3D PRINTING: BETWEEN A PROMISE FOR THE FUTURE AND A NEW CHALLENGE
In his State of the Union address on 12 February 2013, Barack Obama stated:
“3D printing has the potential to revolutionise the way we make almost everything.”
The development of 3D printing technology tends to make counterfeiting more accessible.
Its ease of use and the technological advancements available to 3D printing technology allow an industrial or private counterfeiter to create copies of products only a short time after they are placed on the market, regardless of their nature, the material they are made of (plastic material, metal, food products and, recently, even human tissue) and their intended purpose (field of industry, medicine, fashion, food, the arts, etc.):
1. The actors and their liability: The need to determine the liability of the actors by the nature of their intervention in the chain of actions
- Liability incurred a priori:
- Creators of digital files (regardless of the technique used) will be considered counterfeiters if their files reproduce a protected object without the authorisation of its author.
- Internet users who download files may be considered counterfeiters if the download represents an infringement of the exclusive rights of the author of the protected work, i.e. without the author’s authorisation.
- Users who make a 3D printing of a protected object.
- Liability not incurred a priori:
- Software creators (CAD or P2P) cannot be considered counterfeiters of protected objects in that they do not reproduce, represent or publicly distribute these works themselves.
Such software is in fact neutral: it enables the creation and distribution of legitimate works and illegitimate works alike: only the use made of the software by the internet users may constitute an infringement.
- Manufacturers and retailers of scanners and 3D printers
The question arises as to whether these actors can be considered accomplices in any counterfeit actions carried out using the material concerned. The answer should be negative, as long as such actors are not aware of the illegal use their machines are put to.
- Liability under discussion:
- The liability of platforms and download sites offering counterfeit digital files must be analysed in accordance with their legal classification, i.e. as a website host or as an editor within the meaning of the French law on confidence in the digital economy of 21 June 2004. In fact, a website host is characterised by its neutral role and its purely technical, automatic and passive behaviour, implying the absence of any knowledge or control of the data it stores. As such, it is subject to a lighter liability regime than an editor.
It is therefore very likely that forthcoming debates will focus on the precise role of these digital file platforms.
- 3D printing service providers, whether they provide printing services or self-serve printing workshops (fab-labs), risk being qualified as counterfeiters if they print protected objects without authorisation.
- It could therefore be argued that making counterfeit digital files available through hypertext links constitutes a supply of means and thus complicity in the counterfeit, subject to being able to prove the unlawful nature of the source.
2. Scope and enforceable rights
Designs and Models
Products printed in 3D
- If the counterfeit relates to the digital file:
An allegation of copyright infringement may be made on the grounds of infringement of the following rights:
- Infringement of the right of disclosure: when the work is disclosed without the consent of its author
- Infringement of the right of authorship: when the author’s name is not indicated in the digital file
Right of ownership
- Infringement of reproduction and representation rights: the reproduction of a work for the purpose of storing it electronically in digital form constitutes an infringement of reproduction rights.
The same applies to the use of a file on an internet network, which also constitutes an infringement of representation rights.
- If the counterfeit relates to the object printed in 3D:
An allegation of copyright infringement may likewise be made on the grounds of infringement of the rights mentioned above. An allegation of infringement of the right of integrity may also be invoked if the copy produced denatures or alters the original work (e.g. by using different materials).
An allegation of infringement of design and model rights and/or of three-dimensional trade mark rights may be made if the 3D copy is an identical or close reproduction of the registered object.
Please note: such allegations may not be made against private copies (subject to the lawfulness of the source with respect to copyright) produced for non-commercial, experimental, illustrative or educational purposes.
3. Our recommendations
- Protect your rights
With respect to copyright:
Constitute poof of the date of your creation (e.g. timestamp with thesystem ).
With respect to design and model rights:
Constitute your right by filing a design and model.
- Reinforce your rights contractually
- Implementation of your rights
Produce proof of the infringement:
- On the grounds of your IP rights: detention under customs control and seizure for counterfeit
- Proof of the infringement on a platform: internet observation
Recourse to other points of law:
- Recourse to unfair competition
- Recourse to liability for defective products, as the case may be
Publication date : April 2015