How to avoid 3D printing a legal landmine

Written by: Doug Ealey | Published:

3D printing is a fantastic technology, but it is open to abuse. Doug Ealey, Partner, D Young & Co takes a look at some of the potential pitfalls

3D printing enables the creation of highly complex objects without machining, and has the potential to disrupt key aspects of production, for example bypassing shipping to make items in-market, and changing obsolescence cycles through comprehensive access to spare parts.

As an industry, 3D printing needs three sectors; manufacturers of 3D printers, suppliers of printing services, and hosts to distribute digital files. However, these sectors in turn need a legal framework to protect them from abuse – it's easy to see that an individual adding a Nike logo to a generic 3D design is both inevitable and likely to cause serious headaches. This article briefly looks at the legal landscape for 3D printing.

Manufacturers of 3D printers clearly make a product that enables the legitimate copying and production of goods, but also enables illegal copying and the production of illegitimate goods such as the counterfeit Nike product described above. Will manufacturers be liable for the uses to which their machines are put? Fortunately, this question has already been answered in the UK: in CBS v Amstrad [1], CBS alleged that Amstrad's dual tape deck system clearly enabled the illegal duplication of music tapes, and so Amstrad had 'authorised' copyright infringement. The House of Lords, however, held that because the deck also had the legitimate use of copying a user's own recordings, Amstrad was not making such an authorisation and had no liability. So basically, as long as your operating manual doesn't include a link to The Pirate Bay, manufacturers of printers should be able to operate freely.

The hosts of 3D printing files should be aware of the Electronic Commerce (EC Directive) Regulations 2002 and in particular Regulation 19[2], which states that a service provider hosting content provided by a recipient of the service is not liable for sanctions as a result of that hosting, if they do not have actual knowledge of unlawful activity or information, and upon obtaining such knowledge or where it is apparent, they act expeditiously to remove or to disable access to the information, assuming that the recipient of the service themselves was not acting under the authority or the control of the service provider.

However this safeguard is conditional on the host not having an 'active role' that may give it apparent knowledge of what products are being hosted; examples of active roles given in L'Oreal v eBay[3][4] included providing assistance with the presentation of a product online, or promoting the product. Clearly therefore, a sensible approach for hosts is to provide terms of engagement for new users that prohibit unlawful IP acts, to provide a reporting and takedown service, and to carefully vet any promotion of hosted products.

Finally, suppliers of printing services actually make products according to designs sent to them by third parties, where the designs and indeed the parties may often be of obscure provenance. Given that 3D printing within a target market may be seen as a good way for counterfeiters to bypass border controls and customs checks, this makes suppliers uniquely vulnerable as they don't clearly fall into either of the above categories, whilst still taking an active role in the creation of the product. Consequently they may find themselves making products that have copyright, patent, trademark and/or design rights associated with them, resulting in a complex mix of potential liabilities.

The specific situation for each right goes beyond what can be covered here, but as a general principle, firstly don't act to induce or implicitly authorise infringement (for example, by advertising on The Pirate Bay) and secondly, like hosts, provide suitable terms of engagement and have an internal review process to check for apparent / obvious infringements.

As the 3D printing industry grows, we are sure to see some of these principles tested, so be prepared – and watch your step.

www.bailii.org/uk/cases/UKHL/1988/15.html
www.legislation.gov.uk/uksi/2002/2013/regulation/19/made
www.bailii.org/ew/cases/EWHC/Ch/2009/1094.html
curia.europa.eu/juris/liste.jsf?num=C-324/0


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