3D printing – an amazing process for manufacture or a hornet’s nest for copies?
The advent of affordable 3D printers has meant that almost anyone with the will can now print three dimensional articles in their own home. However, what does this mean for those in the automotive industry whose job it is to create and sell new 3D products? One of the major concerns with the advent of this technology is how to protect Intellectual Property (IP) in a world where everyone can make 3D products at the press of a button.
Whilst those creating designs for 3D printers will no doubt enjoy the freedom that it gives them, it could potentially cause real problems for manufacturers. Whilst it will not, at least initially, be as easy as ripping an album or DVD into a digital file, it is clear that less scrupulous parties could copy others’ designs more easily than before. This could potentially be a big problem in the sector with, for example, the automotive wheel, where counterfeit parts are already prevalent. This technology could give the copyists yet another way to make more copies, leading to reputational damage if the copy product is defective in some way and the defect is attributed to the original copied party rather than the inferior copier.
There is also the issue of genuine 3D printer instructions being copied without the owner’s permission; for example, if someone in good faith designs an original article, but then their instruction file is distributed without their consent. With all these possibilities, what can manufacturers do to ensure their IP rights are sufficiently protected and their competitive advantage kept intact?
As far as the UK is concerned, probably the most relevant right for both designers and would-be 3D printers will be UK Unregistered Design Right (UDR). This covers the 3D shape and configuration of an article. The right can be infringed in at least two ways: making copies, and making a design document to enable copies to be made. As such, a would-be copyist faces two problems, if they want to stay within the law: not only is making a copy of someone else’s article an infringement of design right, but also making (and, as far as we can tell, distributing) the computer file which instructs the printer would also be a design right infringement.
Therefore, it would seem that UK unregistered design right law is well placed to stop anyone making 3D-printed copies of original articles; we can envisage similar cases as have already been taken by the motion picture studios to enforce copyright against The Pirate Bay and other such websites being brought against sites hosting lots of infringing designs.
However, UDR is not without its pitfalls. It has a complicated set of criteria setting out which designs are entitled to protection, dependent upon the nationality of the creator or employer of the design, or where the design is first marketed. Recent changes to the law have meant that commissioners of designs – those that pay third parties to create designs for them – have to be particularly careful when commissioning designs from overseas, as any design created outside of the European Union has the potential not to be covered by UK UDR. For example, say an automotive part is designed and first sold in the US by a US company, and then only marketed in the UK a year or so later (say when the corresponding vehicle is launched here); that design would not have UK UDR.
As such, with 3D printing making the transmission of the design of 3D articles around the world so much easier, UK UDR (whilst better than many countries’ provisions) does feel ill prepared for global markets in copying.
There is also a European Union-wide unregistered design right, which covers those features that make a design aesthetically distinctive. However, whilst this right does not have the same problems as to qualification, it has several important limitations. Firstly, it only lasts three years from when the design is first made public; this is likely to be insufficient to protect spare parts for a vehicle, where each individual vehicle may have at least a decade’s life in it. Secondly, for “component parts of complex products”, which most automotive parts will be, it only provides protection for those features which can be seen when the product (the vehicle) is in use, so no protection will be provided for “under the bonnet” parts.
Copyright will come to the rescue of anyone whose legitimate 3D printer files are taken and copied; copying those files will be an infringement of copyright. Similarly, anyone with a registered design or a patent where the 3D printer creates an article covered by one of these registered rights would infringe those rights; there is an argument that anyone creating a 3D printer file knowing that it is going to be used to infringe those rights would be a “joint tortfeasor” and so liable with anyone who did copy, but that is far from clear. Any 3D printer who was unwise enough to include a third party’s trademarks would also be liable, should they be traceable.
Overall, there are tools to stop the illicit 3D printers out there, but the UK law at present is something of a hodgepodge, mostly dating back to the 1980s when 3D printers were more the subject of science fiction or Tomorrow’s World. It may be that once 3D printing becomes more and more prevalent, the legislators will catch up and modernise our laws for a more global world. Should this happen, we would hope that this would be on a considered, rather than a knee-jerk, basis.
For more information, please contact automotive patent and designs expert David Harris or your usual Barker Brettell contact.
