Just before the beginning of the new millennium, in May 1999, teenagers Shawn Fanning and Sean Parker launched the program that would change the business model of the music industry forever. In May of the following year, Napster had 20 million users and shared millions of songs worldwide. Napster’s fall from fame was equally meteoric, as record companies and famous artists alike filed lawsuits against Napster for copyright infringement and in February 2001 the US Ninth Circuit Court of Appeals ordered Napster to start charging for songs or else close entirely. But by then the genie was already out of the bottle.
Today in Australia, both government and industry are continuing to come to terms with the file-sharing revolution. As file sharing spreads to the world of 3D objects, Arts Law, investigates the potential issues facing artists and designers alike in the current legal climate.
3D Printing — What is it?
3D printing, also sometimes called “additive manufacturing” is a method of creating 3-dimensional objects through building up progressive additions of layers of material on top of each other. Different types of plastic are the most common materials used by 3D printers, applied through a nozzle similar to an ink-jet printer. However, there are also printers that work with metal and even ceramic. Like traditional printers, 3D printers take their instructions from a digital image file, called a CAD (‘computer-aided design’) file. As the technology behind 3D printing improves, the range of objects that could be potentially replicated by 3D printing grows.
As with traditional printers, 3D printers can also work in conjunction with a 3D “scanner” to replicate the shape of existing 3D objects.
The Present Legal Framework
An object capable of reproduction by a 3D printer may contain intellectual property in multiple ways:
(1) Similarly to sketches and plans, the ‘CAD’ file is capable of being protected by copyright separate from the 3D object itself;
(2) the object itself is capable of being protected by copyright provided that it is not produced “industrially” nor registered as a design;
(3) the object itself is capable of being protected as a registered design;
(4) both the design file and the object itself are capable of being protected by a patent if the object is useful or functional and involves an innovative step or an inventive step; and
(5) reproduction and sale of the object may be capable of infringing a Trade Mark or may be liable for civil damages under ‘passing off’ laws or be guilty of misleading and deceptive conduct under section 18 of the Australian Consumer Law.
In addition to offering whole new avenues for artistic creation and new opportunities for artists to commercially benefit from their designs, 3D printing also greatly increases the scope for the unauthorised copying and printing of registered designs, trade-marked works and copyrightable works — as websites such as Thingiverse and Shapeways cater specifically to sharing CAD files and the Pirate Bay have recently also begun hosting CAD files under their “physibles” category. In our November 2013 submission to the Advisory Council on Intellectual Property’s Review of the Designs System issues paper, Arts Law explained that “[t]his technological advance has the potential to pose similar challenges to our intellectual property regime as changes to the digital economy have been posing in Australia for the past decade”.
In the US, take-down notices have already been used to remove CAD files suspected of copyright infringements. Takedown mechanisms, such as those which operate under Division 3A.5 of the Copyright Regulations 1969 in Australia and the DMCA provisions of the U.S. Copyright Act, provide a low cost mechanism for rights holders, ISPs and other internet users to resolve disputes over the use of copyright material on the internet.
However, as Arts Law submitted in our recent submission to the Attorney-General’s Department consultation into Online Copyright Infringement there are 2 continuing difficulties with the way takedown notices operate in our current framework:
1. the continued instances of unjustified take down requests being issued by rights holders and processed and actioned by online service providers; and
2. the problem of ‘relentless reposting’ of infringing files that arises from the lack of an obligation on the recipient of the notice to take either the infringing content or links to infringing content with a continuing obligation to make sure it does not reappear.
The Upshot for Designers and Artists
Design/copyright overlap provisions as we have in force in Australia are increasingly being abolished in other jurisdictions around the world. Design registration is not a very accessible form of IP protection, this is because it lasts only 10 years, requires registration to be enforceable (and registration attracts fees) and can easily be lost through inadvertent “pre-publication” of the design (for example by publishing a 2D representation of the design in magazine or showcasing a prototype in a non-confidential discussion with a third party). 3D printing has the potential to create further inconsistencies in our current legal framework, with both 2D designs and digital CAD files for 3D designs capable of receiving copyright protection while traditional designs are continued to be excluded.
In a practical sense, the copyright protections available to CAD files may prove more useful to designers. In contrast to design registration, copyright lasts for the lifetime of the author plus 70 years and is recognised automatically upon the creation of a copyrightable work.
However, there still remain many uncertainties surrounding the new technology, such as whether CAD files produced by a 3D scanner would be copyrightable and whether home printing will constitute an industrial application of a design. Stay tuned for more changes to this area of law.
Tom Häkkinen is a Graduate Intern at the Arts Law Centre of Australia
 See for example the recent discussion paper released by the Attorney-General’s department on “online copyright infringement”: http://www.ag.gov.au/consultations/pages/onlinecopyrightinfringementpublicconsultation.aspx