Tekijänoikeuden erikoiskirjasto

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*1001 $aJones, Simon.
*24510$a3D printing across borders /$cSimon Jones.
*260  $c2014.
*300  $a29-31.
*4901 $aIntellectual Property Magazine,$x2044-7175 ;$vNovember
*520  $aAt its root, 3D printing is dependent upon the existence of a digital file containing computer-generated images – the shape of a product in three dimensions that are created by the original designer or by a person taking a scan of the product shape. The digital file is then transferred to a 3D printer, which will utilise the digital file to produce a product to the required shape – usually by building up micro thin layers of material that are fused together in the shape of the product.  The key impacts  In all of this, it is now clear that 3D printing presents huge opportunities and challenges to traditional businesses. For example:  •   Products can, in theory, be produced anywhere, anytime. In particular, as the cost of 3D printing reduces, it is becoming possible to produce products via 3D printers in small quantities close to their point of use, and as economically as if they were mass produced. This will now start to simplify the supply chain and reduce distribution costs.  •   Product design is being liberated by the new found ability to produce products to designs, which previously could not be manufactured. The impact of this technology is even expanding to items of clothing and nutrition rich food products, while research into producing electronically controlled devices via 3D printers is at an advanced stage.  •   Product designs can now be customised to meet the tastes of individual customers.  •   Spare parts will always be available.  •   3D printing is enabling design owners to license their digital design files to third parties who wish to produce their products.  •   Consumers can now produce certain basic products at home via low cost 3D printers  •   Increasing numbers of businesses (including retailers) are now offering their customers a 3D printing service. Even the likes of La Poste in France are rising to the potential challenge to their postal business by setting up 3D printing trials in certain Parisian post offices.  What does these mean for intellectual property?  In all of this, important questions arise regarding the intellectual property implications of 3D printing, particularly in relation to:  •   How best to protect product designs;  •   How to optimise the exploitation of intellectual property rights in product designs;  •   Customisation of product designs by the designers or anybody with access to the digital file;  •   The threat of home copying, unauthorised file sharing and counterfeiting; and  •   Local differences in intellectual property laws around the world.  Managing the legal issues across borders  Businesses need to give careful thought as to how to harness the huge benefits of 3D printing while implementing strategies to address the threats.  As far as intellectual property is concerned, 3D printing can affect copyright, design rights, patents and trademarks (often cumulatively).  However, intellectual property has been slow to adapt to the digital world and approaches vary around the world. Space in this article does not permit a full analysis but a few examples will illustrate some of the challenges.  Copyright  Copyright protects both artistic and literary works. Here, artistic works will include the surface decoration that is applied to products and product shapes which qualify as sculptures if they have an aesthetic appeal. Traditionally, it has been hard for product designs to qualify as works of artistic craftsmanship. However, recent Court of Justice of the European Union (CJEU) rulings suggest that “any work that is the author’s own intellectual creation” should be protected by copyright. From a European designers’ perspective, this would be welcome and design owners should certainly consider claiming artistic copyright infringement as part of any infringement action.  In addition, literary copyright in product design files will be infringed by unauthorised 3D printing. This is because computer programs are specifically included as literary works under section 3(1) of the Copyright Design and Patents Act (CPDA), and recent case law confirms that a set of instructions for making an artistic work is a literary work and may also constitute an artistic work (Abraham Moon and Sons Ltd v Thornber [2012] EWPCC 37). Accordingly, the copying of a digital file via any system of file sharing may constitute copyright infringement of the design file as both an artistic and a literary work.  Home copying  Individuals are generally allowed to make copies of products at home for their own personal use (although, in countries such as France, this does not apply to artistic works).  For years, home copying has only affected the media and IT sectors, but individuals can now make multiple copies of physical products at home for personal use. This was not anticipated when the home copying exception was introduced and, as a result, the boundary between permitted home copying and unauthorised commercial copying is set to come before the courts in a number of countries.   However, if an individual asks a third-party provider of 3D printing services to produce an item, the provider of those services must be authorised to use the applicable designs by the owner of the underlying intellectual property rights, even if the item is only being produced for the private use of the commissioning individual.  Also, in France, it is only possible for consumers to legally produce private copies of a copyright work if the reproduction is made from a lawful source. In so doing, the act of home copying must not (i) infringe the rightsholders normal exploitation of its work or (ii) affect its lawful interests without justification. There is a clear difference here between making one copy of a piece of music to listen to at home and the production of multiple copies of the same product for home use. As such, in France, unlimited home reproduction of items for home use may well infringe the normal exploitation rights of the owner.  Also, in a number of European countries, levies can be placed on the sale of copying devices provided that there is a differentiation in the levy charged to private and commercial purchasers of such devices. For example, French law also provides for copyright owners (but not registered design owners) to be compensated in relation to home copies. For digital products, this has led to the implementation of a levy on media (such as CDs, DVDs and USBs). While, this mechanism is yet to be applied to 3D printing (because no decision has been taken as to where to apply such a levy), the CJEU has already held that it is possible to go up the taxation chain in order to tax any step in the reproductive chain such as PCs, hardware and so on.  Registered designs  Independently of copyright, registered designs protect the aspects of a product’s appearance that has eye appeal. Once registered, the owner can enforce its registered designs in the countries in which registration has been sought without having to prove that any copying has taken place, just that the new design produces the “same overall impression” as the registered design. However, registered design right protection does not prevent individuals from making copies of a product at home for private use. In addition, in France – unlike copyright – the right of individuals to make home copies of registered designs is not subject to any requirement to establish that the design file has been obtained from a lawful source (and no compensation is foreseen for the rightsholders in relation with this exception).  Thus, in France, the home copying exception for products protected by registered designs is wider than in relation to copyrighted materials. An internet user in France who has downloaded a design file published on the internet without the rightsholder’s consent in order to print the item in 3D may not infringe any registered designs but may infringe copyright. Moreover, some French lawyers now argue for the introduction of home copying compensation of industrial rightsholders.  Counterfeiting and P2P file sharing  Manufacturers are concerned that digital design files and design scans will be shared between individuals over the internet, so as to facilitate large scale home copying and counterfeiting. In the past, manufacturers have relied on the fact that it was necessary to invest significant sums in the tooling and facilities that were necessary to mass produce in economically viable quantities. However, once a 3D printer has been bought, it can be used to produce many different products and, as 3D printing speeds increase and costs reduce, the traditional economies of scale associated with mass production become less important. In addition, because the cost of 3D printing relates mainly to the cost of the 3D printers and the raw materials (rather than labour), counterfeiters can make products via 3D printers closer to the place of sale (thus avoiding customs checks and distribution costs), rather than in countries with low labour costs.  However, it is also interesting to draw some parallels from the success of iTunes where consumers have been more than happy to buy digital copies of music from an authorised reseller. It is not difficult to envisage a similar model working well for 3D design files that are commercialised by the original design owners and manufacturers, either independently or via an authorised online reseller of product designs. These design file licences should also include manufacturing instructions, links to the sellers of recommended materials to be used in the printing process, along with access to helplines to assist customers who wish to “print” those products that are capable of being produced at home via a 3D printer.  While individuals are free to make their own copies of product designs at home for their personal use, users of P2P services may well infringe the intellectual property rights of the original desi 
*520  $9  gner of a product if they circulate or obtain a design file via a commercial P2P service. However, rightsholders face the challenge of having to take individual action against those who they catch.  For this reason, rightsholders will want to consider taking action against any file sharing websites. For example, in the UK, it is possible to seek a blocking injunction against ISPs under section 97 of the CDPA, in circumstances where an internet service provider (ISP) has actual knowledge of another person using their service to infringe copyright. While this statutory right has existed for many years, it was not enforced until the recent Newzbin cases, Here, Newzbin was originally found liable for copyright infringement after distributing infringing copies of CBS films online. However, after the initial case, Newzbin simply moved its content to another website, which resulted in Twentieth Century Fox successfully forcing BT to block Newzbin’s access to its services which were being used to enable mass copyright infringement. This second case has made it clear that rightsholders can take action against ISPs who host websites that are distributing infringing material. In so doing, the rightsholder will need to show that:  •   The website owner has used the hosting services of an ISP to infringe copyright;   •   The ISP had knowledge of what was happening; and  •   An injunction is an appropriate remedy  This is good news for rightsholders and will provide a relatively straight forward way to stop infringers from being able to distribute infringing copies of product designs via the internet.  In addition, the issue of P2P copying has been the subject of consultation in recent years in the UK by the Department for Business Innovation and Skills. In so doing, it is possible that:  •   ISPs may soon be under an obligation to check up on the activities of their users;  •   If any users are suspected of infringing third party IPRs, the ISPs should inform them (on multiple occasions if necessary) with frequent infringers being added to a serious infringers list;  •   Rightsholders may then be able to obtain the names and addresses of those on the list by obtaining a court order; and  •   Rightsholders will then be able to send a cease and desist style letter to alleged infringers to be followed up by warnings of court action and the commencement of proceedings if activities do not stop.  In addition, in Germany, there are considerable concerns regarding the ease with which design files can be shared over the internet. As discussed earlier, the dissemination of design files without consent will infringe the rights of the design owner and those who will have liability will include ISPs, given their role in making the electronic design files available to the public. In addition, such acts may also constitute an act of “indirect infringement” under German patent and utility model law, because the file can be used together with the 3D printer to produce the infringing imitating product. This issue will be subject to the jurisdiction of German courts.  Functional items  Functional products and spare parts are not generally protected by intellectual property. Accordingly, these can be freely copied via 3D printers for commercial purposes.  China  While intellectual property is protected in China, the enforcement of intellectual property rights in China is patchy and inconsistent. In particular, even when cases are brought, local law enforcement authorities can, and frequently do, defend the interests of local enterprises against national or multinational firms, even in instances of obvious infringement. In the 3D space, where infringing a person’s intellectual property looks to become even easier, there is a big question mark as to how the Chinese authorities will respond.  However, copyright owners do have the option to voluntarily register their rights with the local copyright administrative agencies and such, registrations can serve as prima facie evidence of ownership in an infringement action.  Seizing the opportunity  As well as viewing intellectual property as a means of stopping third parties from making unauthorised products via 3D printers, manufacturers should consider the exploitation of their digital rights. Thus, the manufacturers will need to address the digital exploitation of their product designs as part of their core business. In so doing, manufacturers should consider exploiting the digital rights to their product designs by making their designs available for downloading for commercial and home copying, (together with all of the required information to produce a finished article to the required standards), in return for a fee. As such, many manufacturers will be able to generate new revenue streams without having to invest in traditional factories, even if the product in question does not qualify for intellectual property protection.  Authors  Simon Jones is a partner in Eversheds technology, media and telecoms sector. He was assisted by Paris-based partner Gaetan Cordier, Munich-based partner Alexander Niethammer and the firm’s Asia TMT head Nigel Stamp.
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