One of the most exciting things about widespread access to 3D printing is how it has started to push cultural institutions to begin digitizing their 3D collections.  Now, in addition to being able to see free high quality 2D scans of paintings like a 15th Century Italian Pentecost  and 18th Century Japanese Woodcuts, you can see (and sometimes download, print, and modify) high quality 3D scans of the Cooper Hewitt Mansion, Abraham Lincoln’s face,  and Musette the Maltese Dog.  With objects reaching back thousands of years scattered across cultural institutions around the world, it isn’t hard to imagine a future where the world’s cultural heritage objects are available to anyone with a 3D printer (or, say, a Shapeways account).

We’ve been able to access high quality 2D world heritage items online for years. (Image from the J. Paul Getty Museum Open Content Program, which is awesome).

Why not high quality scans of 3D objects? (image courtesy MetMuseum)

But a question about copyright is lurking in the background of this glorious future.  Specifically, a question about copyrights in the scans of the objects themselves: are 3D scans protected by copyright?  If the answer is yes, scanning could drag parts of cultural heritage objects away from their home in the public domain and lock them up behind proprietary walls for decades.  That would make it much harder for people to access their own cultural heritage.

Fortunately, at least one court in the United States has found that scanning an object does not create a new copyright in the scan.  That means that scanning a 9th century Hanuman mask doesn’t wrap the scan in a new copyright.   However, a paper from earlier this year by Thomas Margoni illustrates that the copyright status of scans is not as clear in the European Union.  That lack of clarity alone could slow the dissemination of objects housed in Europe’s finest cultural institutions.  Hopefully, the EU will move to clarify that 3D scans of objects do not create entirely new layers of copyright protection.

Remember, in this context we are not talking about copyrights in the objects themselves.  For the sake of simplicity, let’s just focus on the thousands of years of cultural production prior to around 1920 that is well in the public domain.  In these cases we are talking about someone who did not create the original object scanning it and then claiming a new copyright on the scan – and only the scan – itself.

Background: Originality

Originality is a key to understanding why a scan should or should not be protected by copyright.  Originality is a general requirement to obtain copyright protection, although the bar for what qualifies as “original” is famously low.  That being said, while the bar is low it does exist.

It takes a lot of work to put together the phone book. That doesn’t mean it is protected by copyright. (image credit: flickr user James Cape)

Note that in this context originality is not synonymous with “complicated” or “labor intensive.”  Instead, it suggests that the author of the work made creative choices about how to create the work. In a famous US case, the Supreme Court denied copyright protection for the phone book.  The court acknowledged that putting together a phone book takes lots of time, effort, and resources.  But it denied copyright protection because there isn’t room for creative expression in how you assemble a phone book.  The form pretty much dictates that you list everyone in alphabetical order and that each entry starts with a name and ends with a phone number. Given a pool of names and phone numbers, everyone’s phone book is going to look pretty much the same.

The same type of theory can be applied to scanning.  It can take a lot of work and technical expertise to accurately scan a 3D object.  But at the end of the day, the goal is to create as accurate a scan as possible.  Some people may be better or worse at achieving that goal, but the nature of the task does not leave a lot of room for creative interpretation.  Without creative interpretation there is no copyright protection.

That distinction is reasonably straightforward in the US.  However, Margoni’s paper highlights that fact that it is not as clear in the EU.  EU-wide laws designed to harmonize copyright leaves the test for originality up to each member state, and those member states have each structured that test slightly differently.  That means that at least some types of scanning in some EU member countries could be protected by an additional copyright.

Why This Matters

Everyone is sad when cultural heritage objects are locked up. (image credit: flickr user Ania Mendrek)

It would be bad to protect 3D scans with a new copyright because it adds another wall of rights around the object being scanned.  This is especially harmful in the context of scans of world heritage objects.  World heritage objects are part of our collective inheritance.  Adding additional rightsholders creates a barrier for everyone who wants to access that inheritance.

Beyond copyright’s capacity to simply block use, additional layers of protection also undermine confidence in use.

Copyright lasts for a long time, and copyright rules can make it hard to determine the protection status of a given object.  But, at a minimum, a statue from 1900 – or 1900 BC –  is clearly in the public domain.  “Made by a civilization unfamiliar with electricity = public domain” is a rule of thumb that everyone should be able to rely on without consulting a copyright attorney.  If there is the potential for an additional scanning copyright, every time you came into contact with a 3D scan of a world heritage object you would have to ask a host of questions: Who made this actual scan?  How did they decide to license it?  Will I have to worry about someone who made a different scan suing me for copyright infringement?  Regardless of the answer, the mere existence of each of these questions make it less likely that people will make use of the scans.

World heritage objects belong to everyone.  There are already plenty of people trying to pull them into an ownership box without adding an additional layer of copyright protection to scans.  There is no reason to make it more likely that one person will have a veto over how these objects are used.  The Margoni paper is an important step towards understanding how 3D scanning may be treated in the EU.  The next step is making sure that those rules arc towards openness and accessibility for all.

This post originally appeared on the Shapeways blog.

Bridgette Mongeon had me on to talk about 3D printing and IP from a designer’s perspective.  It was interesting (for me) to get into the kinds of concerns that professional sculptors have with services like Shapeways in terms of security and accessibility of support.

Today was the last public step in the 3D printing unlocking proceeding (some background here).  Essentially, this is about allowing people who own 3D printers to use whatever their material they want in their printer.  Since some manufacturers use chip-and-software-based verification to lock printers to material coming from them, the entire process was happening as part of the triennial “1201 process,” so named for 17 USC 1201 that authorizes it.

That last step was a public hearing.  On side pro-unlock was Sherwin Siy from Public Knowledge and me from, well, me. I started this process while I was at PK but now that I am at Shapeways was participating in my personal capacity.  On side anti-unlock was a representative from Stratasys.  Stratasys is a large commercial 3D printer manufacturer.  They also own a desktop 3D printing company called Makerbot that you may have heard of.

Rebecca Tushnet already has her always fantastic liveblog/transcript of the proceeding up so I’ll just link to it here.  Some quick thoughts:

• There were a lot of questions about the copyright-protected work in question and about how the DRM mechanism would actually operate.  Since the petition was (intentionally) written at a fairly high level of abstraction in order to cover all printers, this became a bit complicated.  
  

• The Copyright Office seemed interested in exploring distinctions between a consumer/prosumer market and a commercial/industrial market.  This makes a bit of sense since the original petition skewed towards the consumer market.  However, it is hard to articulate a reason why it would be reasonable to grant this exemption for the consumer market and not the industrial market.
  

• There was also some discussion about why the underlying copying in question was not an infringement.  This was a bit complicated because I don’t actually believe that there is infringement going on.  However, I do worry that the absence of infringement would not prevent a printer manufacturer from bringing a lawsuit or threatening a lawsuit.  Fortunately, Sherwin was able to talk about both 17 USC 117 and fair use.
  

• There were questions about ownership vs. licensing of the software in the machines.  The Copyright Office asked for specific examples of how specific printer manufacturer handle this issue.  I didn’t have specific examples.  It probably would have been better if I had researched the licensing terms of a handful of printers before the hearing.
  

• Stratasys/Makerbot essentially restated the concerns that they raised in their opposition filing.  These concerns boil down to things like people making counterfeit objects with sub-standard third party material and users hating Stratasys when third party material makes ugly prints with a Stratasys machine.  The Copyright Office was encouragingly skeptical of this justification for 1201 liability.  As I wrote in my obnoxious reply comments, I share most of those concerns.  It is just that 1201 is not the law that we have to prevent counterfeit 3D printed parts from going into airplanes.  That’s why we have product liability law. And contracts.  And trademark.  
  

• In defending their interest in using DRM to exclude third party filament, Stratasys made it pretty clear (to me at least) that they have been seriously considering adding verification chips to Makerbots.
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• Stratasys was rolling deep.  In addition to the person they had testifying, they had at least 4 lawyers sitting in the back.  Those lawyers seemed perfectly nice, but their presence pretty much put to bed any ideas I had that a 3D printer company would never bring a 1201 action against someone who decided to use an unapproved material. 

What happens now?  Assuming the Copyright Office doesn’t have any followup questions, once the hearings are done tomorrow they start deciding how to handle all 27 exemption proposals.  They come up with recommendations (at least in theory in consultation with NTIA - it was encouraging to see a representative from NTIA asking questions today) and give them to the Librarian of Congress.  He then considers the recommendations and decides how to handle each request.  When will that happen?  Who knows?  Maybe this fall?

Will this exemption be granted?  I have no idea. The Copyright Office felt less hostile to the idea than usual and asked good questions probing how the Stratasys concerns connected to copyright.  But they also seemed concerned that Sherwin and I didn’t have a detailed technical analysis of every possible DRM mechanism that could be used in a 3D printer.  So we’ll see.

Oh, and if you want to watch a video of the hearing you are out of luck. The Copyright Office doesn’t know how to record things on video. At some point they will release a transcript. Until then Professor Tushnet’s blog is the closest you are going to get (and it is pretty damn close).

Today the Department of Veterans Affairs (VA) is launching a challenge initiative to help improve prosthetics and assistive technologies.  As part of the Innovation Creation Series Challenge, the VA is pushing for rapid innovation around the development of personalized technologies to improve care and quality of life for Veterans.  Of course, when you hear personalization and innovation you know 3D printing can’t be far behind.

The goal of the initiative is to use 3D printing and distributed creation to contribute to an open ecosystem of prosthetics and other assistive technologies.  Think of an entire universe of e-nable type devices and prosthetics for people with disabilities and  you can begin to imagine why this is a big deal.

The VA has rolled out a list of specific challenges to kickstart the initiative:

• Develop novel upper and lower extremity devices at the end of the prothesis for daily use.
• Create a medication pill box that allows the flexibility to hold medications that need to be taken up to 8 times a day with a reminder system for each time medication needs to be taken.
• Create a device that can dampen tremor when a Veteran is performing fine motor tasks.
• Design a device to remotely change the speed and grip strength of a prosthetic device for our Veterans with upper extremity injuries.
• Create a way to reassign motions and buttons on the Nintendo Wii controller to allow for alternative methods of access to games for Veterans with physical disabilities.

The entire challenge is running on an accelerated timeline designed to turn ideas into reality as quickly as possible.  After launching today, collaborators and participants will work together to create, refine, and improve designs through May, June, and July.  The challenge ends with a two-day makeathon on July 28th and 29th at the Hunter Holmes VA Medical Center in Richmond, VA.

These types of challenges help showcase the best of 3D printing’s potential to make the world a better place.  If you want to get involved, make sure to head over to the challenge website.  And if you do get involved, tweet at me to let me know how it goes!

This post originally appeared on the shapeways blog.

May 1 marked (what is probably) the final written phase of the Copyright Office’s 1201 proceeding, a proceeding which includes the petition to allow users to “unlock” their 3D printer in order to print in materials not approved by the printer manufacture.  The original petition is available here, and the original comment in support from while I was at Public Knowledge is available here. After responses in opposition from the 3D printer company Stratasys and the trade group the Intellectual Property Owners Association, the final written round was an opportunity for supporters of the exemption to respond to the opposition. My response is here, and Public Knowledge’s response (written by Sherwin and Raza) is here.

PK’s response is better than mine, challenging some of the procedural and legal assertions made by opponents and highlighting why people advocating for the exemption should not have the burden of explaining every possible way someone might want to circumvent any possible technical protection measure.  This is important because such a requirement would essentially mean that only people with access to fairly sophisticated engineering resources could apply for an exemption.  PK argues (correctly, of course) that the proper reading of the requirement is that proponents of an exemption simply describe a category of works.  This significantly lowers the burden for average people who might want to apply for an exemption without having a dual law and engineering degree.

My response was more straightforward and focused mostly on Stratasys’ opposition (in my defense, the IPO’s opposition comments were brief and pretty much every point it made was also found in the Stratasys opposition).  The theme of my response is summed up fairly well in its introduction:

In defending the practice of leveraging copyright law to limit customer choice in 3D printer material, opponents argue that limiting customer choice helps support development of new 3D printing material.  Opponents argue that limiting consumer choice helps support servicing and maintaining printers. Opponents argue that limiting consumer choice helps keep printer prices down. Opponents argue that limiting consumer choice helps with print precision.  Opponents argue that limiting consumer choice helps to monitor the status of prints and of printing materials.  Opponents argue that limiting consumer choice helps avoid fire hazards and leads to an increase in positive health outcomes.

I find many of these claims suspect.  However, they do not matter. None of them have anything to do with copyright law. As such, for the purposes of this proceeding, I do not question any of these claims.

Stratasys spent over 30 pages of legal argument explaining how preventing consumer choice in 3D printing materials might make Stratasys’ machines work worse and undermine Stratasys’ ability to use profits from materials sales to support innovation in machines and materials.  3D printers and 3D printer materials are beyond the scope of copyright so, even if these claims are true, they are irrelevant to the Copyright Office proceeding. In fact, they pretty much highlight one of the problems created by this process in the first place: it gives manufacturers of goods that have little to nothing to do with copyright industries a pretext to try and control goods after sale.  Essentially they are trying to use the provision of the law as a way to undermine the fact that their customers actually own the printers the customers purchase.

Stratasys also commissioned a 15 page study about how preventing consumers from using other sources of 3D printing material actually helps consumers.  I didn’t spend very much time addressing that point.  Suffice to say that there isn’t anything special about 3D printing in regard to this sort of cost recovery, so if the report is true consumers really should be clamoring for the elimination of all sorts of third party vendors in all sorts of industries.

Now that the written comment rounds are over, we move onto the hearing phase later on this month.  If you are in LA or DC you can come and see them in person.

Finally, I’d like to say a huge thank you to everyone who weighed in both through the right to repair site and as individuals through the Copyright Office site.  This kind of mass public participation is critical to proving to the Copyright Office that this is more than some theoretical problem conjured up by some pesky advocates.