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Copyright is no protection for 3D-printed goods – Joren De Wachter

Intellectual property strategist Joren De Wachter believes that copyright law will struggle to be relevant for 3D-printed material.
Intellectual property strategist Joren De Wachter believes that copyright law will struggle to be relevant for 3D-printed material.

Copyright law will struggle to be relevant for 3D-printed material, according to Joren De Wachter, an intellectual property strategist who advises companies and investors on the best way to use, understand and value the intellectual property of 3D­-printed goods.

What concerns do you hear from your clients?

‘The key function of intellectual property is to say: “I will stop you from copying what I do”. Because the cost of copying and modifying and reproducing is dropping to zero, what you have is a Napster (file sharing software) effect on manufacturing goods. Now, the thing with intellectual property is that you can enforce it only in a limited number of cases. Enforcing intellectual property against your end-customers is a very inefficient way of using intellectual property, certainly in a business-to-consumer market. That’s what the music industry has learnt.

‘The question is whether the manufacturing industry will react in a way that is smarter than the music industry. The music industry complained and ignored the problem for 10 years and then Apple came with iTunes (a music service) and they lost their market, or a large part of it. The manufacturing industry is less organised than the music industry, so it’s going to be much more difficult for them to lobby as efficiently as the music industry has done – though even that lobbying has not really allowed them to stop technology from destroying their traditional business model.

‘There is a second point which is very important in terms of intellectual property and 3D printing, which is that, while uploading a copyrighted MP3 song onto Pirate Bay (a file sharing website) and allowing people to download it is an obvious infringement, that is not true in terms of copying a piece of hardware and making that file available.’

Why isn’t a scan of an object covered by copyright law?

‘A digital file is not a copy of a physical object.’

Joren De Wachter

‘There are two questions about this. The first question is – does the law say that a digital scan of an object is actually a copy of the object? Of course, a digital file is not a copy of a physical object. But the legal question is different. I have talked to many lawyers about this, half of them say “yes”, half of them say “no”. Obviously, there is no court that has decided on this yet, and that is the challenge. The second question is – do physical products have copyright? The answer is – no they do not, except certain aspects of the design could be copyrighted, but only if you can distinguish them from the functionality of the product. Take the dripping clock by Salvador Dali, if you were to make a product like that, it has copyright in the sense that the shape is different from the function, but you can’t copyright the function of a clock. And, even if you copyright the specific design aspect, that still means you cannot stop somebody else from doing something that is almost the same but not quite.

‘In addition, the condition for copyright is that it reflects human creativity, and the code that is generated by a 3D scan of an object is made by a machine, not by a human. Plus, is a rendering a copy? Probably not, but I think nobody knows for certain at this point in time. That means that, in terms of the Napster effect of 3D printing, there is no simplicity in the argument as there was for the music industry. So, you take an industry that is less organised and has a weaker argument in terms of fighting the Napster effect, and I think that it is going to be very hard for people to stop other people from copying in practice, regardless of the legal aspect of it.’

This all sounds quite worrying for someone that was thinking of investing in 3D printing, or even in a manufacturing company whose product could be 3D-printed.

‘Not necessarily. If you look at, for example, design, which is a different intellectual property right. Most of that design intellectual property is at the moment monetised through selling products into which the design is embodied. I expect that to change when the value or the monetization of design will move from product-based to service-based. If you have a dinner party next week and you want to have a personalised glass or a napkin holder or something else, will you be willing to pay EUR 5 extra or EUR 20 for the personalised design? Yes, you would, but designing something in 3D is not that easy, so there is going to be a whole new market developing there.

‘So, for investors, the key observation is that you have to move from product to services such as design. Look at what Lego is doing. They have really understood this because they are now looking at the possibility of allowing people to 3D print their blocks. Lego have really understood that intellectual property is moving from product to service and is also moving from patent and copyright to trademark. So trademark and branding will become much more important in 3D printing.’

So you would print it at home, but it would say Lego on it?

‘Something like that, and the value of the trademark and the branding will grow rather than being reduced. I think 3D printing will increase the value of brands. I mean, look at cars. What is the difference between a Volkswagen and a Skoda, it’s the brand, it’s not the technology. Do people pay for brands, yes they do, a lot. So the idea that you cannot have a successful business model if somebody is going to copy your technology is plainly contradicted by the facts.’

Will people try to enforce copyright in 3D printing anyway?

‘I think we will have silly lawsuits with people being ordered to pay ridiculous amounts because they copy a toothbrush, or create their own, original version of a toy tower from Game of Thrones in the same style. Some brand owner or some technology provider or some content provider will be stupid enough to do it, destroying their name in the market, but some lawyer will tell them that they need protection – which is not what this kind of action actually gives them.’

Modernising EU copyright law

At the end of 2013, the European Commission launched a consultation on how copyright law should be modernised.

It’s part of a strategy to improve the laws governing intellectual property rights in the EU, in particular in response to the fast pace of technological change.

At the moment, copyright is still managed on a country-by-country basis. The idea behind the new strategy is to allow authors, composers and designers to manage their copyright across borders.