3D printing and intellectual property: what you need to know about copyright, designs and models
Posted By Arthur Cassaignau on Mar 16, 2016 |
“Our order would include 10 famous Disney couples along with some of their friends like Flounder, Abu, Timon and Pumbaa…as figurines. Is it something you can do?” Here is the kind of requests that we get everyday and that are letting us see the depth of the challenge we’re facing with 3D printing. If 3D printing provides creative free reign and is useful when designing multiple objects, it doesn’t come without consequences as it can be used for criminally reprehensible counterfeiting. It’s from this perspective that compliance with all intellectual property rights protection rules must be considered when making 3D prints.
When you want to print (and therefore copy) an existing object, it is particularly difficult to determine what creations are “protected”. If this is the case, you could end up creating a counterfeit without even being aware. All consumers must be forewarned to make them aware of the risks undertaken when printing an object of unknown origin. In fact, a third party may have originally created the reproduced object and would not have consented to their creation being freely printed (and therefore copied).
Respect for intellectual property rights is crucial for 3D printing’s growth. Therefore, this article explains all the rules that must be respected in order to prevent, as much as possible, any risks of counterfeiting. It also explains, in practical terms, what Sculpteo can do for you. It is important to specify that Sculpteo is a French company subject to French law. This means that it is necessary to respect France’s intellectual property laws, and unlike American companies, the Digital Millennium Copyright Act does not apply.
Protection of an existing object
Explanation of the current protective measures
Intellectual property rights protect many business products, which can be protected by copyright, design law (3D trademark law), patent law or trademark law.
Copyright protects intellectual works because of their creation. It applies to any object created by a person if it is original. This can be characterised by the shape, material or colours used. Therefore, figurines representing known cartoon characters are protected by copyright law and belong to the company marketing them.
Patents protect objects with a specific technical function. For example, an energy saving light bulb has a specific function and belongs to the patent holder.
Designs and models or 3D trademarks ensure protection of an object’s appearance. Therefore, a product’s shape may be protected under design law, if it has a new feature of its own to be recognised as such by the public (ex: the particular shape of a mobile phone marketed by a company). It can otherwise be considered as a brand if it is distinguished as such in the eyes of consumers (ex: the shape of a Perrier© bottle).
Unlike copyright, which protects works as a result of their creation, patents, designs, models and brands are only protected if they are registered with the Office National de Propriété Intellectuelle (National Office of Intellectual Property). In France, the INPI fulfils this role by providing the public with access to all protected works in order to see if they are available.
In some cases, objects, although protected, can be considered copyright free if they belong to the public domain, or if they have been considered as such by their creator from the time they were created.
A work falls into the public domain when its legal protection expires. In copyright, for example, a creation is protected for up to 70 years after its creator’s death (Article L. 123-1 of the Code de la Propriété Intellectuelle (Intellectual Property Code)). At the end of this period, the work can be legally reproduced and distributed.
A work considered copyright free is still protected but its creator wishes for it to be freely reproduced, modified or distributed. These rights are granted to encourage the free circulation of creations and to provide the public with free access to them (to learn more about copyleft creations, you can check out the Creative Commons official website). This work can also be freely printed, even though intellectual property rights protect it.
In practical terms, how do you know if an object is protected?
To ensure that an existing object isn’t protected before you reproduce it, you must consider the source used to print the object: the 3D file.
There are two ways to generate a 3D file: either by scanning a pre-existing object created by a third party, by using CAD software which can be used to design an object directly on a computer or by downloading it on an online platform.
If you would like to print an existing object whose 3D file was obtained from a scan, it is very likely that the object is protected. For example, if a company markets the original object, then it holds the rights to it and ensures its protection. Scanning a physical object into a digital object constitutes a reproduction since it is scanned identically. It is also very likely that any future printing future of this object may constitute counterfeit reproduction.
However, creating a new 3D file using CAD software cannot be considered as a reproduction since it is done directly by the software user. This person will then hold the rights to their work and may freely print and reproduce the desired object as long as it doesn’t infringe copyright.
The situation where users are downloading 3D files from a platform (you can take a look at our post on the best 3D file marketplaces) is the trickiest one. Those platforms generally offer UGC (User Generated Content), which means that in some cases users (and the platforms themselves) are acting in full transparency as where the 3D file comes from and how it can be used. In some other cases, you can clearly find 3D files that contain IP and download it for free.
Can we print a counterfeit object?
Reproducing (i.e. printing) without authorisation is counterfeiting!
It is a general rule that from the time an object is protected by any intellectual property rights, it cannot be reproduced without complying with the various rules. In fact, it is mandatory to obtain express authorisation from the object’s rights holder before printing. Otherwise, any reproduction will be illegal and reprehensible.
This principle is supported by Article L.613-3 (for patents), L.513-4 (for designs and models), L.122-4 (for copyright), and lastly L.713-2 (for brands) of the Code de la propriété intellectuelle (Intellectual Property Code).
Likewise, when printing it is prohibited, without authorisation, to modify the object (its shape, colours, etc.), to alter it or to omit mentioning the name of the rightful owner at the risk of not respecting the creator’s moral rights.
Lastly, please keep in mind that a copyist can also be the person providing the means to reproduce the works other than the person who chooses the content. Also, in practice, people posting 3D files online that are used to print protected objects and those using the 3D printer may be found jointly liable for counterfeiting.
- But there is, however, an exception to this rule: The principle of the “private copy exception”
Fortunately, reproducing and object protected by intellectual property rights is not enough to constitute counterfeiting. In fact, in order to determine if printing a protected object is legal or not, it must be known if the act was committed in the course of business or for private, non-business purposes.
In French law, the principle known as “the private copy exception” allows anyone to freely reproduce an object protected by intellectual property rights if this reproduction is intended for private use and is not done to gain some commercial benefit.
Also, in terms of reproducing a patented or a trademarked design, if the copy is for domestic use or for experimental purposes, it is not considered counterfeiting. It is the same for trademarks, as only copies of brands made for business purposes are civilly and criminally reprehensible.
Lastly, in terms of copyright, you should know that a person may be entitled to reproduce and print a protected object only if this person is both the copier and the end user of the object, and if it is used only within a family context. Additionally, the copyist must either possesses a copy from a legal source, meaning that the file had been legally made available online and therefore authorised by the rights holders, or the copyist created it themself. If not, when dealing with a file obtained illegally, the copy, even if reproduced for private use, will constitute a counterfeit.
For example, someone looking to reproduce a toy must first verify if the printing file comes from a lawful source, then they must ensure that the reproduced toy is used only in a family context.
However, it is necessary to take precautions as an object can be both protected by copyright and by designs and models law under the theory of artistic unity. The principle of the private copy exception must also be respected for registered designs, as well as copyright, so that the copy can be obtained legally.
Sculpteo’s Role, in Practice
The Sculpteo Platform’s Legal Status
In intellectual property rights, you must consider the legal status of the platforms used to design objects, and on Sculpteo’s in particular.
In terms of internet counterfeiting, the June 21, 2004 law, called the loi pour la confiance dans l”économie numérique (LCEN) (Trust in the Digital Economy Law) provides a general distinction between two types of platforms: publishers and hosts (hosting services).
Host status applies to websites whose role is only to store and provide content to the public without making any editorial decisions or making choices. For example, the YouTube platform hosts a series of videos posted by users. It only enables videos to be shared and acts passively without controlling or selecting anything in particular.
A publisher, on the other hand, selects and chooses the content posted. It plays an active role in editing, shaping, and by directly creating the content.
The challenge of this distinction lies in the degree of responsibility borne by each of these players. In fact hosts, because of their passive role, cannot be found liable if an illegal file is posted. However, publishers are directly liable for content communicated to the public.
Through a notification system, it is possible to notify hosting services of the existence of any disputed content. In this case, the hosts are obligated to quickly remove the file concerned, failing which, in this case, they could be found liable.
If you discover a file used to print a counterfeit, you may notify us. Once we are notified of a disputed 3D file, we will examine it to determine what degree of copyright exists, and quickly remove it from our database if necessary.
Sculpteo does not carry out any editorial choice about content shared on its site. It has the legal characteristics of a host and cannot be held liable for distributing a file used to print of a counterfeit reproduction. However, it guarantees the removal, once notified, of a disputed file if it is likely to violate any intellectual property rights.
Here at Sculpteo, we do everything in our power to protect all intellectual property rights. This guarantee is stipulated in Article 10 of our General Terms and Conditions of Sale. When 3D printing, you can design your own object or choose to print a design from our catalogue.
If you create your own objet, it belongs to you, as long as it has the features necessary for its protection. Any future 3D printing of your creation will require your approval under penalty of being considered as counterfeiting.
As such, Sculpteo enables you to choose to make the file public or keep it private. If you agree for it to be for public use, you grant Sculpteo the right to use and reproduce the object’s image on its platform, so that other people may, thereafter, choose the file and print the applicable object. On the other hand, if you want your creation to remain private, it will be kept confidential and will never be distributed.
In any event, whatever object you create, you are guaranteed, by accepting the General Terms and Conditions of Sale, to be the sole intellectual property rights holder on this object and therefore not infringe on the rights of third parties.
Every day, we receive many questions about 3D printing specific objects such as Disney figurines or renowned designers’ jewellery. After reading this article, you will now understand that it is our duty to refuse such requests as they would result in the reproduction of counterfeit copies (even if we would very much like to help you complete your projects!). Here is an example based on a couple of mails we received:
3D printing must respect the intellectual property rights of creators in order to avoid any risk of counterfeiting. Our role is to warn consumers about the risks incurred in order to best foster 3D printing’s growth while respecting third parties’ creations.