net.wars: Copyright encounters of the third kind
by Wendy M Grossman | posted on 03 April 2009
Somewhere around 2002, it occurred to me that the copyright wars we're seeing over digitised intellectual property – music, movies, books, photographs – might, in the not-unimaginable future be, repeated; this time with physical goods.
Even if you don't believe that molecular manufacturing will ever happen, 3D printing and rapid prototyping machines offer the possibility of being able to make a large number of identical copies of physical goods that until now were difficult to replicate without investing in and opening a large manufacturing facility.
Lots of people see this as a good thing. Although: Chris Phoenix, co-founder of the Center for Responsible Nanotechnology, likes to ask, "Will we be retired or unemployed?"
In any case, I spent some years writing a book proposal that never went anywhere, and then let the idea hang around uselessly, like a human in a world where robots have all the jobs.
Last week, at the University of Edinburgh's conference on governance of new technologies (which I am very unhappy to have missed) RAF engineer turned law student Simon Bradshaw presented a paper on the intellectual property consequences of "low-cost rapid prototyping". If only I'd been a legal scholar…
It turns out that as a legal question rapid prototyping has barely been examined. Bradshaw found nary a reference in a literature search. Probably most lawyers think this stuff is all still just science fiction.
But, as Bradshaw does, make some modest assumptions; and you find that perhaps three to five years from now we could well be having discussions about whether Obama was within the intellectual property laws to give the Queen a printed-out, personalised iPod case designed to look like Elvis, whose likeness and name are trademarked in the US. Today's copyright wars are going to seem so simple.
Bradshaw makes some fairly reasonable assumptions about this timeframe. Until recently, you could pay anywhere from $20,000 to $1.5 million for a fabricator/3D printer/rapid prototyping machine. But prices and sizes are dropping and functionality is going up. Bradshaw puts today's situation on a par with the state of personal computers in the late 1970s, the days of the Commodore PET and the Apple II and home kids like the Sinclair MK14. Let's imagine, he says, the world of the second generation fabricator: the size of a colour laser printer, cost $1,000 or less, fed with readily available plastic, better than 0.1mm resolution (and in colour), 20cm cube maximum size, and programmable by enthusiasts.
As the UK Intellectual Property Office will gladly tell you, there are four kinds of IP law: copyright, patent, trademark, and design. Of these, design is by far the least known; it's used to protect what the US likes to call "trade dress", that is, the physical look and feel of a particular item. Apple, for example, which rarely misses a trick when it comes to design, applied for a trademark on the iPhone's design in the US, and most likely registered it under the UK's design right as well. Why not? Registration is cheap (around £200), and the iPhone design was genuinely innovative.
As Bradshaw analyses it, all four of these types of IP law could apply to objects created using 3D printing, rapid prototyping, fabricating… whatever you want to call it. And those types of law will interact in bizarre and unexpected ways – and, of course, differently in different countries.
For example: in the UK, a registered design can be copied if it's done privately and for non-commercial use. So you could, in the privacy of your home, print out copies of a test-tube stand (in Bradshaw's example) whose design is registered. You could not do it in a school to avoid purchasing them.
Parts of the design right are drafted so as to prevent manufacturers from using the right to block third-parties from making spare parts. So using your RepRap to make a case for your iPod is legal as long as you don't copy any copyrighted material that might be floating around on the surface of the original. Make the case without Elvis.
But when is an object just an object and when is it a "work of artistic merit"? Because if what you just copied is a sculpture, you're in violation of copyright law. And here, Bradshaw says, copyright law is unhelpfully unclear. Some help has come from the recent ruling in Lucasfilm v Ainsworth, the case about the stormtrooper helmets copied from the first Star Wars movie. Is a 3D replica of a 2D image a derivative work?
Unsurprisingly, it looks like US law is less forgiving. In the helmet case, US courts ruled in favour of Lucasfilm; UK courts drew a distinction between objects that had been created for artistic purposes in their own right and those that hadn't.
And that's all without even getting into the thing that if everyone has a fabricator there are whole classes of items that might no longer be worth selling. In that world, what's going to be worth paying for is the designs that drive the fabricators. Think patterns for knitted Dr Who puppets, only in 3D.
It's all going to be so much fun, dontcha think?Update (1/26/2012): Simon Bradshaw's paper is now published here.
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net.wars: Copyright encounters of the third kind