The concept of 3D printing no longer needs an introduction. The sky is the limit when it comes to the possibilities 3D printing (often referred to as additive manufacturing) has to offer, both to consumers and businesses. The added value for and influence in the fashion and retail sector is undeniable, and many organizations consider welcoming 3D printing into their business model – whether acting as a 3D print shop, software provider, 3D printer or ink manufacturer, template developer, intermediary offering 3D printed products, product user or rights holder. As with any technological development however, there are legal considerations.
Of course, intellectual property rights, in particular patents, copyright, models and design rights, and trademark rights, immediately come to mind. For a discussion on the intersection between 3D printing and trademarks, we refer to a previous Law à la Mode article, “3D Printing – A new dimension for trademarks” which can be found in the special INTA 2014 Issue.
This article introduces some atypical legal challenges − apart from intellectual property rights − under the EU legal framework, which may not be immediately apparent when discussing 3D printing.
PRODUCT SAFETY AND LIABILITY
Particular categories of products are subject to legal rules regulating the safety and proper use of such products, and should not to be overlooked in the context of 3D printing. Relevant legal instruments on the EU level include, for example, the European General Product Safety Directive (2001/95/EC) and the European Directive on Toy Safety (2009/48/EC). Product safety also comes into play with respect to the raw materials (or “ink”) used in the 3D printing process, as these may not always be subject to prior quality controls.
Under the principle of product liability, a product manufacturer can be held liable for harm caused by a defective product. Directive 85/374/EEC establishes a liability without fault for producers; this means that a product will be deemed defective if it does not provide the safety which a person is entitled to expect, taking all circumstances into account, including the presentation of the product, the reasonable use of the product and the moment the product is put into circulation. In a 3D printing context, product liability is relevant for manufacturers of 3D printers as well as to manufacturers of 3D printed objects, to the extent they are commercialized and sold to the public. Product liability may not apply, however, to a supplier that makes 3D templates and sells them directly to consumers for 3D printing at home, because of the law’s exemption applicable to products not put into circulation by the manufacturer himself.
IMPORT RESTRICTIONS AND TAXATION
Certain products may be subject to import restrictions imposed by a particular country. Typical examples are weaponry, medication and currency. By selling 3D templates of a product to individuals located in countries where an import restriction applies to that product, both the template seller as well as the buyer who prints the object may be inadvertently violating the import restriction. In addition, 3D printing shortens traditional supply chains by allowing for domestic manufacturing, resulting in the transaction potentially bypassing border controls on the importation of goods, as well as any associated import taxes. Many jurisdictions are currently reviewing their existing customs legislation to determine whether it is necessary to change the current rules in light of this rapidly evolving technology.
3D printer and 3D template providers are particularly at risk of being considered an accomplice to counterfeit where an individual prints counterfeit money (coins or bank notes) using a 3D printer. Anti-counterfeit software, similar to that applied to paper photocopiers, is an example of a way to mitigate the risk of unlawful use of the printer or template.
Within the EU, the labelling of certain categories of product is governed by dedicated rules, notably by Regulation 1169/2011 for foodstuff and a separate legal framework for non-foodstuff such as cosmetics, footwear and textile products. The primary purpose of labeling is to inform and to guarantee safe use of the product by the consumer.
It can be concluded from the non-exhaustive overview above that − as in other fields of technological development, such as the Internet of Things − the current framework seems to leave unanswered the question as to who is responsible for complying with the applicable requirements.