The Maker Movement: Copyright Law, Remix Culture and 3D Printing
(2017) 41 (2) The University of Western Australia Law Review 51-84
34 Pages Posted: 16 Mar 2017
Date Written: February 3, 2017
3D printing is a process of making physical objects from three-dimensional digital models. 3D printing is a form of additive manufacturing – rather than a traditional form of subtractive manufacturing. 3D printing is a disruptive technology, which promises to transform art and design, science and manufacturing, and the digital economy.
The Minister for Industry, Innovation and Science, the Hon. Christopher Pyne, has highlighted the key role of 3D printing for manufacturing and material science in Australia: ‘Manufacturing remains a key driver in our economy, but as the industrial landscape changes, the sector needs to transition to more innovative and economically viable technology.’ Pyne stressed: ‘Emerging technologies such as metal 3D printing offer huge productivity gains and have the potential to turn Australia’s manufacturing industry on its head.’ Likewise, the Australian Labor Party’s Tim Watts and Jim Chalmers have discussed the role of 3D printing in respect of intellectual property, innovation, and trade.
There have been a number of early cultural texts on the topic of 3D printing. Cory Doctorow’s 2009 fictional story Makers was significant in promoting the culture of the maker community. Chris Anderson’s 2012 non-fiction work Makers considered the history of the industrial revolution, the rise of 3D printing, and the long tail of things. His work also reflects upon the development of open licensing and open hardware, and the financing of maker businesses. This rather evangelical work helped inspire wider public interest in the field. In The Maker Movement Manifesto, Mark Hatch, the CEO of TechShop, provides a practical guide to the applications of 3D printing, and the development of communities of practice. He is particularly interested in the development of distributed and flexible manufacturing, and the acceleration of innovation. The engaging 2014 Lopez and Tweel documentary Print the Legend provided a portrait of the emergence of 3D printing start-up companies in the United States. In 2014, the Australian journalist and cultural critic Guy Rundle also undertook fieldwork in his study on 3D printing and robotics, visiting key hubs of 3D printing in the United States. In his work upon the robotics revolution, Martin Ford has explored the intersection between 3D printing and automation. Futurist Jeremy Rifkin has been interested in the intersections between 3D printing, the Internet of Things, and collaborative capitalism. Likewise, Robin Chase has been concerned about how 3D printing fits into a larger model of the sharing economy.
In terms of legal writing in respect of 3D printing, a number of works have sought to address the relationship between intellectual property and 3D printing. As a public policy expert at Public Knowledge, and as a lawyer working for Shapeways, Michael Weinberg (2010, 2013) has written a number of significant treatises on intellectual property and 3D Printing. Associate Professor Dinusha Mendis and her colleagues have undertaken legal and empirical research on intellectual property and 3D printing for the United Kingdom Intellectual Property Office. In 2015, Professor Mark Lemley from Stanford Law School observes, ‘A world in which sophisticated 3D printers are widely available would change the economics of things in a fundamental way.’ Amongst other things, he says that 3D Printing provides challenges and opportunities for intellectual property in ‘an age without scarcity’. John Hornick has examined the topic of intellectual property and 3D printing from the perspective of a legal practitioner. From Australia, Dr Angela Daly has written on the socio-legal aspects of 3D printing in 2016. The World Intellectual Property Organization in 2015 has sought to investigate 3D printing as a breakthrough technology in terms of emerging developments in respect of intellectual property law, practice, and policy.
There has been much interest in how intellectual property law, policy, and practice will adapt to the emergence of 3D printing and the maker movement. Intellectual property lawyers will have to grapple with the impact of additive manufacturing upon a variety of forms of intellectual property – including copyright law, trade mark law, designs law, patent law, and trade secrets. The disruptive technology of 3D printing will both pose opportunities and challenges for legal practitioners and policy-makers.
Rather than try to survey this expanding field, this article considers a number of early conflicts and skirmishes in respect of copyright law and 3D printing. There has been significant interest in the impact of 3D printing on copyright law and the creative industries. There have been classic issues raised about copyright subsistence, and the overlap between copyright law and designs. There has also been a moral panic about 3D printing facilitating copyright infringement – like peer to peer networks such as Napster in the past. There has been a use of open licensing models such as Creative Commons licensing to facilitate the sharing of 3D printing files. Such battles highlight a conflict between the open culture of the Maker Movement, and the closed culture of copyright industries. In many ways, such conflicts touch upon classic issues involved in ‘information environmentalism’. Part II looks at the controversy over Left Shark. In particular, it examines the copyright claims of Katy Perry in respect of the Left Shark figure. Part III considers questions about scanning. Augustana College tried to assert copyright against a maker, Jerry Fisher, who was scanning statues of Michelangelo (although copyright had long since expired in such work). Part IV focuses upon copyright law, 3D printing and readymades. The Estate of Marcel Duchamp lodged a copyright protest over a 3D printed set of chess, based on the work of Marcel Duchamp. Part V examines the intervention of a number of 3D printing companies in a Supreme Court of the United States dispute in Star Athletic v. Varsity Brands. Part VI considers copyright law and intermediary liability. Part VII examines the operation of technological protection measures in the context of copyright law and 3D Printing.
Keywords: Copyright Law, Remix Culture, 3D Printing, Additive Manufacturing, Left Shark, Fair Use, Safe Harbours, Technological Protection Measures
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