3D printing is still a relatively new technology that found many appliances, from manufacturing and medicine to private use. As it often happens with new technologies, legal risks connected with 3D printing still haven’t been regulated in the old continent. Without any specific provisions on the matter, the 3D printing is legal as long as it doesn´t violate any existing laws.
So which are the legal risks arising in connection with the 3D printing process?
INTELLECTUAL PROPERTY VIOLATIONS
Intellectual Property rights may constitute one of the most (if not the most) valuable assets of a company. Designs, patents and trademarks often have a deciding effect on a business’s success. The economic rights deriving from copyright generate billions in revenues to artists around the world. That’s why the war with Napster and later with other similar websites has been so fierce. And that’s why the violation of Intellectual Property rights is one of the greatest risks that goes along with the development of the 3D printing industry.
It’s hard to estimate the losses of manufacturers and creators caused by this new technology, professionally referred to as additive manufacturing. In 2013 the Analyst Group Gartner predicted that by 2018 3D printing will result in the loss of at least US$100-billion per year in intellectual property globally. I couldn’t find any updated data on whether this prediction was fulfilled but I wouldn’t be surprised if it did. In any case, the statement of the Analyst Group Gartner from 7 years ago shows the scale of the problem.
In that context, you may be asking yourself how one could infringe on the IP rights of others in the 3D printing process? Here I come to satisfy your curiosity.
CAD files’ creators
CAD files contain designs of printable products. When you open the file, you won’t see a code or other list of precise instructions for a printer. Instead, you will see a ready, three-dimensional design of a product. Check out, for example, this super cool Harry Potter chess set. To create such a file you either need to do it from scratch or simply scan the original product using special tools. The resemblance of such scanning with a regular copy and paste method for literary texts is uncanny.
Will the CAD file’s creator be then responsible? After all, it’s hard to deny that the most important part of (human) creation is finished with the finishing of a CAD file. On the other hand, the product doesn’t physically exist until it’s printed.
Well, the answer will depend on several circumstances such as how the file will be used and what is the subject of a potential infringement. In fact, the CAD files created just for the author’s private and noncommercial use will hardly ever be a source of a violation, thanks to a series of private use exemptions. However, when shared, the CAD files infringing third parties’ intellectual property rights may provoke the creator’s liability.
In particular, 3D models, as similar to technical drawings, could infringe copyrights of the original author of the product (provided such product is original and, as such, copyrightable). Furthermore, in the case of patents, the CAD files may lead to indirect patent infringement. Differently, European legislation hasn’t developed an indirect liability in the event of design infringement. Therefore, the owners of the design rights should rather seek protection using other rights, such as copyrights (even if this, in many EU jurisdictions, will be rather hard). Finally, the creators of the 3D printable copies of the trademarks will rarely be liable, as a trademark infringement consists rather of selling products under someone else’s name than of the manufacturing of the trademarks themselves. The liability could, however, arise if the trademark is copyrighted.
Internet Service Providers (ISP)
ISPs are websites such as, for example, YouTube, Facebook, Instagram, Reddit or Amazon which content is user-created. As you can imagine, it is highly probable people post illegal content on such websites. And as you’ve probably heard, from time to time such ISPs delete such content. Indeed, according to art. 14 of the so-called E-commerce Directive, the Member States “shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: (a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or (b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information“.
Therefore, ISPs cannot be held liable for the content posted by their users, as long as they take down such content upon obtaining knowledge of the fact that such content is somehow illegal (for example infringing IP rights of others). This procedure, known as “notice and takedown”, constitutes a “safe harbor” for these ISPs and allows for free sharing of the content on the Internet. Indeed, according to art. 15 of the same Directive, there should be no obligation to monitor the user content stored by the service providers. Therefore, the ISPs aren’t obliged to apply any automatic (or other) filters of content uploaded by the users.
The same rules will apply to the websites that share CAD files with printable objects such as Thingiverse, CGTrader or Cults. Consequently, until these ISPs do not take a credible notice about an infringement of third parties’ rights by the users, they won’t be responsible for such content.
Manufacturers
It doesn’t really matter which method the manufacturers use to make and sell their products. If such products infringe third parties’ rights, the manufacturers will normally be liable. Usually, they will be also CAD files’ creators but it’s not necessary to hold them liable for the infringement. Therefore, if you do or you are going to produce and sell 3D printed objects in the EU market, better make sure they do not infringe on the IP rights of others!
Home users
On contrary to the manufacturers, the home users will be normally exempted from any liability if they print the copied objects for their own, private use, for non-commercial purposes, as such use is normally exempted from the liability.
3D printing services
The situation of 3D printing shops, where anyone can bring their CAD files, remains unclear. After all, they would function in a similar way to 2D printing shops. Therefore, it seems it’d be rather hard to assign responsibility for IP violations to such shops, save certain particular situations. However, until there are clear regulations on this matter or at least some CJEU decisions, we may only guess.
Certainly, it wouldn’t harm to include in the terms and conditions of the service, that the users are responsible for possible infringement of the intellectual property rights and they should indemnify and keep the service provider harmless against any damage deriving from such an infringement.
PRODUCT LIABILITY
Another risk arising in the 3D printing process is a liability for damage made as a result of a defective product. The current regulation isn’t adapted for the additive manufacturing process. According to EU Directive 85/374/EEC “the producer shall be liable for damage caused by a defect in his product.” The same Directive defines the “producer” as “the manufacturer of a finished product, the producer of any raw material or the manufacturer of a component part and any person who, by putting his name, trade mark or other distinguishing feature on the product presents himself as its producer.”
As you may probably have guessed after reading the above definition, it’s unclear who the hell should be responsible for “damage caused by a defect in his product” in case of 3D printing: the creator of the CAD file? the manufacturer? the printing shops? the home user who privately printed the product? the producer of the filament to the 3D printer? or maybe even the producer of the printer or the software?
The possibilities are endless as all these parties may contribute to potential damage. Therefore, until there are specific provisions or at least CJEU clarifications on that matter, it may be useful to mitigate risks by specifying very clear instructions as to the safety rules regarding the use of the printers, of the CAD files and the printed products, depending on the actor in the printing process. Furthermore, it might be a good idea to clarify with the insurer if the civil liability policy covers also 3D printing production risks.
OTHER ISSUES
Naturally, 3D printing may bring also a series of further legal risks. Let me mention just a few of them to give you a very general overview of such potential risks. For example, the European Parliament resolution of 3 July 2018 “on three-dimensional printing, a challenge in the fields of intellectual property rights and civil liability” indicates that scanning of people and 3D printing of such files may affect image rights and the right to privacy. Furthermore, 3D printing may result in liability for certain security issues such as printing of guns and other homemade weapons. Distribution of CAD files that may be treated as weapons’ blueprints, also through the Internet, could be classified as an illegal import of military technical data. Finally, 3D printing could also raise risks in the matter of labor law, such as health and safety issues regarding, for example, the printers and potentially toxic filaments.
Unfortunately, the full analysis and description of the above risks go beyond the scope of a blog post but you get the idea. Usually, if you play fair and use your own, creative ideas, you should be fine.