Who’s making what? The potential of do-it-your-self 3D printing technology

Have you ever wanted a rare Lego or Star Wars figure? Or a Royal Doulton and Lladró figurine? The ABC ‘Future Tense’ program recently featured 3D printing as the next disruptive technology; that will challenge IP owners control over the reproduction of 3D objects.

3D printers may not have the same instant and total disruptive impact on existing business models – such as experienced by the music and film industries with P2P technology.  However there are some niche products like Lego (of course a giant in its field of business) that should be wary of the potential for 3D printers have an impact where home users of 3D printers can ‘contour craft’ rare figurines.  Indeed the technology as wide applications such as creating any spare part for any product that can be made out of the materials used in 3D printers.

 

3D printers are not new technology, they have existed since the 1970’s as machines “that can turn a blue print into a physical object”.[1]   Rather than being a reductive technology, like a lathe cutting away at a block, a 3D printer builds the object up layer by layer.  3D printing was once titled “rapid prototyping”, with “additive manufacturing” now being used to describe what others call 3D printing.[2]  The 3D object emerges when layers of metallic powder or plastic, about tenth of a millimetre thick, are sprayed by a printing devices that then is melted with a laser or a resin is added to bind the powder.[3]

 

What has changed in recent years is that 3D printers have stopped being high priced equipment used for prototyping 3D objects, with prices ranging from $15,000 for a low-end model to $450,000 for a high-end 3D printer. Now those enthusiastic enough to want to build their own 3D printer can construct one from components costing from as little as $600 to $1,300.

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3D printing is now a low cost, do-it-your-self technology, with the plans and source code for programming a ‘RepRap’ or a ‘MakerBot’ 3D printer being available  under an open source licence,  with the 3D model file, the code needed to  program a 3D printer, being made available under Creative Commons licences at websites, such as at Thingiverse.

 

3D printing is becoming a disruptive technology as it has the potential to allow individuals and commercial enterprises to replicate 3D objects that may be subject to intellectual property rights that may exist in copyrighted CAD (Computer Assisted Design) plans or the intellectual property rights that exist in the 3D object that is a registered design or a copyrighted artistic work in a 3D object such as a sculpture or work of artistic craftsmanship.

 

In the near future, do-it-your-self 3D printing technology is likely to have low impact on existing business due to the technology not achieving the fidelity of replication that can be achieved with high-end 3D printers, however Bradshaw, Bowyer and Hauf comment that  “as its ease-of-use, fidelity and range of materials increases, so will its attractiveness and range of applications.”[4]

3D printing challenges the whole range of intellectual property rights with 3 objects potentially being a registered design or covered by copyright, patent protection or protected by trade marks.  With Creative Commons and open source licences for 3D printer plans and 3D model files needed to program the 3D printers there can be a new world of 3D objects being produced using this technology. It is when people are tempted to replicate Lego and Star Wars figures, spare parts and other 3D objects that are protected by intellectual property rights – then the disruptive nature of 3D printing technology will emerge.

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[1] Michael Weinberg, It Will Be Awesome If They Don’t Screw It Up: 3D Printing, Intellectual Property, and the Fight Over the Next Great Disruptive Technology, November 2010 Public Knowledge (Washington D.C.) http://www.publicknowledge.org/it-will-be-awesome-if-they-dont-screw-it-up

[2] “The 3-D Printer”, ABC ‘Future Tense’ program with Antony Funnell, broadcast 28 April 2011, at 8.30 am http://www.abc.net.au/rn/futuretense/stories/2011/3194762.htm

[3] “The 3-D Printer”, ABC ‘Future Tense’ program.

[4] Simon Bradshaw, Adrian Bowyer and Patrick Hauf, The Intellectual Property Implications of Low-Cost 3D Printing, 7:1 (2010) SCRIPTed http://www.law.ed.ac.uk/ahrc/script-ed/vol7-1/bradshaw.asp

MEN AT WORK bite on a vegemite sandwich Down Under

EMI Songs Australia v Larrikin Music Publishing [2011] FCAFC 47 (31 March 2011) ^[1]

This case proves that matters of consequence do happen on television game shows. When Adam Hills, compare of the ‘Spicks And Specks’ panel show on the Australia Broadcasting Corporation (ABC) Network, posed the question as to what children's song is contained in the song Down Under?' The panellists struggled to identify the answer from the musical clips, but with some promoting they found the answer - 'Kookaburra'.  It was lawyers at ten paces from there on. ^[2]

The principal question considered by the Full Federal Court is whether recordings of performances of an iconic Australian musical work “Down Under”, (written by Colin Hay and Ronald Strykert, and later made famous the band “Men At Work”), involved the reproduction in a material form of a substantial part of another iconic Australian musical work, “Kookaburra Sits in the Old Gum Tree” (Kookaburra), a musical ‘round’ that consists of only four bars, which was composed by Ms Marion Sinclair and published in 1934 in a Girl Guides publication as a “Round in 4 Parts”. ^[3]  

This was an appeal against the determination by Jacobson J. that the flute riff of Down Under reproduced two bars of Kookaburra; and was the reproduction of substantial part of the copyright subsisting in Kookaburra under the Copyright Act 1968 (Cth). ^[4] 

The appeal by EMI, the publisher of Down Under was dismissed. All members of the Full Court were on the opinion that Down Under infringed the copyright in Kookaburra, with each of the three judges provided separate reasoning for rejecting the appeal.^[5]  The appeal delved into the complex question of originality of a musical work the relationship of originality to the question of whether there is a substantial reproduction of a work.

This is a case of some interest to composers, publishers and fans of Men at Work and Down Under, the differing opinions range from whether it is is sampling (intentional or unintentional) of Kookaburra or merely taking the musical ideas to create a new work or, as noted by Emmett J, a quotation “by way of tribute to the iconicity of Kookaburra, and as one of a number of references made in Down Under to Australian icons.”^[6] 

Emmett J concurred in the decision to reject the appeal, although it was not without an expression of some disquiet at the outcome, with Emmett J commenting “one may wonder whether the framers of the Statute of Anne and its descendants would have regarded the taking of the melody of Kookaburra in the Impugned Recordings as infringement, rather than as a fair use that did not in any way detract from the benefit given to Ms Sinclair for her intellectual effort in producing Kookaburra.”^[7]

But there ain’t no thing as a fair use of a musical work. It may sound like an “Aussie cliché melody” or “Irish/Australian style melody” – but this time the Kookaburra came back for a bite.

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[1] http://www.austlii.edu.au/au/cases/cth/FCAFC/2011/47.html

[2] An aural comparison can be found at YouTube: COMPARE! Men At Work sued over DOWN UNDER Kookaburra Girl Guides.

[3] In a quantitive assessment it is important to understand that while Kookaburra has 4 bars (as reproduced as sheet music), however as performed “as a round would involve at least seven aurally unique bars ….. The two bars of manuscript, therefore, do not represent 50% of the musical work that Kookaburra comprises.” [74].

[4] Appeal in respect of Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited (2010) 263 ALR 155; [2010] FCA 29 (4 February 2010); Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2010] FCA 242 (17 March 2010).  The assessment of damages in Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited (No 2) [2010] FCA 698 (6 July 2010) was not the subject of this appeal. Larrikin claimed up to 50% of royalties generated by Down Under.  Justice Jacobson J found the 50% claim was “overreaching, excessive and in my view unrealistic” and awarded 5%. J Jacobson J said that when calculating the percentage payable using the test of a ‘hypothetical bargain’ to determine the appropriate licence fee he had to look at the weight of "the significance of the bars of Kookaburra to the overall musical qualities of Down Under" and concluded that “the percentage interest payable is at the lowest end of the spectrum”.

[5] [2011] FCAFC 47. Emmett J at [97-98]; Jagot J at [185-227]: Nicholas J at [254] agreed with the reasons of Jagot J. A further issue of question of authorisation of infringement in relation to other works was returned to the court at first instance to be considered further.

[6] Ibid. Emmett J [99].

[7] Ibid. [101].

Strike two on ISP liability for file sharing in Australia

Roadshow Films Pty Limited v iiNet Limited [2011] FCAFC 23 (24 February 2011)^[1]

This is the second strike against Australian Federation Against Copyright Theft (AFACT), which is organising the litigation on behalf of copyright owners in the film production and distribution industry.  The Federal Court decision in 2010 also rejected the claim iiNet had ‘authorised’ the copyright infringements of films by subscribers of the iiNet internet services, in Roadshow Films Pty Ltd v iiNet Limited (No. 3) (2010) 263 ALR 215; [2010] FCA 24 (4 February 2010).^[2]

The majority decision by the Full Federal Court in February 2011 dismissed the appeal by the copyright holders against iiNet.  The dissenting judgment of Jagot J. held that iiNet had ‘authorised’ the copyright infringements and that evidence from Mr Malone (iiNet's CEO) and another iiNet executive established that iiNet operated with a policy that it would not take any  action on complaints by AFACT.    The policy of iiNet being that it will only disconnect customers if an infringement of copyright is established in court proceedings against a customer; with other Australian ISPs appearing to adopting a similar policy.

AFACT have announced that it will seek the leave of the High Court of Australia.  Leave to appeal is likely to be given because of the important legal and policy implications of the dispute. Although it will take until late 2011 or early 2012 for the appeal to proceed to hearing.

The decision of the High Court will resolve what is the liability of ISPs for the music and film file sharing by their customers under the Copyright Act 1968 (Cth).  In any event after the decision of the High Court is handed down there is likely to be lobbying of the Federal Parliament to put in place a statutory regime to address the responsibilities of IPS in respect to illegal file sharing by their customers.  

There are existing models of ‘takedown notices’ and ‘three strikes and your are out’ that are in place in other jurisdictions. What is yet to be placed on the negotiating table in Australia is the model being discussed in the United Kingdom in the public consultation as to ‘Online Infringement of Copyright (Initial Obligations) Cost Sharing’, which proposes that the costs of ISPs and the government regulator as regulator are to be split 75:25 between copyright owners and ISPs on the basis of the costs of an ISP which is an “efficient operator” as verified by the online regulator.^[3] 

The arguments as to the impact of the Internet on copyright holders’ revenue is a lively debate; the arguments will intensify when the issue is who should carry the costs of protecting the property rights in the films and music files that are being traded on the Internet.

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[1] http://www.austlii.edu.au/au/cases/cth/FCAFC/2011/23.html

[2] http://www.austlii.edu.au/au/cases/cth/FCA/2010/24.html

[3] Department for Business Innovation & Skills (U.K.) http://webarchive.nationalarchives.gov.uk/20100512142933/http://www.bis.gov.uk/Consultations/online-infringement-of-copyright?cat=open