At the ACIPA seminar series tonight: Hall, a partner at Swaab Attorneys, spoke about the challenges that industry and rightsholders will face – even if they do not yet realise it – around 3D printing and scanning technology.
Hall asks: how can incumbents react, and how should they? Hall argues that existing IP laws are unable to respond to the challenges 3D printing poses: “our current IP framework seeks to control activity at key points the traditional manufacturing and supply chains.” Hall points out that our laws do not respond in the way that we think they would if someone was copying articles in conventional ways. He worries that this will disrupt existing IP regimes, placing significant strain in the same way that copyright has struggled to deal with technological change over the last thirty years.
Hall notes that patent law is most likely to be able to respond, but few goods that are likely to be copied are likely to be patented. Copyright is largely inapplicable except for works of artistic craftsmanship, and the tiny proportion of producers who use registered designs are unlikely to have a remedy because home printers will not infringe if not selling the goods. Trade mark may have some limited application – but marketing the product as a compatible or replica product is permissible.
Hall is worried about designers who are being ripped off by copyists – points to some of his clients – European designers – who are upset by copyists who can market their furniture as ‘replicas’ (e.g. Matt Blatt) without liability. These designers now try to deal with this contractually.
Hall thinks that because high end design has not been able to get the attention of government, there is unlikely to be any change to domestic IP laws to protect designers.
Hall argues that doing nothing is not a winning strategy – firms need to adapt. Businesses can fully embrace 3D printing by providing blueprints; others will capitalise on the brand or value-added services. Industry will be better off raising awareness, rather than rushing ahead and trying to change the law.
I asked Hall whether or not 3D printing should have policy implications – whether he thought there was any reason to believe that innovation is better centralised than decentralised. This is the argument most strongly made by Raustiala and Sprigman: industries like fashion have long survived – even thrived – in the face of cheap and rapid copying. In many other industries too, we see user innovation and centralised innovation in the face of copying (see e.g. Von Hippel, Democratizing Innovation). Hall noted that the AGD would probably be sympathetic to the worries of designers, who have become accustomed to some level of protection from copying – so that might provide a realpolitik answer. The more detailed empirical question, however, is still uncertain.