3D-Print-Yourself Machines Are Awesome – But Who Owns the Copyright?

Here’s a question that occurred to me today: There are these places  popping up around the world where you can 3D print yourself. Makerbot lets you print your bust for a mere $25 at their store in NYC. There’s these crazy Japanese figurines. And Toronto’s upstart 3D printing jewelry makers and innovators Hot Pop Factory recently held a 3D printed kissing booth. What you end up with is a sculpture, which to me is a work of art and therefore seems like something that copyright would automatically attach to.

As a general rule the first owner of copyright is the author, and some of these processes could be fully automated with no human ever getting involved… so the law-geek question is: when a fully automatic 3D photo booth scans and prints you, who is the author? (and no, machines can’t be authors AFAIK… at least not until the Robot Bill of Rights passes)

In Canada, you could say the author is the doer, in other words,  “the author/creator is the party that not only writes something, but that also takes a photograph, designs computer software, produces audiovisual materials, composes music, designs maps, or draws plans or illustrations in either paper format or other mediums.” But it doesn’t seem obvious that there is a person doing the making with a 3D-print-yourself booth.

It’s not that unlike the situation with a coin-operated photo booth, and there’s actually a 1978 Canadian case that dealt with that question, Featherling v. Boughner. In that case, the plaintiff owned a coin-op photo booth and wanted an injunction against a defendant who had copied those photographs (admittedly, the facts are a bit more complex, but I really only care about the photo booth here). The court found the following:

I do not think the plaintiff has established in the extraordinary facts of this case that he had a copyright in the photographs. The photographs, of course, were taken by a machine without the intervention of the plaintiff as a photographer.

Canada recently had a copyright law change with respect to photography and ‘commissioned’ works. Under the old law, commissioned photographs belonged to the commissioner (the point being, for example, that if you paid someone to take your portrait, you owned the copyright in the portrait unless otherwise agreed), but I don’t think it is in play here – the point here is that the photographer wasn’t involved at all.  And after a quick google search it seems in many photo booth user agreements you’ll find that contractually the photo booth company has any copyright assigned to them.

So, end of story in Canada at least? Of course not.

Recently, an area of law that has been getting more attention is computer-generated works. Where humans have minimal or no involvement in the generation of content created by a programmed machine or computer, who is the author? Is it the user? Is it the programmer? Surprisingly, despite the recent attention, this issue isn’t actually new and some governments attempted to solve it decades ago. For example, in the UK, the Copyright, Designs and Patents Act 1988 states that the author of a computer-generated work is “the person by whom the arrangements necessary for the creation of the work are undertaken.” In the U.S., the Final Report of the National Commission on New Technological Uses of Copyrighted Works (CONTU) determined in 1978 that the user was the author of computer-generated works, while noting that unpredictable technological changes could require new laws and policies. More recently, two University of Western Ontario law professors, Mark Perry and Thomas Margoni, noted that Canada lacks clear rules, but argued that in Canada purely computer generated works should belong to the public domain (not unlike the photo booth).

So here in Canada maybe the 3D printing station is like the photo booth… but then again, maybe it is more like the lawless digital content considered by Perry and Margoni. Or maybe it’s something else entirely. I think it remains an open question.

All I know is this seems like a good time to re-watch all the Star Trek: TNG episodes where Data paints stuff (and of course, the classic episode The Measure of  a Man for the appropriate android-rights context).

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