COPYRIGHT PROTECTION ON 3D AND 4D PRINTING IN INDIA– A CRITICAL LEGAL ANALYSIS (By-Kavitha Christo Nelson & Dr. Upankar Chutia)
COPYRIGHT
protection on 3D AND 4D printing in India– A critical LEGAL analysis
Abstract
Intellectual Property Rights is
always a tug-of-war between the emerging technological innovations and
inventions with the existing national laws and regulations, whereby 3D and 4D
Printing technology is no exception. 3D and 4D printing- a technology that can
reprint or produce a replica of any objects or prototypes with one of the
printing machines with the aid of an available CAD file or in absence of such
file the technology is so advanced that a 3D Scanner can scan such an object
that converts to CAD file to reprint the replica objects or prototypes where
such objects pose threat to the original inventor of the patented objects or
any other new artistic works. As 3D and 4D printing are advanced in technology
that is currently used in all the fields from constructing unique and
unimaginable designs of architectural buildings,food, and pharmaceutical drug
printing, to the most advanced 3D bioprinting of replicas of metal implants,
and artificial human organs to hearing aid in the medical industry,
environmental concerned objects, to the world’s largest rocket engine, etc.,
thereby protecting the intellectual property of the same is the need of the
hour.The research will analyzethe lacunae in the existing IP law, evaluate the
concerns as well suggest probable amendments to the existing Copyright regime
protecting the authors or creators in India.
Keywords: Intellectual Property Rights, IPR, 3D
and 4D printing, Technology, CAD file Copyright
Introduction:
A carte blanche work
of authors and artists, and any emerging new technology in any industry would
be a tribute to Intellectual Property Rights in return always pose a
challenging task and debates the existing Intellectual Property Rights Laws in
India.
The concept of
transformation of 2D or two-dimensional to 3D or three-dimensional printing or
“additive manufacturing” dates back to an invention of 1986 by Engineer Chuck
Hull[3].
The 3D printer transforms the computerized 2D blueprint files called the
computer-Aided-Design file (CAD file) a software that deconstructs the 2D to 3D
model or object in layers termed additive manufacturing or 3D printing. In such
circumstances where such a CAD file to produce or print a 3D object isn’t
available, there comes the support of the 3D Scanner that scans the object and
creates a CAD file to support the replication of the desired object. The
present 3D printing has given its technological advancement to emerging 4D or
four-dimensional printing which holds up more advanced applications, increased
capabilities, and efficiency.[4]
The 3D printing
technology had remarked its next-gen revolution where its applicability and
usage extend to the creation of printing replica objects in almost all the
industries fromthe agro-food industry, pharmaceutical industry to print 3D
drugs, prosthetics, fashion industry, jewellery making to meet the global
requirement where such 3D printing technology caters to produce cost-effective
and accommodate the customized requirements of an individual.
The concept of 3D printing and 4D printing
through an Intellectual Property Right acquires the Patent protection for the
invention of 3D or the 4D printing machine and its subsidiary 3D Scanner to
support producing the CAD file to produce a replica object or prototypes. The
design of the 3D printer is protected under the Designs Act,2000, The
Trademarks Act,1999, and the blueprint CAD file is protected under the
Copyrights Act 1957 in India. Irrespective of existing IP laws in India demands
a challenging IP law that handles the 3D printing technologies and their
exploitationfroman ethical and economic perspective. 3D printing infringement
and remedies are not covered under the Indian Penal Code,1860 and not nor in
the Copyright Act 1957.
When considering the pros of the 3D
or 4D printing technology in the medical industry is advanced and supports in
productionof a replica of human organs, artificial limbs, and tissues for
transplantation in humans, especially in emergency cases of the
non-availability of organs/donors.
Another consideration towards the
environmental aspect would help in recyclability of the plastic or polymers to
create another artistic object or prototype using the 3D or 4 Printing
technology.
Emerging technology in any new
invention would always be protected under the Intellectual Property Rights but
another critical scenario always demands a debate and challenge towards the
up-gradation of the existing laws to protect the intellectual aspect of one
person and restrict its usage from infringement by another person.
Fostering 3D or 4D printing
technology in India ensures adequate protection in the existing Copyright Law
where the question arises concerning section 2(c) which specifically doesn’t
mention the copyright protection for 3D or 4D printed objects or prototypes.
The use of 3D printing in the unauthorized
reproduction, duplication, and distribution of copyrighted material would
amount to copyright infringement in India under section 52(1) (w)[5]and
needs to be justified as such would be a dilution of creative works of another
person. This lacuna holds a negative impact on the original or genuine
copyright owners and the Indian economy as such would result in huge loss.
When a 3D object is created who holds
the exclusive copyright ownership is a debate as to whether it is the CAD file
owner or the person who printed the 3D object, the copyright law holds lacunae
in specifying the 3D prototypes which the copyright law demands to justify.
3D printing and 4D printing support
and cater to all requirements in industries and household prototypes don’t hold
stringent regulations to control their unauthorized production. This loophole may impact the national
security as well when on leakage of such CAD files or genuinely obtaining such
blueprint of making machine guns or other negative circumstances. This posits
the question of whether hobbyists would be charged as infringers in such a
scenario.
Even though the TRIPS Agreement
under Article 13 provides the limitations and exceptions, "members
shall confine limitations or exceptions to exclusive rights to certain special
cases that do not conflict with a normal exploitation of the work and do not
unreasonably prejudice the legitimate interests of the right holder.” [6]In
India, we lagged in strict IP laws when there are emerging new technologies,
unlike in the USA. There is a grave need for an exclusive addition towards 3D
printing or 4D printing in copyright law in the perspective of economic growth,
to protect the monopoly rights of the original owner, and to avoid and regulate
such illegal sale and use of 3D printing CAD file to produce unauthorized
objects that are patent protected usually sold through online or other modes.
The objectives of this paper are:
1. To analyze the protection regime
of 3D and 4D printed objects or prototypes in India.
2. To evaluate the liabilities on
infringement on CAD files, 3D and 4D printed objects or prototypes in the
Copyright Law in India.
The paper hypothesis that
“The regulatory mechanism that prevails in India in relation to 3D and 4D
printing is insufficient thereby we need separate provisions to regulate the
sections in Copyright Law”.
The scope of the study extends to the
copyright protection of artistic 3D and 4D printing objects or prototypes under
section 2(c) and limits the infringement under section 52(1)(w) of the
Copyright Act,1957.
3d And 4d
Revolution In Technology And Industry:
WIPO on, “3D printing
and IP Law”[7] an article on the current 3D advantages, the gap between the laws
and emerging technology, and how the existing IP laws try to handle 3D printing
in their respective nations. This article also refers to the TRIPS agreement
and the WIPO Copyright Treaty to curb unauthorized use and extend its
limitation and exceptions to copyright protection in the legitimate interest of
the right holder.
3D and 4D printing have gone ahead in developing unimaginable products in
the technologically advanced world’s largest 3D rocket engine by the
UK-basedOrbex[8] a single piecemanufactured with the
perfect temperature and to handle the power fluctuations a much advanced and
better rocket engine than the other space engines.
From
an educational point of view, supports that the 3D printing technology attempts
to be an alternative to traditional learning which incorporates more 3D printed
student projects for a better understanding and learning process.[9]
The developments in 3D printing along with the Intellectual Property concerns
highlight that the Copyright law protects only the objects created through the
expression of ideas. Whereas the US copyright law extensively protects the
author’s creative work whilst protecting exploitation of the copyright
information in the education and research field and with the digital revolution
it becomes readily accessible to anyone. The article highlights the challenges
for the 3D printed objects regarding the copyright protection and its
infringement as at times in circumstantial cases such transformative uses
claimed as legal as in cases for the academic purpose or project, especially
would be an advantage for those visually impaired.[10]
Food is an essential
part of every human life, and the same if served with an unimaginable designer
product adds not just aesthetic creativity but also the innovator’s creativity
towards delivering the intricate shapes and geometric designs on the plater.
Such 3D and 4D printing ways of printing the food product and end-product have
become a trend in the Food industry.[11]
Owning a designer
house is everyone’s dream, and 3D and 4D printed house is just another amazing
concept of building aesthetically beautiful and intricate designer houses with
minimal construction costs compared to traditional manual constructions. The
pros are the architecture of the house is just as per the CAD blueprint and the
designer’s creations without any flaws which normally doesn’t happen in any
architectural construction as promised by the architecture.[12] 3D printing is a concept of robotic construction where high-rise
buildings are constructed using concrete 3D printing methods. Also highlights
the advancements and challenges of 3D printing in the architectural industry
with three cases addressing the eco-friendly construction requiring minimal
human labor or effort as in traditional architectural construction[13].
Whenever there is an
advancement in the medical industry, that would always benefit the public at
large, especially when 3D and 4D printing can create customized hearing aids,
3D printed metal implants, and another prospect of the creation of artificial
human organs using 3D- bioprinting.[14] The use of 3D printing in the healthcare industry and its demanding need
for regulations, especially in 3D bioprinting where such involves the medical
devices that mandate quality, medical technology for better clinical practice
in ethical and moral in the demanding technological[15].
Everyone is bound to
save the environment as a part of sustainable development, and 3D and 4D
printing have gone ahead to print the replicas of coral reefs with fine
intricates and structures to protect the environment[16]. Another scientific approach towards the printing of micro-organisms that attracts over to the
research is the field that is using 3D micro printing and 3D cellular printing
to produce micro-organisms and bacteria. Also proves the technological
advancements in 3D printing which mandates adapting legal regulatory methods
for the next-generation technology and sustainability.[17]
3D printing concept
has become an added advantage in the manufacturing and automobile industry as
the most intricate spare parts are printed at ease to perfection that would
help any machine work perfectly. The technological
potential growth in additive manufacturing or 3D printing technology is a
revolutionary method and a transformative technology to the traditional
approach. Such advancements though hold to increase the GDP of any nation hence
suggesting the policymakers look into predicting the future aspect of
technological challenges that would arise and make regulations holding a better
disruptive technology of additive manufacturing.[18]
The Do-It-Yourself
(DIY) trend has been increasing day-by-day where each one would like to create
new or imitate the other either for hobbies and passion or for the commercial
benefits, where the 3D / 4D printers and scanners have supported them
enormously letting the public opt for CAD files where at times are misused to
make of replicas of counterfeit goods and illegal metal gun-making which would
be a threat to the national security of any nation.A classic example of the ‘Makers Movement’ and how any small-scale
industry can make replicas of unauthorized, replication and duplication of any
prototypes or objects by DIY communities (Do-It-Yourself) which also highlights
the making of 3D printing guns and gun parts that exclusively doesn’t hold any
statutory restrictions over the DIY maker and the threats associated with such
a technology where for production of prototypes blueprint CAD file is readily
available in the online market that can be accessed or obtained either
ethically or unethically by any ordinary person or hackers.[19]
Such 3D and 4D
printing deserve protection not just on the national level since the 3D CAD
files are easily accessible the international organizations are trying to find
regulations to protect such under the Copyright Law.
International Regimes On
Copyrights Law On 3d/4d Printing:
WIPO magazine on 3D printing or
additive manufacturingposits that different strategies have been considered by
different countries towards the economic and technological ecosystems favouring
the development of 3D printing and also the drawback in technology that affects
the Intellectual Property in regard to the Copyright, Design Law, Patent Law
and to some extent the Geographical Indications.3D Scanning software can
make wonders in the replication of the museum and cultural heritage
applications which concludes the impossible to possible. Whilst technological
advancement is inevitable in any industry instead of justifying with the
Wait-and-Watch approach it’s high time to the control application of 3D
printing technology[20].
The Berne Convention for the
Protection of Literary and Artistic Works[21],
whilst it supports the ‘unity of art principle[22]’
and honorsthe protection of copyrighted work across the contracting States to
the Berne Convention for a minimal duration until 50 years after the death of
the author or 50 years in pseudonymous works, also denies the protection if
such copyright protection is ceased or denied in the country of origin.
The Trade-Related Aspects of
Intellectual Property Rights Agreement (TRIPs Agreement) with the World
Trade Organization (WTO) binds to automatic protection and independent
protection of those members who are not a party to the Berne Convention subject
to limitations and exceptions. This provision under Article 13 of the TRIPS
Agreement has given way for some countries to adopt the levy of minimal fee
towards compensation for unauthorized copying of protected material in 3D
printing.[23]
Some countries like France
holdprovisions under the Intellectual Property Code of France (Article L
613-4)[24] that 3D
printed objects can be protected under the Patent which would support the
patent holders to seek redress towards the unauthorized use of their 3D
printing by the third parties and to honour the copyrighted work.
3D printing technology from the international
perspective addresses the key issues and challenges and also highlights the
national strategies promoting the technology for instance the ‘Made-In-China’
movement or ‘America Makes’. Whenever there is technology there are attached
threats associated with it.[25]
3d Printing And Product
Liability:
3D printing is a revolution in the
technology industry and also posits legal upshots in the Intellectual Property
towards the 3D CAD data protection and end-product liability. The availability of 3D CAD files onlineencourages
private individuals to opt for 3D printers at affordable costs that are capable
of printing the product that is protected under patent leading to counterfeit
products in the market. Such 3D pirated software demands legal protection
towards their infringement of IP as well as the misappropriation of software,
and 3D printed products and devices associated with the copyright claim.
Inanotherscenario, on the
non-availability of the CAD file, the 3D Scanner is capable of scanning the
product to convey the CAD file or digital software and then reprinting the
unauthorized product without any legal obstructions to their infringement under
the Copyright Law even though such software is ethically protected under the
artistic works of the Act.3D and 4D printing could be interpreted with
reference to New Zealand’s case of Wham-O-Manufacturing Co vs Lincoln
Industries Ltd[26]where
the wooden models are produced from preliminary drawings that fall under the
definition of sculptures or engravings under artistic works subject to
copyright protection.
On analysing the possible liability
issues on the person towards copyright infringement debates on whom, whether
the manufacturer or supplier of 3D printer or printing material, or the owner
of the printer or CAD blueprint right owner, or the person who printed the
object, as the existing copyright law remains silent in that[27].
The
challenges of 3D printing technology and Intellectual property law give a
predominance focus on copyright law. This remains a threat to the creative
minds and infringement that demands a Copyright law to protect the rights of
the copyright owners. The artistic work of craftmanship and the Art and Craft Movement lies a
controversial riddle of whether the machine-created or mass-produced objects
fall under the ambit of artistic craftsmanship was substantiated in the
precedents and judicial interpretations.[28]
Conclusion:
The world has witnessed
the unveiled world’s largest 3D printed rocket engine[29],
3D printed house, 3D printed bone implants, 3D jewellery, automobile spare
parts, and 3D printed guns. The pros of the 3D and 4D printing, and prototypes
would be the future educational mode as an alternative to the traditional
teaching and such posits the advantage of fair use purpose. The possibilities
of future 3D printing prototypes are endless as the technology and public
interaction with the end product of 3D prototypes are increasing empowering the
consumer’s influence on 3D printing.
When 3D printing is a
threat to the unauthorized copying of prototypes across the world, for some
developing countries like Africa such technology can really play a vital role
in their economic upliftment in the future[30].
The research paper proves the
hypothesis by justifying “The regulatory mechanism that prevails in India
in relation to 3D and 4D printing is insufficient thereby we need separate
provisions to regulate the sections in Copyright Act”.
The paper concludes that
any creation deserves an incentive for the creator’s investment in Research and
Development and unique designs of CAD blueprints and 3D and 4D printing
prototypes. Emerging digitalization and fostering creative content going
forward would pressure the IP Policymakers a demanding regulatory challenge on
Intellectual Property Rights and their protection worldwide combating the 3D
and 4D printing piracy.
Suggestions:
Since the 3D and 4D print market
covers the largest commercial application technology from revolutionary
applications, regenerative medicine to prosthetics, complex airplane
components, the food industry, fashion, and other technology that are deeply
embedded in the future, towards which the paper suggests
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