EDITOR’S SUMMARY

3D printing enables physical objects to be constructed from a virtual 3D model with the aid of a computer-aided design (CAD) program. The CAD files and printed physical product may be protected by copyright law, covering rights to reproduce and distribute copies of the work, make derivative works and publicly display or perform the work. Copyright does not cover useful articles or works in the public domain. Libraries could become entangled in copyright infringement directly or secondarily by providing the equipment that may be used to infringe on a copyright. Libraries can manage their risks by developing and implementing policies regarding 3D printer use, including using a mediated service model and being mindful of the “unsupervised copying” exception in the copyright law for libraries and archives. Patron education on 3D printing provides an opportunity to explain library policies on use and copyright issues.

KEYWORDS

3D printers
copyright
copyright infringement
library policy
library and archival services
risk management


Copyright Considerations for Providing 3D Printing Services in the Library

by Jessica R. M. Chan and Sandra Aya Enimil

Any sufficiently advanced technology is indistinguishable from magic. – Arthur C. Clark

Many libraries and other institutions are providing or considering 3D printing services. This article focuses on copyright considerations pertaining to 3D printing services and the implications for libraries and other providers. Before we delve into U.S. copyright law, however, it is helpful to have a basic understanding of how 3D printing works.

What Is 3D Printing?

At first glance, it may seem as if 3D printers create objects out of thin air, but in order for the 3D printer to work its magic it needs instructions on what to print as well as the raw materials to do so. Objects can be designed from scratch on the computer using a computer-aided design (CAD) program to create a virtual 3D model of the item to be printed. 3D scanners can also create a CAD file by scanning an existing object – essentially the making of 3D copies. CAD files can be purchased or downloaded for free from a variety of online sharing platforms, such as Thingiverse [1].

3D printers can use a variety of raw materials in production, such as plastic, metal, cement and even human cells. The material used depends on the model of printer, but plastic filament is the most frequently used. The printer melts and extrudes the filament onto a flat surface where it uses the melted filament to build an object layer by layer. The filament cools and hardens as it is extruded, allowing the prescribed object to take form as layers of filament are added.

How Does Copyright Apply to 3D Printing?

Copyrightable Elements in 3D Printing. U.S. copyright law protects “original works of authorship fixed in any tangible medium of expression” (17 U.S.C. § 102). Originality means that the work manifests at least a minimum level of creativity, while “fixed in a tangible medium of expression” means that the work exists in some perceptible form for more than a transitory duration. CAD files and 3D printed objects can meet these requirements and so may be protected by copyright, although exceptions and limitations to copyright exclude certain items from protection.

The following types of works are covered by copyright law (17 U.S.C. § 102):

  • literary works
  • musical works, including any accompanying words
  • dramatic works, including any accompanying music
  • pantomimes and choreographic works
  • pictorial, graphic and sculptural works
  • motion pictures and other audiovisual works
  • sound recordings
  • architectural works

In 3D printing, the potentially copyrightable subject matter most likely falls into the categories of literary, pictorial, graphical, sculptural or architectural works. CAD files may be considered pictorial, graphical or literary works (software code is treated as a literary work); while the 3D printed objects would most likely fall under sculptural works. A CAD file or 3D printed replica could potentially infringe a copyrighted architectural work. This possibility only applies to building designs published or constructed after 1990, but earlier building designs could be protected as pictorial, graphic or sculptural works.

 Copyright Ownership and Rights. Under current United States copyright law [2], authors or creators of original works own copyrights in their works instantly and automatically, unless the works are considered works made for hire. Works made for hire include works produced by an employee as part of the employee’s job duties. The copyright in a work made for hire is owned by the employer rather than the employee who created the work. Copyright law grants six exclusive rights (17 U.S.C. § 106) to copyright owners:

  • reproduce or make copies of the work
  • distribute copies of the work
  • create derivative works
  • display the work publicly
  • perform the work publicly
  • perform the work publicly by means of digital audio transmission

The creator of a copyrightable CAD file would have the sole right to sell or share the file. If someone else obtained a copy of the file and made it available for download without permission, he would be infringing the creator’s exclusive right to distribute copies of the work. If he made changes to the CAD file to improve or build on the existing design, he could be infringing the copyright owner’s right to create derivative works. If someone uses a 3D scanner to produce a CAD file of an action figure, she could be infringing the copyright owner’s right to make copies of the character as well as the sculptural work.

These cases are some examples of how copyright may be implicated in 3D printing, but this is not to say that these kinds of activities would always be infringing. Authors of CAD files frequently share their creations online and encourage others to reuse and remix the designs. As copyright owners, they are empowered to grant permission to others to use their creations. In other cases, statutory exceptions included in copyright law permit the use of copyrighted works without permission. Lastly, copyright law may not be implicated in certain designs or objects.

Figure 1. This 3D printed cellphone case would likely be considered a useful object and therefore not protected by copyright. Photo credit: iPhone Case by Queenie Chow – CC BY-NC 3.0 US (https://creativecommons.org/licenses/by-nc/3.0/us/)

Figure 1. This 3D printed cellphone case would likely be considered a useful object and therefore not protected by copyright. Photo credit: iPhone Case by Queenie Chow – CC BY-NC 3.0 US (https://creativecommons.org/licenses/by-nc/3.0/us

Limits and Exclusions of Copyrightable Elements in 3D printing. U.S. copyright law specifically excludes certain works from copyright protection. Useful articles – objects that have a utilitarian function, such as clothing, furniture or tools – are not protected by copyright (Figure 1). Therefore, the reproduction of many items likely to be of interest to users of 3D printers (such as replacement parts) would not implicate copyright, but other areas of intellectual property (IP) may be implicated (see sidebar). A caveat: the law recognizes and protects original design elements that can be separated conceptually or physically from the useful article. For example, an automobile is a useful article, so the body of a sports car would not be protected by copyright, but its hood ornament could be protected as a sculptural work under copyright and protected by trademark law as well.


Figure 2. The Block O is a registered trademark of The Ohio State University. 3D-printed renderings of the Block O may implicate both copyright and trademark law. Photo credit: Block O by Queenie Chow – CC BY-NC 3.0 US

Figure 2. The Block O is a registered trademark of The Ohio State University. 3D-printed renderings of the Block O may implicate both copyright and trademark law. Photo credit: Block O by Queenie Chow – CC BY-NC 3.0 US https://creativecommons.org/licenses/by-nc/3.0/us/

Copyright is just one component of intellectual property (IP); other areas of IP may apply regardless of whether or not a work is protected by copyright.

Trademarks and trade dress. U.S. trademark law helps to signify the source of goods or services. Logos may be protected as trademarks, while other visual elements that distinguish the source of a service or product may be protected as trade dress. For example, the Block O logo for The Ohio State University is a trademark, while the distinctive shade of red may constitute trade dress (Figure 2).

Utility patents and design patents. Utility patents protect novel inventions and processes, while design patents protect new and original ornamental designs for manufactured items. For example, the machinery used in a soda fountain could be protected by a patent. If the owner of a fast-food chain 3D printed a replacement part for the soda fountain in her restaurant, she could be infringing on the patent owner’s exclusive rights.


Additionally, copyright does not extend to works in the public domain. Copyright protection lasts for a limited amount of time. In the United States, copyright currently lasts for the author’s life plus 70 years, though the copyright term was not always so lengthy (see Peter Hirtle’s excellent chart “Copyright Term in the Public Domain” [3] for help determining the copyright term and public domain status of a work). Once copyright expires for a particular work, it enters the public domain. Works that were never protected by copyright, such as works from antiquity, also belong to the public domain. Public domain works may be used, copied, displayed, performed, edited and built upon by anyone without any restrictions or permissions required. 3D printing a reproduction of a public domain work such as the Venus de Milo sculpture or the Statue of Liberty does not implicate copyright.

How Could Copyright Affect Libraries and Other Providers of 3D Printing Services?

3D printing services may become increasingly prevalent as interest in the technology grows and associated costs for the equipment decline. Service providers, however, may have concerns about liability for possible infringing use of the service. Copyright infringement (17 U.S.C. § 501) is defined as the violation of any of the exclusive rights of copyright owners. A violation is possible when there is no statutory protection or exception that applies to the proposed use of a protected work. In terms of 3D printing services provided by libraries and other institutions, liability could arise depending on how the service is provided to patrons.

Libraries or other providers may be liable for the direct infringement of a copyright owner’s exclusive rights or may face secondary liability for the infringement. Direct infringement could occur if the service provider prints infringing items on its own initiative, rather than at the request of patrons. Secondary liability in copyright can occur when a person or institution may not directly infringe, but may provide the instruments or the capability to infringe on the rights of copyright owners. Libraries using a mediated service structure for 3D printing could be subject to liability along with the patron requesting the service. Libraries can manage this risk in a number of ways, including providing training to staff on recognizing CAD files that may be infringing and providing policies and instructions to patrons on possible infringing uses of 3D printing services.

The Role of the Library or Other Service Provider. Many 3D printing providers use a mediated service model where users submit a CAD file with their printing request and staff members operate the 3D printing equipment to produce the object. This type of mediation is frequently necessary due to the training and expertise required to use the equipment successfully. In this service model, printing requests may be submitted to a queue where designated staff review the existing requests and reject requests on technical, legal or policy grounds. Accepted submissions can then be printed by trained staff as time allows; print jobs can take hours or days depending on their level of complexity, and a backlog may develop if the service becomes popular.

Policies to Manage Risks. Libraries and other service providers should develop and implement policies governing the use of 3D printing services. These policies help to establish good faith on behalf of the library, as well as communicate user responsibilities. Such policies should require users to affirm that their designs do not infringe on others’ intellectual property rights. Policies may also communicate on what grounds a printing request may be refused, such as when a CAD file has been provided with errors that could prevent successful printing, when a design may be infringing or when the requested design constitutes a potential weapon or harm to staff or patrons. A sample policy is reproduced below.

The American Library Association and Public Knowledge have released detailed reports discussing 3D printing, copyright, and the significance of thoughtful policymaking [4] [5]. While it is important to recognize and address the potential legal risks associated with 3D printing, policies should not be based on fear. Instead, 3D printing services should “encourage patrons to be creative and have fun” [6]. Libraries and other providers should not limit the innovative potential of 3D printing by implementing overly restrictive policies.


Sample 3D Printing Policy
TERMS OF USE

The 3D printer is available to University students, faculty and staff to make three-dimensional objects in PLA plastic using a design that is uploaded from a digital computer file.

  1. Use:The 3D printer may be used only for lawful purposes. No one will be permitted to use the 3D printer to create material that is:
    1. Prohibited by local, state or federal law
    2. Unsafe, harmful, dangerous or poses an immediate threat to the well-being of others. (Such use may violate the terms of use of the manufacturer.)
    3. Obscene or otherwise inappropriate for the University environment.
    4. In violation of another’s intellectual property rights. For example, the printer will not be used to reproduce material subject to copyright, patent or trademark protection.
  2. Assessment:The University reserves the right to:
    1. Refuse any 3D print request.
    2. Use staff discretion to organize the print queue for overall efficient output.
    3. Photograph all 3D objects printed during this pilot. Images will be used for monitoring, marketing, and reporting outcomes of the pilot.
    4. Gather feedback from users.
    5. Implement additional requirements not listed here.
  3. Cost: 3D printing is free during the pilot program. Long term support and material costs will be assessed as a part of the pilot program to determine the viability of providing 3D printing services in the long term.
  4. Pickup:Items printed from the 3D printer that are not picked up within 7 days after being printed become the property of the University. Items must be picked up by the individual who printed them, using his or her University ID.
  5. Access:Only authorized University staff will have hands-on access to the 3D printer.

DISCLAIMER: This sample is intended to help you consider a variety of criteria that may affect 3D printing services. This sample does not constitute legal advice and makes no determination, declaration, claim or warranty of rights obtained for any particular scenario.


Copyright Exception for Libraries and Archives. United States copyright law includes exceptions to authors’ exclusive rights under certain circumstances. Section 108 of the copyright law carves out a few exceptions specific to libraries and archives, including one exception that allows libraries and archives to provide copying devices such as photocopiers, scanners, computers and printers without liability for infringement committed by unsupervised patrons as long as a copyright warning is prominently displayed on or near the equipment. This exception is frequently referred to as the “unsupervised copying” exception. This exception could apply to 3D printing equipment if patrons are given unsupervised access to the equipment. With present day technology, however, providing unsupervised access to the 3D printer is not particularly feasible due to the expertise required to successfully operate the equipment and the length of time it takes to print even a single object. It is unclear, but seems unlikely, that the exception for unsupervised copying in libraries and archives would apply to the mediated service models commonly seen with 3D printing, but this possibility has not yet been tested in court.

 Practical Applications. Developing and enforcing a 3D printing policy presents challenges for libraries and other service providers. While policies may forbid infringing reproductions, it is difficult in practice for staff to identify requests that may infringe copyright with any significant accuracy. This would require staff to recognize copyrighted material across all genres and media from the mainstream to the obscure – an impossible task (Figure 4). Even in the event that staff recognize copyrighted subject matter, the possibility of fair use (another important exception to copyright owners’ exclusive rights) of the copyrighted work should not be precluded.

Figure 3. It may not be practical to expect staff to be able to recognize all potentially infringing 3D printing requests, as users may request print jobs ranging from copies of recognizable icons, such as the Iron Throne from the television show Game of Thrones, to print jobs reproducing more obscure copyrightable elements, such as a piece of jewelry worn by a character from the same show. Photo credits: 3A. The Iron Throne by Pat Lolka – CC BY 2.0; 3B. Rose Brooch by Jessica R. M. Chan

Figure 3. It may not be practical to expect staff to be able to recognize all potentially infringing 3D printing requests, as users may request print jobs ranging from copies of recognizable icons, such as the Iron Throne from the television show Game of Thrones, to print jobs reproducing more obscure copyrightable elements, such as a piece of jewelry worn by a character from the same show. Photo credits: 3A www.flickr.com/photos/patloika/7560520542/. The Iron Throne by Pat Lolka – CC BY 2.0; 3B. Rose Brooch by Jessica R. M. Chan https://creativecommons.org/licenses/by/2.0/

The purpose of a good 3D printing policy, then, is not to enable staff to recognize and reject all infringing print jobs (although infringing requests may be rejected under the terms of the policy). Instead, the policy may prove most valuable as an educational tool. Patrons should be required to read the policy and sign an agreement that their requested print job complies with the terms of service.

Educational opportunities. Libraries and other service providers can provide resources to help their patrons get started with 3D printing in addition to supplying the necessary equipment and expertise. Such resources could include information on CAD software and how to use it as well as where to find CAD files available for purchase or free download. Patron education also helps manage expectations and satisfaction with the service: libraries should provide resources on what to look for to ensure that a CAD file will print properly (such as no holes in the design) as well as information on wait times and estimated time to complete the print job.

This initial interaction is also an opportunity to educate patrons about copyright. If a patron finds a CAD file online that he would like to print, he should look for a copyright notice or terms of use for the design to figure out what he is allowed to do with the design (for example, edit, reproduce, share). This is an opportunity to explain that things like art, characters and jewelry can all be protected by copyright. Users should be encouraged to develop their own design or obtain CAD files from reputable sources.

If a patron creates a design that falls under the scope of copyright (for example, an original work that is not a useful article) she owns a copyright in that work and she can choose how to manage her copyright. For example, she can choose whether or not to share her design and designate the circumstances under which others can use her design, such as for noncommercial purposes. Helping patrons print their original works provides an opportunity to educate them regarding their rights as a copyright owner.

Conclusion

As 3D printing has only recently become accessible to the general public, there is little case law dealing specifically with 3D printing services to help guide decision making around offering these services. We can, however, look to the existing law for guidance regarding the extent to which copyright might apply to 3D printing and educate ourselves about the potential for liability in order to make the most informed decisions possible. 3D printing provides new opportunities for innovation and creativity, and free or low cost 3D printing services offered by libraries and others help make those opportunities available to a wider audience. Thoughtful, good faith policies that help to educate patrons about copyright can help to manage risks while ensuring that the potential of 3D printing is not stymied unnecessarily by vague fears about potential copyright infringement.

Resources Mentioned in the Article

[1] Makerbot. (2015). Thingiverse. Retrieved from www.thingiverse.com/

[2] United States Copyright Office. Copyright law of the United States of America. Retrieved from www.copyright.gov.

[3]  Hirtle, P. B. (January 1, 2015). Copyright term and the public domain in the United States. Retrieved from http://copyright.cornell.edu/resources/publicdomain.cfm

[4] Wapner, C. (January 6, 2015). Progress in the making: 3D printing policy considerations through the library lens. OITP Perspectives, 3. Retrieved from www.ala.org/offices/sites/ala.org.offices/files/content/3D_Library_Policy-ALA_OITP_Perspectives-2015Jan06.pdf

[5] Weinburg, M. (November 2010). It will be awesome if they don’t screw it up: 3D printing, intellectual property, and the fight over the next great disruptive technology. Retrieved from www.publicknowledge.org/files/docs/3DPrintingPaperPublicKnowledge.pdf

[6] American Library Association. (September 2014). Progress in the making: An introduction to 3D printing and public policy. Retrieved from www.ala.org/offices/sites/ala.org.offices/files/content/3d_printing_tipsheet_version_9_Final.pdf


Jessica R. M. Chan is a rights management specialist for the Copyright Resources Center at The Ohio State University Libraries. She can be reached at chan.666<at>osu.edu.

Sandra Aya Enimil is head of the Copyright Resources Center at The Ohio State University Libraries. She can be reached at enimil.1<at>osu.edu.

Visit the Copyright Resources Center website at go.osu.edu/copyright and follow us on Twitter at @OSUCopyright.