Last week, three lawyers from the Irish law firm Arthur Cox wrote a great piece on the intellectual property law implications of 3D printing – from an Irish law perspective. But what stood out for me when reading this article was the difficulty of predicting or even just appreciating the legal impacts of 3D printing given the differences in laws between jurisdictions.
As an example, consider international differences in design protections and what they could mean for 3D printing:
Let’s say I design an awesome, unique-looking paperweight that I want to sell. But, I don’t want anybody in the world printing their own versions of my unique design and selling them, so I want some kind of intellectual property protection that I can use to send menacing letters threatening lawsuits. My design might be protected by trademark laws in some jurisdictions, especially if I can show that anyone looking at such a paperweight would believe I’m the guy who made it. It also might be protected as a ‘work’ under copyright law. But, there’s actually a whole set of intellectual property protections that are specifically meant for protecting people like me with my unique-looking paperweight – industrial design protections. These protections, though roughly similar, go by different names in different places – design patents, registered designs, industrial designs – all are generally meant to protect the ornamental (non-utilitarian) features of a design. Luckily, there’s a World Intellectual Property Organization-administered treaty that lets me fairly easily register my design in one place and get protection for at least 5 years in dozens of contracting countries! The only problem is that those countries don’t include Canada, the United States, Japan, Australia and many others. To get protection in those (arguably pretty important) places, I have to register under their own design protection regimes, each with different interpretations of what is protected subject matter. And beyond that, my term of protection won’t even be the same. In Canada I’ll get 10 years for my industrial design, and I might need to decide whether to later register it as a ‘distinguishing guise’ under trademark law. In the United States I’ll get 14 years for my design patent. In Japan I’ll get 20 years and in the EU up to 25 for a Community design. In the UK, aside from Community Designs, I might be protected for 15 years by unregistered Design Rights without even registering (which, if you think about it, means even greater implications for 3D printing – your design right arises automatically just by you creating it and suddenly you have rights against others who copy it!).
My point is that it is hard to nail down the IP implications of 3D printing because they won’t all be the same everywhere in the world. And the issues extend beyond the IP context. The Lexology authors also cite Irish law such as the Liability for Defective Products Act 1991, which implemented a Council of the EU directive and created strict liabilities for “producers” of products. Strict liability (crudely defined) means that a person is legally responsible for a harm even if they are not ‘at fault’ or negligent. So if it turns out my paperweight is prone to catching fire in sunlight, I should be worried about a products liability claim even if I wasn’t negligent. But product liability rules also vary greatly by jurisdiction and strict liability isn’t the rule everywhere. There are even important differences between U.S. states, with North Carolina often being noted for having a different standard than most of the country. Canada also has a different standard of products liability than most of the U.S. states.
So where are we left? Well… if nothing else just remember that it is important to consider the source and target jurisdiction when thinking about 3D printing and the law.