There is a likelihood that intellectual property (IP) infringement may increase, owing to the ease with which products can be reproduced by a layperson with the use of three-dimensional (3D) printing, says law firm Spoor & Fisher senior associate Marco Vatta.

“3D printing technologies affect all areas of IP law and it raises the question as to whether IP laws in their current form can embrace and protect this all-encompassing technology. 3D printing only requires a computer-aided design (CAD) file of the product to be manufactured, and access to a suitable 3D printer”.

Vatta says that 3D printing does not require highly technical skills in manufacturing and, thereby, creates the potential for a large number of new infringing parties to enter the market, which, in turn, makes policing and enforcement more difficult. Particularly so because it allows the layperson at home to copy almost any product without the rights-holder being aware of the infringement. 

For example, anyone can print a pirated design, regardless of the purpose of the object or the product quality that was intended by the original manufacturer.

This creates concerns in terms of the possible infringement of IP rights and the potential liability for product designers and owners.

The latter is applicable in instances where products are reproduced without the consent of the proprietor of the IP, which negates an element of quality control, possibly making it unsafe or of an inferior quality, Vatta explains.

Consequently, manufacturers of “genuine” products unfortunately run the risk of having their brand tarnished by inferior-quality products and can even bear the onus of having to prove that they did not manufacture a 3D-printed replica.

What should be of further concern for copyright owners of 3D printed works is the so-called “reverse engineering” of the products exception found in the Copyright Act.

Section 15(3A) of the Copyright Act provides that where a copyright owner has directly or indirectly produced and sold 3D derivative articles of his or her work anywhere in the world, and such articles primarily have a utilitarian purpose and are made by an industrial process, no infringement occurs thereafter in the making of unauthorised reproductions by means of indirect copying.

Therefore, it is permissible, in terms of copyright law, to buy a 3D-printed object (being utilitarian in nature), "reverse engineer" it by taking its dimensions and then reproducing it to make an exact replica. This provision in the law has been used in industry on many occasions, explains Vatta. However, it could still be an infringement of design rights and it is therefore important to apply for a registered design.

“What you cannot do though is copy the copyright owner’s two-dimensional drawings and CAD files of the 3D-printed object.”

He adds that the reproduction of products for private purposes is not an infringement of copyright, provided that the copy has been made from a non-infringing copy, the original copy is legally owned by the individual who is reproducing it and the copy is only used for private purposes.

This means an individual can buy any product, scan it, and legally print as many copies as he or she would like, provided that it is for private use, says Vatta.

Vatta concludes that: “The intellectual property system is relatively well equipped to deal with some of the challenges presented by 3D printing, particularly the protection/registrability of products manufactured by additive manufacturing. It must be remembered that 3D printing is merely a different method of manufacture.”  It is, however, vital that companies and proprietors of IP should look at all avenues of IP law to obtain the strongest protection possible and not rely solely on one form of IP law, even if this requires a change in business models to anticipate the ease at which products can now be manufactured using additive manufacturing.