The Third Industrial Revolution: Designs Law and 3D Printing

QUT Intellectual Property and Innovation Law Research Symposium

30 August 2017

The Third Industrial Revolution: Designs Law and 3D Printing

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Mitchell Adams

Title: The ‘Third Industrial Revolution’ 3D Printing Technology and Australian Designs Law

Abstract: Three-dimensional (3D) printing and scanning, touted as the next disruptive technology, is already upon us. Merging the physical and digital, 3D printing and scanning is having profound effects on how we design, share, copy and manufacture objects. Consequently, this article considers the previously unexplored intellectual property implications for registered design owners. In doing so, it examines the technological background to 3D printing and scanning against a backdrop of consumer access to these technologies. With the advent of 3D scanners and 3D printers any user can (re)produce unauthorised versions of an object that embodies a registered design in digital or physical form. This article considers the effectiveness of Australian registered design rights to combat infringement of this kind. It is concluded that the Designs Act 2003 (Cth) is unable to deal with this nascent technology.

3D Printing Technology and Australian Designs Law — Mitchell Adams

Professor Margaret Maile Petty.

Title: A Moment of Truth: 3D technologies and the future [or obsolescence] of design

Abstract: Contemporary design has its origins in the first third of the twentieth century, with the blossoming of mass manufacture and the rise of consumer culture and economics, when the re-styling of a refrigerator could triple sales within one financial year. Today such exhilarating sales curves are harder won. However many UX designers a company employs, the notion of creating a singular ‘killer product’ that can be produced in the millions is increasingly challenged by cross-sector disruptions such as 3D printing and scanning in combination with the escalating sophistication and use of AI and big data. The allied design disciplines have a small window of opportunity to consider what design means in the 4th industrial revolution, where does it add value, and how can it adapt to radically different forms of manufacture, supply chains, IP protections and customer demands for greater levels of customization. ‘A Moment of Truth’ will briefly explore these drivers in the relation to the larger evolution of design since the 1930s and pose critical questions central to defining the future or future obsolescence of design.

3D printing and the Future of Design — Professor Margaret Maile Petty

Daniel Flood

Title: Misconceptions of Legality: 3D printing and community

Abstract: ‘Just because someone can’ does not mean they should but Australians have proven to be culturally ambivalent to this reality where it intersects with the legality. This is clearly evidenced by the published numbers of Australian illegal downloads of Game of Thrones. Mashup and remix culture reflect a frontier attitude to copyright that is pervasive and can be evidenced through a simple Google search.

At large the community does not truly understand the legal realities, citing fair use or a general ambivalence towards their actions. This is compounded by the implements of making — including 3D design and printing — being so readily available at an affordable price point, easily accessible in public places like libraries and makerspaces. Further, the current cultural movements of repair cafes and DIY encourages communities to repair their own equipment, designing replacement parts using 3D printers that are, at their core, protected intellectual property. In essence breaking the law.

Conversely, with this consumer equipment and increasingly powerful tools for design is establishing a new class of designers that lack a learned, embodied understanding regards intellectual property law, moral rights and licensing, the misuse of copyright and alternate licensing platforms (Creative Commons, GPL etcetera) in their work in common, negating the protections they offer and exposing individuals to be either taken advantage of or finding themselves in breach of those same licenses.

Misconceptions of Legality will explore the understanding and misconceptions in the general community around intellectual property and 3D printing, and the role spaces such as libraries, public makerspaces (etc) can and do play in informing this conversation in community.

Who owns Thor’s Hammer? 3D Printing and Community: Daniel Flood

Dr Brett Dale

Title: Opportunity knocks — 3D printing will revolutionise the automotive industry!

Abstract: Business has been aware of 3D printing and the expectation it will revolutionise the automotive industry. However, the technology is still considered to be on the periphery and only recognised by innovators as a disruptor to both the manufacturing sector and the retail, service and repair sector of the automotive industry. Latest developments suggest that 3D printing is preparing to turn manufacturing on its head, with 3D metal printing systems that are much faster, safer and cheaper than existing systems and now capable of competing with traditional mass manufacturing processes. The hype is real with new technology enabling 3D printing up to 100 times faster, with 10 times cheaper initial costs and 20 times cheaper materials costs than existing laser technologies may be tipping point for large scale 3D manufacturing of car components. Latest technology provides rapid, cheap metal prototyping for engineering groups, and a production system for mass manufacturing. Indeed, 3D printing is likely to disrupt both manufacturing and retail service and repair sectors of industry.

The entire automotive value chain will be transformed by emerging technologies, such as 3D printing in 2–5 years. Specifically, 3D printing will disrupt our parts suppliers, our vehicle body sector, tools and servicing and eventually the car manufacturing sector itself. Industry must maintain the leadership and momentum on digital disruption and emerging technologies, which according to experts will impact business by 2020 with the major rollout and effect here by 2022. In the context of a timeframe, it is closer than many realise! Real opportunities will be gained by preparing business for the digital and technological transformations. The key to success will be open collaboration with stakeholders and regulators about emerging technologies to ensure that associated regulations are responsive, flexible and support business prosperity and consumer expectations.

Opportunity Knocks — Dr Brett Dale

Dr Angela Daly

Title: 3D printing and designs in China

Abstract:This presentation provides an introduction to the 3D printing ecosystem in China, with a focus on file-sharing sites, makerspaces and some of the emerging IP law considerations there. China has been investing large sums in innovative technologies including 3D printing, and is transitioning from a ‘user’ of others’ IP to a creator and producer country in its own right. As with the Internet, a different linguistic, political and cultural context has given rise to a different 3DP ecosystem compared to the Western world. However, our initial research suggests similar concerns are arising as regards the relationship between 3D printing, design files and IP. The work-in-progress in this presentation comprises exploratory research conducted as part of the UK Intellectual Property Office-funded project, 3D Printing and IP Law Futures, in advance of our horizon scanning workshop to be held in Shenzhen in September 2017.

3D Printing and Designs in China — Dr Angela Daly

Professor Matthew Rimmer

Title: Bring It On: The Supreme Court of the United States, Copyright Law, Designs, Fashion, and 3D Printing

Abstract:The Supreme Court of the United States granted leave to consider the vexed question of copyright protection in respect of fashion. In the case of Star Athletica v. Varsity Brands, a number of 3D printing companies have filed a brief to establish a test for determining conceptual separability under copyright law. The companies involved include Formlabs Inc., Matter and Form Inc., and Shapeways Inc. In many ways, this dispute focuses upon legal issues thrown up by the controversy over Left Shark. The submission noted: ‘This case presents a clear conflict among the circuits on an important substantive matter of copyright law that justifies this Court’s review’.

The submission warned: ‘These advancements are threatened by the current fractured state of copyright law on objects combining functional and artistic elements.’ The 3D companies were concerned: ‘Uncertainty over the line between copyrightable and noncopyrightable works can lead to over-claiming and over-categorization of material as copyrightable, upsetting the balance struck by Congress between the interests of rights holders and the societal benefits from a vibrant public domain.’ The industry pleaded with the Supreme Court of the United States: ‘This Court should grant certiorari to resolve the present circuit split and ensure that the development of innovative technologies and industries such as 3D printing is not hampered by the ongoing conflicts and confusion in conceptual separability doctrine’. There was a powerful joint submission led by Public Knowledge on the topic of intellectual property and 3D printing. Charles Duan from Public Knowledge highlighted the larger ramifications of the dispute for fashion, designs, and 3D printing hobbyists.

On the 22nd March 2017, the Supreme Court of the United States delivered a majority 6–2 opinion in favour of the respondents Varsity Brands, Inc. against Star Athletica LLC. Thomas J delivered the opinion of the court, in which Roberts CJ, Alito J, Sotomayor J, and Kagan J joined. Ginsburg J filed a concurrence. Breyer J filed a dissenting opinion, which Kennedy J joined. Writing for the majority, Thomas J observed: ‘Congress has provided copyright protection for original works of art, but not for industrial designs’. His Honour noted: ‘The line between art and industrial design, however, is often difficult to draw. ‘We hold that an artistic feature of the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article.’ Thomas J found that the test was satisfied in this case involving the surface of cheerleading uniforms. In her concurrence, Ginsburg J held that ‘the designs are themselves copyrightable pictorial or graphic works reproduced on useful articles.’

In dissent, Breyer J disagreed that the designs that Varsity Brands Inc. submitted to the Copyright Office would be eligible for copyright protection. His Honour emphasized that there was a need to respect the decisions of Congress in respect of the scope of copyright protection: ‘The Constitution grants Congress primary responsibility for assessing comparative costs and benefits and drawing copyright’s statutory lines. Courts must respect those lines and not grant copyright protection where Congress has decided not to do so. And it is clear that Congress has not extended broad copyright protection to the fashion design industry.’ The judge observed: ‘I fear that, in looking past the three-dimensional design inherent in Varsity’s claim by treating it as if it were no more than a design for a bolt of cloth, the majority has lost sight of its own important limiting principle.’

The decision attracted a wide array of public commentary. There has been disquiet about the impact of the Supreme Court of the United States decision on 3D printing. The presentation will consider the ramifications of the ruling for copyright law, designs, fashion and 3D printing.

Bring It On: The Supreme Court of the United States, Copyright Law, Designs, Fashion, and 3D Printing — Professor Matthew Rimmer

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Professor of Intellectual Property and Innovation Law, QUT. #Copyright #Patent #Trademark #plainpacks #Access2meds #SDGs #Climate #IndigenousIP #trade #TPP

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