Out-Law Analysis | 09 Jan 2017 | 2:45 pm | 5 min. read
The draft 'law related to 3D printing and public order', tabled in the French National Assembly on 26 October 2016, seeks to combat issues such as copyright infringement among users of 3D printers, as well as address issues of liability for faulty products printed using such technology.
However, the measures tabled only confirm that which already applies under existing legislation and, in the case of the provisions on liability, fails to clarify who might be held liable for faulty, even dangerous, products produced using 3D printers.
Other potential actions beyond legislation, including consumer education programmes on intellectual property rights infringement, and the establishment of technical protection measures to curb such infringement, appear for now to offer greater scope to address the issues identified in the draft law.
3D printing – technology which allows the manufacture of an object in three dimensions thanks to a digital file and a machine called a 3D printer – is not new, having first appeared in use in the US in the 1980s.
However, as a result of the expiry of many of the patents protecting 3D printing technology, the market has evolved. 3D printers are now available to purchase at reduced prices, meaning that an increasing number of everyday consumers, and not just 3D printing professionals, are able to afford to buy those printers and print 3D objects in their own home.
This is a potentially revolutionary development that could allow product designers and manufacturers to alter their business models and licence the rights to print designs directly to end-users. Yet, widespread use of 3D printing technology may also be perceived as a threat to intellectual property rights and to consumers' security.
The four articles contained in the draft 'law related to 3D printing and public order' is likely, however, to only have a limited impact on the existing body of legislation. So limited, that their necessity is questionable. The articles only reinforce principles of French law that would already apply, whether in the context of 3D printing or not.
The first article forbids the manufacture of unlawful objects, for example the manufacture of firearms without having a licence. The second article specifies that 3D printing must respect human dignity. The third article specifies that 3D printing must respect the laws related to copyright, while the fourth and last proposed article confirms that the manufacturer of a 3D printed object is subject to the liability for defective products.
The parliamentary office that tabled the proposals indicated that their primary motivation was to introduce a first text to legislate on 3D printing in a general way. To counter claim that the articles contain and repeat obvious principles of law, the parliamentary office said that "things which go without saying are better said", according to a report by nextinpact.com.
The last article, on the manufacturer's liability for defective products, could have had some merit had it defined the term 'manufacturer'. In case of 3D printing it has not yet been clarified whether it is the seller of the 3D printer, the seller of the materials used in printing, the seller of the digital file, or the person who prints the object who is the 'manufacturer' of those goods.
The draft law does not answer this question, meaning it could be left to the discretion of judges to decide, which may lead to legal uncertainty.
With regard to the legal protection of intellectual property rights within 3D printing, it is clear that an object manufactured with disregard to IP rights, for example where protected moulds are produced and used to manufacture infringing products, will be considered as infringing under the current framework. Those existing rules therefore appear to be sufficient to allow enforcement against a 3D printed infringing object.
Studies previously carried out in France also call into question whether a specific law for 3D printing is really necessary, at least for now.
Reports from the French Industrial Property Office (INPI) and from the Artistic and Literary Property High Council (CSPLA) conclude that, currently, there is no need to amend existing French law. The current legal framework, they said, is sufficient to protect intellectual property rights and consumers' security.
Changes to the law might be necessary if the 3D printing market really takes off, but it does not yet appear at that stage. According to the INPI and CSPLA reports, as well as a study by McKinsey France, the expected 'democratisation' of 3D printing will not arrive as soon as expected, and actually not in the way that it is anticipated.
The studies call into question whether 3D printers are ever likely to become common household equipment. Currently, the majority of 3D printer users are companies, not private individuals. 3D printing service platform Scuplteo has reported that 70% of its turnover derives from business carried out with professional clients.
3D printing takes time – several hours to print a small object – and raw materials such as plastic is expensive. It also demands technical skills. These factors slow down the democratisation process.
A change to the legal framework on 3D printing in France was considered, but rejected, in 2015. French senator Richard Yung suggested that the existing French private copying exception and associated financial compensation scheme should be extended to 3D printer suppliers. However, both the French Senate and the government stated that compensating rights holders for private copying via 3D printing seemed unnecessary and that the need for the tax had not been sufficiently demonstrated at that time. They also said that such an extension would result in taxing the reproduction technology and not the recording product.
Should 3D printers become common household equipment, it might be that the issue of private copying is again considered by law makers.
The draft law is only at a very early stage. It has had its first reading in the National Assembly but has not yet been discussed in a parliamentary debate. However, non-legislative actions might better address some of the risks identified in the draft law.
With 3D printing being a technology that remains relatively new for the general public, it is advisable, for example, to educate consumers on the risks of infringement and the risks for their security. The 3D printing professionals could be more involved in this respect by drafting education material, such as good practice charters on intellectual property and on the dangers of infringement to raise their consumers' awareness.
These education materials could be affixed on 3D printers, on the wall of fab labs, etc, and would force the professionals to heighten their own awareness of the dangers of infringement, even though it is clear from the terms and conditions some of them use that they are already aware and acting responsibly in this regard. According to the INPI report, platforms providing access to digital files for 3D printing are extremely diligent in removing infringing files flagged to them by rights holders.
Collaboration between intellectual property rights holders and 3D printing professionals should also be encouraged, notably to implement appropriate technical protecting measures, to facilitate protection of intellectual property rights. These measures could be used to authenticate the printed objects or even to authenticate the digital files.
The legal offer of 3D printing should also be developed, because in the end this represents a growing market that offers potential new sources of income to artists and designers.
Emmanuel Gougé and Valicha Torrecilla are Paris-based experts in intellectual property law and 3D printing at Pinsent Masons, the law firm behind Out-Law.com