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Legal implications of 3D Printing

Legal implications of 3D Printing
There are a number of legal implications of 3D printing and other localised manufacturing issues– there are always legal implications in whatever we do. New technologies bring particular challenges, and it brings a challenge to the law to adapt to fit in with how that technology presents itself. With 3D printing, in particular, there are a whole host of intellectual property issues– I think those probably come at the forefront– and there are a series of complicated issues because of the different way that 3D printing presents itself to manufacturing. There are also product liability issues, there are a whole host of different people that get involved in 3D printing, and then the traceability issue is a big problem there.
In addition to that there– frequently, once you get any form of connectivity going on, there’s going to be data– big data, personal data, and that brings its challenges as well. There may even be issues around employees who are using 3D printers who are connected, in some way, and how actually they should operate, their personal data gets used, how they’re monitored. So you can see that there are a whole host of legal issues we can grapple with.
So there are a number of intellectual property issues– I think the first thing to consider is copyright, because there are different stages in the 3D printing process, and if we go right back to the CAD design that is used, you’ve got copyright in that design. So actually reproducing and distributing that design, you’ve got a copyright issue going on there. Once you come through to actually printing the product, you’ve got copyright issues in materials that might be printed on the surface, if they amount to artistic works, you’ve got copyright issues there, such as jewellery, pottery items, et cetera, those will attract copyright.
And if we move slightly away from copyright into the design field, again, there are unregistered designs, there are registered designs, all of which have to be taken into account when reproducing products of any kind. And it’s not just designs, we go into the patents side, patents protect various inventions. So again, it is perfectly possible that in reproducing a product you can actually be infringing somebody’s patent, and merely keeping the product is an infringement of that patent. And we mustn’t forget trademarks, again, trademarks have their place to play in this. So if you, for example, reproduced a product with the trademark on, then that in turn could amount to trademark infringement.
And a form of unregistered trademark infringement, if you’re producing products that people believe have come from the original designer that can amount to passing off, as well. So you can see there are a whole host of intellectual property issues that you need to be aware of in order to take account of them in 3D printing. If you think about manufacturing an item, such as a bicycle helmet, the design is actually made available for somebody to produce it, and then they produce that at home, and then they use the helmet and there’s an accident, and the helmet is in some way defective– it cracks– whose responsibility is that?
So should we go back to the original manufacturer who produced them elsewhere, but didn’t manufacture this particular product? Should we go to the designer of the helmet and say that they’re responsible for the design? Should it be the producer of the 3D printer itself? Should it be the person who supplied the materials in order to produce the helmet? Or should it be the individual who actually put the instructions in to produce their own helmet? A whole host of different people who could have responsibility, and then you’ve got the traceability issue– well, where did the problem arise– so you have to sort that out.
And again, it comes down to working out arrangements– contractual arrangements, disclaimers, and then possibly insurance, as well, to make sure that you do have the cover that you need in that sort of instance. I always believed that the law should be there to enable, not to stand in the way of development, and that’s particularly important in the intellectual property area, because intellectual property started with the idea that it encouraged people to innovate. So the last thing we want is to use any form of law– particularly, intellectual property– to block that.
But what is really important is that the lawyers actually understand what’s going on in manufacturing, get to grips with the actual technology, so that we can apply the complex areas of law to the technology and make sure it works for everybody. And it’s not just going to be about looking at how the law actually works in relation to the particular 3D printing and the other connected technologies around it, it will also be a question of looking at the different contractual models that should apply, because the whole connected manufacturing piece means that we’re moving into a different sort of contractual arrangement. So for example, the traditional owner of intellectual property around the product may be manufacturing and just selling the product.
Going forward, they may be needing to look at licencing and collaborating with more people. So again, I think we have to be quite innovative ourselves, as lawyers, to create the legal models that will work with these developments.

Law should enable the next generation of manufacturing and not get in the way. This will require innovation from the legal profession to develop the legal frame works to support a more connected and distributed form of manufacture.

One of the innovative aspects of the Supply Chains in Practice (SCIP) industrial forum I lead at WMG, is the way that we bring together different organisations that have an interest in supply chains from different perspectives. One of the very positive relationships we have developed is with the innovative law firm Pinsent Masons. We share a common belief that the law should enable next generation supply chains, and not hinder them. To do this we need to consider the legal implications from the start, and not at the end.

In the video, Cerys Wyn Davies (a Partner at Pinsent Masons) explored the way that the law will need to adapt to fit in with the way that technology (in this case 3D printing) presents itself. As you heard, intellectual property is not just about patents, but includes copyright, design rights and trade-marks too. Protection occurs at different stages in the value chain too, from the CAD file to the finished product, including any designs printed on the surface. The mine-field deepens as we consider liability. Cerys uses a simple example of bicycle helmet to identify some of the different stakeholder who may be responsible in the event of a product failure, and raises the all-important question about who and how will ‘trace’ the root cause of the issue. Forewarned, is forearmed and such concerns should not hinder the use of such technology, if appropriate mitigating steps can be taken (e.g. disclaimers, insurance etc.).

The future is likely to be much more distributed and ‘connected’. This has the potential to deliver innovative new business models, if time is taken up front to work equally as innovatively on the legal side, to develop new contractual approaches to support them.

If you are interested in hearing more from Cerys on the legal implications of 3D printing, please watch Cerys’ full presentation to the WMG Supply Chains in Practice event on YouTube: Legal implications of 3D Printing (13:24)
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