concept of “market” stands at the cusp of a revolution which is fit to alter the course of the entire ecosystem. The manner in which designing and making of products was understood has changed significantly with a system like personal 3D printing that allows consumers to create and replicate physical products from the comfort of their homes.[1] The question now is, how do intellectual property rights (IPR) fit into this scenario? Most importantly, do the Indian intellectual property (IP) laws provide a solution?

Though it has gained much popularity now, 3D printing has been in existence since 1980 and over less than ten years, the three main 3D printing technologies were patented. However, what we see now is the result of subsequent technological advances coupled with the arrival of low cost domestic 3D printers and the development of services benefiting from networking technologies. As mentioned above, this technology allows consumers to create and replicate physical products effortlessly which means a consumer can digitise, share and copy designs of physical products in the form of digital blueprints.[2] This technology is certainly transformative and makes life easier but the same cannot be said about enforcement of IPRs over the use of this technology, which involves the potential to infringe upon the rights of others. Unauthorised copying of products with personal 3D printers essentially means substantial negative economic consequences for the owners of IP over the products.

3D Printing — Technological Background

3D printing is a technology that allows transformation of a digital file into a physical object. Yes, it is possible to print actual objects. The process of 3D printing begins with a digital file, often designed using computer-aided design (CAD) programs.[3] While many users download these files from the internet, others design their own using software; the software then breaks down the digital object into small layers.[4] In contrast to a process like woodworking or sculpture, in which one cuts away at the raw material to produce an object, a 3D printer builds an object methodically, layer by layer.[5] As the user commands the printer to “print”, the object is gradually built from the file. This maybe akin to printing a document but law may see it differently. Initially, the 3D printing technology was limited to manufacturing companies however it is now available to masses, with the availability of low cost printers and cheaper raw materials.

While the technology is slowly but substantially breaching the boundaries of markets of developing nations, the data from developed nations speaks differently. Take the case of twenty-six year old Amitt Sharma who runs a New Delhi based ad-tech firm and uses a 3D printer and develops various project as a hobby. While Sharma’s is an example of the DIY (do it yourself) community, corporations are eyeing an array of solutions via 3D printing. Industries like healthcare and automotive have embraced the technology which is set to widen its horizon further.  Although in a nascent stage, market intelligence solutions firm 6Wresearch predicts that India’s 3D printer prototyping and materials market will hit $79 million by 2021.[6] In a bid to take industrial manufacturing in India to a new level, printing and PC major HP Inc. brought its acclaimed multi jet fusion (MJF) 3D printers to the country, early this year.[7]

Undoubtedly, this technology has an immense scope of accomplishing great things but it is also a disruptive technology which does not lack the force of changing the course of IPRs as known through the years. This is truer in case of personal 3D printing. Personal 3D printing might be the first step towards a future where consumers can download products from the internet as they now do with music, books and movies and then print them out privately at home.[8] One could not have imagined at the dawn of digital age, the many different ways in which a computer would be put to use and with the technology of three-dimensional printing it is nearly impossible to predict what will be created out of it. The advent and diffusion of personal 3D printers opens a pandora’s box of new legal challenges in as diverse areas as gun control, product safety and IP.[9]

Overlap in IPRs and Treatment of 3D Printing

Is the concept of ease taking over that of equality? As justified it is for consumers to use a certain technology, it is equally justified for the manufacturers of physical products to produce, protect and earn out of it. Will the advent of 3D printing lead to an end of the traditional school of thought on IPRs? Four kinds of IP will bear the ramification of this technology i.e. copyright, designs, patent and trade mark. Whereas copyright law protects creative works, design law protects the appearance of a product, patent law protects novel innovations of technology, and trade mark protects identity of a good in the marketplace. Over the period of last few decades IP law has seen itself embroiled in debates over its ability to adapt to new technologies and 3D printing is the next disruption.

To eliminate, most physical objects — the type of objects 3D printers produce — are, in fact, utilitarian to some extent or another. Most of these objects, however, are also neither new nor non-obvious, and are thus unprotected by patent (or, potentially, any IPR for that matter). Thus, “only a small portion of the objects coming out of a 3D printer will actually be protected by … an active patent”.

Looking into copyright aspects in 3D printing, Section 13(1) of the Copyright Act, 1957 provides for work in which copyright subsists and categorises works into three broad classes— (i) original literary, dramatic, musical and artistic works; (ii) cinematograph films; and (iii) sound recording. Among the listed categories, where does a work of 3D printing and technology surrounding fall into? For it to be termed “artistic work”[10], 3D printing would have to fall under—(a) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality; (b) a work of architecture; and (c) any other work of artistic craftsmanship. Next, the Act defines a “computer”[11] which includes any electronic or similar device having information processing capabilities; and a “computer program”[12] means a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result.

To understand whether copyright law boundaries stretch up to include objects created through 3D printing, the following questions need to be answered:

(i) Whether the object created through 3D printing entail an artistic work?

(ii)  Whether the hardware related to 3D printing falls under the category of a computer?

(iii) Whether the process of 3D printing can be categorised as a computer program?

Moreover, a complicated overlap exists among the several overlaps in the forms of IP which is between the copyright law and the design law. The Designs Act, 2000 defines an “article”[13] means any article of manufacture and any substance, artificial, or partly artificial and partly natural; and includes any part of an article capable of being made and sold separately. Further, it defines a “design”[14] as only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two-dimensional or three-dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device: and does not include any trade mark as defined in clause (v) of sub-section (1) of Section 2 of the Trade and Merchandise Marks Act, 1958 or property mark as defined in Section 479 of the Penal Code, 1860 or any artistic work as defined in clause (c) of Section 2 of the Copyright Act, 1957.

The copyright law through Section 15 exclusively dismisses copyright in any design which is registered or capable of registration under the Designs Act, 2000. Also, if there is a copyright in any design capable of such registration under the Designs Act, the copyright to the article to which the design is applied shall cease to be in effect as soon as it is reproduced more than 50 times by an industrial process by the owner of the copyright or, with his licence by any other person. Under the definition of “design”, Section 15(2) loses all potency, for there can be no subject-matter that is both copyrightable and design registrable, that is, no artistic work would ever qualify for protection as a design.[15]

Conclusion

Activities that were once the sole responsibility of a few are becoming hobbies for many. How comfortable it is to process a design and print an actual physical product out of it, and all this by using just a printer! The number of 3D printing enthusiasts is on a rise. Presently, these activities are taking place with negligible concerns of legal implications relating to IPR; however, with the rising numbers clashes between technology and law are not too far.

While the shadow of disruptive technologies looms large over conventional ideas about designing and manufacturing of products, the plethora of laws under the IPR umbrella are caught up in complexities regarding treatment of a particular subject-matter. This is also true about several national laws on IPR. But before regulating this technology, it is essential to understand that the law cannot be made stringent as 3D printing enables precisely the kind of creation and progress of the useful arts and sciences that IP is supposed to foster.[16]

The current family of IP laws in India is not obsolete or stern, however the laws can be grown wide enough to encompass modern, disruptive technologies like 3D printing. Additionally, minor amendments in the existing set-up shall aid and bring clarity to the status and treatment of upcoming technologies under Indian laws. Societies at large and laws are constantly pitted against new innovations and the challenge is to maintain a balance between rights of various individuals across sectors. 3D printing is just another example of the things to come and there is no better solution than to embrace it, rightfully.

Hetvi Trivedi is Research Associate, GNLU-GUJCOST Research Centre of Excellence in IP Laws, Policies & Practices.

[1] Hjalte Worm Frandsen, “Personal 3D Printing & Intellectual Property Rights — How 3D Printing Technology Challenges the Effectiveness of Copyright and Design Law in Relation to the Protection of Objects of Applied Art”, Faculty of Law, University of Copenhagen, SSRN ID 2406626.

[2] Ibid.

[3] Matthew Adam Susson, “Watch the World ‘Burn’: Copyright, Micropatent and the Emergence of 3D Printing”, Chapman University School of Law, University of California, SSRN ID 2253109.

[4] Ibid.

[5] Ibid.

[6] Nishant Arora, “From Healthcare to Manufacturing, 3D Printing set to Grow Big in India”, available at <https://yourstory.com/2018/01/healthcare-3d-printing-india/>.

[7] Ibid.

[8] Frandsen, (n 1).

[9] Kyle Langvardt, “The Replicator and the First Amendment”, 25 Fordham Intell. Prop. Media & Ent. L.J. 59 (2014), available at <https://ir.lawnet.fordham.edu/iplj/vol25/iss1/2>.

[10] S. 2(c), the Copyright Act, 1957.

[11] S. 2(ffb), the Copyright Act, 1957.

[12] S. 2(ffc), the Copyright Act, 1957.

[13] S. 2(a), the Designs Act, 2000.

[14] S. 2(d), the Designs Act, 2000.

[15] Neil Wilkof, Shamnad Basheer (Eds.), Overlapping Intellectual Property Rights, xx Oxford University Press (2012).

[16] Deven R. Desai, Gerard N. Magliocca, “Patents, Meet Napster: 3D Printing and the Digitization of Things”, 102 The Georgetown Law Journal 1691 (2014).

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