3D printing technology is no longer a new technology as it was first introduced in the late 1980's. Due to the rapid advancement of technology, 3D printing technology has been continuously developing and aggressively expanding for use in many industry sectors. Recently, 3D printers have even become more accessible and affordable to consumers for everyday use which threaten to become mainstream in the near future. Although 3D printing technology provides consumers with the ability to customise products anytime and anywhere, it nevertheless has a negative impact on business community and marketplace.
Given the very nature of 3D printing technology which allows for copying and creating existing 3D objects, the use of this new technology has raised issues over intellectual property rights (IPRs) concerning the four main areas i.e. copyright, trade mark, patent and industrial design which are not addressed by the current intellectual property (IP) law framework. Therefore, it is vital to determine the repercussions of using 3D printers for unlawful purposes in respect of the issues of infringement and IP theft in 3D printing space before looking into the practical ways which the owners of IPRs may resort to for better protection and enforcement of their IPRs.
As far as 3D printing is concerned, 3D scanning and printing via 3D printers allows for the manufacture or replication of any solid object by using a 3D data either created by a computer-aided design (CAD) program or by using CAD files downloaded from the Internet, or created by scanning an existing object with a 3D scanner which turns it into a virtual model or 3D physical objects. They are the source of copy of CAD files and 3D physical objects which cause various legal issues under IP law.
3D printing technology is widely used for both prototyping and distributed manufacturing with applications in various industries and markets which include the engineering, architecture, automotive, construction, industrial design, fashion, footwear, jewellery, military and many other fields. In light of personal 3D printing by consumers using 3D home printers, the fashion, footwear, jewellery, and cosmetic industries may be adversely affected due to the high demand of luxury brands. Consumers may resort to 3D printing to obtain the goods that they want.
In addition, due to the rapid growth of 3D printing and modelling technology and the plummeting cost of 3D printers combined with the creation of free and open software products readily available for 3D printers, IP theft will increase and inevitably result in negative implications for owners of IPRs. IP theft does not just occur when there is production of a finished product. IP theft occurs even with a 3D printed mould which can then be used to manufacture the object that replicates the original. Besides, in view of the lack of public awareness of 3D printing and the lack of sufficient enforcement method, IP theft will be a growing problem in the 3D printing space.
The ability to manufacture objects through 3D printing technology has generated implications on IPRs at both ends of the spectrum of those rights. On one end of the spectrum, there will be original 3D designs created for production through 3D printing process which may be subject to protection of IPRs. On the other end, infringement could very possibly arise given the very nature of 3D printing which leaves users of 3D printers to face emerging IPRs issues involving their own rights and those of others.
In certain circumstances, our Malaysian IP law may be relevant to the issue of infringement of IPRs in the 3D printing space. In particular, the principles of copyright infringement under the Copyright Act 1987 may be applicable to 3D printing in which artistic works would be relevant to CAD files and literary works would be relevant to 3D designs software. As far as the Patents Act 1983 and Industrial Designs Act 1996 are concerned, infringement of IPRs occur if patented products or inventions and objects or articles protected by design right are reproduced by 3D printers which will subsequently be used, sold, offered for sale, or kept for the purpose of using, selling or offering for sale to potential buyers. Besides, whenever trade marks exist on 3D objects which are then reproduced, there is also a risk of possible infringement of those trade marks under the Trade Marks Act 1976.
The main concern with 3D printers is that they allow individuals to potentially do a whole lot of illegal copying, be it willfully or innocently, in which infringement of 3D printing occurs. For instance, copying and distributing of a 3D printed copy of an object which has been afforded copyright protection would be a common scenario of 3D printing infringement. A more complicated scenario would be creating and sharing of a 3D design of an item protected by copyright in file sharing websites which provides a platform for users to download and print or purchase copies of the object. In that situation, the extent of liability of individuals and service provider would be debatable. Based on the hypothetical scenarios, apparently some IPRs cause veritable legal minefield of potential liabilities in the context of 3D printing and infringement of IPRs.
As 3D printers are becoming more accessible to the general public, one of the biggest challenges will be the possibility of extensive manufacturing of items for personal use, especially given the current private use exemptions under certain IP law. Counterfeiters could manufacture goods in their home markets independent of established markets in ways which are difficult to be detected, controlled or prevented and which could reduce shipping costs and by-pass customs check points to avoid customs seizures. As such, infringing activity in 3D printing space will be harder to detect, making it impracticable or even impossible to enforce some IPRs. Rights holders will need to make smart choices about which elements of their IPRs they want to enforce.
File sharing websites that allow users to upload and download 3D model files including codes also raise questions of copyright infringement, which is likely to resemble the sharing of copyrighted music on illegal sharing websites, whether uploading 3D model files that provide the means to infringe copyright amounting to copyright infringement itself. In that case, the key issues concerned are who will be held liable for infringement and the extent of their liability.
Consequently, copyright owners will have a hard time enforcing their IPRs.
In Malaysia, 3D printing is a relatively new technology which is still in the early stages of development. In other words, the application of 3D printing technology in Malaysia is limited and is not as common as in other jurisdiction such as the United States. So far, there is no such problem arising from the use of 3D printing. The Malaysian IP office has yet to come out with any action or proposal to change the IP laws yet given that the development of IP in Malaysia is relatively slow compared to other jurisdictions.
In terms of protection, the best way that markets or industries can do to protect themselves legally is by way of all necessary registration of their IPRs, making necessary complaints of any infringements on their IPRs and enforcing their IPRs through legal proceedings at the specialised Intellectual Property High Court.
Likewise, in order to better protect the IP owners, Malaysian IP office should carry out reasonable steps to raise public awareness of 3D printing, particularly with regards to the possible downside of 3D printing including prohibited acts constituting IPRs infringement and the effects of infringement. In addition and in view of growing concerns about the impact of 3D printing on IPRs, Malaysian IP office should also impress upon the legislature on the need to address issues of uncertainties on protection of IPRs in 3D printing space through amendment of existing IP laws or enactment of new laws.
The Malaysian IP office should consider incorporating new provisions into the existing IP law framework to regulate the role of manufacturers and distributors of the 3D printers in order to better protect IPRs from 3D printing. As the 3D printers hit the mass market, it will likely cause a legal minefield in various IPRs and laws. Apart from this, relevant changes to IP laws may be made to include design registrations in the 3D printing space and specific provisions governing the use of 3D printing technology as well as licensing of 3D printed works in order to prevent IP theft in 3D printing space.
To conclude, the rise of 3D printing has inevitably raised nuanced problems concerning IPRs and posed challenges before the owners of IPRs and relevant authorities during enforcement. It is apparent that the existing IP laws in Malaysia may not provide sufficient protection to safeguard the interests of the owners of IPRs in the 3D printing space. Therefore, it remains to be seen how 3D printing technology will expand in the near future and how IP laws will evolve to accommodate these upcoming challenges.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
