3d printing at home: copyright chaos?
The technology of 3D printing is still rapidly evolving. Will copyright law keep up and provide a solution for the potentially huge impact of consumers copying their copyrighted works at home?
In 2014, research and consultancy company Gartner predicted that by 2018, 3D printing will result in the loss of at least $100 billion per year in IP globally since 3D printers make it possible for consumers to create almost every product themselves instead of buying it. This forecast does not seem to have become reality just yet. But even then it assumes that right holders will not be able to effectively protect their IP rights. Are these concerns valid or does existing IP law adequately protect the interests of right holders?
3D printing technology
At the end of the 1980s, the technology of 3D printers, the so-called ‘rapid prototyping’ technique, was introduced in the industrial sector. The printers were initially intended to create prototypes of industrial objects to be used during the process of developing and testing new products. They allowed businesses to reduce their overhead. Since then, printers got better, cheaper and were discovered in other sectors including in the consumer arena. So how does it work? The 3D printing process starts with a Computer Aided Design (CAD) file in which the object to be printed is digitally formatted either using special software or a 3D scanner. The CAD file is then exported to the 3D printer, which transforms the digital file into a three-dimensional object that is built layer upon layer. One of the main concerns is that 3D printers make it possible to create physical copies of almost any object without the authorization of those who hold rights in that object. This could constitute different IP rights infringements (patent, design, trademark and/or copyright). In this blog we will focus on the Dutch legal framework of copyright (which is based on EU Law).
Copyright gives creators of a literary, artistic, scientific or other creative work the exclusive right to reproduce and make available the copyright protected work and to prevent other people from copying or exploiting it. Under EU law, copyright is automatically granted to the author of an original work at the moment of creation. Only the author, the creator of the work, is allowed to reproduce (make copies) of the work and provide these copies to the public unless. Third parties may only do so with consent of the right holder.
Commercial use can be acted upon
3D scanners in combination with a 3D printer will create a challenge for right holders because scanners make it possible to produce a physical copy of the copyright protected work that will be identical to the original work. These copies could then be commercially sold. In addition, the copyright protected work can be turned into a CAD file, which can then be distributed online. While actually enforcing their rights may be a concern for right holders, both acts would be considered piracy and can legally be acted upon.
There is however a legally relevant difference between commercial and non-commercial (private) use of copyright protected works. Non-commercial use by consumers might cause the biggest challenge.
Firstly, when consumers download unauthorized CAD files from platforms. This is of course the same as what happens with illegal downloading in the music and film industry. The European Court ruled in 2014 that downloading from an illegal source is prohibited (see the ACI Adam case). However, as noted by other commentators, it is practically impossible to go after all these infringers and it might be more effective to go after the platforms that offer infringing CAD files. If these platforms play an active role “of such a kind as to give it knowledge of, or control over the data causing the infringement and if they fail to expeditiously remove or to disable access to the information”, this could possibly result in secondary liability (see the L’Oréal vs. eBay case). Since the Pirate Bay ruling, making available and managing an online platform for sharing copyright-protected works, may even constitute an infringement of copyright in itself (see Pirate Bay case). This means that the right holders can hold the platforms liable for the infringement next to the end-users.
Secondly, consumers could scan and copy copyright protected works that they have legally bought themselves, without using a CAD file provided by a third party. Could right holders also challenge such an act?
Private copying exception gives consumers the right to make 3D copies
The EU Copyright Directive (2001/29) provides the option for EU member states to implement in their copyright legislation a ‘private copying exception’. The Netherlands has made use of this option, as have many other EU member states. Under the exception, it is allowed for natural persons to make copies of protected works for “private use and for ends that are neither directly nor indirectly commercial” without first obtaining permission from the copyright holder. However, if an EU member state implements a private copying exception, it is obligated to ensure that the right holders receive “fair compensation” to compensate them for the use made of their protected works (and the resulting loss of income).
The way in which fair compensation is ensured varies among the member states. However, many use some sort of a levy system. The Dutch levy is applied to blank carriers like CDs and DVDs and since 2013 also on modern storage devices like mobile phones, computers en hard drives. Basically, “the mere capacity of a device to make copies is enough to justify collecting a private copy levy, regardless of the principal function of the device” (a mobile phone is primarily meant for communication purposes). This approach is based on the presumption that people will make full use of all the functions provided by the device (see the Copydan/Nokia case). If you apply this approach to 3D printers, there is no escaping the conclusion that a levy should also apply to 3D printers.
A new collective rights organization for 3D printers?
The Dutch collecting society Stichting de Thuiskopie is responsible for collection and distribution of private copying remunerations to right holders in the Netherlands. It distributes the remuneration to various organizations who then pay out the right holders, such as Stemra (music composers and music publishers), Lira (writers), Norma (actors and musicians) and Pictoright (photographers).
But how might Stichting de Thuiskopie raise a levy? On the 3D printer itself, on the material used for the printer (ranging from plastics to ceramics and from metals like gold and titanium to hybrid materials like chocolate) or on the CAD files? And, of course, what will be considered ‘fair compensation’?
Even if this problem would be solved, the next question is how the compensation would be distributed among all the different right holders? 3D printers in combination with 3D scanners make it possible to copy almost every object. This means you are not dealing with (relatively) clearly defined categories of right holders such as musicians and writers but with all kinds of artists, fashion designers and design agencies but also with manufacturers of furniture, utensils, jewellery or car parts. The only threshold is that the objects that they produce are copyright protected, which is not a high threshold to take under EU copyright law. It is just a matter of time before copyright holders will start asking for a form of fair compensation for the private copies made with 3D printers. This might be a catalyst for a lot of legal proceedings on the scope of protection that copyright affords.
Since there is not a uniform copyright levy system in the EU it is up to member states to establish a system that provides for fair compensation. Member states should start to think about a practical solution for collecting private copying levies in the area of 3D printing, or should we say: the area of complete copyright chaos?