On 26 June 2018, the Committee of Legal Affairs of the European Parliament (JURI) published a report on three-dimensional printing specifically focusing on the challenges concerning IP rights and civil liability and called on the European Commission to consider such issues particularly when assessing Directive 2004/48/E (the "Enforcement Directive") and Directive 85/374/EEC (the "Product Liability Directive").
3D printing technology dates back to the 1960s with the first commercial printers being launched in the 1980s. Originally designed to make prototypes, this still accounts for the lion's share of the 3D printing market although the range of different applications is ever increasing – from medical devices to human replicas and restoration of historical artefacts. Now that some of the original technology is no longer patent protected, the size, range and cost of 3D printers has dropped dramatically and there has been much talk in the press about the potential disruptive and transformative effect of this industry. Indeed, the EU has made 3D printing one of its priority areas of technology.
In the report, the Committee made a number of conclusions and observations relating to IP rights and civil liability including:
- New EU legislation may need to be adopted to anticipate problems, though duplication of existing rules should be avoided;
- Care needs to be given to certain issues such as encryption and protection of files to prevent illegal downloads and unlawful objects being manufactured;
- Care should be taken as to the quality and safety of 3D printed products and consideration should be given to identification and traceability of products;
- Legal reproduction could be controlled by IP notices and traceability of 3D printed objects;
- Where the 3D printed object is a private copy, national IP exemptions will apply including as regards compensation;
- It would be wise to distinguish home printing for private use and printing for commercial use, as well as Business to Business (B2B) and Business to Consumer (B2C) services;
- The need to raise public awareness to ensure protection of IP rights;
- Technical solutions to manage IP rights could be investigated further – for example, to make reliable digital files available;
- 3D printing has many economic advantages for the EU – for example, customisation of products for EU consumers and repatriation of local manufacture;
- The need for clear designation of responsibility between all parties involved along the chain when making a 3D printed object.
The Committee also criticises the Commission in the report for not addressing issues specific to 3D printing by revising the Enforcement Directive and specifically calls on the Commission to comprehensively consider every aspect of 3D printing technology when taking the measures referred to in its communication of 29 November 2017 on a balanced IP enforcement system and to involve all stakeholders in the process. It also calls on the Commission to carefully consider civil liability issues relating to 3D printing technology including when it assesses the Product Liability Directive, as well as the possibility of setting up a regime for damages not covered by the Product Liability Directive.
This author is of the view that the current EU legal regime for IP protection and enforcement is as adequate for the 3D printing industry as it is for other industries. There should be no need to make a special case for 3D printing although the industry and its peculiarities as well as the interests of all stakeholders should be taken into account when assessing the IP enforcement regime in the EU as well as any changes to the product liability regime. So whilst 3D printing might enable organised criminals to manufacture high quality counterfeit goods on an industrial scale, there is no reason why there should be separate offences or civil liability for manufacturing and dealing in counterfeits produced by 3D printing as opposed to using other methods.
On 3 July 2018, following a vote, the European Parliament adopted the report which will now be forwarded to the European Commission for consideration. We will keep an eye out for further developments. In the meantime, if you have any questions about IP liability relating to 3D printing, please do not hesitate to contact someone from our team.