South Africa has achieved another technological milestone. The Nelson Mandela Metropolitan University’s renewable energy laboratory recently constructed one of Africa’s largest 3D printers. With the emerging market for 3D printing, there are concerns regarding the intellectual property implications of these products. “When you think about it,” Likonelo Magagula, director of Norton Rose Fulbright based in Johannesburg, said, “making an authorized copy of something can constitute either patent or copyright infringement, it matters not what the mechanics (or how it is done) of the copying are.”
As a result, legal remedies are quite straightforward. Under the Copyright Act, protection is granted to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Here the work, categorized as original, is reproduced by a machine; the plaintiff’s argument is quite straightforward—“[I]f copies of an original object are 3D printed without authorization, the creator can obtain relief under copyright law.” There is an ongoing debate about the extent of copyright protection applicable to the computer aided design software or digital file used to design the item. In this situation, lawyers can plausibly rely on a moral rights claim. Although it is not established explicitly in the Copyright Act, Congress did grant limited moral rights protections to authors of visual art works in the Visual Artists Rights Act of 1990; but the rights are limited to “the right to attribution…; the right to prevent any intentional [or] distortion…; and…the right to prevent their destruction.”
International protections are similar to some extent with the rights of the United States. For instance, under EU law, the registered trademark owners are “entitled to prevent all third parties not having his consent from using [the trademark] in the course of trade,” as in the United States. Disregarding the liabilities on creators, 3D printing can provide many advantages to countries around the world, because the 3D printing network facilitates file sharing and information spreading. When the music recording industry sued Napster alleging contributory and vicarious copyright infringement for “peer to peer” file sharing, there was major backlash from the public. Nonetheless, the case exemplifies how file sharing can result in a copyright infringement.
What if the benefit outweighs the liability? Andre Wegner, the founder and CEO of Authentise, stated, “I lived in Nigeria and… [f]actories still because spare parts weren’t available, oil rigs that were producing less for the same reason, risks to safety in planes or elsewhere because of the same reason. Digital manufacturing can enable (in the long term) production of anything, anytime, anywhere.” Regardless, laws were created to be adhered to regardless of the societal implications. If anything, advocates need a convincing public policy concern.
Haniel Ogburu-Ogbonnaya is a J.D. candidate, 2018, at NYU School of Law.