Additive manufacturing, more commonly called “three-dimensional printing” or simply “3D printing“, is a truly fascinating technology. Whilst the first experiments date back to the 1960s, with the first meaningful industrial applications following in the 1980s, only throughout the last couple of years has the technology really gained momentum. Meanwhile, the market is growing rapidly. The European Commission’s forecast for the EU sees a business worth about €10 billion by 2021. However, as is often the case with disruptive technologies, the lack of legal certainty, especially regarding intellectual property and civil liability, causes a problem. There is a risk that the market development could be impaired and hampered from reaching its full potential. Against this background, MEP Joëlle Bergeron has now taken the initiative of tackling the issue by introducing a proposal for a new regulatory framework.
In February 2017, Joëlle Bergeron suggested implementing a procedure on “three-dimensional printing, a challenge in the fields of intellectual property rights and civil liability” (2017/2007(INI)). Her report was first referred to and debated within the Parliament’s Committee on Legal Affairs (JURI), which then unanimously adopted the proposal on 20 June 2018 (see the details here). This was followed by a plenary vote on 3 July 2018. The parliamentarians adopted the initiative with an overwhelming majority: 631 votes out of 677 in favor, 27 against and 19 abstentions (see the video footage of the plenary session, from 5:32 onwards).
Notable is that the Treaty on the Functioning of the European Union (TFEU) does not provide the Parliament with a right to introduce legislative initiatives. This is the Commission’s monopoly. However, according to Article 225 TFEU, the Parliament, acting by a majority of its component Members, has the right to request the Commission to submit any appropriate proposal on matters on which it considers that a Union act is required for the purpose of implementing the Treaties. This is the process now being kicked-off by the plenary vote.
Joëlle Bergeron’s initial report stresses in particular the need for a regulation coping with the risks related to intellectual property and civil liability in the domain of 3D printing. Whilst civil liability is generally a domestic domain, some specific EU regulations address related issues, such as civil liability for defective products. However, it can be difficult to identify the person responsible for 3D printed objects. There are various players involved: the manufacturer of the 3D printer, the creator of the 3D file, the producer of the printer software, the supplier of the raw materials, or the person actually creating the object. The report thus calls on the Commission to clearly define the various responsibilities across the board.
On an intellectual property level, we need to consider particularly copyright, patent, design, and three-dimensional trademark aspects. Thus, the full range of IP is potentially affected by 3D printing. Accordingly, the Bergeron report states that not 3D objects protected by copyright, like a work of art, could be reproduced and files could be illegally downloaded. Further challenges include industrial-scale counterfeiting and a possible application of national exemptions for private copy. A call is made for the Commission to elaborate a comprehensive framework able to tackle those issues taking into account the projects currently underway, but without duplicating the existing rules currently applicable to 2D printing.
“It is also important to develop a legal offer for 3D printing so that people can print an object without breaking the law, while the original developer will still receive what they are entitled to.”
Joëlle Bergeron, rapporteur
The vote of the Parliament constitutes a true milestone in the progress towards 3D printing regulation and therefore the increase in legal certainty. However, it is now for the Commission to produce a thought-through and balanced approach. With the 2019 elections already on the horizon, the most imminent question is how far the Commission will get with this task. Given that there is still plenty on the current Commission’s plate as regards the implementation of the Digital Single Market, it might be that this initiative must be re-introduced during the next legislative term. However, it is important that the Commission picks up the Parliament’s momentum and that it starts working on prudent solutions for a regulatory framework for 3D printing. It is just about time to get this accomplished.