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TCT Conference 2019 Changwon, Südkorea

24 Oct 2019 » Aktuelles

TCT Conference Changwon 2019 – Herausforderung durch 3D-Druck für das Immaterialgüterrecht

Auf der diesjährigen TCT Conference 2019, Changwon - Südkorea für additive Fertigung wurde ich von Rapid.News eingeladen, einen Vortrag zum Thema - Rechtliche Herausforderung des 3D-Drucks für das Urheberrecht - zu halten.

Mit dem 3D-Druck habe ich mich erstmals 2015 auseinandergesetzt und das Thema Urheberrecht und 3D-Druck bei privater Nutzung zu dem Thema meiner Dissertation gemacht. Ich fand es hierbei unglaublich spannend, wie eine neue Technologie wie der 3D-Druck auf das Recht angewendet wird.

Festzuhalten ist, dass eine der größten Herausforderung der Industrie 4.0 die Anwendung des Rechts – wie z.B. des Urheberrechts – ist. Es mag zwar scheinen, dass alt bewährte Systeme auf die neuen Technologien angewendet werden können, aber zu unsachgemäßen Ergebnissen führen.

Daher ist es notwendig, so früh wie möglich über die rechtlichen Herausforderungen des 3D-Drucks zu diskutieren und zwar nicht nur auf einer nationalen Ebene, sondern auch auf einer internationalen Ebene.

Es war super spannend einen Einblick in die 3D-Druck Industrie auf dem asiatischen Markt in Korea zu bekommen. Besonders aktuell diskutiert wurde das additive fertigen mit Metallstoffen. Sehr faszinierend, was hier alles schon möglich ist oder auch das Drucken von Haut oder Organen, welches möglich ist – aber noch nicht umgesetzt wurde.

Neben der TCT Ausstellung lief parallel die TCT Conference. Hier findet ihr meinen Vortrag auf der TCT Conference 2019, Changwon:

„Ladies and Gentlemen,

Thank you for having me here today at the TCT Conference. A special thank you to Rapid.News, the Grande Mercure Hotel, and the organizers of the conference, especially to Brisa.

Today I want to take you on a journey of IP rights and the challenges of 3D printing. You may ask yourself why a lawyer is speaking about 3D-printing, what does this have in common. It all started in 2015 when I decided to do my Ph.D. thesis on 3D-printing, Copyright, and private use. Since that day, I have fallen for additive manufacturing.

The legal issues which arise with 3D printing are why I decided to focus my law firm on new technologies like 3D printing.

It can be said, that 3D printing will affect nearly all legal fields like: Copyright Law, Patent Law – very important for the industry sector, Trademark Law – a present topic, since the LEGO Group start to send takedown notices to users and platforms who provide CAD files, Product Liability Law – where in fact is is unclear how it will be regulated regarding 3D printing, because it is not solved who will be liable if someone prints a bolt for his or her bike to repair it and after that has an accident because of that bolt; cases like that have not been decided yet.

So in the next few minutes, I want to talk to you about the chances and challenges of 3D-printing for IP rights, and I will give you at the end the take-home message of my presentation. I will not talk about patent law, trademark law but will focus on copyright law and the challenges which will arise there.

At first, the variety of chances for 3D printing is enormous for the industry and the consumer. The consumer becomes a prosumer – a term developed by Alvin Toffler. The consumer asks for personalization – he or she sees the chances in 3D printers to personalize his or her goods. Also, as we have seen in the presentation before, 3D printing comes with the chances of new designs and innovation – like using vegetables or nature forms to be printed by a 3D printer. While 3D printing comes with many chances, there are also challenges to overcome. As I have said before, it was a headline on the news that LEGO Group starts to send takedown notices on individuals and platforms to enforce trademark and copyrights. They have not explained yet, but let us have a look at why they probably send the takedown notices.

So here are the six challenges of 3D printing for IP rights. One of the biggest challenges is the Download of the CAD file. As we have seen in the presentations before, 3D printing is all about CAD files. In my opinion CAD files will be the future good to trade. The consumer will not buy goods anymore but will have the CAD file to print the product. Therefore another challenge is the protection of the CAD. It is internationally discussed on how to protect CAD files, whether it is protected by patent law, copyright, or design rights. Moreover besides the download of the CAD file we have another reproduction process, the printing itself. At this point, 3D printing becomes uncontrollable, which brings me to law enforcement and liability. On an international basis, it is essential to enforce your rights across the globe as you are all aware. However, it comes with difficulties regarding 3D-printing. Especially when talking about liability issues, as I have talked about with some of you in the speakers’ room before the product liability is unclear. Nevertheless, also the liability of copyright infringement regarding 3D printing is not solved. Therefore I want you to step with me into the position of the consumer who wants to print an object like a lego brick, a piece of jewelry or a bolt. For you as an industry audience, it can be helpful to change the view, the perspective to see the challenges of 3D printing outside of the industry sector. Because changing the view will bring up a new perspective.

Let us start by downloading a CAD file. The CAD file is a future good. We need to differentiate between two possible creation processes. Either the CAD file is creating on an existing object, or the CAD file creates a whole new one. The difference is essential in the following legal questions for us a user when downloading a CAD file. The CAD file can be either licensed or can fall under the term of private use, known as a limitation or fair use. However, to claim intellectual property rights on the CAD file it is argued how the CAD file is protected. It is discussed whether a created CAD file is protected by patent law, design law or copyright law. Regarding the copyright it is discussed whether the CAD file is a software, database, or a work of applied art. In my point of view, the protection depends on the object, which is shown in the file. Nevertheless, it is unclear and not solved how, in the end, the CAD file is protected. Let us talk a little further about Copyright, to figure out what it needs for a CAD file to be protected by copyright law. Therefore the CAD file needs to be a creation. It protects originality and the right of reproduction, which is why the 3D printer is of such a high interest.

If protected by copyright, the licensing is interesting. For us a user, we need to look at how the CAD file is licensed. It can be protected by a commercial license or a common creative license that has high usability and a worldwide standard, so easy for the user to apply. On the other hand, when looking at the download of a CAD file, it is also necessary to talk about limitations and fair use. The standard regulations of limitations apply to 3D printing, although with some exceptions. In Germany we have the term of private use a limitation where the user can download a CAD file as long as it is non-commercial use. While preparing the presentation, I also had a look at the South Korean system, and you in South Korea have a new well-established system of fair use, which is easier to apply for new technologies. Fair use is more flexible than limitation. So the difference to Germany is that in Germany, we have a strictly defined catalog of limitations, which is why it is hard to apply new technologies. However, what we have in common is that neither limitation nor fair use is applied for file sharing.

File sharing will also be one of the biggest challenges as already known of the music and film industry. Nevertheless, file sharing will be an even more significant challenge, since it is not only about the download of the CAD file but also about the step of printing the object. Printing an unauthorized object is the point where liability needs to be discussed. Who could be liable for that kind of copyright infringement? Of course, the user is the one who could be liable, but also the platforms who share the files. It is also discussed whether the 3D printer manufacture could be liable because of producing a reproduction machine. Moreover, it could also be a 3D printing copyshop who could be liable for copyright infringement, here it is crucial to reduce the liability with general terms and conditions.

Now, we have the background information; we step back into the industry and the question which is essential for you on how to protect 3D printed goods. One option could be, of course, monitoring the CAD files, which is already done for file sharing of music and films to figure out the IP addresses though I see some data privacy issues with this kind of monitoring. Another option could be to implement DRM systems (Digital Rights Management systems) like technological protection measures.

Further, also blockchain could be used to show who the original owner of the CAD file is and what a copy of it is. I suggest an international fee system for right holder. Having that background information is another big challenge to enforce your rights. Yes, we have international treaties that established a minimum standard for copyright, but the treaties have been made for a different time. Moreover, law enforcement is not only a national but international topic, because as you know, the internet has no borders. So if, for example, someone of Germany prints a protected good of South Korea in Germany, it will be hard to enforce your rights. However, of course this is nothing new. Nevertheless, for new technologies we need to frame the rights in a new way because the law is not as fast as 3D printing and new technology industry. Coming to the solutions for the presented challenges I suggest, that new technology should also be used to protect 3D printed goods and CAD files, know the legislation and the critical difference in legislation, and get legal consultation when trading aboard.

At last, I want you to take home the following points of my presentation. First there will be challenges for the industry and the consumer market. The consumer will become a prosumer and can print whatever he or she likes over and over again, with the fact of uncontrollable reproduction. Have an understanding of the different legislation especially the difference between limitation and fair use as this is important for the printing.

Thank you for your attention and feel free to ask questions.”

Noch mehr Background Information zum Urheberrecht in Korea und 3D-Druck:

  1. Korea hat in Art. 104 Korean Copyright Act eine Haftung für Plattformen etabliert.
  2. Für illegales Filesharing hat Korea ein Monitoring System.
  3. 2009 hat Korea eine „Fair Use“ Regelung eingeführt, die eine Mischung aus dem Drei-Stufen Test (TRIPS Abkommen) und dem Fair Use System aus den USA ist.
  4. World Intellectual Property Report 2015 hat festgestellt, dass insbesondere das Urheberrecht für technologische Innovationen immer interessanter wird; damit öffnet sich die Rolle des Urheberrechts; gerade günstige 3D Drucker werden Probleme der Rechtsdurchsetzung verschärfen.
© Anwaltskanzlei Saskia Ostendorff