Intellectual Property Rights and Emerging Technology

3D Printing in China

Hing Kai Chan, Hui Leng Choo, Onyeka Osuji, James Griffin

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9780815375371
• eBook ISBN: 9781351239882
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

3D printing poses many challenges to the traditional law of intellectual property (IP). This book develops a technical method to help overcome some of these legal challenges and difficulties. This is a collection of materials from empirical interviews, workshops and publications that have been carried out in one of the world's leading research projects into the legal impact of 3D printing. The project was designed to establish what legal challenges 3D printing companies thought they faced, and having done that, to establish a technical framework for a solution.

Part I

1 A proposal for a bridge of licensing over a sea of IP uncertainty

Digital watermarking of 3D printed content in China ^*

James Griffin

Introduction

In 2015 and 2016 empirical interviews were carried out with 30 3D printing companies in China,¹ specifically in areas where the 3D printing (‘3DP’) industry is largely located: Shenzhen, Guangdong, Ningbo, Shanghai and Beijing. China was selected as the most appropriate country due to the strong support of 3D printing by the Chinese Government under their strategy ‘Made in China 2025.’² China is currently the largest producer of mass manufactured products,³ and 3D printing poses a challenge to this mass production system. To this end, the Chinese Government has been very keen to encourage investment in 3D printing so that it maintains its competitive advantage. Nonetheless it has been clear that 3D printing in China has been struggling to take off in terms of innovative approaches to 3DP.⁴ To this end, we conducted empirical research to assess why this has been so,⁵ considering that there is such significant support from the Government, as well as (what are now) reasonably strong Intellectual Property (‘IP’) protections for the producers of 3D printing machinery and 3D printing content.

In summary, our research revealed that there has been a difficulty in the 3D companies’ becoming involved with the broader IP dialogue and that this has resulted in reduced financial investment into 3D printing. There is uncertainty about the scope of the law, uncertainty about how to engage with the law and uncertainty as to how to enforce IP rights. There is also general worry that the IP system is distanced from the day-to-day technical operation of the 3D printing companies and their consumers. Having revealed these issues within the IP system, our research turned to question whether there is a way these printing companies and consumers could become more easily engaged in dialogue though IP law. Our solution has been to develop a system based around technical licensing, formed around a standards blueprint that was provided by the UK copyright hub.⁶ The standards therein have been utilised to interface with digital watermarking technologies. That will enable companies to gain confidence in being able to openly engage in the licensing of their products, to be able to participate in dialogue with lawyers through standard terms, and to provide a means to find out if copyright and/or licensing infringements are occurring. It also opens the possibility of new revenue streams to trace the use of products, if this is permitted by end users.

There are some shortcomings of the proposed system. First, it has the possibility of being broken and hacked, although such systems are becoming considerably more robust. Second, it poses challenges in relation to the privacy of individual users. Third, the system could be used to extend, in effect, IP style provisions that have greater reach than traditional IP law, undermining the traditional balances of the existing law without sufficient dialogue. However, we propose that this system could overcome most of these difficulties with appropriate design. There are also other broader issues that the proposed technical licensing scheme raises. First, while utilising the empirical research, this chapter will examine the importance of discourse within IP law generally to be able to engage creators and consumers of content. Without such discourse, it is suggested that a legal system has little rationality and is therefore prone to collapse. Second, the proposed scheme for licensing will be outlined, and the rationale for it, from the viewpoint of those in the 3D printing industry as evidenced by our empirical research. Third, there will be discussion of the issue of technological convergence and the importance of that in light of the proposed technical licensing system. Subsequently there will be analysis of the impact of such a system upon the levels of legal discourse. There will then be some discussion of how such a system could be given Government support. Due to the unique nature of the proposed system, the basics of operation will be outlined in technological terms, followed by discussion of the interface of that technology with the law.

1. The notion of dialogue

Our research in the field of 3D printing in China has revealed that there has been a degree of breakdown in discourse between those producing 3DP technologies, those using the technologies to print works for others and the end users. This is a breakdown in the discourse of legal regulation. There have been several reasons for this. Perhaps the most important concern revolves around a lack of legal understanding.⁷

There was commonly conflation between the notions of patents, copyright and designs throughout the interviews. In addition to the general lack of legal knowledge, there was also a time issue. Patents can take a while to obtain and take time to draft. This means that the protection offered is often lagging behind the period of commercial exploitation, particularly in a complex technical field such as 3D printing.⁸ Whilst our interviewees made limited reference to the fact, it is the case in China that Government funding of 3DP small and medium sized enterprises (‘SME’) are reliant on obtaining patents.⁹ Nonetheless, there are still practical issues in obtaining such patents. The companies that we spoke to were (naturally) still keen to obtain patents, but they did not refer to any of the other perceived benefits that would result from IP protection. For instance, reference has been made to the patent system as providing incentive for individuals within a company.¹⁰ Now, based on the limited amount of information available, it could be easy to extrapolate facts that would be misleading. Doubtless there are companies in China which have likewise built up portfolios of patents for the same reason. However, we did not encounter them within our research. Certainly, there are specific concerns in China regarding patents, and these relate in part to Government involvement and the accessibility of patent protection. Contextualisation of this comment explains why. A failure to provide the means of discourse with an IP system has been seen more broadly within China before, in particular in relation to recent history where China was widely regarded as the home of piracy.¹¹ Within China, this situation has changed substantially in recent years, with widespread reports indicating that IP disputes between domestic companies were responsible for a substantial increase in the number of cases heard within the national court system.¹² However, it would appear that with 3D printing something is holding back companies from utilising the system. As indicated by the interviews, that appears to be a combination of confusion and delay in obtaining IP registration.

The response of companies has been to utilise the market as the key way in which to protect their works. A common response to our question about the best means of protecting works was to utilise the market in order to stay in advance of competitors.¹³ This is endemic of a country where the legal system is not acting effectively; it denies the opportunity to companies who wish to remain competitive in such a situation to also be able to exploit IP quickly and efficiently for the purposes of investment. It is understandable that companies in China would be reticent to utilise IP to protect their works, where it has been the case historically that IP protection has been extremely weak. For instance, even if the patent system were quick and efficient, the release of information about how to work the patent might merely result in the transfer of information to competitors without any discernible benefit. However, as noted earlier, recently there has been a tendency to enforce IP more, and there are also the incentives given by the Chinese Government to obtain registration for IP, such as patents. Nonetheless, it would appear that many companies are more keen to obtain a competitive position than to rely upon the IP system.

The scheme that we propose is one that can actually assist companies in their competitive position because it enables the right holders to be able to interact with other companies and consumers in new ways, and it opens up new revenue streams for those companies. In essence, the system that we propose is one that enables new forms of dialogue with users, companies and stakeholders in general. We are providing a new architectural means for the dialogue to take place, a dialogue of interrelated levels, of complex striations, which cuts across law and technology. Too often the legal dialogue sits beside, astride or atop other dialogue rather than being embedded within it. For instance, this has been true of digital technologies: these enable easier and widespread copying, whereas the law does not – hence the divergence between legal rules and practice. This is an inherent implication in the works of Habermas¹⁴ and Foucault,¹⁵ where even though they talk about interrelated concepts – for instance power and colonisation¹⁶ – they still rely upon a difference, if applied in a legal context, between the individual, the State and the broader technological apparatus. What we are proposing brings together the stakeholders in one place to provide a dialogue of technology, a dialogue that combines the potential for legal technology, 3DP technology and technical enforcement. It thus provides a means of IP engagement and reward, whilst still providing a platform by which a firm can potentially gain a competitive advantage. It could be suggested that the current Chinese IP legal system has issues with regard to enforcement of IP, and our interviews suggest that engaging with the system does not provide immediate commercial advantage. The architecture of the proposed reforms can resolve those separations and encourage active involvement between companies and individuals utilising licensing through a technical means.

2. What dialogues were sought by 3DP companies?

Regarding the development of the technology to provide the dialogue between the technologies of law, code and stakeholders, we interviewed 3D printing companies to establish how they utilise IP law. As noted in the previous section, 3D printing companies were involved daily with utilisation of IP, even if they did not engage with the dialogues of registration and IP enforcement. The companies’ interaction with IP revolved around the licensing of content, and typically that was licensing of copyright content. There were three key areas. The first area was around the 3D printers themselves since companies that are involved with 3D printing of objects normally will be licensing their printers from other companies. 3D printers may be leased by (often international) companies to the Chinese 3DP companies for extended periods. Licensing also concerns the patenting of improvements to the technology of 3DP more generally or printing processes and the computer software used for printing (copyright). The computer software might be developed by a 3D printing company either by itself or on behalf of others under contract. The licensing of computer software is made complicated because elements of the computer so...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Contents
• Notes on contributors
• Foreword
• Introduction
• PART 1
• PART 2
• PART 3
• Appendix Part I: Current Strategy for Copyright Protection of 3D Printing Content
• Appendix Part II:
• Bibliography
• Index