Reconceptualizing the interface of copyright and design rights for 3D printing
Jia Wang · Journal of Intellectual Property Law & Practice · 2022
Dr Jia Wang is an Assistant Professor of IP Law at Durham Law School, Durham, UK. Three-dimensional (3D) printing technologies and platforms are becoming more prominent, faster and more ubiquitous, and they have significantly challenged the modular IP system. Currently, an unclear interface between different types of IP rights has led to the overprotection of design files. Moreover, despite the significant growth of designs in China, the current debate on cumulative design protection is more focused on UK and European law. This article investigates the current interface between copyright and design rights for 3D printing design files. To fill the gap in the literature, a comparative approach is taken to compare the laws between Europe, at the European Union and national levels, and China. This article views the road ahead for developing the IP legal system from three aspects: the identification of disclosure, the criteria to establish copyright originality and design novelty and the limitations and exceptions for the use of designs. In terms of practical significance, this article helps designers better understand the legal landscape when dealing with designs that are easily transmitted and traded across borders. It provides law and policymakers with a more robust understanding of the nuanced ways that IP rights operate in industrial contexts. The impact of three-dimensional (3D) printing on business models based on copyright and design rights has been widely acknowledged. Although 3D printing has existed for more than 30 years, 3D technologies and platforms are becoming more prominent, faster and more ubiquitous. 3D printing technologies and a digitalized platform economy, where design, remixing and production are highly integrated, have brought significant challenges to the modular IP system.1 To encourage innovation, reduce informational costs and maintain a delicate balance between under-protection and overprotection of disruptive technologies, a well-functioning interface between copyright and design rights protection for 3D printing is much needed. This article aims to explore how to build an interface within the IP system that is capable of channelling an appropriate level of copyright and design rights protection for designs used for 3D printing. Furthermore, it aims to develop a model for understanding the mechanism of interfaces and recalibrate a balance between consumers, designers and producers. The current discussion of cumulative IP protection for designs is focused on UK and European law, with some comparative perspectives involving Chinese law.2 China is a key player in technological innovation and has been keen on adopting national policies and making laws for innovation and sustainability.3 According to the World Intellectual Property Organization statistics for March 2021, design applications from China were up 22.7 per cent from 2019. It can be expected that after China joins the Hague System, the number of international design applications will further increase. To fill the gap in the literature, a comparative approach is taken to compare the laws between Europe, at the European Union (EU) and national levels, and China. Since China’s legal system shares features with a civil law system, a comparison between European and Chinese law helps assess how the jurisdictions develop laws and regulatory strategies for 3D printing technologies. More importantly, a comparative study helps designers better understand the legal landscape when dealing with designs that are easily transmitted and traded across borders. Other jurisdictions, mainly the USA and the UK, are occasionally referenced to complement the comparative study with a common law perspective, given cross-border transactions. In addition to the geographical emphasis on Europe and the UK, the current discussion on the designs used for 3D printing has been largely based on doctrinal legal analysis. This article extends the focus to consider IP is as a modular system comprising copyright, patent, trade mark, design and other elements. A module is commonly defined as a unit sharing multiple interfaces with which to interact, integrate and combine, but the term interface is referred to in very few studies of modularity.4 As the concept of a general system, modularity has broad implications for legal systems. A study on the interface between different IP rights for 3D printing designs will contribute to the existing research with a novel perspective. The interface between subsystems is essential, as it distributes information about the scope, strength and limitations of entitlements.5 Consequently, rightsholders can utilize the information to strategize the route for IP protection. For example, if the rightsholder can only choose one type of IP right for protection, the question would be whether the design should be submitted for registration, seek copyright protection, rely on shorter and weaker protection for unregistered design or even simply be given away in exchange for fast dissemination with a quick reap of profit.6 Alternatively, if cumulative protection is permissible, the rightsholder could be motivated to seek cumulative protection that is potentially stronger and broader than the IP law intended. The findings mentioned earlier could provide law and policymakers with a more robust understanding of the nuanced ways that IP rights operate in real-world industrial contexts. User communities can deploy computer-aided design (CAD) software to create and share designs online, which significantly increases the rate and scope of innovation and harnesses diverse prosocial motivations.7 The social benefits of common-based creation and production should not be neglected in the making of the law. Caution must be exercised before attempting wholesale modifications to IP rights, given their varied (and opposing) effects on industry structures across time and the value chain. With the enactment of EU Directive 2019/18 in Europe and the latest amendment of the Anti-Monopoly Law9 in China, it is time to scrutinize the effect of cumulative protection for 3D printing design documents and re-evaluate the interface between copyright and design rights. A clarification of two major differences in design law between the EU and China is needed before a full-scale comparative study. First, China has no separate statutory act for designs. Rather, designs are protected under patent law10 with the term ‘design patent’.11 For simplicity, the term ‘design’ is to be used throughout this article when referring to designs, regardless of terminological differences. Second, the EU provides protection for both registered and unregistered designs at the EU and national levels. In China, only registered designs are protected. The article proceeds as follows. Section 2 introduces the basic underlying mechanisms of 3D printing and identifies the challenges 3D printing brings to copyright and design systems. Section 3 scrutinizes the existing interface between the two systems and discusses legal issues between 3D and Section the issues of the of designs on the of copyright originality and design novelty and 3D exceptions to design rights. 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