It is becoming increasingly common to see objects that have been manufactured using new processes thanks to innovative technologies. In this sense, we highlight three-dimensional printing. This type of printing is revolutionizing the industry in very diverse sectors, especially due to cost savings and in the manufacturing time of multiple products.
Through 3D printing, a user can manufacture their own products starting from digital plans (or based on the scanning of the product) provided by third parties or created by themselves.
Basic objects can be manufactured, such as pens and textiles, as well as more sophisticated objects, such as prosthetics, buildings or aircraft parts.
What legal problems does 3D printing pose?
Just as the Internet phenomenon brought with it an increase in violations of third-party rights through the illegal downloading of audiovisual content (known as “piracy”), three-dimensional printing may entail a potential violation of rights, especially intellectual and industrial property rights.
Along with this infringement of rights, we also find a problem regarding the control and authorization regime for the manufacturing of such objects. For example, the production of medicines or the manufacturing of illegal products (drugs, narcotics, weapons).
control
The problems arise from two different perspectives:
- From the perspective of the printed object
- From the source used to carry out the printing. That is, whether the object has been scanned or if it has been manufactured based on digital plans. In addition, it considers how the source was obtained (granted, created, or misappropriated).
Virtually all situations that may arise in the field of 3D printing have a response in current legislation. Below, we will detail some of the legal protections in place regarding printed objects.
Copyright or Intellectual Property
In traditional piracy, cultural and audiovisual content is shared. In 3D printing, piracy will be considered from the point of view of the files used to carry out the printing (digital plans or scans). These infringements of rights are regulated by the Intellectual Property Law (LPI).
When one person provides another access to a work, including the elements needed to create it, this may be considered an act of reproduction (Art. 18 LPI). This applies regardless of whether that person ultimately carries out the act of illicit exploitation. In addition, one must also consider distribution rights (Art. 19 LPI) and transformation rights (Art. 21 LPI).
Furthermore, Art. 138 LPI provides for civil actions against infringements of intellectual property rights. In this way, the rights holder may pursue the following actions:
- Cease the illicit activity
- Remove illicit objects from the market
- Compensate the rights holder for damages and losses
Article 270 of the Criminal Code also provides for the crime against Intellectual Property, reserved for cases in which there is profit motive on the part of the offender. Specifically, when the offender reproduces, distributes, publicly communicates, or transforms a literary, artistic, or scientific work for economic gain without the proper authorization of the holder.
Industrial Property Rights
The doctrine on Industrial Property Rights excludes the classification of the offense when the user’s scope of action or the purposes for which the object has been produced are strictly private and non-commercial. However, when there is a commercial purpose, the offense is classified according to the provisions of Article 274 of the Penal Code.
In the field of medicine
3D printing is increasingly widespread in the field of medicine. The production of artificial tissues compatible with the human body, medications, or prosthetics has driven the use of these technologies in the medical field.
Along with this rise, a number of uncertainties and risks have emerged, particularly regarding the damages caused and the associated liability. For this reason, both at the EU level and at the national level, strict regulations have been enacted, such as the Law on Guarantees and Rational Use of Medicines and Medical Devices. Penalties for illegally manufacturing or even altering medications carry criminal consequences, as established in Articles 361 and 362 of the Penal Code.
At the European level, regulations such as Directive 2001/83/EC and Regulation EC/726/2004, on medicines, and Directive 93/42/EEC with respect to medical products, may apply.
Threats to public health and safety
The ease of 3D printing has led to an increase in the possibility of manufacturing illegal objects or products. Among these illegal products, the most concerning at present are narcotics and firearms.
- Narcotics: The cultivation, production, or trafficking of drugs is punishable under Article 368 of the Penal Code. In the field of 3D printing, even the mere possession of digital blueprints is considered drug manufacturing. Furthermore, punishment also applies not only to those who manufacture drugs but also to those who facilitate their consumption.
- Firearms: Possession of weapons without the proper license or permit is classified as a criminal offense and is punishable by up to two years in prison under Article 564 of the Penal Code. The Penal Code penalizes both the possession of prohibited weapons and the possession of weapons resulting from the substantial modification of regulated firearms.
This means that, in order to manufacture weapons using 3D printing, the user must have the corresponding license.
Rights and responsibilities
Anyone marketing a product that has been manufactured using a 3D printer is subject to General Law for the Defense of Consumers and Users (LGDCU). This law assigns liability to the producer (manufacturer or importer) for the defective product.
At times, it is difficult to identify the responsible party, which is why Article 138.2 of the LGDCU establishes that, unless otherwise stated, the supplier shall be liable for any defective product. The issue of liability arises when determining who is responsible for the damage. The law provides for the possibility of joint and several liability among all parties involved in the production process.
In addition to the producer, there are other parties who could potentially be held liable:
- The user of the printer, for any damage the printed product may cause to third parties.
- The service provider of a company, that is, an intermediary as defined in the Law on Information Society Services (Article 13). This party must be aware of the illicit nature of the shared content, as they may be held responsible for any damage caused by said exchange.
In conclusion, 3D printing presents an additional challenge regarding copyright. Current legislation does not seem sufficient to protect either 3D files or individuals who use this technology for non-commercial purposes.
However, the specific characteristics of the process raise issues that courts will have to address, which will likely lead to an inevitable update of the applicable regulations.
