New technologies continue to challenge the limits of the law and present new scenarios law makers have not yet provided for. 3D printing is one area that is increasingly being identified as a technology that will create challenges in intellectual property (hereinafter referred to as “IP”) law. Simply put, 3D printing involves the “copying” and/or reproduction of a blueprint into a physical object.
3D printing is a common term for the creation of a three-dimensional object from a digital model. When using a 3D printer, the design for the 3D object is created on a computer using a scanning device or computer aided design (CAD). The design is used by the 3D printer as a “blueprint” to create the object layer-by-layer out of metal, nylon, plastic or other materials. This enables the manufacture of complex functional objects, which uses less material than traditional methods of manufacture.
The owner of a 3D printer can create complex components and devices. Examples of products created using 3D printing include a house, human tissue, car parts, and, more controversially, a functional gun. The technology does not require high levels of technical skill in manufacturing. As such, 3D printing makes it relatively easy for any individual or business to replicate most objects without authorization, even if the object is protected under IP law.
Possible IP infringement
3D printing technology makes it easy to copy and reproduce products, regardless of whether the goods are protected by a patent, trade mark or copyright.
Section 34 (1) (a) to (c) of the Trade Marks Act 194 of 1993 provides that the unauthorised use of a trade mark in the course of trade of an identical or similar to the trade mark for goods or services which are identical or similar to the trade mark is prohibited. Specifically, these sections deal with “unauthorized use in the course of trade” which denotes commercial use and not private use. Should a person 3D print a trade marked object for private use, can the proprietor of the trade mark institute trade mark infringement proceedings? As it currently stands, the printing of any trade marked object for personal use does not constitute infringement based on the provisions of Section 34 of the Act.
In terms of the Copyright Act 98 of 1978, a copyright is automatically conferred on a work eligible for copyright protection at the time the work is created, provided certain requirements are met. Therefore, the blueprints used for 3D printing may qualify for copyright protection, subject to the requirements of the Copyright Act. While one may infringe on another’s copyright by making use of their blueprint, for a copyright owner to enforce their rights against infringement by third parties may prove to be difficult.
Many objects that could be 3D printed usually have patent and design protection to prevent others from using or reproducing the protected objects. With 3D printing, a consumer can easily access 3D blueprints and print the objects. This could amount to infringement of a patent or design in terms of the Patent Act 57 of 1978 and Design Act 195 of 1993. The proprietor would have difficulty identifying the infringing parties as the printing is done in the privacy of one’s home.
While 3D printing is a technology with the potential to improve manufacturing and daily lives, it will pose some challenges to IP rights. There will have to be a readjustment in the protection and enforcement of IP rights. It remains to be seen how the South African legal system reacts as 3D printers become more accessible.
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