Why buy when you can print

1
Table of Contents
INTRODUCTION...........................................................................................................................3
RESEARCH QUESTION .....................................................................................................................4
STRUCTURE ....................................................................................................................................5
METHODOLOGY .............................................................................................................................5
CHAPTER 1: ADDITIVE MANUFACTURING..............................................................................5
1.1 HISTORY AND TECHNOLOGY OF 3D PRINTERS..........................................................................5
1.2 COMPUTER AIDED DESIGN FILE..............................................................................................7
1.3 THE FILE-SHARING COMMUNITY .............................................................................................8
CHAPTER 2: EXISTING LAWS REGULATING 3D PRINTING...................................................8
2.1 RELEVANT IP LEGISLATION AND CASE LAW.............................................................................9
A. European Union...................................................................................................................10
B. United States.......................................................................................................................13
2.2 COPYRIGHT..........................................................................................................................14
A. European Union...................................................................................................................15
B. United States.......................................................................................................................17
2.3 PATENT................................................................................................................................18
A. European Union...................................................................................................................18
B. United States.......................................................................................................................19
2.4 TRADEMARK.........................................................................................................................21
A. European Union...................................................................................................................21
B. United States.......................................................................................................................22
CHAPTER 3: IS THERE A NEED FOR 3D SPECIFIC LEGISLATION?....................................23
3.1 RELEVANT FACTORS .............................................................................................................23
A. Protection of the Right Holders..................................................................................................23
i. Trademarks.............................................................................................................................................................. 23
ii. Copyright ................................................................................................................................................................ 24
iii. Patent...................................................................................................................................................................... 24
B. Protections of New Original Works and Fostering Innovation.............................................................25
i. Copyrights............................................................................................................................................................... 25
ii. Patents..................................................................................................................................................................... 26
iii. Trademark............................................................................................................................................................... 27
C. Legal Certainty & Efficiency....................................................................................................27
3.2 COST-BENEFIT ANALYSIS ......................................................................................................29
A. Sense of Familiarity...............................................................................................................29
B. “If It Ain’t Broke…”............................................................................................................31
CONCLUSION..............................................................................................................................33
BIBLIOGRAPHY...........................................................................................................................35
LEGISLATION ...............................................................................................................................35
International................................................................................................................................35

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Europe.......................................................................................................................................35
United States:..............................................................................................................................36
CASES ..........................................................................................................................................37
Europe:......................................................................................................................................37
United States:..............................................................................................................................38
BOOKS AND JOURNALS..................................................................................................................39
ELECTRONIC SOURCES ..................................................................................................................41

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Introduction
Back to the Future, The Terminator, Minority Report, and so on; all of these films are Hollywood
depictions of a “not-so-distant future” with fancy technologies, floating driverless cars, hover
boards, food or organs that can be printed on the spot. Although they are merely cinematic
manifestations of someone’s creative vision, our present reality – with its modern scientific and
technological innovations – has slowly been catching up to what was previously thought of as pure
fiction or conjecture. The 1990s, for example, saw the creation of the Internet and the personal
computer, which led to a new digital revolution, where the Internet and computers allowed people
to communicate and share information on a much larger scale and faster than ever before. While the
Internet revolution contributed to innovation and creation, legislatures struggled to adapt
regulation.1
Although various legislations have been introduced to reign in various externalities and problems
created by the wave of new technology, these laws have only managed to achieve and account for a
smaller number of interests. Moreover, there have been various spill-over effects that came along
with these new legislations: Paragraph §1201 of the DCMA, for example, notes that the aim of the
act is to stifle Internet piracy and the technology that facilitated it,2
but according to some, it also
repressed creation and innovation in rather unexpected ways instead, by taking down original videos
with copyrighted material, without regard for the manner in which the copyrighted content was
used.3
Moreover, this is not the first example of law falling behind fast developing technology. A
similar example can be seen with the introduction of the printing press which was countered by new
censorship and licensing laws, which slowed down the spread of information.4
This is to suggest at
the onset that the dichotomy between what new legislations intend to accomplish and what they
actually do, especially in the field of law and technology, is a reoccurring theme.
Today a similar movement is developing over the issue of 3D printing technology.5
3D printing, or
additive manufacturing, is a fast evolving technology that has proliferated to a large number of
commercial users that utilize the technology not only to create objects such as musical instruments,
but previously unimaginable items such as chocolate, pasta, and other edible items through additive
manufacturing. A more cutting edge example is the National Aeronautics and Space Administration
(NASA) employing this technology to replace (or print out) the necessary parts while in orbit.6
At a
relatively more mundane, but perhaps more concerning level, some users have printed guns, stirring
up a widespread public outcry around this new technology in the process.7
In November 2013, for
example, the City Council of Philadelphia became the first in the world to limit the use of 3D
1 Weinber 2010 p. 2
2 Lohmann 2010 p. 1
3 Bergen 2015
4 Weinber 2010 p. 2
5 Ibid
6 Snyder et al 2013 p. 10-12
7 Lewis 2014 p. 306

4
printers by enacting an ordinance which restricts any person from using a 3D printer to print any
part of a gun or a gun.8
While 3D printing can and has triggered various public outcries, the emergence of 3D printing has
obvious benefits as well, not the least of which is the fact that it can facilitate or enable
manufacturers to make objects at lower transaction costs.9
The steady increase in 3D printers will
likely require a new type of business model also, similar to how other disruptors like iTunes,
Amazon, and Spotify forced businesses to adapt to a new digitized era of the entertainment.10
The
file-sharing community, which created databases of files for free download, most notorious of them
being The Pirate Bay (TPB), further pressured the entertainment industry to adapt.11
The emergence
and the proliferation of similar websites which are already allowing consumers to share 3D printable
files with other users,12
is further increasing the pressure on businesses to look for new ways to
distribute their products.13
At the moment 3D printers are still in their early stages as they only allow for a limited number of
materials to be used, not to mention their limitation in capacity and size as well. However,
computers travelled along the same path of evolution and today are much faster, cheaper, and
smaller. A similar trajectory could be predicted for 3D printers, where printing personalized shoes,
clothing items, a new mountain bike, or a car, are all within the realm of possibilities in the not so
distant future.14
This in turn raises a number of issues with the current legal regime in most states,
both within the EU and for our neighbours across the Atlantic. While these products, and the
regulation thereof, could possibly fall under the coverage of intellectual property law protection or
product liability, varieties of concerns still arise, for example in criminal law, in cases when a weapon
is manufactured via 3D printing with a layout that was shared by a user on a website, and used to
commit a crime. These and other related concerns are, understandably, causing legislators some
anxiety, with some hoping to enact new legislations to curtail the potential issues associated with 3D
printing,15
which leads us to the research question of this thesis.
Research Question
In order to address the aforementioned problems that arise from the proliferation of accessible 3D
printing technology, is there a need for specific legislation (lex specialis)that deals with 3D printing or
is an amalgamation of existing intellectual property laws adequate? In the event that the
amalgamation of existing laws is deemed inadequate, what changes can be implemented, if any, to
better regulate this new technology with the minimum amount of negative externalities?
8 8 Lewis 2014 p. 308
9 Weinber 2010 p. 15
10 Lewis 2014 p. 311
11 Mendis 2013 p. 5
12 Thingiverse
13 Lewis 2014 p. 311
14 LM3D and Iyengar 2015
15 H.R. 1474 Undetectable Firearms Modernization Act 2013-2014

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Structure
The inquiry will be conducted in three parts: In Chapter 1, this thesis will give a brief description of
the additive manufacturing technology. Chapter 2 will highlight the existing measures already in
place that regulate the intellectual property rights of individuals and the issues that 3D printing
might create. In light of these findings, Chapter 3 will analyse, whether the existing laws are capable
of adequately regulating the problems that arise from the emergence of 3D printing technologies.
3D printing has sparked a number of more important debates which include, but are not limited to,
product liability, contract law, environmental law, criminal law and intellectual property law.16
Given
the space constraints of this paper, this thesis will only examine the effects of 3D printing on
intellectual property law by looking only at relevant laws of the European Union and United States.
Methodology
Based on the aforementioned structure, Chapters 1 and 2 will offer descriptive and historical
analyses of the 3D printing technology and the existing laws with a hint of comparative analysis by
looking at existing laws in the EU and in the US. Chapter 3 will be a more normative analysis of
existing laws taking into account the level of protection afforded to holders of IP rights, as well as
the level of protection given to new creations, their legal certainty and efficiency.
Chapter 1: Additive Manufacturing
1.1 History and Technology of 3D printers
3D printers have been used on an industrial scale since their first creation in the 1980s.17
However,
only in the past couple of years have they been used commercially by users in their private capacity.
Printers are getting cheaper, faster and smaller, a tendency that puts more tension on the regulatory
system as new issues arise. Additive manufacturing allows users to create a 3D tangible object from
the comfort of their home. People can create anything ranging from a simple design bookend to a
fully functional prosthetic limb. This in turn raises a number of issues connecting 3D printing and
intellectual property law, as well as other areas of law including product liability and criminal law:
Printing toy figures can infringe companies’ trademarks and copyrights. A prosthetic arm can
infringe on a number of patents.18
Furthermore, cases for contributory infringers19
could arise in the
16 Osborn 2014, p. 563
17 Mendis 2013 p2
19 Contributory infringement refers to a form of secondary liability for direct infringement of a patent, copyright or
trademark. (https://www.law.cornell.edu/wex/contributory_infringement)

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same way TPB caused issues for both the creators and for the users who upload and download the
torrent files. Similar issues have already surfaced for websites like Thigiverse.20
It might come as a surprise to some that 3D printing has been around now for more than 30 years,
with the first patent being filed by Wyn Kelly Swainson in 1971.21
Although it was not until 1988
when the first commercially available printer was patented, Swainson’s patent paved the way to what
is now slowly turning into a new manufacturing revolution.22
3D printing uses additive
manufacturing systems, which allow printers to build objects up by printing layer-by-layer. The
process can take anywhere from hours to days for a 3D object to be printed. It also allows 3D
printers to create objects with internal, movable parts, with some 3D printers being capable of
replicating themselves by printing their own parts.23
Printers use various materials ranging from
plastic, to steel, glass, ceramics and even edibles. The Economist has described 3D printing as a
Third Industrial Revolution.24
With the ability to manufacture almost anything from your home 3D
printers offer a tool which has the power to change the way people create and build everything.25
This revolution can already be seen in the medical and aerospace industries.26
There are three common types of additive manufacturing: The first is called photopolymerization,
this process uses light to cure a liquid material into solids of the desired shape.27
The second process
is called granular materials binding. Here using lasers, hot air, or other energy sources, the printer
fuses layers of powder into the desired shape.28
Finally, molten polymer deposition occurs when
molten material is laid in layers to build up the desired shape.29
Furthermore, two types of printers
exist, namely deposition printers and binding printers.30
The latter builds the object by binding some
material, usually via a laser or an adhesive. The former, on the other hand, deposits material layer-by-
layer until a 3D object is created.31
Unlike a projector, an ink printer, a web camera, or a sound system, 3D printers are not peripheral
devices for our computers. Rather, they represent a general-purpose technology for design and
production. The change offered by 3D printers is similar to that seen in the 1900s where from a
production oriented society of small entrepreneurs our society transformed into consumption
oriented one dominated by big corporations. However, 3D printers bring the possibility of bringing
production back to small entrepreneurs.32
They offer innovation from home. Until today research,
20 Lewis 2014 p. 314
21 Justia Patents
22 Mendis 2013 p. 2
24 Mendis 2013 p. 3
25 Grace 2014 p. 266
26 Ibid
27 Stratasys
28 Cummins 2010
29 Desai and Magliocca 2014, p. 1695
30 Osborn 2014, p. 559
31 Ibid

7
production, testing and distribution were costly. This has changed thanks to commercial 3D printers
bringing production, research and testing to the same place. People are now able to create
prototypes of their inventions, test them at home, and further develop their models.33
Furthermore,
now anyone can make their personalized remote control, or can fulfil any other specific or quirky
need or taste that that they may have. People can create attachments to prosthetic limbs, which will
allow better control and precision.34
1.2 Computer Aided Design File
In order to create a 3D printed object a computer aided design (CAD) file is required. The CAD
files essentially functions as the blueprint for 3D printers, which is to say that the CAD file is a
virtual 3D model of the object.35
CAD files can be created in a number of ways. The first possible
option for users is to use a CAD designing program. The second option available is to use a 3D
scanner which can create a CAD file by scanning an existing object.36
3D printing and CAD files will affect three levels of manufacturing – the start-up, the assembly line
and the home.37
In the start-up 3D printers will allow small companies to succeed in a market
dominated by big corporations. An example is Local Motors in Arizona which relies on the 3D
printing technology.38
Local Motors uses micro-manufacturing and global co-creation in order to
create a functioning company able to compete with big established car manufacturers.39
Big
corporations will also gain from 3D printers, which can offer a cost-effective approach to
production which is now carried overseas. 3D printers allow for such production to be brought back
to the United States or Europe where shipping and transport costs will be reduced, as well as time
needed for delivery. It will further allow for keeping a lower inventory and diminish the effect
humans have on the environment.40
GE Aviation recently purchased Morris Technologies, which is
a company heavily relying on 3D printing technology. The reasons behind the purchase were the
lower wastage and rapid prototyping of parts which 3D printers provided.41
Finally at home,
consumers will be able to create items which are not mass-produced and are customized to the
specific need of each consumer, thus forcing established manufacturers to adapt if they are to
survive. Similar customization is offered by Keurig coffee machines and SodaStream, also giving
consumers the ability to adjust and customize the level of bitterness/sweetness, as they please.42
Companies cannot provide for each specific taste and need, thus SodaStream and Keurig in turn
brought mass production techniques for espresso and soda making into the home sphere allowing
consumers a greater choice. The same can be expected with 3D printers, take for example the
34 Ibid
36 Ibid
38 Local Motors
39 Ibid
41 Ibid
42 Carlozo 2012

8
simplicity of Lego bricks and the ease with which a 3D printer, if provided with the correct CAD
file, can recreate the exact brick you need to finish a new model of the Death Star.43
3D printing has
the ability to revolutionize society. It will affect manufacturing, environment, 3D art,
entrepreneurship, and global trade.44
Nevertheless, like the early PC community, 3D printing is still
in its early stages of development.
1.3 The File-Sharing Community
During the Internet revolution sharing computer files became an integral part of the movement.
This led to the creation of new programs and techniques like BitTorrent45
and peer-to-peer (P2P)
sharing.46
BitTorrent is a communications protocol which is used to distribute data over the Internet,
breaking it down in small pieces and using a number of machines for the download.47
P2P file
sharing refers to the distribution of digital media using P2P networking technology, like BitTorrent,
the system connects the user to other computers connected on the network in order to provide a
fast download of the file required.48
The P2P community created large databases with files offered
free of charge, most notorious being The Pirate Bay. 3D printers have seen a similar movement with
websites like Thingiverse,49
Shapeways,50
Meshmixer,51
123D Catch52
just to name a few. Each of
these websites contributes to a bigger 3D printing community. While Thingiverse is a massive
database of CAD files, Shapeways offers users to download or upload a CAD file and have that file
printed for them. 123D Catch in turn lets you scan objects in order to create a CAD file for future
prints and Meshmixer offers users a simple 3D modelling software. The P2P community has also
kept up with these developments and websites like TPB have also introduced specialised sections
just for CAD files.53
Bearing these trends in mind, the following chapter will examine the existing IP
legislation and explain how 3D printers can test the feasibility and the practicality of the current
regime.
Chapter 2: Existing Laws Regulating 3D Printing
Although 3D printers are still in their infant stage, at least commercially speaking, they have already
sparked a number of debates concerning how laws and regulations ought to deal with them with
legislators taking into consideration issues such as the freedom of users to print. The first 3D printer
case involving IP rights emerged in 2011, when Thomas Valenty designed his own Warhammer styled
44 Osborn 2014, p. 560
45 BitTorrent
46 Carmack
47 BitTorrent
48 Mahanta and Khataniar 2013, p. 1
49 Thingiverse
50 Shapeways
51 Autodesk Meshmixer
52 Autodesk 123D
53 Walters

9
figures.54
Valenty then went on to print them with his newly acquired MakerBot55
printer and shared
them on Thingiverse. Thingiverse then received a notice-and-takedown order under the DMCA56
from the lawyers representing Games Workshop.57
Subsequently, Thingiverse was compelled to take
down Valenty’s designs. He consequently has refrained from uploading any new designs since the
event, as the possibility of legal action against him limits his ability to create.58
This chapter will examine the existing IP legislation in force both in the European Union and in the
United States, including, but not limited to copyright law, patent law and trademark law. Due to
space constraints this thesis will not be able to examine all of the legislation in depth, but it will
concentrate on showing if and to what extent the current legislation is apt for dealing with emerging
issues related to 3D printers.
2.1 Relevant IP Legislation and Case Law
At the onset, it is worth noting that intellectual property (IP) law can be broken down into specific
rights, which means that different instruments deal with different rights. Some of the main IP rights
include copyrights, covering literary, artistic and scientific works, as well as computer programs,
which can be further divided into sub-categories of related rights. On the other hand, patents are
granted for inventions, while industrial designs protect the visual design of mass produced products,
and finally, trademarks represent marks which are used in the course of commercial activities in
order to identify the origins of a product.59
In addition, certain rights need to be registered in order
to give exclusivity to the proprietor and copyrights are not part of this group.60
This section (2.1) will
discuss IP laws in general, with subsequent sections (2.2 - 2.4) describing the more specific rights of
copyright, patent and trademark respectively.
Intellectual property rights protect immaterial goods which are the product of creative mental
human activity in the industrial, scientific, literary and artistic fields.61
Historically, IP rights were
divided into two categories: industrial property, covering patents, trademarks, unfair competition, on
the one side, and copyright on the other. This division can be seen in the two major IP conventions:
the Paris Convention (1883) and the Berne Convention (1886). While the Paris Convention covers
industrial property, the Berne Convention is concerned only with copyright and related rights.62
The
Paris and Berne Conventions were both enacted at a very early stage, at a time when developments
such as the Internet were not imaginable. Given this understandable lack of foresight at the onset,
54 Warhammer and Warhammer 4000 are games owned by Games Workshop. Games Workshop is the largest and the most
successful tabletop fantasy and futuristic battle-games company in the world. Available at: http://www.games-
workshop.com/gws//home.jsp?_requestid=353518 (last visited: 29.05.2016)
55 Makerbot
56 DMCA Section 512(c)
57 Thompson 2012
58 Ibid
59 Kur and Drier 2013 p. 9
60 Ibid
61 Ibid
62 Ibid

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both conventions had to be adapted numerous times in order to address the changing reality with
the introduction of new technologies and an increase in global trade.
The first half of the 20th
century saw the successful adaptation of both conventions. However the
same cannot be said in the second half. Nevertheless, efforts to further develop and harmonize IP
rights on the international plain where not dormant. Following the Agreement Establishing the
World Trade Organization (WTO), the Agreement on Trade-Related aspects of Intellectual Property
Rights (TRIPS) became an integral part of the WTO treaty. The TRIPS elevated the standards of
internationally mandatory IP rights protection to standards much higher than those prescribed by
the Paris or Berne convention. It is normally referred to as “Paris-“ and “Berne-Plus” approach. The
minimum rights provided by Paris and Berne conventions are enhanced, new obligations are
imposed. The final benefit that TRIPS provided was the Dispute Settlement Body of the WTO,
which is given jurisdiction to decide over disputes arising under one of the agreements of the
WTO.63
There are numerous explanations behind the creation of IP rights. One would be the “tragedy of the
commons”, which describes a situation in which due to lack of exclusivity there is underinvestment
in the creation and production of new products.64
According to the World Intellectual Property
Organization (WIPO) two main reasons justify or substantiate the existence of IP rights. First, they
give statutory expression to the moral and economic rights of creators in their creation, while
enabling the public to access such creations at the same time. Second, they promote creativity and
encourage fair trading.65
Rights are attributed to creators, from an economic perspective, in order to
secure a stable income for creators, so as to further encourage creation and innovation. While from
a moral point of view, the rights stem from the creation and its nature as the fruit of the creator’s
intellectual labour.66
IP rights are limited in their effect, meaning that they are not universal; instead their applicability is
confined or limited to the territorial borders of the state in which they were granted.67
Most
international IP treaties are enforced by a specialised agency of the UN, the WIPO. Furthermore,
the WTO now has jurisdiction if cases are brought using the TRIPS agreement.68
In more a regional
context, looking at the European Union, jurisdiction over IP issues is also shared with the European
Patent Organisation and the Office of Harmonization for the Internal Market (OHIM).69
A. EUROPEAN UNION
63 Article 1.1 DSU
64 Lloyd 1833
66 Ibid
67 Ibid
68 Article 1.1 DSU

11
One of the reasons behind establishing the European Union (EU) was to create a free internal
market.70
However, the functioning of such an internal market can be restricted if the rules
applicable to IP rights differ from Member State to Member State: The argument is that this
fragmentation would distort intra-community trade. Not having one’s inventions protected under all
relevant jurisdictions in the Union can discourage creators and in turn lead to a decreased amount of
innovation and production. The most active time for the EU community in IP legislation was during
the 1990s.71
EU legislation is spread across numerous documents.72
The union was established by a body of
treaties, which are the primary law of the Union. Further harmonization of national laws is done via
Regulations, Directives, Decisions and recommendations, each of which has different legal strength.
The Union consists of 28 Member States which complicates harmonization of laws across the
territory of the EU. The path of least resistance, with regards to harmonization of laws, goes
through Directives.73
Directives are only binding with regards to the result the EU aims to achieve.
This allows the Union to achieve a minimum level of harmonization of laws. Regulations on the
other hand have general applications and are binding upon Member States in their entirety as soon
as they are enacted.74
Both Regulations and Directives are applicable in EU law, however, each
comes with a different level of harmonization.
In 1994 the EU enacted the Community Trade Mark Regulation (CTMR),75
which made it possible
to acquire one single right that extends throughout the territory of the EU. In addition, the Office
for Harmonization of the Internal Market (OHIM) was established in order to administer the new
system.76
The CTMR was a direct harmonization from the Union’s bodies, which was preceded by
the Trademark Directive in 1990.77
The regulation creates a unified system for registration of trade
marks within the EU, creating rights in all Member States in the European Union. Under the new
regime an interested party can choose between application for a national trade mark or a community
one, under the regulation.78
This new regime offers a more simplified procedure presented to
proprietors, who now have to fill in only one form in order to get protection in all 28 Member
States. This EU system, nevertheless, functions parallel to national trademark laws.
Similar to trademarks, a two-tier model is given to industrial designs. The Design Directive of
1998,79
which was followed by the Community Design Regulation (CDR)80
provided for a unified
70 TFEU article 3
72 TFEU 288
73 Ibid
74 Ibid
75 Council Regulation EC No. 207/2009
76 EUIPO
77 Directive 2008/95/EC
78 Regulation 2015/2424 of the European Parliament and of the Council recital 6
80 Council Regulation (EC) No. 6/2002

12
system of industrial designs on community level.81
The CDR deals with both registered and
unregistered designs and, like in the case of trade marks, the system works parallel to national laws
regulating industrial designs.82
On the other side, copyright legislation has been more problematic. At present, eleven copyright
Directives exist.83
Harmonization in this area of IP rights has taken a slow and pragmatic approach.
The first set of Directives dealt with issues of rental and lending rights, satellite broadcasting and
cable retransmission,84
followed by a number of directives dealing with the protection of computer
programs,85
and duration of copyright and protection of databases. Following the technological
advancements of the 1990s WIPO was required to adapt its rules concerning IP in order to allow for
protection of creations in the digital age.86
The Information Society Directive87
implemented the
obligations provided for in the WIPO Internet Treaties of 1996.88
The most recent directive dating
from 2012 concerns orphan works.89
The current system of copyrights protection in the EU is
fragmented and has only achieved a minimum level of harmonisation via the eleven enacted
Directives. Copyrights are mainly protected on the national level with some approximation of those
national laws done via the copyright Directives.
The current system of European patent law, on the other hand, is not based on community
legislation but on international convention, namely, the European Patent Convention (EPC). The
EPC was signed in 1973 in Munich, which marked the creation of the European Patent
Organization. This is an intergovernmental organization consisting of two bodies, the European
Patent Office, which is responsible for granting European Patents, and the Administrative Council,
which supervises the EPO’s activities.90
The EPC sets up a unitary autonomous legal system under
which European Patents are granted.91
Unlike the CMTR or the CDR there is not one European
patent granted, instead, proprietors are granted nationally enforceable patents, by filing an
application with the EPO.92
The following sub-section will introduce the general regimes under US
law concerning IP rights.
82 Council Regulation No. 6/2002
83 Council Directive 93/83/EEC, Directive 96/9/EC, Directive 98/71/EC, Directive 98/84/EC, Directive
2001/29/EC, Directive 2001/84/EC, Directive 2006 /115/EC, Directive 2006/116/EC, Directive 2009/24/EC,
Directive 2009/24/EC, Directive 2012/28/EU
84 Directive 93/83/EEC
85 Directive 96/9/EC, Directive 2001/29/EC
86 WIPO Internet Treaties
88 WIPO Copyright Treaty
89 Directive 2012/28/EU
90 article 4(2) EPC
91 There are currently 38 members of the European Patent Organization, consisting of all the EU nations as well as
Albania, the Former Yugoslav Republic of Macedonia, Iceland, Liechtenstein, Monaco, San Marino, Serbia, Norway,
Switzerland and Turkey (https://www.epo.org/about-us/organisation/foundation.html)
92 Roche Nederland BV v Primus and GAT v LUK (European patents are no more than a bundle of national patents
pursuant to a single application.)

13
B. UNITED STATES
As mentioned earlier, the 90s had their own Internet and computer revolution, with the second half
of the decade witnessing rapid spread of digital content on the medium. Under pressure from IP
right holders and following international law initiatives, President Clinton signed into law the Digital
Millennium Copyright Act (DMCA) in 1998.93
The DMCA implements two of the WIPO treaties,
namely the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. The
latter of these deals with the rights of two kinds of beneficiaries in the digital environment, the
performers and the producers of phonograms.94
The DMCA is divided into 5 titles. Title I of the
DMCA implements the two WIPO treaties, Title II limits the liability of online service providers and
Title III creates an exemption for making a copy of a computer program for the purposes of repair
or maintenance. Title IV relates to the functions of the Copyright office, and finally Title V creates a
new form of protection for design of vessel hulls.95
Although enacted with honourable aims, the
DMCA has also had some negative and unintended consequences on innovation and creation,96
including, but not limited to issues relating to its interplay with free speech and fair use of protected
material.97
Trademarks, on the other hand, were regulated earlier on in 1946 with the implementation of the
Lanham Act, which created a national system of trademark registration and protected the
proprietors of trademarks against consumer confusion or dilution by similar marks.98
Under the act,
a trademark is “any word, name, symbol, or device, or any combination thereof” used by a
manufacturer to identify the products sold and distinguish them from other products, be it similar or
not. An important element of US trademark law is the requirement for “distinctiveness”. If a mark is
not distinctive enough to be able to identify the source of the product, it will not be considered a
trademark.99
It is worth bearing in mind that since its adoption, the Constitution of the United Sates has allowed
Congress to promote scientific and artistic progress.100
Following this need a number of general and
permanent federal statutes of the United States were adopted in the United States Code (USC),
which was first published in 1926.101
The USC contains 52 titles, covering broad range of topics
from Congress to Labour, as well as Voting and elections.102
Title 35 of the USC holds the rules
93 The Digital Millennium Copyright Act of 1998
94 WIPO Internet Treaties
95 The Digital Millennium Copyright Act of 1998
96 Electronic Frontier Foundation 2013
97 Electronic Frontiers Foundation
98 Title 22 USC Lanham Act
99 Grace 2014 p. 268
100 Article 1 Section 8 US Constitution (noting in relevant parts that Constitution ought to “promote the progress of
science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective
writings and discoveries.”).
101 GPO
102 U.S Code

14
regarding patents and represent a journey that span almost three centuries. The first patent
regulation was adopted in 1790 with the Patent Act of 1790.103
This was then replaced by the Patent
Act of 1793,104
which provided a definition for patentable matter.105
This was followed by the Patent
Act of 1836,106
which created the Patent Office. In the decades between the Great Depression and
WWII, patents were not generally favoured by US courts and legislatures. However they saw a rise
again following the end of WWII. The law applicable today was enacted in 1952 with the Patent Act
of 1952.107
The last change to this document of legislation came with the Leahy-Smith American
Invent Act (AIA) which changed the US system from “first-to-invent” (FTI) to “first-to-file”
(FTF).108
FTI and FTF are legal concepts that define who has the right to the grant of a patent for
an invention. Prior to the introduction of the AIA act, the US relied on the FTI regime. Under this
regime, the first inventor who conceived of the creation will be the one who has the exclusive patent
right to that invention.109
This regime, nevertheless required a long and costly procedure in order to
distinguish the first inventor, in cases where more than one inventor was present.110
The FTF system
differs in that instead of looking at the first person who conceived of the invention it concentrates
on the first person who files for patent.111
This theory stems from the contract relationship, which is
shared by the inventor and the public (i.e. in exchange for the public disclosure of his invention the
creator receives monopoly over the patent to that invention).112
The following sections of this Chapter will examine how 3D printing will interact with the
aforementioned laws and regulations. A number of IP rights can be affected by additive
manufacturing, of which this thesis will concentrate on copyright, patent and trademark law. Before
starting this discussion, however, an account has to be taken of the nature of IP rights, namely their
territoriality. There has indeed been some level of harmonization, be it on the European, Federal or
International level, but nevertheless, IP laws remain mostly territorial and depend on the country
which is issuing the right.113
2.2 Copyright
The discussion about copyright laws and their need for adaptation or change began with the arrival
of “home taping”114
, which saw arguments coming from both the music and movie industry. It
103 Patent Act of 1790
105 Patent Act of 1793 section 1:“…he or they have invented any new and useful art, machine, manufacture or composition of matter, or
any new and useful improvement on any art, machine, manufacture or composition of matter, not known or used before the application…”
107 The Patent Act of 1952
108 H.R. 1249 Leahy-Smith America Invents Act
109 Frost 1967, p.925
110 Ibid
111 Ibid
112 Ibid
113 Brean 2013, p. 795
114 Home taping or copying refers to a technique used by consumers to acquire songs or movies for their home
collections.

15
eventually increased in volume with the emergence of the Internet and the file-sharing community
that they led to the adoption of the legislation like the DMCA. Additive manufacturing brings with it
similar issues and concerns.115
The application of copyright law extends to three-dimensional objects
like jewellery and sculptures, which can easily be reproduced using a 3D printer.116
However, the
influence of 3D printing will be more limited in copyright issues compared to other areas of IP law,
as subsequent sections of this thesis will show.
3D printers will expand the possibility of copyright infringement encompassing the physical art.
Additive manufacturing can also allow people to reproduce a two dimensional work into three
dimensions. Similar to the Internet revolution and its file-sharing community, 3D printers have
developed their own sharing community. This in turn can cause issues when looking at co-creation
and originality as a requirement of copyrights.117
A second topic concerning copyrights would be the
liability of third parties for authorisation/inducement of copyright infringement, similar to what the
creators of TPB and torrent websites can face today. Of importance is also the nature of CAD files.
A. EUROPEAN UNION
The copyright law framework of the European Union is fragmented and is still largely based on
national laws. Copyright is an IP right which arises automatically and affords protection for an
artistic work, which has to be original, in the sense that it is the author’s own intellectual work.118
The holder of the copyright has the exclusive right to copy, rent or lend the work. This leads to the
conclusion that if an object is copyrighted and 3D printer users print such an object, they will be in
violation of copyright law.119
An important issue that arises in the relationship between 3D printers
and copyright laws is whether, and to what extent, CAD files can be protected under copyright laws.
First it has to be noted that scanning and transferring a copyrighted object into a CAD file without
consent will amount to copying and subsequently infringement of IP rights.120
This raises no new
issues or concerns for rights holders, but instead offers a different medium through which the
copying will take place.
A look into the case law of the CJEU provides us with a better understanding of what is to be
considered copyrightable: Based on cases such as Infopaq International A/S v Danske Dagblades
Forening,121
Painer v Standard Verlags GmbH,122
and Football Dataco Ltd v Yahoo! UK Ltd,123
we know that
for a work to be considered as the intellectual creation of the author in order to be capable of
115 Weinber 2010 p. 1
117 Brean 2013, p. 804
118 Case C-403/08 and C-429/08 Football Association Premier League case; Case C145/10 Painer; Case C-604/10
Football Dataco; Case C-5/08 Infopaq
119 Copyright, Designs and Patents Act 1988 s.17
120 Case C-5/08 Infopaq
121 Ibid
122 Case C-145/10 Painer
123 Case C-604/10 Football Dataco

16
copyright protection.124
First, a certain level of originality is required, which was elaborated on, in
both Infopaq International A/S v Danske Dagblades Forening and Football Dataco Ltd v Yahoo! UK Ltd.125
In Football Dataco the court found that although significant skill and labour may be required, it is not
enough to justify copyright protection and a level of originality is the most important requirement.126
In Painer, the Court found that a portrait photograph can be protected under copyright laws as long
as it is the intellectualcreation of the author which reflects his personality and expresses his free and
creative choices.127
Applying these principles to 3D CAD files, we can conclude that where there is
sufficient amount of creative choices involved in the designing of a CAD file, which is the original
creation of the author, the CAD file could arguably be protected under the EU framework of
copyright law. This limits the types of CAD files, as those created by scanning an existing object will
not meet the originality requirement.
CAD files will and are being shared online in an ever-growing community, via websites like
Thingiverse, Shapeways, Meshmixer, 123D Catch, Workbench, just to name a few. Users can
download, modify and upload files, which then can go through the same process. This in turn can
put a strain on the originality requirement for copyright protection. As it currently stands there is no
set standard for “modification” to amount to a new product under EU law.128
Nevertheless, this
topic has been deliberated by national courts.
The meaning of originality and modification has been deliberated and developed on in a number of
UK cases, including but not limited to the Graves’ Case,129
Interlego AG v Tyco Industries Inc,130
Antiquesportfolio.com plc v Rodney Fitch & Co Ltd,131
and Sawkins v Hyperion Ltd.132
In Interlego the court
stated that minor alterations do not constitute a new original work. According to this case the
change should be “material”, stemming from the original work put in by the author.133
According to
this case law where a CAD file mirrors a copyright protected object, or it uses a substantial part of it,
it will lack that level of originality and will not acquire protection under copyright law.134
The courts
further developed the idea of “substantial” in Designers Guild.135
There the court stated that the
original and alleged copy have to be considered in their entirety, the test here is whether the person
copying the original appropriated a substantial part of the skill and labour of the original work.136
Nevertheless, the issue for modification will have to be judged on a case-by-case basis. Yet another
124 Mendis 2014 p. 270
126 Ibid
127 Case C-145/10 Painer
128 Case 419/13 Allposters case (The ECJ confirmed that if the modification amounts to a new reproduction, the
exhaustion rights will not apply.)
129 Whitely v Chappel [1868-9] LR 4 QB 715
130 Interlego AG v Tyco Industries Inc [1988] RPC 343
131 Antiquesportfolio.com plc v Rodney Fitch & Co Ltd ([2001] FSR 345) [2001] FSR 23
132 Sawkins v Hyperion Records Ltd [2005] EWCA Civ 565
133 Mendis 2014 p. 271
134 Ibid
135 Designers Guild Limited v Russell Williams (textiles) Limited (t/a Washington DC) [2001] A11 ER 700
136 Bradshaw et al 2010 p. 20

17
factor to be considered is the liability of online platforms like Thingiverse, Shapeways, Meshmixer,
123D Catch, and Workbench. As previously noted, the most famous P2P file sharing websites such
as TPB already have a sections on their website specialising in CAD files.
B. UNITED STATES
3D printing has opened up a new world of possibilities for consumers who can now download, or
simply create their own three-dimensional designs and print them in their own homes. This in turn
raises a number of sensitive copyright issues. Take Yoda for example, Yoda is not just a character
from the Lucas Films’ Star Wars franchise,137
but is in fact protected under copyright law, in the
same way that other recognizable characters such as Tintin are protected.138
Copyright protection is afforded to original works of authorship, as seen under Title 17 USC
§102(a),139
which is a rather straightforward viewing of a three-dimensional object as a copyrightable
one. Nevertheless, US copyright law is restricted first by Baker v Selden,140
which established the
“idea-expression dichotomy.”141
This concept is closely connected to §102(b) and works in
conjunction with that article. The idea behind it is that persons cannot obtain copyright protection
for inventions, which in turn would circumvent current patent legislation.142
This was further
confirmed in Publications Int’l, Ltd v. Meredith Corp.,143
where the court restated that there can be no
copyright for the method one might use when preparing and combining the necessary ingredients,
protection for ideas or processes is carried out by patents.144
This leads to the conclusion that if a 3D
printed original work is created then that work can be copyrighted as long as it fulfils the idea-
expression dichotomy. Similar line of thought follows with objects that are already copyrighted and
are then printed without consent. That is to note that the person printing such objects would be
infringing copyright law.
3D printers require a CAD file in order to produce a tangible object. With regards to copyrights, a
number of issues arise, namely the question of when is a CAD file qualified for copyright protection,
and if CAD files will be infringing one copyright holders. In Burrow Gilies Lithographic Co. v. Sarony,145
the court held that photographs are copyrightable as long as they represent the original intellectual
conception of the author. This was further reaffirmed in Bridgeman Art Library, Ltd. v. Corel Corp.146
A
more recent case looking into 3D wireframe model of a Toyota car147
came to the conclusion that
the three-dimensional representation of the car represented a mere copy and lacked sufficient
137 Henn 2013
138 Capital Flows 2014
139 Title 17 USC §102(a)
140 Baker v. Selden, 101 US 99 at 102 (1879)
141 Simon 2013 p. 70
142 Ibid
143 Publications International, Limited v Meredith Corporation, 88 F.3d 473 (1996)
144 Simon 2013 p. 71
145 Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. (1884)
146 Bridgeman Art Library, Ltd. v. Corel Corp., 36 F. Supp.2d 191 (1999)
147 Meshwerks, Inc. v. Toyota Motor Sales USA, Inc. (10th Cir. 2008)

18
originality to warrant copyright protection.148
The case, nevertheless, outlined the copyright-ability of
digital models.149
Considering CAD files, based on current legislation150
and case law, one can
reasonably conclude that if they fulfil the various requirements noted above, even in cases of 3D
printed objects, they will be able to rely on copyright protection. The present system offers enough
protection for new rights holders but also sufficient protection for existing rights holders.
2.3 Patent
In the law of patents implications for users of 3D printing will arise when users print a patented
object. There is no exception for personal or commercial use.151
Patents are granted for inventions
which are new, involve an inventive step and are capable of industrial application. Nevertheless,
their ultimate goal is to bring new designs and technologies into the public domain through
disclosure.152
In order to receive a patent, full disclosure of the invention becomes necessary. This is
what is known as the paradox of patent law, as the information is presented, copying is made easier,
and 3D printing accelerates the process.153
A. EUROPEAN UNION
The European Patent Convention allows for a common system of law for the Contracting States.
Chapter I of Part II of the Convention provides the definition of patentable matter.154
Article 64 of
the convention further states that after acquiring a patent under the EPC, the same rights have to be
given to the EPC patent as those conferred on national patents: For example, the United Kingdom
Patent Act 1977 §60(1) defines a patent infringer as anyone who makes, disposes of, offers to
dispose of, uses, imports or keeps an invention whether for disposal or otherwise. The definition of
a patent infringer is broad and can encompass an amateur 3D printer user who prints an object
which is patented, similar to what Thomas Valenty experienced with his Warhammer figures
mentioned earlier in this paper.155
Furthermore, according to §60(1)(a), modifying a patented
invention will also be regarded as an infringement, as this does not create a new invention per se.
This was established in United Wire Ltd. v Screen Repair Services (Scotland) Ltd,156
which differentiated
between “making” and “repairing”. The court in United Wire found that where modification went
beyond the normal meaning of the term “repair”, the creation of an infringing product can be
established. Similar situation can be seen with the previously noted case of Valenty’s Warhammer
figures, which would constitute a newer version of the Warhammer figures and not a new product.157
148 Simon 2013 p. 73
149 Meshwerks, Inc. v. Toyota Motor Sales USA, Inc. (10th Cir. 2008)
150 Title 17 USC §102, §106, §10
151 Weinber 2010 p. 8
152 Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 150-51 (1989)
153 Lewis 2014 p. 311
154 European Patent Convention
155 Mendis 2013 p. 6
156 United Wire Ltd. v Screen Repair Services (Scotland) Ltd. HL 21 Jul 2000
157 Mendis 2013 p. 6

19
Sharing the created CAD file in turn can have different consequences, not just for the individual
sharing the file,158
but for websites that offer CAD files or enable users to share them. For example,
§60(2) of the UK Patent Act allows for infringement proceedings to be brought against anyone who
supplies or offers to supply any means relating to an essential element of the invention, for putting
the invention into effect. The issue here is whether a CAD file can be considered an essential
element to put the invention into effect. As noted, users will require a 3D printer, raw materials and
a CAD file which contains the schematics of the object. The courts have further stated that such
conduct must occur within the UK. If a CAD file is missing users will not be able to 3D print
anything and the raw materials and printer will be useless. Furthermore, the CAD file contains all
the specifications of the object, which can also be regarded as essential. If one element is incorrect
the 3D printer will not be able to print the correct object. This leads to the conclusion that
disseminating CAD files on internet platforms can have repercussions for users and service
providers under §60(2) of the UK Patent Act 1977.159
B. UNITED STATES
Relevant rules relating to patents in the US can be found in Title 35 of the United States Code
(USC), where §271 defines a direct patent infringer as any person who without authority makes,
uses, offers to sell, sells or imports a patented product,160
and §271(b) and (c) builds on this
definition to create contributory infringement provisions.161
Title 35 of the USC allows patent
holders to seek injunctive relief, damages or both in cases where infringement has been found, as
seen in paragraph 283.162
While direct infringement offers patentee’s a certain degree of freedom as
how to exercise their rights, indirect infringement allows for the enforcement of patent rights against
certain types of conduct, e.g. upstream commercial activity which encourages or facilitates
downstream infringement, in other words, taking legal action against 3D printer companies or CAD
files distribution websites.163
The Supreme Court has further stated that the essential purpose of the
contributory infringement doctrine is to provide protection to patent rights where enforcement
against direct infringers is deemed impractical.164
With the rapid spread of 3D printers, there is a
possibility that this problem will happen sooner rather than later. However, the courts have already
faced a similar problem with websites like the TBP in the context of copyrights issues, and an
argument could be made that the courts’ learning curve will not be as steep as some may fear.
According to §271(a) the mere act of printing a patented object, regardless of subsequent use, will be
direct infringement of the patentee’s rights.165
The Supreme Court has stated that the notion of
158 Mendis 2013 p. 6
159 Ibid p. 6
160 Global-Tech Appliances, Inc. v. SEB S.A., 131 S.CT. 2060, 2068 (2011)
161 Lewis 2014 p. 312
162 Brean 2013, p. 785
163 Ibid, p. 786
164 Aro Mfg. v. Convertible Top Replacement Co., 377 U.S. 476, 511 (1964)
165 Sensonics, Inv v. Aerosonic Corp., 81 F.3d 1566, 1573 (Fed. Cir. 1996)

20
“make” can be simplified by definition and involves the construction of an object.166
In sum, a
patentee can claim direct infringement from mass productions, but also from private users, who may
fall within the definition of §271(a).
While the customers will fall under §271(a) of Title 35 USC as direct infringers, the sharing, be it for
free or for a price, of a CAD file will not fall within the definitions given in §271(a). According to
case law,167
a sale of a patented product, which does not exist in its entirety cannot be considered as
a sale under §271(a). Therefore, the sale or sharing of the CAD files will not be actionable under
direct patent infringement.168
Nevertheless subsections (b) and (c) provide for indirect patent
infringement.
Title 35 USC §271(b) defines a patent infringer as anyone who actively induces infringement of said
patent. This provision, nevertheless, requires an activity with the knowledge that the acts resulting
from it would constitute patent infringement.169
In Global-Tech Appliances, Inc. v. SEB S.A., the
Supreme Court created a standard of knowledge required under §271(b).170
According to the Court,
any distributor of CAD files who has actual knowledge or wilful blindness171
that the CAD files
represent a patented product will be found liable of active inducement under §271(b).172
This
evidences, once again, that existing legislation functions relatively well in dealing with issues related
to 3D printing and/or CAD files.
Assuming that the knowledge requirement provided by Global-Tech Appliances, Inc. v. SEB S.A. is not
met, the distributors of CAD files can still be held liable under a theory of contributory infringement
as enumerated in §271(c). This provision requires the CAD file to be a “component” of the patented
product which constitutes a “material part of the invention.”173
The Supreme Court defined
“component” in Microsoft Corp. v. AT&T Corp.,174
where it found that software viewed as mere
information can be compared to a blueprint but not as a completed device in and of itself as it needs
a computer readable medium.175
In turn, this would mean that since CAD files are basic blueprints
of a patented device that will later be printed into a 3D tangible object, the files themselves do not
166 Bauer & Cie v. O’Donnell, 229 U.S. 1, 10 (1913)
167 In Lang v. Pacific Marine & Supply Co., 895 F.2 761, 765 (Fed. Cir. 1990) courts defined that patent infringement
cannot cover acts other than an actual making, using, or selling of patented inventions. In Ecodyne Corp. v. Croll-
Reynolds Eng’g Co., 491 F.Supp. 194, 197 (D. Conn. 1979) courts further reaffirmed the Lang stating that where there
has been no sale of an allegedly infringing product, there will be no jurisdiction under the patent laws for courts to hear
the case.
168 Brean 2013, p. 807
169 Ibid, p. 812
170 Global-Tech Appliances, Inc. v. SEB S.A., 131 S.CT. 2060, 2068 (2011)
171 Global-Tech Appliances, Inc. v. SEB S.A., 131 S.CT. 2070 (2011) “The standard consists of two basic requirements:
(1) the defendant must subjectively believe that there is a high probability of an infringement to occur, and (2) the
defendant must deliberately take actions to avoid learning of such activity.”
172 Brean 2013, p. 786
173 Ibid p. 796
174 Microsoft Corp. v. AT&T Corp 550 U.S. 437 (2007)
175 Brean 2013, p. 798

21
constitute “components” of a patented invention. Therefore, distributors of CAD files will generally
not be held liable for contributory infringement.176
2.4 Trademark
Unlike patents and copyrights, trademarks hold an entirely different purpose. Trademarks are used
by manufacturers to inform consumers that certain objects were made by that particular
manufacturer. Issues here would arise in a case where a 3D object is printed which carries a
trademark and the person who printed it relies on the benefits of the object carrying the
trademark.177
3D printing has the power to diminish the importance of trademarks by allowing
consumers to print their own object bearing a trademark. This in turn can have a negative effect on
the holders of trademarks due to the diminished value of their trademark, which can see a decline in
the quality of products as the incentive for manufacturers recedes.178
This change can nevertheless
be countered by changing the business model a company uses. Nokia is a prime example of a
company that shares CAD files for phone cases for two of their Lumia phones, which users can
print at home.179
A. EUROPEAN UNION
The European Union has fully harmonized the area of trademark law through the aforementioned
the Council Regulation Community Trade Mark (CMTR), which has direct effect in the jurisdictions
of the Member States.180
According to Article 9 of CMTR, a trademark confers on its proprietor
exclusive rights to use the mark and to limit third parties from using the mark, without consent, in
the course of trade. Article 2 (TMD) and Article 4 CMTR define what a trademark can consist of,
and the grounds for refusal are set out in Articles 7-8 CMTR and 3-4 TMD.
In Seickmann,181
the CJEU gave a definition of what can be regarded as a trademark, stating that a
mark has to be clear, precise, self-contained, easily accessible, intelligible, durable and objective,
smells, for example, are excluded from this list.182
The concept of distinctiveness was then developed
in a number of cases.183
Further, the requirements provided for in articles 7(1)(b)-(d) CMTR and
176 Brean 2013, p. 800
177 Weinber 2010 p. 9
178 Grace 2014 p. 269
179 Ibid p. 265
180 Council Regulation EC No. 207/2009
181 Case C-273/00 Seickmann
182 Ibid
183 Case C-398/08 P Audi v OHIM (It is sufficient that the slogan was not a plain advertising message but required a
measure of interpretation on the part of the public, and that it exhibits a certain originality and resonance which make it
easy to remember); Cases C-53/-1 to C-55/01 Linde, Winward and Rado (It may be more difficult in practice to
establish distinctiveness with regard to shapes of products than for a word mark or a figurative trade mark); Case C-
329/02 P SAT.2 (The mere fact that each of the elements of which the mark consists considered separately is devoid of
distinctive character does not mean that their combination cannot present a distinctive character… Although the way in
which the term “SAT.2” is made up does not reflect a particularly high degree of inventiveness, those facts are not

22
3(1)(b)-(d) TMD have to be examined separately, as stated by the Doublemint case.184
In Google, the
requirement for commercial activity was reaffirmed, in an action against the use of a mark.185
The
court stated a third party will be deeded to be using a sign if it uses the sign in its own commercial
communication.
This leads to the assumption that for an average 3D printer user who prints a trademarked phone
case for his personal use, not intended for trade, will not be infringing on the proprietors rights.
Nevertheless, commercial use of a trademark without the consent of the proprietor will infringe on
said rights.186
B. UNITED STATES
The Lanham Act defines trademark as any word, name, symbol, or device, or any combination
thereof which is used by a person in the course of trade and is used to identify the goods or services
which the holder of the mark provides.187
Important for US trademark law is the “distinctiveness” of
a mark. If a mark is missing, that requirement it will not be considered a trademark under US law.188
Further, if a trademark owner wishes to bring an action against infringement of his mark, he has to
show that such infringement was committed in the course of economic activity in a way as to cause
confusion among consumers.189
Both registered and unregistered trademarks are accepted under the
Trademark Act and the standard for confusion for both is the same. When looking at confusion,
courts tend to examine similar factors as those provided in Polaroid Corp. v Polarad Electornics Corp,190
namely, the strength and similarity of the trademarks, the proximity of the products, actual
confusion, the good faith of the defendant and the sophistication of the buyers. Prior to establishing
the likelihood confusion, courts have to assess what type of confusion is actionable, the relevant
population of confused persons and the relevant time of confusion.191
The courts first developed the post-sale confusion doctrine in Mastercrafters Clock and Radio Co. v
Vecheron and Constatntin-Le Coultre Watches, Inc.192
This case was followed by Lois Sportswear, USA Inc. v
Levi Strauss and Co.193
The post-sale confusion is premised on the idea that even though the actual
sufficient to establish that such a word is devoid of distinctive character); Case T-393/02 Henkel v OHIM (Only a mark
which departs significantly from the norm or customs of the sector and thereby fulfils its essential function of indicating
origin will not be found devoid of distinctive character for the purposes of that provision); Case C-329/02 SAT.1 v
OHIM (The general objective underlying distinctiveness requirement, article 7(1)(b) CMTR and 3(1)(b) TMD, concerns the
interest of consumers to identify, in accordance with the mark’s origin function, the products they want to buy).
184 Case T-193/99 Wrigley v OHIM (Doublemint)
185 Sterling 2010
186 Mendis 2013 p. 9
187 Title 15 Chapter 22 USC Lanham Act §1127
188 Grace 2014 p. 268
189 Ibid p. 269
190 Polaroid Corp. v. Polarad Elect. Corp., 287 F.2d 492 (2d Cir. 1961)
191 Grace 2014 p. 270
192 Mastercrafters Clock and Radio Co. v Vecheron and Constatntin-Le Coultre Watches, Inc., 221 F.2d 464 (2d Cir.
1955)
193 Lois Sportswear, USA Inc. v Levi Strauss and Co., 799 F.2d 867 (1986)

23
consumer of a product is aware of the origin of the product, other members of the public might be
misled by the product of the consumer. Two types of confusion are presented in this context:
bystander confusion and status confusion. The former arises when a potential purchasers is
confused by the origin of the product. The latter, on the other hand, arises when consumers are
purchasing a product for its social status with no knowledge that that product was not manufactured
by the trademark owner. Both of these can have a negative effect on businesses and brands, and
further diminish the quality of products.194
This in turn can lead to a decline in what are referred to
as Veblen brands and trademarks.195
Veblen brands are named after the American economist and
sociologist Thorstein Veblen. He describes the desire for a luxury living, coining the term “veblen”
goods. These goods refer to luxury items whose price does not follow the laws of supply and
demand, usually the higher the price the more desirable an item would be.196
3D printers will be able to create items carrying established marks and only when used in the course
of an economic activity, would it amount to a trademark infringement. Courts might have to deal
with large-scale trademark infringements and confusion, but not in the course of business.
Trademark laws fall short of acknowledging the possibility of confusion even if the trademark is not
used in the course of an economic activity. This will be a novel issue for courts and will require
further development and adaptation of the laws moving forward. Trademark laws offer adequate
protection for signs used in the course of economic activity, however, this new type of confusion
and counterfeiting on a large scale will push courts and legislators to new and uncharted areas.
Chapter 3: Is there a need for 3D Specific Legislation?
3.1 Relevant Factors
In order to establish whether specific 3D legislation is needed, this chapter will examine to what
extent protection is afforded to right holders and private users as well as to the ability for them to
create and innovate. Both patent and copyright law create a liability for private uses, taking into
account given legislation and case law, whereas laws related to trademark, raises no issues for private
usage of marks. The following subsections will address these points in turn.
A. PROTECTION OF THE RIGHT HOLDERS
i. Trademarks
Where trademark law falls short in offering adequate protection is in dealing with the facilitation of
trademark infringement, if any, by file-sharing websites specialised in CAD files, like Thingiverse and
194 Mendis 2013 p. 8
195 Grace 2014 p. 273
196 Sheff 2012 p. 774

24
Shapeways.197
This area can see increased attention by courts in a similar manner to what happened
during the Internet and file-sharing revolution, with websites like Napster and TPB.198
In order to
qualify as trademark infringement economic activity is needed, which means that the courts will have
to establish whether the distribution of CAD files can be regarded as economic activity.199
Even if
used in an economic activity, a further question arises as to whether courts can qualify a CAD file as
a product, or merely as a blueprint to one, as noted in the previous chapter.
A further issue may surface when 3D printing becomes more commercially available, potentially
leading to an increase in counterfeit or mislabelled products. There are already assortments of
legislations in existence that deal with criminalizing and confiscating counterfeited products.200
A
further problem can arise with regards to “home manufacturing”. With the increase of commercially
available 3D printers, home manufacturing will also see a rise. Trademark laws will be faced with a
new challenge, in the face of home counterfeiting of products, be it for commercial or non-
commercial use. If this issue is not dealt with a decline in Veblen brands as well as in the quality of
products can be one of the side-effects.201
ii. Copyright
The holders of copyrights have the exclusive right to copy, rent or lend their works. If a person 3D
prints a copyrighted object they will be in violation of the proprietor’s rights.202
Copyright laws will
not face any new challenges with the emergence of CAD files sharing websites, as the regulators
have gained experience following the emergence of file-sharing/torrent websites. The DMCA
provides for the notice-and-takedown procedure in §512.203
A similar procedure is afforded under
EU law via the E-commerce Directive,204
which is applicable in MS, and allows a proprietor to
request the takedown of certain materials which are in violation of his rights.205
Thus, strengthening
the argument that existing measures can adequately handle new problems that 3D printing may
present.
iii. Patent
Patent law allows for infringement proceedings when a person other than the patentee has made,
sold, offered to sell, used, or imported a patented product without the consent of the patent
holder.206
For both big manufacturers and also private users, when a patent product is printed, they
197 Mendis 2013 p. 7
198 A&M RECORDS, Inc. v. NAPSTER, INC., 239 F.3d 1004 (9th Cir. 2001); Metro-Goldwun-Mayer In v Grokster
Ltd 162 L. Ed. 2d 761 (2005); Pirate Bay, case B 13301-06, April 17, 2009
199 Osborn 2014, p. 568
200 Council Regulation 241/1999 and Title 18 USC Chapter 25
201 Grace 2014 p. 273
202 Copyright, Designs and Patents Act 1988 UK s.17 and Title 17 USC §102(a)
203 Title 17 USC section 512
204 Electronic Commerce Directive 2000/31/EC article 14
205 Ibid
206 Patent Act 1977 section 60(1) and Title 35 USC §271(a)

25
will be infringing on the patentee’s rights. This stems directly from legislation and case law.207
An
issue that arises is the distribution and use of CAD files. Taking UK law as an example, the Patent
Act allows for proceedings to be brought against persons who supply or offer to supply any means
relating to an essential element of the invention, for putting the invention into effect.208
Nevertheless, it still has to be examined by courts and academia if CAD files can be considered an
“essential element.”
US law in turn has stated that the sale of a patent product which does not exist in its entirety cannot
be regarded as a sale under §271(a),209
but nevertheless, subsections (b) and (c) provide some
protection against indirect patent infringers.210
The knowledge threshold required under subsection
(b), however, is rather easy to avoid.211
Assuming that it is not met, subsection (c) offers another
option: it requires CAD files to be seen as a “component” of the patented product.212
However,
courts have stated that a blueprint, like a CAD file, will not be qualified as a component.213
Although, offering more grounds for action against patent infringers US legislation also falls short in
addressing issues of distribution of CAD files, similar to the UK. This can in turn limit the ability to
act against patent infringers as the numbers slowly grow to those seen in the torrent file-sharing
community.214
Patent law will further have to refine its definition of notions like “repair” in order to avoid patent
infringement cases where the users have gone beyond repair to reconstructing the product.215
B. PROTECTIONS OF NEW ORIGINAL WORKS AND FOSTERING INNOVATION
i. Copyrights
To start with copyright laws provide protection for any original work created. A question that arises
in the case of 3D printing is if CAD files can be copyrightable. Taking into account the judgements
given by the ECJ in Infopaq International A/S v Danske Dagblades Forening,216
Painer v Standard Verlags
GmbH,217
and Football Dataco Ltd v Yahoo! UK Ltd,218
as long as sufficient number of creative choices
in designing a CAD file, which represents the original work of the author are present, that CAD file
207 Patent Act 1977 section 60(1) and Title 35 USC §271(a)
208 Section 60(2) of The Patents Act 1977
209 Title 35 USC §271(a)
210 Title 35 USC §271(b) and (c)
211 Global-Tech Appliances, Inc. v. SEB S.A., 131 S.CT. 2070 (2011) “The standard consists of two basic requirements:
(1) the defendant must subjectively believe that there is a high probability of an infringement to occur, and (2) the
defendant must deliberately take actions to avoid learning of such activity.”
212 Title 35 USC §271(c)
213 Microsoft Corp. v. AT&T Corp 550 U.S. 437 (2007)
214 Osborn 2014, p. 570
215 Ibid p. 588
216 Case C-5/08 Infopaq
217 Case C145/10 Painer

26
can be qualified for copyright protection. A further conflict may arise with regards to the notion of
modification. As websites like Thingiverse allow users to download previous designs and modify
them, this can create issues with regards to who possess the copyright right. Nevertheless, there is
no common standard for “modification”, therefore, these issues will have to be decided on a case-
by-case basis.
US copyright law is restricted by a number of cases. Baker v Selden establishes the “idea-expression
dichotomy”,219
while Burrow Gilies Lithographic Co. v. Saronay220
introduced the originality requirement
which was later reaffirmed with Bridgeman Art Library, Ltd. v. Corel Corp.,221
discussed above. So long
as the CAD files in question fulfil these conditions, they can qualify for copyright protection. US
legislation does not escape the reach of the sharing community either, where similar situation to the
one seen in Europe can emerge with the co-creation of CAD files on the internet even in the US.
US copyright, further provides a level of protection even when a copyrighted work has been used, as
seen in 17 U.S. Code § 107, also known as the “fair use doctrine.”222
This provision allows the use of
a copyrighted work in cases where the use of the work is in the course of criticism, comment, news
reporting, teaching or research.
ii. Patents
According to the EPC Article 52, a patentable invention is any invention in all fields of technology
provided that it involves an inventive step and is susceptible of industrial application.223
Article 53
limits the patentability of certain products due to moral constraints or public order.224
A further
requirement is provided in article 54, namely the novelty of such invention. It is required that such
invention does not form part of the state of the art.225
The inventive step and industrial application
are both clarified in article 56 and 57 respectively.226
Article 56 requires the invention to have not
been obvious to a person skilled in the art. CAD files will fall short in this definition of patents,
although it will represent an important part of the invention, working like a blueprint. The invention
which gets printed in the end however can be patentable under the EPC as long as the conditions
are fulfilled.
Under §100 of the Patent Act of 1952 a patentable invention covers any invention or discovery or a
process, art or method.227
Section 101 gives the inventor of new and useful inventions a right to
219 Baker v. Selden, 101 US 99 at 102 (1879)
220 Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. (1884)
221 Bridgeman Art Library, Ltd. v. Corel Corp., 36 F. Supp.2d 191 (1999)
222 Title 17 USC § 107
223 EPC article 52
224 EPC article 53
225 EPC article 54
226 EPC article 56 and 57
227 Title 35 USC sec. 100

27
obtain a patent.228
This article requires the invention to be new and useful, similar to the novelty and
industrial application requirements under European law.229
§§102 and 103 on the other hand define
the conditions for novelty and non-obvious subject matter.230
As long as the inventions which are
3D printed fulfil these requirements they will be qualified for protection under the Patent Act of
1952. CAD files in turn will work in a similar way as in the European system. Both systems require
the full disclosure of the invention in return for exclusive rights given to the inventor.231
This trade-
off further contributes to innovation and creation of the inventions. Patent law hinges on an
exchange, or a bargain. An inventor has the exclusive rights to the patented invention for a certain
time limit. However, he is required to disclose all needed information, when obtaining the patent
rights.232
This bargain, although allowing a short- to medium- term gain for the inventor, further
contributes to a greater store of information from which other investors can draw data and
inspiration.233
iii. Trademark
As has already been pointed out, trademarks serve a different purpose to copyrights or patents,
namely, to inform the consumer where products were manufactured and by whom.234
Both the US
and EU have a comprehensive trademark system. The EU has defined trademarks in cases like
Sieckmann, Doublemint and Google, while also applying a harmonized system in all 28 MS via the
Community Trademark Regulation. Similarly, in the US, the Lanhan act provides the definition of
trademarks. Both systems required a level of distinctiveness and a commercial activity for registering
a mark. Nevertheless, with regards to the creation of new trademarks, 3D printers will not raise any
new or relevant issues. As long as the conditions set out in legislation and case law are met, a new
mark can be registered. 3D printers will in no way limit or restrict the creation of new marks. They
will however, increase the number of trademark infringement cases.
C. LEGAL CERTAINTY & EFFICIENCY
A legal rule possesses certainty when it leads to a definite legal conclusion without relying on
contextual judgement. This judgement is partly decided based on a case- and fact- dependent basis,
but it furthermore involves the giving of an opinion and not a mechanical application of a legal text,
this judgement can also extend or limit the scope of certain rules.235
228 Title 35 USC sec. 101
229 EPC article 54 and article 57
230 Title 35 USC sec. 102 and 103
231 EPC article 64 and 78, Title 35 USC § 271 and § 111
232 Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 150-51 (1989) ("The federal patent system thus
embodies a carefully crafted bargain for encouraging the creation and disclosure of new, useful, and nonobvious
advances in technology and design in return for the exclusive right to practice the invention for a period of years.").
234 Scardamaglia 2014-2015 p. 37
235 Bayern 2012 p. 55

28
In a globalised world this certainty is contested by a number of factors: First, the application of most
national laws is limited to the borders of the country. Furthermore, globalization has created a new
relationship, where individuals from both sides of the world can do business by choosing which laws
and how to apply them. This in turn pressures the regulator with new and unknown problems where
more than one jurisdiction or legal documents are involved. Lastly, parties have to apply both
national and international laws and norms. This, in turn, can lead to more lengthy and costly
proceedings.
What makes legal certainty less certain is when there are too many rules. Overregulation can not
only lead to less legal certainty but can create various inefficiencies, increase in cost for example.236
One of the most relevant factors in considering whether a piecemeal approach is better or whether a
specific statute regarding 3D printing is better is the question of efficiency. Efficiency can most
easily be described, with regards to any particular machine or form of activity as the production of
the greatest result with the least amount of friction, while reaching said result.237
With regards to
legal efficiency one can state that it occurs when all the parts of the legal system, seen as a machine,
function with no friction and conflicts, and this leads to a speedy and correct application of the
law.238
In their definitions of efficiency Harrington Emerson and Frederick Winslow Taylor examined three
principles regarding efficiency found in both definitions. The first relates to a system of ideals which
are standardized in light of experience and common sense.239
This is similar to what the EU is trying
to achieve with its directives and regulations, either using full or minimum harmonization
techniques. The second concerns the proper selections of materials and a workforce which can
administer the laws.240
This can be found in the OHIM office and the United States Patent and
Trademark Office, as well as the relevant national IP offices. The final requirement for efficiency
given by the two definitions is a system which without friction can solve legal issues.241
Due to the
changing nature of the world and the interconnectedness of both people and legal issues this
problem has become one of the main ones. The reasons behind this are numerous, considering the
limitations of national laws and the diversity of IP legislation. This causes a number of issues for IP
rights holders, be it registration of rights or enforcement of such rights in different jurisdictions, on
the international plain.
We should not forget that the world has changed drastically in the last three decades. Globalization
has influenced every part of the planet and has pushed laws and legislatures to their limits by
creating cross-border relationships and legal problems previously unknown. International law has
236 Hardin 1979 p. 3
237 Jessup 1913 p. 55
238 Ibid
239 Ibid p. 56
240 Ibid
241
Ibid p. 56

29
stepped in to fill the gap left by national jurisdictions in this transnational legal relationship, through
soft law, international norms and custom, as well as treaties which aim to bring national laws
closer.242
IP law within the European Union is fragmented, the numerous directives and regulations
dealing with different rights, working in addition and parallel to national laws on IP rights, are an
example of this difficult relationship. Similar relationship can be seen in the US with state and
federal laws dealing with IP rights. Nevertheless, both European laws and US laws are influenced by
international rules and obligations stemming from organizations like the UN, WIPO, WTO, just to
name a few.
3.2 Cost-Benefit Analysis
The previous sections have examined the protection afforded to rights holders, the ability of
inventors to innovate and create, as well as the legal certainty and efficiency regarding the application
of IP legislation. The following paragraphs will examine whether and to what extent specific 3D
legislation is needed based on the inquiry in the previous subsections.
A. SENSE OF FAMILIARITY
Subsection 3.A explores the protection afforded to rights holders examining the current framework
in both the EU and the US. The current regime governing the protection of copyrights in both EU
and the US is adequate to deal with the emergence of consumer 3D printers.243
Copyright laws out
of all IP rights are the most experienced dealing with new and emerging technologies.244
Similar
issues to those which 3D printers are creating, copyright laws have already dealt with following the
emergence of torrents and file-sharing websites. ISPs were introduced to notice-and-takedown
procedures,245
while users were faced with litigation from rights holders.246
A similar approach can be
taken against users of 3D printers and distributors of CAD files. The only novelty around 3D
printers is the users’ ability to reproduce art or jewellery, while before copyrights violations were
limited to the intangible.
Similar to copyrights, patent laws are developed enough to be able to deal with the emerging 3D
printing technology.247
Nevertheless, with the increase in consumer 3D printers so will the number
of patent violations rise, possibly as high as the numbers experienced in the issues around file-
sharing and torrents.248
Unlike copyright law, patent law is lacking behind on regulating facilitation of
infringement over the internet. To bring a claim for the supply of a patented product in the EU the
party has to show that an “essential element” of the invention was given to the consumer.249
242 Bederman 2008, p. 48
243 Copyright, Designs and Patents Act 1988 UK s.17 and Title 17 USC to §102(a)
244 Title 35 USC section 512 and Electronic Commerce Directive 2000/31/EC article 14
245 Electronic Commerce Directive 2000/31/EC article 14 and Title 17 USC section 512
246 Kravets 2011
247 The Patents Act 1977 section 60(1) and Title 35 USC §271(a)
248 Kravets 2011
249 Section 60(2) of The Patents Act 1977

30
Essential element refers to any element needed to put the invention into effect. Courts still have to
examine if CAD files can be considered an essential element, this is not an unexpected conclusion as
consumer 3D printers are still in their early stage of development. In the US on the other hand,
courts will have to examine if CAD files can be considered something more than a blueprint,
namely, a component of the invention, which will allow rights holders to take action based on Title
35 USC §271(b) and (c). A further need for clarification is needed with regards to the notion of
“repair”, in order to avoid patent violations when printing repair parts for your broken machine.
Patent laws and courts can draw from their experience with dealing with P2P sharing and apply
similar techniques to dealing with the aforementioned issues.
Unlike copyright and patent, trademark infringement requires economic activity and trademark
legislation mainly deals with mass-production scale.250
However, 3D printers offer to change this
paradigm by allowing people to print their own trademarked products in the comfort of their home.
This is a new type of counterfeiting, unknown to legislators before, unlike the large scale counterfeit
operations. 3D printers offer small scale in huge numbers, be it for personal or business use. Dealing
with each specific case of patent infringement will prove to be costly for rights holders. A possibility
is looking at distributors of CAD files as facilitators of trademark infringement.251
Here courts will
have to define whether a CAD file can be considered a product and whether distributors of such
files are doing it in the course of economic activity. If not adapting the legislation to the emergence
of new technologies will be needed, in order to avoid a decline in brand quality and widespread
confusion. If issues arise in the course of economic activity, trademark legislation in both the EU
and US is advanced and will be able to deal with all issues. A different solution to this problem can
stem from business, adapting to this new movement and changing their business model, drawing
from examples like Amazon and iTunes.
Subsection 3.B examined the freedom given to inventors to create and the protection offered to new
works.
Copyright legislation has a number of requirements, e.g. originality, which need to be present for a
work to be copyrightable.252
The copyrighted work can be both the CAD file as well as the printed
work as long as those conditions of creativity and originality are present. The current copyright
framework offers enough protection for the creation of new works, be it tangible or intangible. In
the States, the copyright structure is based on a number of cases which establish the criteria needed
to be fulfilled for a work to be considered copyrightable.253
Legislation further allows for fair-use of
250 Grace 2014 p. 279
251 Mendis 2013 p. 7
252 Case C-5/08 Infopaq, Case C-145/10 Painer, Case C-604/10 Football Dataco, Burrow-Giles Lithographic Co. v.
Sarony, 111 U.S. (1884), Baker v. Selden, 101 US 99 at 102 (1879), Bridgeman Art Library, Ltd. v. Corel Corp., 36 F.
Supp.2d 191 (1999)
253 Baker v. Selden, 101 US 99 at 102 (1879); Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. (1884); Bridgeman Art
Library, Ltd. v. Corel Corp., 36 F. Supp.2d 191 (1999)

31
previously copyrighted work as well.254
The EU has a similar regime, which sees that once a
sufficient number of creative choices have been taken, a work can qualify for copyright protection.255
Current patent systems can provide adequate protection to new inventions which fulfil the
requirements set out in the patent laws of the states in question.256
CAD files will not receive such
protection under patent law as they will represent a digital model of the invention, which will require
to be printed in order to be put into effect. This does not preclude 3D printed inventions from
qualifying for a patent protection, the medium from which the invention is made is not a
requirement set out in law or case law.257
Trademarks in turn represent the geographical origins and manufacturer of a product.258
Unlike
patents and copyrights, the creation of new marks is not influenced by the emergence of 3D
printers, which at most allow for rapid prototyping of three-dimensional representations of new
marks or already established ones.
B. “IF IT AIN’T BROKE…”
It is important to note that uncertainty is part of the legal process. However, one has to distinguish
between general uncertainty surrounding any event and uncertainty stemming from the structure or
nature of the legal documents.259
Overregulation can cause the latter type of confusion. Increasing
the number of legal documents applicable to a certain scenario can create legal uncertainty with
regards to which document takes priority, this in turn could influence which court can review the
specific case.260
This legal uncertainty further limits the efficiency of the legal system in dealing with
these cases. This complexity influences and increases the costs and time surrounding legal actions,
but also around the creation of new inventions and original works. It additionally increase costs for
consumers.261
A more expensive legal process can limit the ability of rights holders to bring claims to
court in order to protect their rights. Both legal systems, EU and US, are working towards an
efficient legal system, which allows for a speedy resolution of legal problems. In the EU there is at
least a minimum level of harmonization of laws in all 28 MS, with one court to resolve all issues.
Although different in structure, the US has a similar regime.
Following the subsections of Chapter 3, it can be noticed that a mere refinement of some notions in
patent and copyright legislation will prove more than sufficient to deal with the emergence of 3D
technology. If regulators engage in more specific regulation it can result in over complicating a
regulatory system which has proven sufficient to address the new issues arising around additive
254 Title 17 USC § 107
255 Case C-5/08 Infopaq, Case C-145/10 Painer, Case C-604/10 Football Dataco
256 EPC articles 52, 53, 54, 56, 57 and Title 35 USC sec. 100-103
257 EPC article 52 and Title 35 USC sec. 100
258 Scardamaglia 2014-2015 p. 37
259 Mullally 2009-2010 p. 1125
260 Hardin 1979 p. 3
261 Ibid

32
manufacturing. This should not restrict legislators and courts from refining trademark law. The lack
of enforcement against non-commercial trademark infringement and the increase of counterfeit
products produced from people’s homes will have to be dealt with. This, nevertheless, allows an
opportunity for profit. Established business can adapt to this new model creating a new market for
their products, allowing quick online sales, customization and manufacturing at home.

33
Conclusion
3D printing allows for the copying and replicating of objects, which in turn could infringe on
intellectual property rights. Nevertheless this ability to copy and replicate also allows for innovation
and creation of new and original works and inventions. Similarly to the computer or the Internet
revolution, 3D printing will have the potential to develop into a ground-breaking tool for creativity
and a disruptor that various legislations will attempt to reign in. In economic terms this process was
defined by Joseph Schumpeter and termed “creative destruction”. He defined it as a process in
which due to the evolving industry the old structure is replaced by a new one from within.262
3D
printing is already incentivizing – if not forcing – businesses to evolve and to adapt in an assortment
of different ways. Businesses that refuse to acknowledge this impeding reality, risk getting left
behind. However, we should not forget that the rate at which business will be able to evolve largely
depends on the restrictive laws already in place on 3D printing and the freedom with which people
can use this all-purpose technology.263
This thesis has attempted to acknowledge some of the possible risks of not regulating the 3D
printing technology, including but not limited to printing illegal/prescription drugs, guns, intellectual
property infringements and so on. However, the creation of each of these items has been possible
even before the emergence of 3D printers in the commercial sphere. What 3D printers did was
merely to lower the skill level necessary for people to make certain contraband items that the
governments have a vested interest in regulating. Nevertheless, regulating 3D printers to control this
dark side will be a mistake, instead regulating the materials will be a less restrictive way and will allow
3D printers to develop and evolve. Bearing in mind that 3D printing will continue to rise in
popularity and will be used by more and more consumers, what is needed is to re-examine what the
goals of IP rights are and how they should be achieved. As has been shown in this paper, a mere
adjustment of current legislation in the fields of patent and copyrights is enough to ensure
protection for both existing and new works. Creating new legislation would put a burden on the
regulatory system, it will further contribute to legal uncertainty and increase costs surrounding legal
actions and the creation of new works.264
Trademark laws, on the other hand, will have to deal with
the new emerging problems of counterfeited products manufactured by 3D printer users and the
distribution of CAD files containing trademarks.
Further, norms, markets, physical architecture and consumers all regulate and play a role in the
protection of IP rights. Once these prove inefficient, the law steps in. Nevertheless, following the
digitization of books and music, although the dark side manifested itself with the file-sharing
community, new business models were created which faced and accepted the changing paradigm.
Examples include Amazon, iTunes, Spotify.265
Similar movements can be noticed around 3D
262 Schumpeter 1976
264 Hardin 1979 p. 3

34
printers. Nokia has adapted to this new technology by offering protective cases for its smartphones
in the form of a CAD file.266
To conclude, the risks associated with creating 3D printing specific legislation include, but are not
limited to overregulation, increase in legal uncertainty, reduction in the efficiency of the regulatory
system, which could end up inflating the costs for consumers and the rights holders. 3D printing
technology has the possibility to change the consumer oriented society into a production oriented
one, where people can create and innovate from the comforts of their homes, but to regulate this
process could unnecessarily constrain this possibility.
266 Grace 2014 p.263

35
Bibliography
Legislation:
INTERNATIONAL:
European Patent Convention (EPC)
WIPO Internet Treaties
The WIPO Copyright Treaty (WCT) and The WIPO Performances and Phonograms Treaty
(WPPT) available at:
http://www.wipo.int/export/sites/www/copyright/en/activities/pdf/wct_wppt.pdf (last visited:
29.05.2016)
WIPO Copyright Treaty
The WIPO Copyright Treaty (WCT) available at:
http://www.wipo.int/export/sites/www/copyright/en/activities/pdf/wct_wppt.pdf (last visited:
29.05.2016)
WTO Agreement
WTO Dispute Settlement Understanding on rules and procedures governing the settlement of
disputes (DSU)
EUROPE:
Treaty of the Functioning of the European Union
Council Regulation EC No. 207/2009 of 26 February 2009 on the Community trade mark
Regulation 2015/2424 of the European Parliament and of the Council on the Community trade
mark
Council Regulation (EC) No. 6/2002 of 12 December 2001 on Community Designs
Council Regulation 241/1999 laying down measures to prohibit the release for free circulation,
export, re-export or entry for a suspensive procedure of counterfeit and pirated goods
Directive 98/71/EC on the legal protection of designs
Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to
approximate the laws of the Member States relating to trade marks
Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the
legal protection of services based on, or consisting of, conditional access
Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on
the resale right for the benefit of the author of an original work of art

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