Today BRR Media speaks with Hayden Delaney, who’s a Senior Associate with HopgoodGanim in Brisbane, welcome back to BRR Media Hayden.

Hi David thanks for having me.

Hayden while online piracy of digital content continues to be one of the great intellectual property battles waged between content creators and consumers, another IP war could be brewing with the rise of consumer based 3D printers.

Yeah David I think 3D printing and 3D scanning is a really interesting set of developing technologies that I think are going to really pose some interesting questions not only for the law but also for industries that have been long established for some time now.  The underlying principle behind the technology is pretty simple, it basically takes a 3D object, such as an apple or something like that, and will print it in multiple 2D slices on top of one another, the result and effect is that you get a three dimensional object built up over time via this layering process.  So the end result is that anything that can be designed in 3D modelling software, such as AutoCAD or something like that, you can print out as a three dimensional object, you can physically reproduce it.  And in terms of the applications for the technology it’s a little bit in the realm of science fiction, but it can range from something as simple as printing a spare appliance part, say if a dishwasher breaks down you just print off a spare appliance part, or it can range from reproducing a famous work of art, or it could even extend to something like printing out custom made human prosthetics or even human body parts, the applications I think are certainly quite mind boggling.  In terms of your question you allude to this pattern of technology that we’ve seen over the last decades really of a new technology coming along, it challenges the law, it forces it to evolve and we’ve seen this before in terms of file sharing sites, so as a previous IP war, even things like the humble photocopier back in the day.  What’s different here is that we’re dealing with rights to reproduce physical objects, rather than intangible things or digital files.  And the law deals with that a little bit differently than say two dimensional things or intangible things.

Well yeah I mean as you mentioned our IP laws are certainly going to be affected and I do want to drill in that.  I mean we’ve had landmark cases like iiNet and Optus and NRL case recently and the dealing with copyright of digital content, so you know are our IP laws sufficient to deal with the potential mass copying and reproduction of 3D objects at the consumer level?

Yeah it’s going to be very interesting.  I mean from an intellectual property perspective the technology’s going to do to the physical world what’s been happening in the digital world for a long time now, it’s going to make it really easy to reproduce something and distribute it on a mass scale like we haven’t seen previously and the law surrounding rights to reproduce three dimensional objects, in particular in relation to copyright, is somewhat different.  Copyright law protection is considerably more narrow, and I say that because copyright as a principle it’s very powerful tool in an IP litigator’s toolkit it arises automatically, lasts a lot longer than things like patents or designs, but there’s provisions within the Copyright Act called the Copyright Design Overlay provisions which basically remove copyright protection in certain instances.  And it does that under the justification that functional articles intended for mass production shouldn’t get the very extensive protection of copyright law.  Under these provisions they’re very complicated but in essence it will say it’s not an infringement of copyright for example to reverse engineer a three dimensional object and make your own three dimensional object from that.  So you can see how 3D printers could really take advantages of those overlap provisions in order to get around copyright law.  Now as a result it becomes really necessary to rely on other types of intellectual property like designs or patents or certain area exceptions within the overlap provisions.

Well Hayden if I could just take that example a bit further, if I design say a new type of coffee plunger for example, which you know becomes popular, is it currently possible for your average consumer to buy one of these 3D printers, print off a plunger, without breaking the law?

In terms of copyright protection unless you could show that it fits within some narrow exemption to the design overlap provisions like what’s known as a work of artistic craftsmanship, and I think that’s unlikely here, you would lose copyright protection under those overlap provisions and you wouldn’t be able to enforce copyright in that three dimensional object against someone else who reversed engineered it and used a printer to reproduce it on a mass scale.  As a result you’re going to potentially need to rely on some other type of registered IP right, maybe a design which you’ve registered over the look of a plunger or a patent covering the functions or even a shade trade mark.

And just finally, what’s the lesson here for designers; how do they prepare for the 3D printing revolution?

I mean the challenge here is going to be the same challenge we’ve seen in intellectual property law for a long time, and that’s going to be extent to which you can enforce IP rights.  So if these 3D printers become popular on a mass scale, you’re going to come back to the age old problem, the problem being just too big for people to go after individual consumers you need to seek some sort of remedy at the supply area of it.  In terms of the response you might see from manufacturing companies or what designers can do to protect their rights, I think they’re going to have to just be a little bit more active in thinking about what other types of IP they may have separate from copyright and taking active steps to protect and register that IP, so they’re going to need to consider things like designs and patents where appropriate.  The other thing I think we might see from this technology if I’m going to gaze into my crystal ball a bit, is that you might see certain interest groups like the manufacturing sector lobbying for law changes.  They might lobby for the removal of the overlap provisions from the Copyright Act on the basis that when those provisions were formed no one ever envisaged that a technology like this would come along and it’s taken the exception to an area far beyond what anyone ever expected or anticipated.  The other type of thing you might see again may be DRM for the physical world, Digital Rights Management, so some sort of software or hardware based lock being incorporated into these printers so you can only print clean images or clean designs.  Anyway some interesting things to look forward to I think in that area.

For sure a very fast moving area intellectual property continues to evolve quicker than the laws can sort of catch up with themselves, we’ll leave it there for now and thank you again for your time today Hayden.

Fantastic, thank you very much David.

That was Hayden Delaney, Senior Associate at HopgoodGanim in Brisbane, listeners if you have any questions for Hayden about this interview, please send a message using the panel that’s on your screen, or you can otherwise email through to law@brrmedia.com and we’ll forward your query.