3D printers use digital files to create objects from all sorts of different materials. The objects are first designed using appropriate software known as computer-aided design (CAD). The 3D printing process then ‘slices’ the object into many layers which are ‘printed’ on top of each other to create the object. This process is also known as additive manufacturing (AM).
Additive manufacturing has already reached a wide application in various industries. 3D printers have been used to make complex and sophisticated objects, such as customised prosthetic limbs, surgical implants, pills, machinery parts, weapons, replicas of museum specimen and artefacts. However, the development of 3D printing industry is still at an early stage and its huge potential for growth has yet to be deployed.
Far from being a thorough legal analysis, this article observes the current and likely future effects that the development of 3D printing industry might have on European and UK laws.
Effects on industry will entail effects on law
Additive manufacturing is widely recognised as a highly disruptive technology that will affect various fields. For instance, an interesting online article written by Brad Hart about practical applications of 3D printing in the shipping industry speculates on evocative although plausible outcomes (see here). The article describes the utility of 3D printers installed on board of cargo vessels. Supported by databases of 3D CAD images of the ship parts, 3D printers could address almost any mechanical failure occurring during long-haul shipments by making available made-to-spec replacements in a matter of minutes to hours. This would not only avoid delays and waste of money and resources, but might also affect the general approach of the large shipping insurance industry.
Hart goes even further by picturing that the adoption of 3D printing technology on a large scale could strongly affect the shipbuilding industry by inducing the balance of cargo to shift from container vessels back to bulk cargoes. Beyond this, ships could conceivably even become manufacturing plants. The vessel could pick up raw materials overseas and begin manufacturing products during the voyage to the importing countries thanks to a bank of 3D printers installed aboard.
These speculations are only one example of the growth potential of 3D printing applications. The list about the possibilities could be endless as 3D printing could impact the future of many industries in today still unimaginable ways. It will potentially steer investments in the manufacturing, shipping and distribution industry, with effects on infrastructure investments and – nonetheless – migration flaws. The development of 3D printing will severally challenge the notion of scarcity.
Because of its highly disruptive nature, 3D printing will also challenge the law from many sides. Current UK and European laws are yet unprepared to address the wealth of technological advancements brought by 3D printing. Such inadequacy is emphasised by the yet large diffusion of 3D printers – which is expected to become massive when prices decrease and simple versions are already made to the general public. As with any other disruptive innovation, 3D printing law currently poses more questions than answers. This article will focus on certain key legal aspects, though numerous areas will be affected in future.
Intellectual property law
By limiting the analysis to the fields of law already challenged by 3D printing, the most obvious of them is doubtless intellectual property law. This is mainly due to the inherent capacity of 3D printers to replicate objects. Most of the key issues in this area are related to the protection of copyright and design rights. Printing a 3D object only needs an electronic plan (or design) of the object (the CAD file), raw materials and a 3D printer. These tools allow anyone to produce exact copies of a given object. The clear risk is that a black market of essentially counterfeited items is likely to flourish, jeopardising many IP rights.
Some hurdles further complicate the picture. Copyright infringements by mean of 3D printing may be the result of complex actions that involve many parties: the creator of the CAD file, the online platforms that make it available to the public, the person who 3D prints upon customer request and the customer who requests the object to be printed. This makes it difficult to effectively defend one’s rights against all the infringers.
In this regard, it has been suggested that an expeditious choice would be focusing on hosting liability of intermediaries, such as the online platforms that offer infringing CAD files. These platforms are already highly popular and the Intellectual Property Office (IPO) has published a legal and empirical study on the topic (available here). The study unveils that among the global uploads it is possible to identify the most popular labels for 3D printable objects, which unsurprisingly correspond to well-known brand and popular products such as: iPhone, Lego, BMW, Sony, Ikea, Star Wars and Canon. However, it has been objected that the role of such intermediaries could be scaled down by the development of reverse-engineering technologies which will allow the creation of CAD files from existing works by using 3D scanners.
Under another perspective, the Court of Justice of the European Union (CJEU) made clear in its ACI Adam judgement (Case C-435/12) that the private copy exception provided for by the Copyright Directive cannot be invoked in case of CAD files downloaded from an illegal source. The private copying exception was first introduced in the UK on 1 October 2014 by the The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 . On 17 July 2015 the High Court quashed the regulations for a defect of form. However, the text of the Copyright Directive allows the UK government to reintroduce a new copyright exception.
Despite the above, it remains difficult to define whether a private copy exception can be invoked by a commercial party printing upon a private individual’s request. Such uncertainty is emphasised by differences between national implementations of the European directive. Further questions concerning the inadequacy of IP protection originating from private copy and private use exceptions have been raised in relation to patent and design rights, with a particular concern regarding the 3D printing of spare parts of design-right protected objects. Additionally, the use of 3D printers could also severely affect trademark owners, especially in connection with the release on the market of poor-quality CAD files and printed materials.
Product liability and security issues
However, it is not all about IP. 3D printers potentially turn a home printer into a semi-professional manufacturer. This blurs the traditional boundaries between the definitions of ‘producer’ and ‘consumer’, on which many EU Member States have based their strict regimes on manufacturers’ liability. As a result, much of the existing European and domestic legislation might not apply to most cases involving 3D printed objects. In this regard, it has been noted (see here) that the European directive on product liability seems hardly reconcilable with the reality of 3D printing, as it is based on the premise that only producers could “influence a product’s quality”. The ability of private individuals to sell home-manufacture objects by means of 3D printers clearly identifies a vacuum in the European law on product liability.
Beyond that, a much-debated topic concerning 3D printing relates to safety and security issues. 3D printing has already been used to make both legal and illegal guns and drugs. Further issues have yet occurred in the past years in relation to the printing of various weapons, keys for police handcuffs and other undesirable products. How would the law apply for example to an individual downloading and printing a design file for a gun, who is harming himself misfiring the gun due to mechanical problems? How is the liability for the defective product shared among the design distributor, the manufacturer of the printer and the consumer itself? In the absence of specific legislation, these questions might find a precautionary solution in appropriate commercial agreements on liability. The gaps will no doubt be developed by case law, especially in common law jurisdiction such as England, in order to bring horizontally wide solutions in the short term.
A less addressed issue in the field of 3D printing is whether privacy law offers adequate protection in relation to CADs and replicas containing personal data. For instance, 3D printers are often used to test surgeries, in which case the doctor can manufacture a perfect copy of the patients’ organs to simulate the surgery and anticipate potential issues likely to arise therein. The question is not only whether hospitals require a patient privacy consent to 3D print his organs. It is also related to what happens to 3D printed organs after the tested surgery. They might be used for research, or even made available to third parties that could exploit them for commercial purposes. For instance, it has been argued that through the information contained in such organs (e.g. the type of disease affecting the patient) it might be possible to perform direct marketing activities or even adjust insurance policies premiums.
Investment benefits for start-ups
3D printers can also be a strategic resources for small businesses and start-ups that need to produce accurate replicas of their products whilst looking for investors. Such ability can produce important changes in investment returns and confidence towards small businesses. The affordability of prototypes is likely to stimulate additional investments for hi-tech start-ups that otherwise may have failed to attract the investments to commercialise their technologies.
Many consider that 3D printing legal implications are likely to be large enough to create a specialised area of law. On top of the issues mentioned above, many experts have already warned about legal issues concerning inter alia environmental aspects, insurance and labour law. A new area for contract law concerning commercial agreements regulating the players of the 3D printing supply chain may easily arise too. Besides that, norms and standards specifically tailored to 3D printing are needed, especially with regard to regulated or sensitive sectors, such as dental or medical applications. The uncertainty deriving from the development of such phenomenon makes it difficult for legislators to design appropriate laws to prevent the risks associated with 3D printing. It appears that 3D printing law will be massively shaped by case law, which will therefore have a prominent role in driving what The Economist referred to as the “third industrial revolution”.
For further information please contact Daniel Preiskel.