Intellectual Property Rights and
Emerging Technology
3D printing poses many challenges to the traditional law of intellectual property
(IP). This book develops a technical method to help overcome some of these
legal challenges and difficulties. This is a collection of materials from empirical
interviews, workshops and publications that have been carried out in one of
the world’s leading research projects into the legal impact of 3D printing. The
project was designed to establish what legal challenges 3D printing companies
thought they faced and, having done that, to establish a technical framework for
a solution.
Hing Kai Chan is a Professor of Operations Management at the University of
Nottingham Ningbo China.
Hui Leng Choo is a Senior Lecturer, School of Engineering, Taylor’s University,
Malaysia.
Onyeka Osuji is a Reader in Law at the University of Essex.
James Griffin is a Senior Lecturer in Law at the University of Exeter.
Intellectual Property Rights
and Emerging Technology
3D Printing in China
Hing Kai Chan, Hui Leng Choo,
Onyeka K. Osuji and James Griffin
First published 2019
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© 2019 Hing Kai Chan, Hui Leng Choo, Onyeka K. Osuji and James
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Names: Chan, Hing Kai, author.
Title: Intellectual property rights and emerging technology: 3D printing
in China / By Hing Kai Chan, Hui Leng Choo, Onyeka K. Osuji and
James Griffin.
Description: New York, NY: Routledge, 2018. | Includes bibliographical
references and index.
Identifiers: LCCN 2018018801 | ISBN 9780815375371 (hbk)
Subjects: LCSH: Intellectual property—China. | Three-dimensional
printing—Law and legislation—China.
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Contents
Notes on contributors
Foreword
Introduction
ix
xi
1
Part 1
1
A proposal for a bridge of licensing over a sea of IP
uncertainty: Digital watermarking of 3D printed
content in China
7
Ja m es Gr i ffi n
2
Biotech 3DP digital watermarking: An ‘uncanny
valley’ in the Prosthetic State
28
Ja m es Gr i ffi n
Part 2
3
The interviews
51
4
The Ningbo Workshop, August 2016
96
5
Opening transcripts of the Shanghai workshop,
December 2016
100
6
The materials panel of the Shanghai workshop,
December 2016
112
7
Additive materials stream – Shanghai conference,
December 2016
122
viii
Contents
Part 3
8
A call for a doctrine of ‘information justice’
141
Ja m es Gr i ffi n
9
We become what we think: Machine laws
in machine minds
167
Ja m es Gr i ffi n
Appendix Part I: Current strategy for copyright
protection of 3D printing content
Appendix Part II
Bibliography
Index
183
186
188
195
Notes on contributors
Hing Kai Chan is Professor of Operations Management at the Nottingham
University Business School China, University of Nottingham Ningbo China.
His current research interests are sustainable operations and supply chains,
modelling and simulation, applications of soft computing techniques on
intelligent (industrial) systems and technology adoption. He has published
over 100 international journal papers, and his publications appear in many
top-tier international journals, including Production and Operations Management, ­European Journal of Operational Research, various IEEE Transactions,
­Decision Support Systems, International Journal of Production Economics and
International Journal of Production Research, among others. He is the co-­
editor of Industrial Management & Data Systems and was an Associate ­Editor
of the IEEE Transactions on Industrial Informatics. He also (co-)edited many
special issues for reputable international journals. He is a Fellow of the Institution of Engineering and Technology (FIET) and of the Higher Education
Academy (FHEA). He is also a Chartered Engineer and a Chartered Marketer.
Hui Leng Choo is currently a Senior Lecturer in the School of Engineering,
Taylor’s University, Malaysia. From 2011 to 2017, he was Assistant Professor in Mechanical Engineering in the Department of Mechanical, Materials
and Manufacturing Engineering at The University of Nottingham Ningbo
China. He obtained his MSc in Polymer Engineering and PhD in Mechanical
Engineering from Queen’s University Belfast, United Kingdom. His current
research work focusses on additive manufacturing, design and simulation,
polymer processing and polymer composite materials. Dr Choo was an investigator for the project “A Technological Licensing Framework for 3D Printed
Content: A Focus on China” funded by the Arts and Humanities Research
Council (‘AHRC’) Centre for Digital Copyright and IP Research in China.
Onyeka K. Osuji (PhD, BCL, LLB, BL, FHEA) is a Reader in Law and
­Coordinator of the Commercial Law Research Cluster at the School of
Law, ­University of Essex. Dr Osuji obtained a PhD from the University of
­Manchester and a BCL from the University of Oxford. He has an LLB from
the ­University of Nigeria and a barrister-at-law diploma from the Nigerian
Law School. Dr Osuji previously practised in corporate and commercial law
x Notes on contributors
before becoming an academic. He is qualified as a barrister and solicitor of
Nigeria and as a (non-practising) solicitor of England and Wales, and has
advised individuals, corporations and national and international governmental and non-governmental organisations. He has presented papers at several
international conferences and has published extensively in books and reputable international journals in the areas of corporate governance, corporate
social responsibility, globalisation, regulation, consumer protection, social
and non-financial reporting, and multinational enterprises. Dr Osuji’s current
teaching responsibilities include consumer contract law, commercial contract
law and international commercial and business law. He is a Fellow of the
Higher Education Academy.
James Griffin is a Senior Lecturer at the University of Exeter. His main area
of research relates to the impact of IP laws upon digital technology. Current
research interests include copyright and rationality, copyright and technology, memes and copyright, communicative theory and copyright, art and
the law, and interdisciplinary research into creativity. Dr Griffin was the lead
principal investigator (‘PI’) in the AHRC-Newton Fund-Ningbo Science and
Technology Bureau (‘NSTB’) project which forms the basis of this edited
collection. The work was carried out with the support of the British and Irish
Law ­Education and Technology Association (BILETA) (www.bileta.ac.uk).
Dr Griffin was also funded by the Engineering and Physical Sciences R
­ esearch
Council (‘EPSRC’)/Economic and Social Research Council (‘ESRC’) with
colleagues from Sussex, Swansea and Loughborough to look into 3D printing and RDM, and that project forms the basis of the second chapter. He has
previously carried out funded research into copyright reform for BILETA
and into the role of the Digital Copyright Exchange for the Society for Legal
Scholars (‘SLS’). He has provided advice to Guangzhou IP Office and in
the United Kingdom has acted as an advisor regarding protection of digital
systems in electronic warfare. He has also written a Home Office report. He
is currently the treasurer of BILETA and is a member of the SLS Council.
He also acts as the book editor for European Journal of Law and Technology
(‘EJLT’) (www.ejlt.org). He welcomes discussion with any potential PhD students on the topics of this edited collection and anyone interested in working
with him in this or related fields in future.
Foreword
The creation of the AHRC Centre for Digital Copyright and IP Research in
China (hereafter ‘the AHRC China Centre’) in 2015 represented a pioneering
overseas venture by Research Councils UK (‘RCUK’). Establishing the AHRC’s
first research centre in mainland China was the vision of then University of Nottingham professor Julie Sanders and the AHRC’s then chief executive, Professor
Rick Rylance. The University of Nottingham Ningbo China set up the centre with support from the AHRC, Newton Fund and the Ningbo Science and
­Technology Bureau, and continues to support research on the challenges posed
and opportunities created by the use of IP law generally and digital copyright
regulations specifically in the United Kingdom and China. The AHRC China
Centre surveyed these impacts within a wide range of educational, business and
governmental contexts. To this end, six Chinese-UK educational/industrial
consortia were funded by the AHRC/Newton to carry out research on projects
relating to business models and fair use in the Chinese creative industries, development of a copyright exchange, Internet intermediaries and, what the book
in your hand informs you about, a licensing framework for 3D printed content
in China. Four additional projects, on the microfilm market in China, digital
cultural heritage, the use of IP in the financial sector and digital businesses in
Ningbo, were funded by the Ningbo Science and Technology Bureau.1
The popular press is only slightly more sceptical than much of academia of the
notion that the protection of IP is an integral component of China’s present economic development. It has been argued that until a nation reaches a certain level
of development, the strict protection of IP is inimical rather than beneficial to its
economy (Dong, Zhu & Hu, 2015; Hsu & Tiao, 2015; Schneider, 2005). The celebration of Shanzhai models of productions, where innovation in manufacturing and
design is parasitic on copying and remodification, could thus be viewed as an implicit embracing of the view that China is one of those countries whose economy has
not yet reached the point where strict adherence to international copyright regimes
becomes a necessary corollary of economic growth (Hartley, Wen & Li 2015).
Whatever the intellectual debates around this issue, it is important to note
that the Chinese government acts as though the protection of IP is crucial to
the economic development of the state. This is best exemplified by the opening
1 Details of these projects and other activities of the AHRC China Centre can be read here:
https://www.nottingham.edu.cn/en/ahrc/index.aspx
xii
Foreword
of dedicated IP courts in Guangzhou, Beijing and Shanghai in 2014–2015. In
many respects this was just the latest signpost of a steadily encroaching regime of
IP protection rather than a new departure (Pang 2012). In this sense, Shanzhai
forms of production are not indicative of long-term trends in Chinese manufacturing, where a shift is evident from an economy predominantly dependent on
low-cost manufacturing to one in which high-tech industries are increasing in
importance. The increasing footprint of tech giants like the Baidu, Alibaba and
Tencent (BAT) companies has resulted in more proactive measures to protect
their IP as witnessed by the shutting down of peer-to-peer (‘P2P’) online video
service Kuaibo (QVOD) in 2014 after numerous complaints by Tencent, Sohu
and LeTV about the breach of their copyright (Gu 2018: 62–63). As in manufacturing, though, this so-called crackdown has been long in gestation, with the
first significant move to clean up the Chinese online video industry coming in
2008 (Zhao & Keane 2013).
It is within this broader context that we must think about many of the themes
within this insightful book. Edward Tse’s China’s Disruptors opened my eyes to
the economic importance of developments in 3D printing and the rapid progress
China has made in this industry over the past few years such that its estimated
$1.65 billion market in mainland China in 2016 represented a tenfold increase
since 2012. This has put China well on the way to becoming the world’s biggest user of 3D printing, where its use in earthquake reconstruction and airline
technology development has provided tangible social and economic benefits (Tse
2016: 110–111).
The content of this book would not exist without the great work of Dr James
Griffin and Hing Kai Chan in leading a team of academics and industry partners
to establish a licensing framework for 3D printing that will benefit not only
China but also overseas manufacturers who want to enter the Chinese market.
As I sit writing in Ningbo, the pilot city of the Made in China 2025 national
strategy for the development of innovative and home-grown manufacturing,
I can think of no better way of understanding the continuing and future importance of IP protection and exploitation to Chinese manufacturing industries
than reading this book.
Professor Andrew White
Director of the AHRC Centre for
Digital Copyright and IP Research in China
March 2018
References
X. Dong, H Zhu & C Hu, “Protection of Intellectual Property Rights and Industrial
Agglomeration: Evidence from the Creative Industries in China,” 48(1) The Chinese
Economy 22–40 (2015).
J. Gu, “From Divergence to Convergence: Institutionalization of Copyright and the
Decline of Online Video Piracy in China,” 80(1) The International Communication
Gazette 60–86 (2018).
Foreword
xiii
J. Hartley, W. Wen, & H. Li, Creative Economy and Culture: Challenges, Changes and
Futures for the Creative Industries. Los Angeles: Sage (2015).
J. Hsu & Y Tiao, “Patent Rights Protection and Foreign Direct Investment in Asian
Countries,” 44 Economic Modelling 1–6 (2015).
L. Pang, Creativity and its Discontents: China’s Creative Industries and Intellectual
Property Rights Offenses. Durham: Duke University Press (2012).
P. Schneider, “International Trade, Economic Growth and Intellectual Property Rights:
A Panel Data Study of Developed and Developing Countries,” 78(2) Journal of Development Economics 529–547 (2005).
E. Tse, China’s Disruptors: How Alibaba, Xiaomi, Tencent and Other Companies are
Changing the Rules of Business. London: Portfolio/Penguin (2016).
E. Zhao & M Keane, “Between Formal and Informal: the Shakeout in China’s Online
Video Industry,” 35(6) Media, Culture & Society 724–741 (2013).
Introduction
It is with great pleasure that I am able to write the introduction for this edited
collection of articles, interviews and conference transcripts for the funded project
‘3D Printing and Automated licensing in China.’ The project was funded by the
Arts and Humanities Research Council (‘AHRC’), Newton Fund and Ningbo
­ opyright
Science and Technology Bureau (‘NTSB’), through the Digital C
­Centre that is based in the University of Nottingham Ningbo, China.1 We are
extremely grateful to the University of Nottingham in supporting our research.
The road to this project has been one that has been extremely difficult and challenging, largely as many UK Universities are not yet fully engaged in research
with China. I hope that this project will demonstrate to UK Universities that
research in China is to be welcomed and not discouraged.
These difficulties aside, the project has enjoyed tremendous support from academic colleagues. Co-investigators in the project have been instrumental in its
success. Professor Hing Kai Chan from the University of Nottingham Ningbo
has been absolutely key in the running of the project on the Chinese side, as has
Dr Huileng Choo. Without their unwavering assistance, this project would not
have been possible. UK colleagues have also been strong in their support of the
project and were involved in the carrying out of interviews; notably, Dr Onyeka
Osuji, of the University of Essex, Dr Phoebe Li of the University of Sussex and,
last but most certainly not least, Dr Annika Jones of the University of Durham.
We also had the support of other colleagues, notably Professor Juqian Li of the
University of Politics and Law in Beijing, and Dr Edwin Mok of SLM Manufacturing in Singapore.
The project is also indebted to the work of Jerry Niu, University of Nottingham Ningbo, for his placement at JK Brothers, a 3D printing (‘3DP’) company.
We also are completely indebted to the work of our student assistants Jia Jia Lim
and Stella Zeng, who worked tirelessly in the organisation of interviews, workshops and conferences. We must also thank Katharine Zhou for the organisation
of the December 2016 conference in Shanghai and the session run in Shenzhen
in April 2017.
1 AHRC Centre for Digital Copyright and IP Research in China. https://www.nottingham.edu.
cn/en/ahrc/index.aspx
2
Introduction
We must also thank the following for their work in translation and assistance
in the workshops: Yue Zhang, Xinhang Li, Junwei Zhao, Zhimei Zhang, Nuo
Chen, Yueying Zheng, Jianan Mao, Tianshi Sun and Xiuqi Yang. We are also indebted to the assistance of Assunta Petrone for her invaluable editing and proof
reading of the manuscript, and the help of other Routledge staff, in particular
the law editorial assistant Nicola Sharpe.
Finally, we must thank Professor Julie Sanders, now of the University of
­Newcastle, for her initial support when based in Nottingham and Professor
­A ndrew White, Director of the AHRC Centre for Digital Copyright and IP
Research in China, and Professor Maiken Umbach, University of Nottingham,
for their support before, during and after the project.
Chapter overview
This book is split into three main sections. The first comprises of two chapters looking at the state of 3D printing, and these are the overall outcomes of
the research project. The first chapter argues that a technical licensing framework, based around digital watermarking, could address many of the intellectual
property (IP) law issues that are currently limiting investment into 3D printing
within China (and beyond). The research has revealed that legal regulation of
3D printing currently suffers from significant shortcomings and that there is a
general lack of knowledge about how those IP rights operate. There is also a
lack of knowledge in relation to how to initiate infringement proceedings. 3DP
companies have consequently tended to be IP averse. As a result, firms have been
turning towards the thought of developing licensing systems to enable them
to be able to exploit 3DP IPs with less risk of confusion, through the utilisation of licences backed up with technical systems. The empirical research funded
the development of such a system based around digital watermarking. Such systems act as a bridge over the troubled waters of IP protection. Whilst there are
dangers associated with such a technical system, in particular the possibility of
misunderstanding the scope of IP rights in relation to licensing, this licensing
approach has much to commend it, including fast transactions, an ability to instantly identify original authors and the possibility of tracking content in ways
that might alleviate the need for online payments in certain circumstances whilst
still providing financial reward to the original creator(s). We suggest that such a
system should be supported through Government initiative.
The second chapter stems from a project that Dr Phoebe Li (as PI) and
Dr Griffin (co-PI) were also involved in at the time of the AHRC project – a
project looking at bioprinting. This project was funded by the Engineering and
Physical Sciences Research Council (‘EPSRC’).2 The argument of the chapter
2 Prof. Alex Faulkner (Centre for Global Health Policy, Sussex University), Dr Phoebe Li (PI) (Sussex,
Law), Dr James Griffin (Exeter University, Law), Prof. Nick Medcalf (­ Loughborough University,
EPSRC Centre for Innovative Manufacturing in Regenerative Medicine). “Mass customisation
governance: regulation, liability, and intellectual property of re-distributed manufacturing in
Introduction
3
is that digital watermarking, a means by which to insert identifying marks, may
allow the State to control the human biotech body. This is currently subject to
the ‘uncanny valley.’ The ‘uncanny valley’ is the notion that a robot or other
computer-generated work looks nearly identical to a human being, enough to
cause a feeling of revulsion in a human being viewing it. This chapter argues that
regarding 3DP biotech works, works that bear a resemblance to the human body
which fall within the ‘uncanny valley’ may also fail to gain copyright protection.
It is further argued that due to this, these 3DP biotech works will not gain the
additional legal protection for digital watermarks, because this protection often
requires a copyright work. Whilst digital watermarks pose new dangers in terms
of the boundary between State and individual, potentially leading to a Prosthetic
State, it is also argued that these marks guarantee the continued lifetime quality
of a 3DP biotech print, surveillance and traceability. The chapter therefore argues a two-pronged set of reforms: first, to ensure copyright protection for those
works which fall within the ‘uncanny valley’ and second, to provide sui generis
protection for digital watermarks, but with clear demarcations between the State
and the individual.3
The next section of the book, starting with Chapter 3, contains anonymised,
selected synopsis of empirical interviews that were carried out as part of the
AHRC project discussed in Chapter 1. These were semi-structured interviews.
They were designed so as to cover the core elements of the project: namely the
use of IP in 3DP and how the companies licensed that IP. Most interviews lasted
for one hour. The interviews here are from companies that had something to
state about IP. In total, we carried out 30 interviews – some of these had little
to add to the discussion about IP. Those are not included here, but we have
retained any errors or misunderstandings about IP law in order to educate the
reader as to the views of the 3DP companies.
Chapter 4 contains a transcript of the workshop organised at Ningbo Sofitel
Hotel Conference Hall. The workshop gathered approximately thirty professionals from academia and industry, as well as Ningbo Patent Bureau representatives
and IP lawyers, to address the opportunities and challenges in disseminating 3D
printed content. Chapter 5 contains a transcript of the December 2016 Shanghai
conference. The Shanghai conference was an opportunity for the 3DP AHRC
team to be able to present and discuss their findings. There was attendance of
100 members of 3DP companies, alongside project staff. Chapters 5–7 include
the discussion from the parallel streams of that conference, which focus on materials and biotech printing.
The next section of the book deals with the future of 3DP. These are more
speculative pieces looking at the future relationship of law with technology – we
3D bioprinting” – £57,782 – The final report is here – https://capturingthevalue.­wordpress.
com/2017/03/17/new-report-mass-customisation-governance/
3 With thanks to P Li (Sussex), A Faulkner (Sussex) and N Medcalf (Loughborough), who wrote
an earlier unpublished paper with the current author. This chapter takes ideas from the EPSRC
research project, and paper, and builds upon that earlier work.
4
Introduction
should be wary of placing 3DP in a vacuum. For this reason, Chapter 8 argues
that there should be a requirement to apply a doctrine of ‘information justice.’
The nature of information is changing, with information becoming quantum in
its form. There is a need to move away from a focus on property to a focus upon
the nature of information – not just as a physical manifestation but also as a flow
of information. This change poses regulatory challenges. It is argued that to regulate information as a flow will ultimately lead to regulation that closely follows
the use of that information. This will lead to regulation taking on the flow-like
character of the information that it regulates. This will result in inevitable inequalities due to technological convergence. To counter this, it is suggested that a
principle of ‘information justice’ is required. This chapter is a reprint of an article
that was printed in a 2016 edition of Intellectual Property Quarterly and was the
inspiration for the AHRC research project.
Chapter 9 argues that machinic technologies such as digital watermarking
pose a challenge to the traditional relationship of the State and the individual.
This is because such technologies provide a means for State law to directly and
precisely influence the acts, and thoughts, of the individual. Foucault referred to
homo economicus, but today we have the rise of the machinic homo-legalis. This
being is a complex synthesis of coded machinic technologies and humanity; a human who is coded through the utilisation of digital and biotech constructions.
Such a being can be coded with law, directly or indirectly, thus posing a distinctive biological characteristic. In this way, the State can become at one with the
individual, not just treating the governance of the individual as a technology
but being able to directly interface with the individual. The analogue barrier
between individual and State will be destroyed, posing a direct challenge to the
rationality of the State. Given current trends towards technological convergence
and types of decentralisation, we could be observing the start of the decentralised machinic State into the individual. Not just a State with central bodies and
organs but a State which is based within human components and runs through
those components. This is why the basis of regulation of digital watermarking
today is so important, for it is a first step towards a digitised machinic law based
within the individual.
James Griffin,
University of Exeter, 2018.
Part 1
1
A proposal for a bridge of
licensing over a sea of IP
uncertainty
Digital watermarking of
3D printed content in China*
James Griffin
Introduction
In 2015 and 2016 empirical interviews were carried out with 30 3D printing companies in China,1 specifically in areas where the 3D printing (‘3DP’) industry is
largely located: Shenzhen, Guangdong, Ningbo, Shanghai and Beijing. China was
selected as the most appropriate country due to the strong support of 3D printing
by the Chinese Government under their strategy ‘Made in China 2025.’2 China
is currently the largest producer of mass manufactured products,3 and 3D printing poses a challenge to this mass production system. To this end, the Chinese
Government has been very keen to encourage investment in 3D printing so that it
maintains its competitive advantage. Nonetheless it has been clear that 3D printing in China has been struggling to take off in terms of innovative approaches to
3DP.4 To this end, we conducted empirical research to assess why this has been
so,5 considering that there is such significant support from the Government, as
well as (what are now) reasonably strong Intellectual Property (‘IP’) protections
for the producers of 3D printing machinery and 3D printing content.
In summary, our research revealed that there has been a difficulty in the 3D
companies’ becoming involved with the broader IP dialogue and that this has
resulted in reduced financial investment into 3D printing. There is uncertainty
* With thanks to Professor Andrea Lista for comments and discussion. A note on the references to
quotes from our empirical interviews – our funding was dependent upon participant anonymity.
In order to provide this, interviewees are assigned numbers. Furthermore, these do not coincide
with the transcript identifiers in the next part of this book. During the editing of this collection,
it became evident this division was necessary in order to maintain anonymity.
1 http://socialsciences.exeter.ac.uk/law/research/projects/project/?id=548.
2 For details (translated) see http://www.cbbc.org/mic2025/ (last accessed 24th May 2017).
3 See inter alia ‘Still Made in China,’ The Economist (2015). http://www.economist.com/news/
special-report/21663332-chinese-manufacturing-remains-second-none-still-made-china; Y Long,
J Pan, Q Zhang, Yingjei H, “3D Printing Technology and Its Impact on Chinese Manufacturing,”
55 International Journal of Production Research 1488 (2016).
4 See inter alia https://3dprint.com/104818/china-3d-printing-innovations/
5 Supra n.1.
8 Digital watermarking of 3D printed content
about the scope of the law, uncertainty about how to engage with the law and
uncertainty as to how to enforce IP rights. There is also general worry that the
IP system is distanced from the day-to-day technical operation of the 3D printing companies and their consumers. Having revealed these issues within the
IP system, our research turned to question whether there is a way these printing companies and consumers could become more easily engaged in dialogue
though IP law. Our solution has been to develop a system based around technical licensing, formed around a standards blueprint that was provided by the UK
copyright hub.6 The standards therein have been utilised to interface with digital
watermarking technologies. That will enable companies to gain confidence in
being able to openly engage in the licensing of their products, to be able to
participate in dialogue with lawyers through standard terms, and to provide a
means to find out if copyright and/or licensing infringements are occurring. It
also opens the possibility of new revenue streams to trace the use of products, if
this is permitted by end users.
There are some shortcomings of the proposed system. First, it has the possibility of being broken and hacked, although such systems are becoming considerably more robust. Second, it poses challenges in relation to the privacy of
individual users. Third, the system could be used to extend, in effect, IP style
provisions that have greater reach than traditional IP law, undermining the traditional balances of the existing law without sufficient dialogue. However, we
propose that this system could overcome most of these difficulties with appropriate design. There are also other broader issues that the proposed technical
licensing scheme raises. First, while utilising the empirical research, this chapter
will examine the importance of discourse within IP law generally to be able to
engage creators and consumers of content. Without such discourse, it is suggested that a legal system has little rationality and is therefore prone to collapse.
Second, the proposed scheme for licensing will be outlined, and the rationale for
it, from the viewpoint of those in the 3D printing industry as evidenced by our
empirical research. Third, there will be discussion of the issue of technological
convergence and the importance of that in light of the proposed technical licensing system. Subsequently there will be analysis of the impact of such a system
upon the levels of legal discourse. There will then be some discussion of how
such a system could be given Government support. Due to the unique nature of
the proposed system, the basics of operation will be outlined in technological
terms, followed by discussion of the interface of that technology with the law.
1. The notion of dialogue
Our research in the field of 3D printing in China has revealed that there has been
a degree of breakdown in discourse between those producing 3DP technologies,
those using the technologies to print works for others and the end users. This
is a breakdown in the discourse of legal regulation. There have been several
6 ‘The Copyright Hub: Blueprint for Development 1.0’ May 2014. Copy on file with the author.
Digital watermarking of 3D printed content
9
reasons for this. Perhaps the most important concern revolves around a lack of
legal understanding.7
There was commonly conflation between the notions of patents, copyright
and designs throughout the interviews. In addition to the general lack of legal
knowledge, there was also a time issue. Patents can take a while to obtain and
take time to draft. This means that the protection offered is often lagging behind the period of commercial exploitation, particularly in a complex technical
field such as 3D printing.8 Whilst our interviewees made limited reference to the
fact, it is the case in China that Government funding of 3DP small and medium
sized enterprises (‘SME’) are reliant on obtaining patents.9 Nonetheless, there
are still practical issues in obtaining such patents. The companies that we spoke
to were (naturally) still keen to obtain patents, but they did not refer to any of
the other perceived benefits that would result from IP protection. For instance,
reference has been made to the patent system as providing incentive for individuals within a company.10 Now, based on the limited amount of information available, it could be easy to extrapolate facts that would be misleading. Doubtless
there are companies in China which have likewise built up portfolios of patents
for the same reason. However, we did not encounter them within our research.
Certainly, there are specific concerns in China regarding patents, and these relate
in part to Government involvement and the accessibility of patent protection.
Contextualisation of this comment explains why. A failure to provide the means
of discourse with an IP system has been seen more broadly within China before,
in particular in relation to recent history where China was widely regarded as the
home of piracy.11 Within China, this situation has changed substantially in recent years, with widespread reports indicating that IP disputes between domestic companies were responsible for a substantial increase in the number of cases
heard within the national court system.12 However, it would appear that with
3D printing something is holding back companies from utilising the system. As
indicated by the interviews, that appears to be a combination of confusion and
delay in obtaining IP registration.
7 “But I am a little bit confused about the copyright and software copyright” Interview 1.
8 “Most of the software are developed by ourselves, and we do not apply for IP, there is no need for us to
apply, as it takes too long time. The software might be already out of date after we get the certificate of
IP” Interview 29; “Because in China if you want to apply for IP, you have to go through the agents,
because the document is very hard to complete. So I go through the agent” Interview 9; “It takes half
year to get the IP. Different documents need to be submitted, so it is complicated” Interview 9.
9 See inter alia http://www.3ders.org/articles/20151118-china-to-invest-300-million-in-3dprinting-rd.html
10 “We invested early in turning our novel ideas into patents. It was a learning experience and
it took a long time to understand the patent system. It’s actually a pretty cool thing for an innovator to see his or her name on a patent and at MakerBot. We credit the individuals who
come up with inventions within the company.” See http://makezine.com/2013/12/03/
stratasys-lawsuit-patents-and-more-an-interview-with-makerbots-bre-pettis/
11 http://www.economist.com/news/international/21697218-china-grew-richer-and-more-­
innovative-people-assumed-it-would-counterfeit-less-think
12 http://www.managingip.com/Article/3538234/Chinas-IP-Courts-one-year-on.html
10
Digital watermarking of 3D printed content
The response of companies has been to utilise the market as the key way in
which to protect their works. A common response to our question about the best
means of protecting works was to utilise the market in order to stay in advance of
competitors.13 This is endemic of a country where the legal system is not acting
effectively; it denies the opportunity to companies who wish to remain competitive in such a situation to also be able to exploit IP quickly and efficiently for the
purposes of investment. It is understandable that companies in China would be
reticent to utilise IP to protect their works, where it has been the case historically
that IP protection has been extremely weak. For instance, even if the patent system were quick and efficient, the release of information about how to work the
patent might merely result in the transfer of information to competitors without
any discernible benefit. However, as noted earlier, recently there has been a tendency to enforce IP more, and there are also the incentives given by the Chinese
Government to obtain registration for IP, such as patents. Nonetheless, it would
appear that many companies are more keen to obtain a competitive position than
to rely upon the IP system.
The scheme that we propose is one that can actually assist companies in their
competitive position because it enables the right holders to be able to interact
with other companies and consumers in new ways, and it opens up new revenue streams for those companies. In essence, the system that we propose is one
that enables new forms of dialogue with users, companies and stakeholders in
general. We are providing a new architectural means for the dialogue to take
place, a dialogue of interrelated levels, of complex striations, which cuts across
law and technology. Too often the legal dialogue sits beside, astride or atop
other dialogue rather than being embedded within it. For instance, this has
been true of digital technologies: these enable easier and widespread copying,
whereas the law does not – hence the divergence between legal rules and practice. This is an inherent implication in the works of Habermas14 and Foucault,15
where even though they talk about interrelated concepts – for instance power
and colonisation16 – they still rely upon a difference, if applied in a legal context, between the individual, the State and the broader technological apparatus.
What we are proposing brings together the stakeholders in one place to provide
13 “[O]ur competitive edge is that we are the first co-operative partner of [xxxx], they license us to sell
the product. No one has the ability to copy the technology of [xxxx], so there is no point for IP.” Interview 12. “Actually we cannot avoid the copy of other manufacturers. And it’s not easy to copy our
printers. We do a lot of improvements. I will show you our printer later. And you will understand.
And software is another advantage. In a word, we don’t do something to protect our printer. We
grow fast and we mainly focus on R&D, which may protect us. When there is copy, we’ve already own
new products.” Interview 21.
14 J Habermas, Theory of Communicative Action Vols 1 & 2, Polity Press, Cambridge (1984 and
1987).
15 M Foucault, (Ed. Senellart, trans. Burchell), The Birth of Biopolitics, Lectures at the Collège de
France 1978–9 (2004/2008).
16 J Habermas, above, Vol 2, Part VI and Part VIII especially; Foucault in the works above
generally.
Digital watermarking of 3D printed content
11
a dialogue of technology, a dialogue that combines the potential for legal technology, 3DP technology and technical enforcement. It thus provides a means of
IP engagement and reward, whilst still providing a platform by which a firm can
potentially gain a competitive advantage. It could be suggested that the current
Chinese IP legal system has issues with regard to enforcement of IP, and our
interviews suggest that engaging with the system does not provide immediate
commercial advantage. The architecture of the proposed reforms can resolve
those separations and encourage active involvement between companies and individuals utilising licensing through a technical means.
2. What dialogues were sought by 3DP companies?
Regarding the development of the technology to provide the dialogue between
the technologies of law, code and stakeholders, we interviewed 3D printing companies to establish how they utilise IP law. As noted in the previous section, 3D
printing companies were involved daily with utilisation of IP, even if they did
not engage with the dialogues of registration and IP enforcement. The companies’ interaction with IP revolved around the licensing of content, and typically
that was licensing of copyright content. There were three key areas. The first
area was around the 3D printers themselves since companies that are involved
with 3D printing of objects normally will be licensing their printers from other
companies. 3D printers may be leased by (often international) companies to the
Chinese 3DP companies for extended periods. Licensing also concerns the patenting of improvements to the technology of 3DP more generally or printing
processes and the computer software used for printing (copyright). The computer software might be developed by a 3D printing company either by itself or
on behalf of others under contract. The licensing of computer software is made
complicated because elements of the computer software that are utilised are often ‘open source,’ which means there is often a licence that requires the software
to be kept unencrypted to allow others to develop it under the same licence.17
It was unclear from the research the degree to which open-source elements have
been used in software that has been explicitly protected by licensing terms in the
end user license agreements. Nonetheless, the use of licences by 3DP companies
in these two areas is such that it is of limited relevance for the proposed technical
licensing system. This is because such licences are reasonably simplistic and could
already be implemented utilising existing technologies, such as Digital Rights
Management (hereafter DRM). They are not implemented by DRM due to cost
issues – and indeed, the companies consider that these licences could be dealt
with more cheaply by other means. For instance, it was noted that a simple local
encryption key on a piece of software would do the same job.18 In this area of
IP licensing, with the limited actors of 3DP companies performing licences be-
17 R Stallman, Free Software Free Society, GNU Press, Boston (2002).
18 Interview 15.
12
Digital watermarking of 3D printed content
tween themselves, and where users are utilising software from companies, there
appear to be no significant issues in the architectural dialogue.
The architectural technologies that the research project developed and was
ultimately concerned with were, instead, about copyright management information (CMI), which relates to the attachment of information to content that facilitates licensing rather than providing a protective copyright style ‘box’ (such as
DRM) around content.19 Indeed, most day-to-day activities do not concern the
patenting or licensing of printers but the printing of 3DP content. This was true
of the majority of companies that we visited. Thus, the most important aspect
of licensing used on a day-to-day basis is the agreement that is signed between
the company and customer to print 3D content. Virtually all companies that
were interviewed were involved with licensing of this type. From the interview
transcripts, it can be identified that products which are printed for customers
would nearly always have the final print file be the property of the customer
rather than the 3D printing company. This was a surprising finding. This is because 3D printing companies often make considerable changes to any file that is
given to them. First of all, the design of the object often requires alteration for
it to be able to be printed owing to the limitations of 3D printers. Second, work
has to be done on any file in order to render it printable by a 3D printer, which
can include resizing and ensuring that the object is placed within a.gcode file.20
Despite these changes, however, companies are willing in the main to permit
this work to be transferred back to the original right holder, and they are willing
to release any IP in those alterations which they otherwise would own. This was
because they did not perceive value in keeping this file, even though the file produced could then be used by competitor printing companies. There was a belief
that good customer relations would keep the customer, and thus reduce the risk
of the file being transferred to a competitor.
Nonetheless, despite this release of IP, 3D printing companies were still investigating how to increase their revenue within this sector concerning the printing
of content for customers.21 One of the earlier companies that we visited mooted
the notion that users of their printing services might want to know how their
content was being used by others22: for instance, to be able to find out how
consumers use their products. So, the usefulness of a watermark could arise in
19 For discussion of the types of technologies, see B Rosenblatt, B Trippe, S Mooney, Digital
Rights Management: Business and Technology, M&T Books, New York (2002), throughout.
20 For details see ‘The STL file format.’ http://www.fabbers.com/tech/STL_Format
21 “As I know, there are a lot of people who are interested in the 3D printing related work, such as the
3D printing modelling and 3D printing design. But they are worried about the profitability. If there
is such a good way to protect the intellectual property of 3D printing work, people will be more willing
to invest in this industry. You know, if there are more people engaging in 3D printing modelling,
our industry will expand and progress more rapidly.” Interview 14.
22 Ibid., and (within that context) – “We have done some market research about it. And there are
some companies providing data online presently. But they are not using the watermarking, which
is a better way to protect copyright. Without the watermark, the downloader could redistribute this
content easily. That’s why watermarking is useful in this case.” Interview 15.
Digital watermarking of 3D printed content
13
the identification of a future marketing opportunity. Use of tracking in this way
has been done before on a wide scale – for instance, this is how Facebook and
Google make money.23 Privacy concerns aside (this is discussed later), the utilisation of tracking in this way is clearly one means by which to be able to instigate
a new business model – and it is also a means by which to institute a new form
of architectural dialogue.24
Another application of watermarking was identified as tracing the origin of
goods. A watermark could be used to establish where the product had originated
from, which was deemed to be useful in the situation where different liabilities
might arise.25 Watermarking can also ensure the quality of goods. This is particularly important with medical devices because it is not possible to obtain the
necessary clearances to sell medical devices unless you can guarantee the origin
and quality of the materials that are being used for printing. For example, the
printing of a titanium replacement bone would require good-quality titanium,
and yet there is no procedure in China to be able to guarantee the origin of
titanium. Instead, it is necessary to rely upon contacts, at least according to
our interviews. So, for medical devices, in particular devices designed to be implanted into the human body, a watermark can be useful.26 However, the need
to guarantee quality of materials is not just limited to medical devices. Although
the need to guarantee quality is likely to see investment in watermarking technologies, particularly in the biotech sector, 3DP as a whole would benefit from
more standardisation which could be achieved through watermarking.27
In addition, watermarking can be useful in ensuring that 3D printed products
have printed correctly. This is because a printed product, be that one printed in
plastic or metal, or most certainly any 3D printed medicines, can be checked for
the quality and integrity of a watermark as a sign as to whether the product, as
a whole, has printed correctly. A watermark can be based throughout the whole
surface of a 3D printed product, and it can also be printed within the product.
This ability to place points and shapes throughout the whole physical print means
that there is a way for the entire product’s integrity to be checked and verified.
23 See e.g. Anon ‘How does Facebook make its money?’ http://www.business-management-­degree.
net/facebook/; G McFarlane, How does Google make its money?’ http://www.investopedia.
com/stock-analysis/2012/what-does-google-actually-make-money-from-goog1121.aspx
24 “For 3D printing, it’s mainly about collecting data. It’s easy for us to know how our customers are
using these data. And for another business model, which I just mentioned before, tracking the following use of the data and protect these data may be of greater importance. But at current stage, it
is not our main focus.” Interview 15.
25 “It would be useful if the origin material company can provide the material information with codes
online for tracking” Interview 9.
26 “I think for type two or second class medical devices, it may be some need to use the technology you
mentioned, because they want to know exactly where the material come from, or what kind of material it is” Interview 18.
27 “There should also be standard for [the] printing materials. So the main problem now is that we do
not have a standard to measure the material’s physical properties or mechanical properties. That also
explains why many customers concerned about the actual effect of the 3D printing” Interview 14.
14
Digital watermarking of 3D printed content
This is not to say that there are negative aspects to utilising tracking technologies. One that cropped up in the interviews was the issue of cost.28 This may revolve around the need to be able to code the software, keep a means operating of
collecting tracking information and then store that information. Watermarking
itself, though, does not need to be expensive. There are commercial companies,
such as Digimarc, 29 that offer technically similar services (for films and so forth).
3DP would not be different in terms of costs as those elements that cost money
are the same as for non-3DP content. However, it does reveal a trepidation about
cost as an issue and the possibility that some of these companies may not have
the in-house skill to be able to develop or run these systems without incurring
external financial liabilities.
In addition to issues pertaining to the financial cost of the technical system, concerns were also raised about enforcement. On the one hand, in
China there were still perceived to be general IP enforcement issues which
would limit the usefulness of watermarking to fight piracy. On the other
hand, there were enforcement issues overseas as well due to jurisdictional
concerns as a consequence of regional differences in regulations. 30 One company was not so convinced by the virtues of watermarking. The utilisation of
watermarking to trace use was immediately perceived, but it would be used
more with regard to the inventive, application side of 3DP rather than being
placed within printed objects. It was primarily perceived as a means by which
to observe the operation of machinery rather than a means to create a new
revenue stream. 31
In addition to the perceived issues of cost, enforcement and limited perception of usefulness, there was also a misunderstanding about the legality of
watermarking vis-à-vis other IP rights.32 The impression here was that tracking would be illegal if placed into a product that was subsequently patented.
This would not be so. However, it certainly raises the questions as to whether
companies would have fears relating to these devices’ breaching other laws.
Privacy, as discussed elsewhere, is unlikely to be such an issue in China, but
other aspects, such as equivalent duties of care or running afoul of Chinese
censorship rules, could be.
28 “Tracking information is very hard … It is very expensive and most designers cannot pay for that.”
Interview 7.
29 www.digimarc.com
30 “The procedure of negotiation and lawsuit could be tedious because regulations vary across countries, and Chinese legislation is pretty weak regarding protection of IP. So we try not to focus on
tracking, instead, we can upgrade the product to protect the business.” Interview 10.
31 “When considering internal control, we found tracking useful, but when it comes to operation, we
are not sure how much value it can bring to us. … The equipment we are using actually has tracking
function, for example, … air compressors with built-in tracking system telling us hours of work,
customer feedback.” Interview 10.
32 “I cannot track. I gave the buyer the source code. They would do some modifications based my product. If they change the source code a little bit, it will be a new thing. They can apply for a new patent
for the new thing. Therefore, it is illegal to trace that.” Interview 9.
Digital watermarking of 3D printed content
15
3. The technical architecture of discourse
Under the current system of IP protection regarding 3D printing, there is a
mismatched striation between the architecture of the legal regulation and the
broader architecture of commercial exploitation. IP protection provides a form
of legal proprietary, sometimes monopolistic, boundary around certain subject
matter (i.e. the code of a file or the inventive aspect of a 3D print). The issue
is that the legal boundary is often too broad and blunt in its means of application, leading to a striated split between the legal property and the act of commerce. Protection is often proclaimed to be overbroad, a consequence of the old
­technology of law not being nimble enough to fit with the technology of the
digital. The attractiveness of IP protection is mainly present for individuals and
businesses when there is a fit between commercial activity and the IP protection,
and this is where the architectural striation does not prevent dialogue.
With 3D printing in China, there is clearly an attempt to make a link between
the granting of patents and commercial activity due to the grants given by the
Chinese Government in exchange for the registration of those patents. However, as noted earlier, there are issues with the IP system that, nonetheless, lead
to companies’ not registering or protecting their IP. There is, essentially, what
could be termed a ‘pick up’ and ‘take up’ of law when expedient. The purpose of
identifying this is not to draw a parallel between acts of capitalism, State intervention and legal protection but to identify an example of how the 3D printing
companies, when acting in a capitalist capacity, interface with the technologies of
law. When this technical architecture does not permit ‘take up’ or ‘fit’ this flow
and dialogue, then the IP system is not going to interface with those companies
involved with 3DP. Our interviews indicate a degree of disconnect between the
IP system and the commercial activities of 3DP companies. The same is true of
others involved within 3DP, such as the consumer (or prosumer), the service
providers or the software coders. The architecture of legal technology, and its
flow, is one that meanders between these various groups and stakeholders. Flows
of dialogue are dammed, diverted or simply cut off according to the formal and
informal elements of the technology of legal architecture.
The system that is proposed is one that provides a form of architectural
‘bridge’ to enable the flow of dialogue in multitudinous ways, moving away
from the blunt architecture of traditional legal technology. The current system
of dialogue is passively striated in that it is up to those enjoying IP rights to
use those rights when they are fit for purpose – which is determined by the
fixed immovable striations of IP protections. It is a rigid architecture. The proposed system is fluid, actively striated, in that it actively engages right holders
and stakeholders in dialogue. It enables the dissemination of information in new
ways; it enables the striking of contracts and bargains in ways that have, perhaps,
not been directly envisaged by law. It is, essentially, providing a new bridge of
law over the flow of information that can be utilised by right holders as and
when they consider it appropriate for their needs. However, the proposed system
is capable of amendment, capable of alteration, so that the information flow will
16
Digital watermarking of 3D printed content
not destabilise the system or lead to a break in dialogue. This system is one of
technical architecture, of the application of law in a digital, technical, means.
Law itself could be assessed as a form of technology – the technology of law in
the same way that there has been described a technology of Governance – but
this technology permits a more nuanced means of discourse since not only does
it permit greater detail in terms of dialogue, but it also brings a convergence of
law and the governed.
The desire for the new technical system is thus for it to provide a means of
optimal dialogue. Optimality has been discussed before in a variety of works
specifically on IP, which have mainly focussed on copyright, patents and trademarks in a Western context. These works, such as those by Landes and Posner,33
and Merges and Nelson,34 focus on issues such as the cost of making works and
the possibilities of piracy. What they do not consider in depth is the relationship
between the dialogue of optimality that they create and the broader issue of
dialogue between capitalism and the law.
The introduction of a new architectural dialogue is a means by which to
achieve optimality. In the same manner that the notion of semiotic democracy35
has been used as a means by which to relate to the ability of individuals to be able
to be involved in the democratisation of cultural works (e.g. by remixes), so the
notion of an architectural democracy can be invoked to explain how a technical
architecture can encourage engagement with the law. An existing notion of architectural democracy can be found in architectural studies, the main principles
of which are
“that every human being has a right to an affordable home; that people
should be able to manipulate their residential environments, for expanding
and dividing spaces to changing facades easily and inexpensively; that in deciding where and how to construct housing every effort be made to prevent
damage to the environment; and last, that residential design must express
the multiplicity of society, not some ideal or political ideology.”36
33 W Landes, R Posner, “An Economic Analysis of Copyright Law,” 18 Journal of Legal Studies
325–364 (1989).
34 R Merges, R Nelson, “On the Complex Economics of Patent Scope,” 90 Columbia Law Review
839 (1990).
35 J Fiske, Television Culture, Methuen, London (1987) at 239. For development of this see
E Fisher, Promises to Keep (2004), at p. 28–9; S Vaidhyanathan, The Anarchist in the Library
(2004), at p. 77–8. See also S Katyal, “Semiotic Disobedience,” 84 Washington University
Law Review 489 (2006). In relation to structure, see Y Benkler, “From Consumers to Users:
Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access,”
3 Federal Communications Law Journal 561 (1998); L Lessig, Code and Other Laws of Cyberspace (1999). For interpretative analysis of the link between the layers, see inter alia A Murray,
The Regulation of Cyberspace, Routledge-Cavendish (2007), Chap. 4. On passive reuse, see
J Hughes, “Recoding” Intellectual Property and Overlooked Audience Interests,’ 77 Texas Law
Review 923 (1999).
36 D MacDonald, ‘Democratic architecture: practical solutions to today’s housing crisis, MacDonald
architects.’ http://www.donaldmacdonaldarchitects.com/news/books/dem_arch_book.php
Digital watermarking of 3D printed content
17
Transferred to the context of architecture in terms of the utilisation and application of law – the ‘pick up’ and ‘take up’ of law – a set of dialogues become
apparent. These are the right to obtain IP, the ability to manipulate the subject
matter of that IP, a balance between right holders and users, and accessibility
to all stakeholders. This architectural structure of the dialogue is critical for
the continued applicability of IP law. In the digital sphere – which through
technologies such as 3DP is continuing to expand into traditionally analogue
areas – this is something that should be directly addressed. This is because the
architecture of technology – a phrase that has been in use since the inception of
such digital technologies – is a consequence of technology encouraging (if not
mandating) a consideration of architectures due to its innate nature. The work
of Lessig, which concerns the architecture of digital technology and the relationship to traditional architecture, is a consequence of the way digital architecture
forces itself upon those using the technology.37
3DP is one of those technologies in which the inherent architecture is something that has a profound impact upon the relationship of IP law to the protected subject matter. If, as the empirical interviews suggest, the architecture of
3D printing does not currently favour an interface with the law, then the legal
system risks failing in its rational application.38 The proposed system provides an
architectural interface: A two-way mechanism to hold a discourse between the
right holder and the recipient. The present system in China is one that is more
based around the rewards for grant of patents and is thus primarily operational
between the right holder and the Government.
4. The robustness of watermarking
There have, historically, been concerns about the robustness of watermarks. Early
watermarks were not terribly secure. They could easily be removed from the medium in which they were inserted.39 DRM was the preferred method for protecting works from unauthorised reproduction. Consequently, the focus was on
the use of DRM mechanisms and legal protections offered under statutes such
as the US Digital Millennium Copyright Act 1998 (‘DMCA’) rather than on the
equivalent CMI provisions that were nonetheless also inserted within the same
statutes. Both were mentioned, for instance, in the World Intellectual Property
Organisation (WIPO) Copyright Treaty 1996, Articles 11 and 12, respectively.40
The change began when online verification and streaming became more
commonplace. It became viable to report alterations to the original file back to
37 L Lessig, Code, Basic Books (1999).
38 J Griffin “Copyright Evolution – Creation, Regulation, and the Decline of Substantively
­R ational Copyright Law” Intellectual Property Quarterly 234 (2013).
39 With regard to basic marks – “In addition, a lot of software in China is open sourcing, you watermark the software, but the watermark can be removed later.” Interview 9. See also http://www.
nytimes.com/yr/mo/day/cyber/
40 WIPO Copyright Treaty 1996 36 ILM 65 (1997); WIPO Performances and Phonograms Treaty
1996 36 ILM 76 (1997) Articles 18 and 19.
18
Digital watermarking of 3D printed content
the original right holder. For instance, with e-book verification it was necessary
to access a server and check credentials for each file.41 Consequently, a hacker
could never be sure that a cracked file was not being tracked along with the user
IP address. Similar issues began to arise with services such as iTunes and streaming services such as Netflix.42 Every accessed file was associated with a particular
user. The technology used to do this was watermarking technology (or very
similar identification technologies).43 In this way, the efficacy of digital watermarking has led to investment in the technology, and consequently watermarking has increased importance in terms of its day-to-day application. It became
more central to the operation of large companies. The most prominent of these
where watermarking is reasonably central to the financial probity of the organisation is YouTube. The content ID system utilises elements of watermarking in
addition to file recognition in order to facilitate licensing of online content.44
The efficacy of watermarking technologies has therefore become less of an
issue due to the increasingly online nature of individuals’ use of content. In
addition to this, there are an increasing number of technologies that are being
deployed as part of digital watermarking, which also includes technologies such
as fingerprinting, and this, combined with the potential for increased panoptic
style surveillance, means that increasingly digital watermarking is becoming a
replacement for the now discredited DRM technologies. Indeed, these technologies have been largely supplanted, not just due to their digital inefficiencies
but also because of their ultimate lack of online verification procedures. Those
systems that do utilise those procedures are utilising digital watermarking.
5. Regulation of the architecture
The architecturally striated nature of 3D printing makes the issue of regulation
extremely challenging. There are two key regions in this research concerning
regulation: namely the issue of who should regulate standards within 3D printing and the other issue of who should regulate standards for watermarking. In
our research, it was clear that 3D printing organisations have been considering
watermarking as an element within their regulatory schema which would be administered by themselves.45 This is not limited to China.46 Common ­consensus
41 See inter alia https://www.kotobee.com/blog/ebook-drm-security-what-how/; http://firstygroup.
com/ebooks/ebook-drm/
42 A Proposal for the Digital Copyright Exchange, SLS 2012. https://socialsciences.exeter.ac.uk/
law/research/projects/project/?id=249
43 https://developer.apple.com/app-store/app-analytics/
44 https://support.google.com/youtube/answer/2797370?hl=en-GB
45 “I just had a conversation with the secretary general of [a] 3D printing association. He mentioned
that, the biggest problem that the 3D printing industry is facing now is the lack of a nationally accepted standard. So we plan to set standards for 3D printing industry, along with other universities
that currently engaging in 3D printing researches. This standard will not only act as guidance for
the industry, but also ensures the quality of the 3D-printing products.” Interview 14.
46 “We need to create our own guidelines and boundaries of what is acceptable before legislation does it
for us, we need to work as a community to define what is acceptable, and when it is not, how we deal
Digital watermarking of 3D printed content
19
has been that the field of 3D printing is suffering from a lack of standards regarding the quality of final prints. Downloading a file from the Internet to a
printer does not guarantee a quality of print, and uses of different materials in
the same printer can result in dramatically different outcomes. That is not to say
that licensing standards of the sort proposed by the Copyright Hub could not
be incorporated, but it is not the main focus in discussion that we encountered.
We believe, though, that consideration of the broader architectural dialogue is
key to bringing together the dialogues of law and technology.
The argument has been made that the involvement of the State would increase
the development of the industry, as the industry in its current restricted form
may not be able to perceive the full potential for development.47 One of the
benefits of watermarking as foreseen by the industry bodies is that it is a means
by which to guarantee the quality of 3D printed products. This was discussed
earlier in terms of guaranteeing the quality of the original product; it can also
be used simply as a mark by which to be able to say that a file or a product has
been printed in a certain way and therefore conforms to a particular standard.
The resolution, according to one 3DP company, is to create the industries’ own
­guidelines and standards before legislation requires them.48 In our interviews,
there were, however, references made by interviewees to the Chinese ­Government
having entered, or entering into, the related market of enabling patent licensing
by creating a licensing platform.49
Nonetheless, as formal licensing platforms, they appear different from our
proposed system. They bear a closer resemblance to the patent licensing systems
of IP offices such as the UK Intellectual Property Office (‘UK-IPO’) and are
therefore not as detailed as the watermarking system proposed here. They are
best thought of as a digital form of a paper-based system rather than as a new
way of providing an IP dialogue.50
6. The technology
The digital watermarking technology that we propose is built on principles established within earlier technologies. It is possible to give an exemplar of how
47
48
49
50
with that.” ‘Duann,’ ‘IP, 3D Printing & DMCA’ (2011). http://www.shapeways.com/blog/
archives/747-ip,-3d-printing-dmca.html (last accessed 6th May 2016).
“The movie studios were reluctant to release movies in digital form until they were confident they
had in place adequate safeguards against piracy of their copyrighted movies… In 1998, the studios
secured added protection against DVD piracy when Congress passed the DMCA, which prohibits the
development or use of technology designed to circumvent a technological protection measure, such as
CSS.” Universal City Studios, Inc. v. Corley, 273 F.3d 429, 436 (US, 2d Cir. 2001).
Supra n.45.
“You know, presently the government is establishing a formal platform for patent transaction.”
Interview 14. “Because Patent Office has a platform. You give Patent Office RMB 138 annually,
then they will provide you the platform where you can sell your technology.” Interview 9.
See inter alia https://taeus.com/patent-monetization-and-the-patentbooks-model/; http://www.
chinaipr.gov.cn/article/industryreports/201705/1905974.html
20
Digital watermarking of 3D printed content
the system works by referring to the ‘Cicada 3301’ competition.51 This was a
competition that received worldwide press due in part to the unknown identity
of the funder of the competition. Ostensibly, the competition began with some
text. On a computer screen, the text appeared as if it were part of a web page.
As it indicated, though, it was in reality part of an image. When this image was
loaded into an image editor, it was possible to alter the brightness of the picture
so that further information was revealed.
This, in turn, indicated to those making the changes that there was more to
reveal from within the image. Consequently, the image was later loaded into a
text editor to see if there was any further text present – and there was.52 That information, in turn, led to a clue that was spelt out in a book by Aleister Crowley
called ‘Liber AL vel Legis’ or ‘The Book of the law.’53 The numbers related to
paragraph numbers in that book. That, in turn, led to further clues, which for
our purposes need not be gone into in this chapter. The example is useful for
the hidden text and images since this is the basic starting point for embedding
a watermark within content. Indeed, it is this embedding of information within
content that has been central to UK Government involvement within the area.
CMI did not per se require the information relating to the work to be embedded within the work,54 but practice has dictated otherwise. Likewise, the UK
Copyright Hub55 – in effect, a Government quango – produced a blueprint to
provide a technical framework to enable the licensing of digital content.56 This,
to operate effectively, would require such content to be embedded within the
file (otherwise it would be too easy to remove and increase the potential for
cross-referencing errors).
Digital watermarking as a means by which to protect content has also been
combined with recognition technologies used previously, with much success, by
Microsoft. This entails taking the raw data from a file and literally plotting them
as start and end points on a graph, and checking the similarity between that data
51 https://twitter.com/1231507051321; https://www.fastcompany.com/3025785/meet-the-manwho-solved-the-mysterious-cicada-3301-puzzle
52
The text reads: -----…Welcome again. Here is a book code. To find the book,
break this riddle: A book whose study is forbidden Once dictated to a beast; To be
read once and then destroyed Or you shall have no peace. I:1:6 I:2:15 I:3:26 I:5:4
I:6:15 I:10:26 I:14:136 I:15:68 I:16:42 I:18:17 I:19:14 I:20:58 I:21:10 I:22:8
I:23:6 I:25:17 I:26:33 I:27:30 I:46:32 I:47:53 I:49:209 I:50:10 I:51:115 I:52:39
I:53:4 I:62:43 I:63:8 III:19:84 III:20:10 III:21:11 III:22:3 III:23:58 5 I:1:3
I:2:15 I:3:6 I:14:17 I:30:68 I:60:11 II:49:84 II:50:50 II:64:104 II:76:3 II:76:3 0
I:60:11 Good luck. 3301….
53 A Crowley, Liber Al vel Legis (1904). For the text see http://www.sacred-texts.com/oto/engccxx.
htm
54 For example, see in the US the case of Kelly v Arriba Soft 77 F.Supp.2d 1116 (C.D. Cal. 1999).
55 http://www.copyrighthub.org/
56 Copyright Hub Blueprint Version 2.0 Executive Summary p. 6. See also the full version – on file
with the author.
Digital watermarking of 3D printed content
21
and other data. If it is within certain parameters, it is deemed an authorised reproduction; if it is outside of those parameters, it will be deemed unauthorised.
It is similar to the technology used by YouTube within the content ID system,
and it is also similar to that technology used by Digimarc57 and Shazam.58
The utilisation of traditional watermarking techniques and the form of data
recognition detailed earlier can be seen to be combined in the field of watermarking for 3D prints. Digital watermarking for these files often dovetails elements
of traditional watermarking with the means by which to make file recognition
easier to achieve. To explain this, first it is necessary to make clear one important
element: namely that 3DP watermarking can cover not only the original file but
also the final print versions of that file and the final physical printed object. It is
with the latter that the unique and interesting issues arise since if watermarking
is possible to a degree hitherto untested on physical objects (i.e. being unique to
each object unlike barcodes, which apply to classes of objects) then it allows for
greater object tracking. An example of this sort of technology was put forward
in a paper from 2015.59
One of the advantages of the histogram-based circular shift coding structure
method was that it was more secure in that it could withstand alterations more
than the more traditional method. The more traditional form of placing a watermark in a 3DP object was that known as “oblivious watermarking for 3D polygonal meshes using distribution of vertex norms.”60 A 3DP object is made up, in
its final file form, of a mesh of points, 3D points in space which are placed within
an stereolithography (‘STL’) file. These are difficult to hide watermarks in per
se, so the answer lies in adding extra points to identify an object. Ultimately, the
side of a 3DP object has microscopic grooves similar to an old-style Long Play
(‘LP’) record.
With a sufficiently precise scanner, therefore, it would be possible to have an
extremely detailed amount of information placed within a physical object (rather
like a computer diskette, only with a physical object instead). Similarly, albeit at
a higher level of abstraction, watermarks also have been applied at a higher-level
mesh, i.e. on the surface of printed objects at a more polygonal level.
The system that we have designed as part of our Arts and Humanities Research Council (‘AHRC’) project, following the advice of the 3DP companies, is
one that focusses on a combination of these technologies, doing so in such a way
as to make the watermarking form more robust against removal. The greater the
number of types of watermarking methods that are included within the object,
the more likely it is that the object will retain its mark following alterations – and
57 http://www.digimarc.com/discover/online-embedding
58 https://www.shazam.com/
59 J Hou, D Kim, S Choi, H Lee, 3D Print-Scan Resilient Watermarking Using a Histogram-Based
Circular Shift Coding Structure, IH&MM Sec '15 Proceedings of the 3rd ACM Workshop on
Information Hiding and Multimedia Security, p. 115–121 (2015).
60 J Cho, R Prost, H Jung, ‘An Oblivious Watermarking for 3-D Polygonal Meshes Using Distribution of Vertex Norms’ 55 IEEE Transactions on Signal Processing 142 (2007).
22
Digital watermarking of 3D printed content
the more likely that mark is to remain, despite ‘format shifting.’ Indeed, a combination of these methods means that if a mark is photographed, it is possible
(subject to the original quality being good enough!) to relocate that product in
photos placed on to the Internet. Likewise, cameras connected to the Internet
(as augmented reality devices such as iPads,61 Google Glass62 and newer equivalents doubtless will be) can also pass on data (possibly in real time) as to the
whereabouts of physical objects.
This means by which to reveal the locations of physical objects using unique
watermarking within an object will doubtless open a new means of money generation. It will also be in a form of production (3D printing) that is likely to become increasingly common. Watermarking opens up the possibility of obtaining
money from observing how people use physical objects. This has precedent – in
the music industry aggregators, who sell music to online shops such as iTunes,
make money from understanding how people listen to and play music (by collecting such data).63 Watermarking in physical 3D prints opens the possibility
of targeted advertising which can pay for goods, thus removing the necessity to
always pay in full (or at all) for 3D printed products, bar the basic consumables,
such as the materials.
7. Impact
The impact of any new system such as this could be profound – it would be, to
quote one 3D printing company in China, “a breakthrough.”64 One of the most
crucial concerns is the increasingly technological symbiosis between the code,
physical objects, commercial exchange and the law. The current legal regulatory
environment is distanced from each of these in that code, physical objects and
means of exchange (capital) have a degree of independence from regulation. If
the law states one thing, and then something else happens away from either the
eyes of the law or a means of legal enforcement, then there is little that can be
done. However, that space of non-regulation has been shrinking in that this
technological convergence between all four factors has been growing. Lessig
has noted this regarding what are now older style forms of DRM, where he argued the oft-noted point that these controls would prevent things done in the
real world, e.g. the reading of a book out loud from a computer.65 However, of
course, there was a major (and not cited) flaw in that it would still be possible to
61 http://www.macworld.com/article/3199786/wwdc/augmented-reality-ipad-pro-­h ands-onios-11.html
62 https://www.google.co.uk/intl/en/glass/start/; note http://www.techradar.com/reviews/
gadgets/google-glass-1152283/review
63 Please see discussion in Chapter 9.
64 Post-conference feedback from the December 2016 conference in Shanghai, which was run as
part of our AHRC funding (‘3D printing and watermarking: Final Conclusions from the AHRC
Project, AHRC 3D Printing in China Conference, Shanghai, December 2016.’)
65 L Lessig, “Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture
and Control Creativity,” 152 (2004) and supra n.24.
Digital watermarking of 3D printed content
23
read out loud such works outside of the confines of a computer. A film could still
be recorded with a video recording device. Copies could still be made by breaking the mechanism or by simply making a reproduction with basic technologies
away from the eyes of the law. However, this private space in which there is a
gap, a divide, between legal regulation and effect is at the mercy of the fourfold
symbiosis between code, physical objects, exchange and law.
This leads to the question of what form future regulation should take. This is
the question of whether legal regulation over this field should remain floating
over the code itself, in the style of the ‘old’ analogue DRM and CMI provisions,
or whether it should become more involved, more invasive but more capable of
enforcement. Greater enforcement removes the wriggle room that law has often
enjoyed: for instance, that which exists in relation to private copying in the UK.
This remains an infringement under the Copyright Designs and Patents Act
1988 (‘CDPA 1988’) (notwithstanding the failed reform under s.28B CDPA
1988)66 It all depends on whether an ‘appropriate’ balance (whatever that may
be) has been struck.
The research that has taken place in this project saw the suggestion from 3DP
companies that regulation could take place at the level of industrial organisations. However, this is not a sufficient answer. Whilst it poses an answer to the
immediate issues that watermarking helps to resolve, such as the originality and
quality of printed goods, it does not resolve wider questions. Stating that industry ‘should’ regulate does not necessarily resolve those inevitable broader issues,
such as the depth to which legal regulation should go in seeking to regulate the
actions of the individual. For instance, it does not resolve the issue as to how
precise the control over the physical products should be. How much information
should be revealed about the actions of individuals?
The regulation of 3D printing is at a crossroads. However, it is not the crossroads that many would have expected – it is not the crossroad between IP laws
(copyright, patents and trademarks) and 3D printing. Instead, the crossroad we
find ourselves at is the one where digital watermarking and legal regulation meet.
As will have become clear through the empirical research, 3D printing companies are likely to increasingly turn towards watermarking to establish future
revenues. This does not mean that traditional IP is not important. Of course
it is; it remains a fundamental means by which to obtain revenue, and that has
not been in any way disputed by this research, despite the difficulties that have
been revealed. It has been touted as the Napster moment within patent law,67
and it is being considered a threat to the continuation of copyright law as well as
66 The statutory section was removed – The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 (entered into force 1 October 2014) SI 2014/2361 –
­inserting s.28B CDPA 1988 – “Personal Copies for Private Use” – s.28B removed by R (on the
application of British Academy of Songwriters, Composers and Authors) v Secretary of State for
Business, Innovation and Skills on July 17, 2015.
67 See for instance M Owen, ‘Is 3D printing facing its Napster Moment.’ https://www.theguardian.com/media-network/media-network-blog/2014/apr/10/3d-printing-napster-retail-legal
24
Digital watermarking of 3D printed content
traditional designs in both UK and United States literature.68 Nonetheless, IP
continues to play a role as it always has.
This chapter contends that the critical moment is not the new, potential, threats
of infringement that 3D printing brings but the challenge that will arise if digital
technologies are used directly to tackle potential Internet piracy. Watermarking in
3D products, with the support of legal sanction, has the potential to considerably
alter the characteristic of legal regulation. It will potentially do so in two main
ways. First, it could result in less wriggle room in the application of law – and thus
be an extension of legal principles directly into not just ‘traditional’ computer code
but that code as embedded in the form of digital products. This would be similar
to the manner in which this happened with DRM, but with greater fidelity and a
more invasive legal state. It could result in the situation whereby watermarking is
being used to track and trace every potential infringement.
Second, it could also be described as an extension of legal regulation, an extension analogous to the enhanced reach (and enhanced failings) of ‘real world’
regulation onto the Internet. The characteristics of Internet regulation, such as
arguably over strong regulation (e.g. with DRM) combined with a possible lack
of enforcement, would be brought into regulation of the physical world when
dealing with 3D printed products. Even though the watermark system we propose is reasonably secure, it would be a mistake to assume it would be completely
secure. Thus, it is likely that those 3D prints covered by watermarking will be
subject to more precise contractual and/or legal control, but there will be pirated works available free from such controls. With the rise in augmented reality,
we can expect to see a similar level of compliance and breach brought into what
could be termed ‘mixed reality’ settings.69
The challenge facing the regulation of 3D printing is therefore not at the
crossroads of IP law and 3D printing but one where watermarking technology is
meeting with 3D printing. Legal regulation in this area has, to date, been minimal. In this way, it mimics the use of the Internet for copyright infringement in
the 1990s and early 2000s; and thus it raises the possibility that there should be
some regulation. As highlighted earlier, there are a number of challenges posed
by the utilisation of watermarking, such as the reach of the agreements, the
scope of watermarking protection vis-à-vis IP and privacy.
8. The future regulation of 3DP digital
watermarking through licensing
The style of watermarking system that has been discussed in this chapter brings
a number of advantages, the most notable of which is introducing a new form
68 See, for example, B Berg, S van der Hof, E Kosta, 3D Printing: Legal, Ethical and Economic
Dimensions, Springer, The Hague (2016); P Viscounty, A Gass, K Virgien, “3d Printing: A New
Technology Challenges the Existing Intellectual Property Framework,’ 56 Orange County Law
16 (2014); A Daly, Socio-Legal Aspects of the 3D Printing Revolution, Palgrave Macmillan (2016).
69 https://www.theverge.com/2017/9/1/16232704/microsoft-windows-mixed-reality-headsets-­
controllers
Digital watermarking of 3D printed content
25
of economic exploitation of 3D printed works. However, the take-up of such a
system would be enhanced if there were support for the system from the various Government bodies. Currently the UK system has the Copyright Hub that
could propose standards, but there is not an equivalent institution in China (to
the best of our knowledge and according to the empirical interviews). In any
event, ideally support for licensing standards in digital form would not just be
through a quango semi-Governmental institution but potentially within statute
or regulations that are referred to in statute. There have been attempts to do this
before in the IP field, most recently with the Digital Economy Act 2010 in the
UK. This piece of legislation delegated the detailed rules of implementation to
the Office of Communications (‘OFCOM’),70 through the provision of a code.
However, the Digital Economy Act 2010 (‘DEA’) in the UK also reveals a
weakness in having such a system. The DEA has become infamous because the
OFCOM codes were never agreed upon. In delegating the creation of a code to
an independent body, failure to agree on standards is always a possibility. However, we can observe that the Copyright Hub blueprint was successfully created,
and so perhaps the secret to providing a workable system of digital licensing
standards is to keep them at a higher level of abstraction. This would mean that
companies still retain a reasonable choice of licensing methods and techniques,
with the knowledge that these would be supported by Government. It also prevents the standards from becoming outdated.
A licensing standard thus needs to be flexible in terms of striations, namely
whether it is in software, hardware or a basic physical product; not just identification, quality or standards but also the use of a watermark in terms of information
flow or economic transactions. A basic standard would provide considerable certainty to the market and be likely to encourage investment. It also would provide
a means by which society could begin to consider the impact of digital licensing
and watermarking. The consequences of being able to track the use of everyday
physical objects has not yet received much attention, although it has lately begun
to become an issue in literature about ‘The Internet of Things.’71 However,
technologies such as 3DP go further due to the complexity of the technologies
involved and due to the link with augmented reality.
The proposed system could function by providing a means by which an individual could locate a piece of 3DP content online, and then print it out without having to pay (or pay as much) money to do so.72 Similar to the YouTube
Content ID system,73 it would be possible for the payment of licence fees to
70 s.3 DEA 2010; for OFCOM see https://www.ofcom.org.uk/home and https://www.ofcom.
org.uk/consultations-and-statements/category-2/copyright-infringement; see also A Orlowski,
‘Arrr: digital economy act tied up, thrown in the hold.’ https://www.theregister.co.uk/2014/
07/24/digital_economy_act_creative_content_uk/
71 D Kellmereit, D Obodovski, The Silent Intelligence: The Internet of Things, DND (2013);
S Greengard, The Internet of Things, MIT Press (2015).
72 Note that a Chinese patent is pending over the technical aspects of the system we propose.
Further details will be published subsequent to the patent grant.
73 Supra n.44.
26
Digital watermarking of 3D printed content
take place using the watermark as a means by which to individually identify the
content. It would thus encourage the take-up of 3DP technologies and reduce
the cost for individual users. A standard would therefore provide a) a means for
interoperable exchange of licensing information and b) a means by which digital
watermarking technologies could interface with the licensed object. This could
be achieved through the use of code such as HTML, which is used in the creation of web pages. It would be possible to tag content with the codes, and then
the licensing platforms would act as appropriate in arranging transfer, payment
(if needed) and the attaching of watermarking information. If someone were to
take a photo of a watermarked 3D printed item and upload it online, this would
then trigger the licensing system (which could be designed to actively search for
such watermarks). This could be done in a way that permits back-room transfer
of advertising revenue. The proposed system also provides greater certainty for
right holders because it is designed to (a) still leave a trace if it is removed (due
to its utilising numerous watermarking methods) and (b) be more traceable even
without a mark owing to the existence of other files with individual marks.
In addition to creating a digital licensing standard, it is also suggested that
there should be some regulatory oversight. This could be by a specific body or
one of the current regulators, such as OFCOM, depending on who is setting the
standards.74 The purpose of the body would be to ensure that digital licensing,
in particular licensing utilising digital watermarks, does not upset the various IP
balances. This could happen, for instance, in the (admittedly) unlikely scenario
of 100 per cent effective digital watermarking systems being used in conjunction
with online licensing systems in a manner that prevents any reliance on, for example, copyright permitted acts or defences.
Conclusion
Digital watermarking does not currently have any specific protection under any
legal regulation. However, our empirical research has shown that it will become
increasingly important in future, especially the licensing of content. This is because it will open new revenue streams, particularly with regard to the tracking
and tracing of content, and it provides a bridge of stability over a sea of uncertain and complex IP protection. Our empirical research concerned 3D printing
within China, but there is no reason to suppose that this trend does not apply
across 3D printing more generally and potentially across other technological
areas. Indeed, it matches the trend within the music and movie industry to use
tracking data to be able to direct future investment. The greater use of digital
watermarking could be, as one 3D printing company put it, a “breakthrough.”75
Our research project developed a form of digital watermarking with reasonable
74 Supra n.70.
75 Survey data carried subsequent to our Shanghai workshop – AHRC empirical study on automated licensing of 3D printed products in China, University of Nottingham Ningbo, China,
2016.
Digital watermarking of 3D printed content
27
robustness, but as our research has revealed, this style of system poses challenges
for the marketplace and for legal regulation.
These challenges are the reason we propose that there be more State support
of digital licensing methods, including those that use digital watermarking. Currently the system is almost entirely dependent on technological protection, and
our research indicates that this may exclude companies less knowledgeable in
protective technologies. However, our research also shows why it is necessary
to have a body providing oversight, to ensure that digital watermarking does
not undermine the balance of existing legal regulation and to help prevent the
abusive use of digital watermarks.
Nonetheless, the day-to-day legal administration of digital watermarking
should not divert attention away from the broader consequences of digital watermarking upon legal regulation. Digital watermarking, more so than DRM
mechanisms, has the potential to bring together, to converge, legal regulation of
the analogue world and legal regulation of the digital world. As demonstrated
through our research and development of our own watermarking system for
3D printed content, it is possible for such digital watermarks to operate within
physical (but otherwise purely analogue) objects. This use of digital watermarking poses many issues, and the most important issue is how legal regulation will
deal with the transposition of the challenges faced by Internet regulation into
the physical world. Whilst the Internet poses challenges for legal enforcement,
digital watermarking also provides new opportunities for legal regulation due to
the invasive nature that the technology provides for with tracking.
Digital watermarking applied to 3D printing provides an excellent case study
in understanding how legal regulation may change in future. It is now necessary
for regulators to consider how to meet the challenge of this nascent technology
and to be able to grapple with the issue of digital watermarking head on. Failure
to do so is likely to result in a continuing lack of investment into 3D printing and
a failure to exploit a new market opportunity. Furthermore, and more importantly, it would result in a failure to begin to grasp the nettle of complex digital
enforcement of law within the real world.
2
Biotech 3DP digital
watermarking
An ‘uncanny valley’ in the
Prosthetic State*
James Griffin
1. Introduction
“Homo sapiens as we know them will probably disappear within a century
or so, not destroyed by killer robots or things like that, but changed and
upgraded with biotechnology.”1
3D printing (‘3DP’) provides a means to customise the human body to a degree that has not previously been possible, and digital watermarking provides
a means to monitor that customisation. There has been much public debate
about the use of 3DP by individuals in the production of prosthetic limbs,
aesthetic body parts and interior body parts such as organs (e.g. the liver). 2 In
addition, 3DP provides a means for individuals to produce medicines to alter
the body or to continue its functioning.3 The uses of 3DP pose a challenge
to the State, altering the relationship of the State to citizens. It challenges
the notion of biopower,4 the means by which the State maintains rationality
over and within its citizenry. The complex relationship is revealed through the
* Note: the research in this chapter was funded by the EPSRC (P Li, A Faulkner, J Griffin,
N Medcalf, ‘Mass customisation governance: regulation, liability, and intellectual property of
re-distributed manufacturing in 3D bioprinting (EPSRC, 2016–2017).’ See https://capturing
thevalue.wordpress.com/)
1 A Anthony, ‘Yuval Noah Harari: ‘Homo sapiens as we know them will disappear in a
century or so’ https://www.theguardian.com/culture/2017/mar/19/yuval-harari-sapiens-readersquestions-lucy-prebble-arianna-huffington-future-of-humanity
2 There is more than can be listed here but see for example BBC, Body Hack – Metal Gear Man
Parts 1 & 2, BBC Three (2016). http://www.bbc.co.uk/mediacentre/proginfo/2016/20/
bodyhack-­metal-gear-man; BBC Click, Disability Tech, December 2016 at https://www.bbc.
co.uk/programmes/b084ndvy; M savage, ‘The firm that can 3D print body parts,’ November
2017. Available at http://www.bbc.co.uk/news/business-41859942; David (anon), Scaffold-Free
3D printed liver tissue, www.3ders.org. Available at https://www.3ders.org/articles/201704273d-printed-liver-tissue-helps-university-of-tokyo-researchers-test-new-drugs.html
3 See e.g. Anon, ‘The future of 3D printing drugs is closer than you think.’ Available at http://
medicalfuturist.com/future-3d-printing-drugs-pharmacies-closer-think/
4 This is referring to biopower as discussed by M Foucault, in inter alia The Birth of the Clinic
(1963).
Biotech 3DP digital watermarking
29
regulation of 3DP biotech through the use of IP law and digital watermarking.5 IP law is a key means by which to grant legal property, property which
influences and controls the body of the biotechnological human and the biotech body. Digital watermarking provides the means to trace biotech bodies
and provide a means to find out if a biotech body has breached regulation or
whether it might do so in future. 3DP biotech watermarking enables the State
to transform from the regulator of citizens to a prosthetic component of the
human body. This is the rise of the prosthetic State, a State that becomes a
component in the physical body.
This chapter will begin with (1) a recent history of human watermarking, as
an introduction to how watermarks can be used to control the human body.
There will (2) then be discussion of how the State regulates the development of
biotech 3DP through IP law and then discussion of how this IP law creates an
‘uncanny valley’ where there is limited copyright protection. This protection is
often necessary for the legal provisions relating to watermarks to apply (3). This
influences the ability of the State to be able to directly use watermarking for the
purposes of controlling the human biotech body. The chapter then (4) makes
proposals for legal reform, outlining (5) that wider protection for watermarks
is something that is desirable, if not necessary, for the biotech human but that
there are significant dangers of abuse.
1a. The human barcode
In Auschwitz-Birkenau,6 it became common practice to tattoo numbers onto
the bodies of camp inmates in order to identify them. Previously, the numbers
had been attached to clothing but when camp inmates died, the clothing was
often lost.7 An indelible or tattoo mark on the human body is a means by which
to provide a watermark to ensure traceability of the human body. Currently,
watermarks used for human identification are not limited to marks or alterations
of the external human body. Watermarks can be placed within the human body,
in organs and transplants. Watermarks can even be placed within the DNA of a
5 For a consideration of 3DP watermarks more generally, see J Cho, R Prost, H Jung, “An Oblivious Watermarking for 3D Polygonal Meshes Using Distribution of Vertex Norms,” 55 IEEE
Transactions On Signal Processing 142 (2007); 3D Print-Scan Resilient Watermarking Using a
Histogram-Based Circular Shift Coding Structure, 2015 Proceedings of the 3rd ACM W
­ orkshop
on Information Hiding and Multimedia Security 115 (2015).
6 R Hoess, Commandant of Auschwitz, Weidenfeld & Nicholson (1959), C Cesarani, Final Solution,
Macmillan (2016), L Rees, Auschwitz, BBC (2005).
7 Anon, Tattoos and Numbers, The System of Identifying Prisoners at Auschwitz, Holocaust
­Encyclopedia at https://www.ushmm.org/wlc/en/article.php?ModuleId=10007056; J Hoenig,
“Tattooing, Auschwitz Style,” 50 International Journal of Dermatology 1166 (2011) at p. 1167;
E Kogon, The System of German Concentration Camps (1950) (287:7327–7331, Thomas J.
Dodd Papers. Archives & Special Collections at the Thomas J. Dodd Research Center, University of Connecticut Libraries) at p. 27–29.
30
Biotech 3DP digital watermarking
human.8 Today, the spectre of mass loss of life in concentration camps is less, but
the dangers of human watermarking remain, with an inherent possibility of the
permanent loss of anonymity. It is easy to fixate on that danger. However, in the
modern era watermarking of the human body also provides a means to monitor
and improve the human condition.
At the time of the atrocities at Auschwitz-Birkenau, the options open to shape
the destiny of the human race through State involvement was limited. Academic
studies focussed around racial characteristics,9 and States had a tendency to favour particular racial features within their bureaucratic systems.10 Today, the
focus is less upon the cultivation of groups of characteristics and more upon
the cultivation of the individual. The focus has developed over time; physical
alterations of a populace have been commonplace, but this has become increasingly nuanced. It is with the rise of rationalism – of biopower – that the State
has begun to focus on the alteration of the populace for the purposes of extending life11 as a positive rather than repressive measure. This can be seen in
numerous fields – from the provision of medicine and healthcare, laws relating
to abortion, issues such as smoking and alcohol consumption, even in relation
to taxes. However, there has been increasing developments of technologies that
enable individuals to alter their own physical constitution, very much embodied
within the recent developments of 3D printing. It is possible to 3D print medicines at home12 and, potentially in the future, to carry out home-based medical
operations and physical enhancements. To continue the extension and growth
of biopower, such technical developments will become subordinate to the will of
the State. Regulation concerning digital watermarking is a means through which
such biopower will become possible. It is a return to the categorisation of the
physical individual but in a more nuanced way.
1b. Physical body alteration
Alteration of the physical body is not new, and evidence runs back to prehistoric
times of these activities. Bioarchaeology has identified practices such as head
binding, foot binding, removal of teeth, removal of fingers and labrets.13 With
the exception of labrets, these are primarily alteration or removal from the hu-
8 Further to K Fister, I Fister Jr, J Murovec, B Bohanec, “DNA labelling of varieties covered by
patent protection: a new solution for managing intellectual property rights in the seed industry,”
26 Transgenic Research 87 (2017).
9 See e.g. the start of such theory with the work and skull collection of Johann Friedrich Blumenbach, as documented in Bronowski, Ascent of Man, BBC Publications (1973) at p. 367.
10 Notably, Nazi Germany. Ibid.
11 Consider M Foucault Society, Must Be Defended (1975) p. 241–244, 252
12 Supra n.3.
13 D Bolger (ed), A Companion to Gender Prehistory (1991); S Burnett, A World View of Bioculturally Modified Teeth (2017), J Robb, “Intentional Tooth Removal in Neolithic Italian Women,”
71 Antiquity 659 (1997); Note tattoos came into being around 7000 years ago – J Lobell,
E Powell, “Ancient Tattoos,” 66 Archaeology 41 (2013) at p. 41.
Biotech 3DP digital watermarking
31
man body rather than an addition. There is limited evidence about creating substitute body parts in prehistoric times (prosthetic limbs begin in ancient Egypt
and begin to become commonplace in the nineteenth century).14 ­Additions to
the human body, as opposed to replacement of human body parts, requires a
degree of definition: for example, Heidegger argued that a tool could be considered to be part of the human spirit, being involved as it is in, and through, the
expression of the individual.15 A person could become ‘as one’ with a tool. An
obvious example of that would be someone who has a prosthetic limb, who when
wearing the limb believes it to be their own as a consequence of phantom limb
syndrome.16 In such a situation, the human body maps the prosthetic body part
as if it were its own. The human body has a fluid characteristic about it, and thus
as a consequence of inherent latent functions or as a result of voluntary desire, it
has the ability to adopt non-biological items as part of the physical self.
What is undeniable is that as the expression of the self becomes enmeshed
within society, there has been greater occurrence of human body additions
through the use of 3DP biotech. It is possible to identify different levels of expression and to identify different responses of the State for each. This, in turn,
will demonstrate how 3DP biotech works which resemble the human body are
less likely to obtain the explicit protection, or endorsement, of the State, whereas
those more distanced or hidden with the body are more likely to gain such protection and endorsement. As will be explained later, this lack of protection will
lead, in turn, to less protection of digital watermarking and, as a consequence,
less biopower over the traditional 3DP biotech body, whilst favouring biopower
over more complex and less aesthetically human works.
2. The influence of law over 3DP biotech
2a. Aesthetic body parts – additional replacement
There has been increasing coverage in the press in recent history regarding the
use of prosthetics as a form of human enhancement.17 Replacement prosthetic
body parts provide a basic demonstration of how IP protection can operate with
regard to the human utilising 3DP biotech. For example, with reference to copyright law, the more a prosthesis resembles an actual body part, the less likely it is
to be able to obtain protection and thus protection for its digital watermarks. For
example, a basic lower limb made of plastic would only be theoretically capable
14 A Thurston, “Pare and Prosthetics: The Early History of Prosthetic Limbs,” 77 Journal of ANZ
Surgery 1114 at p. 1114.
15 M Heidegger, Being and Time (1927) SUNY edition trans. J Stambaugh (2010) at p. 100–101;
M Heidegger, The Question Concerning Technology (in Heidegger, Vorträge und Aufsätze
(1954), trans. 1977 in Heidegger, The Question Concerning Technology and Other Essays
(1977) p.4ff.
16 R Melzack, “Phantom limbs,” 266 Scientific American 120; V Ramchandran, W Hirstein, “The
perception of phantom limbs,” 121 Brain 1603 (1998).
17 Supra n.2.
32
Biotech 3DP digital watermarking
of protection if it were somehow original18 – which a basic copy of a generic
human limb, reproduced by numerous companies on a daily basis, might not
be. This is because, as a copyright work, it would need to demonstrate originality as either a sculpture or work of artistic craftsmanship.19 If the limb is to be
regarded as a work of sculpture, then under the initial 1980s-1990s case law it
would be extremely unlikely to gain protection.20 Later cases indicate protection
could be more possible, 21 but there are extremely significant limits – namely
(a) the labour would need to be of the right type for the copyright work – for
instance, shaping of the limb to lead to an original work 22 and not development
of, say, patentable materials, 23 and (b) recent case law implies that a work with
a utilitarian purpose capable of mass production would not be copyrightable
as a sculpture, 24 even if that part is an element within a copyright work.25 If a
prosthesis is to be considered a sculpture, “the work must also have been created
by an artist’s hand with the intention that it be a work of art and thus that it
contains some element of artistic expression, however unsuccessful.”26 If is to
be considered a work of artistic craftsmanship, it will require more than visual
appeal, 27 something a basic prosthesis is not likely to meet.28 Furthermore, it
has been noted that there are very few cases in which artistic craftsmanship has
been conferred, citing the example of Star Wars helmets and armour which again
would indicate a likelihood of failing the subsistence requirements.29
However, there is less doubt that aesthetic additions to the prosthetic would
be protectable. Indeed, those companies that specialise in 3D printed design
18 See s.1(1) CDPA 1988 – artistic works.
19 See s.4 CDPA 1988.
20 J & S Davis (Holdings) Ltd v Wright Health Group Ltd [1988] RPC 403 at p. 409 – “Mr. P
­ rescott
also sought to rely upon the surviving casts, which were made in dental stone from the models …
Assuming for the moment they are works of sculpture, they [the impressions of teeth] were no
more than reproductions of the models and could not, in my view, properly be described as original works”
21 “The skill and labour of the craftsman is exercised in cutting and shaping the plate [for a frisbee
mould]—engraving it—to produce the intended design”
22 Which would require labour, skill and effort (or equivalent copyright tests) in the making of an
artistic work as opposed to a merely functional one. See inter alia Walter v Lane [1900] AC 539
and Ladbroke v William Hill [1964] 1 All ER 465.
23 Consider Interlego AG v Tyco Industries Inc [1989] AC 217 – requirement of sufficient originality for alterations to existing works or that there be a requirement of the right sort of labour (e.g.
in that case, the difference in the height of bumps on Lego bricks may be technically significant
but not for copyright protection).
24 Lucasfilm Ltd v Ainsworth [2009] EWCA Civ 1328, para. 21 Cf. works of artistic craftsmanship –
George Hensher Ltd v Restawhile [1976] AC 64 at p. 79.
25 Lucasfilm v Ainsworth [2011] 3 WLR 487 – “The helmet was utilitarian in the sense that it was
an element in the process of production of the film.” (para. 44)
26 Caddick, Davies, Harbottle (eds), Copinger and Skone James on Copyright, 17th edition (2017)
at 3–107.
27 George Hensher Ltd v Restawhile [1976] AC 64 at 79C.
28 George Hensher Ltd v Restawhile [1976] AC 64
29 Copinger and Skone-James supra n.26 at p. 3–107 referring to Lucasfilm v Ainsworth [2011] 3
WLR 487.
Biotech 3DP digital watermarking
33
covers for prosthetic limbs would be unlikely to encounter issues in obtaining
protection.30 Likewise, those companies who produce robotic style limbs would
also be likely to be able to obtain protection due to their unique styles – which is
an inherent element in their production.31 Such prosthesis also often incorporate
functionality that would be likely to obtain patent protection (e.g. with regard to
joints or the use of sensors to detect movement in the residual limb). However,
this is irrelevant for digital watermarking, since there is no legal provision providing protection for watermarks in patented works.
In summary, copyright law is more likely to protect those limbs that bear less
resemblance to the human body and those that provide enhanced functionality.
This is consistent, in some degree, with the general approach within the law
not to permit patent protection over elements of the human body, unless it is a
separate process or treatment32; it therefore is also consistent with the general
approach in law that the human body should not be treated as a commodity.33
In the area of 3DP biotech prosthetics, though, the situation is that a basic
realisation of a body part is unlikely to be able to meet the requirements for IP
protection. This is, if you will, an ‘uncanny valley’ – the more akin to a human
being a 3DP prosthesis appears, the more likely it is not going to get protection.
2b. Non-aesthetic body parts within the body
Non-aesthetic parts that are implanted within the body are less likely to obtain
copyright protection for their external characteristics, though they may well obtain patent protection. For example, a bioprinted liver34 would be capable of obtaining patent protection; a mechanical trachea likewise. Copyright protection
would only be relevant where there is some coding or other literary element present within the part. The main aspect where copyright protection is a possibility
relates to coding of a mechanical device or DNA – DNA is something which,
if edited, could be capable of providing the means for copyright protection in
the same way as binary computer code is the means for storing higher level programming languages.35 It is possible to hold information within DNA, for this
has been done by Monsanto in order to insert a watermark on their genetically
30 See for example https://www.alleles.ca/
31 Consider, for example, the i-limb. http://www.touchbionics.com/products/active-prostheses/­ilimb-ultra or c-leg - https://www.ottobockus.com/c-leg.html.
32 See s.76A Patents Act 1977 and Schedule A2 (as amended).
33 See Directive 98/44/EC of the European Parliament and of the Council of 6th July 1998 on the
legal protection of biotechnological inventions OJ 1998 L213/13; Patents Act 1977 Schedule A2.
34 David (anon), Scaffold-Free 3D printed liver tissue, www.3ders.org. Available at https://www.­
3ders.org/articles/20170427-3d-printed-liver-tissue-helps-university-of-tokyo-researchers-testnew-drugs.html
35 See for example https://www.microsoft.com/en-us/research/project/dna-storage/ and P Bright,
‘Microsoft experiments with DNA storage: 1,000,000,000 TB in a gram.’ Available at https://
arstechnica.com/information-technology/2016/04/microsoft-experiments-with-dna-storage1000000000-tb-in-a-gram/
34
Biotech 3DP digital watermarking
modified crops in order to provide a means of tracing those who have illegally
produced seeds from their crops.36 Naturally, the copyrightability of code is as
true within the visible prosthetics as it is within the invisible ones, but coding is
more likely to be of importance in internal (or internal aspects of) prosthetics,
especially with regard to DNA. The State in this area does not have any ‘uncanny
valley’ as with aesthetic parts, but that in itself is intriguing as there is, of course,
no ‘uncanny’ valley to investigate in the sense that it relates to the similarity of
humans to the inanimate, and there is no ability to observe or be aware of this
within the human body. The unobserved and hidden, therefore, is not open to
the aesthetic copyright lacunae of protection. The ‘uncanny valley’ only relates
to the visible, indicating that the prosthetic State has an inherent push, an inherent dislike, of that which falls within the valley. It is still possible to protect the
inner code, exposing that code to the biopower of the State.
2c. Removal and additional of new body parts
This does not concern 3D biotech printing per se, but it provides an interesting parallel with the addition or augmentation of body parts. As noted earlier,
there has been a recent trend of media coverage concerning those who have
‘augmented’ themselves with an ‘advanced’ prosthetic.37 In part, this follows on
from experiments by those who have sought to augment their human body with
various devices, notably Professor Kevin Warwick (from Coventry University,
who ran project cyborg)38; it also follows on from numerous stories within science fiction.39 However, one key legal issue arising has been that of medical consent. The Hippocratic Oath sets out the principle that the medical doctor has to
act in the best interests of the patient,40 and it has been the case that this has led
to conflict with the desire for augmentation. For example, individuals may wish
for an augmented body part but be refused under the guise of the Hippocratic
Oath. There is a parallel here with the use of biopower in the State to provide a
rationalised approach to the extension of life – namely, that removal and addition
of new body parts can be deemed to be something that is against the long-term
interests of the individual. However, there is also an analogous situation to the
‘uncanny valley’ in that the additional or removal of body parts tends to offend
36 K Fister, I Fister, J Murovec, B. Bohanec, “DNA labelling of varieties covered by patent protection: a new solution for managing intellectual property rights in the seed industry,” 26 Transgenic
­Research 87 (2017).
37 Supra n.2.
38 https://en.wikipedia.org/wiki/Kevin_Warwick; K Warwick, M Gasson, B Hutt, I Goodhew,
P Kyberd, B Andrews, P Teddy, A Shad, “The Application of Implant Technology for Cybernetic
­Systems,” 60 Archives of Neurology 1369 (2003).
39 Inter alia I Asimov, I Robot (1950); PK Dick, Do Androids Dream of Electric Sheep? (1968); films
such as Metropolis (1927); Blade Runner (1992).
40 S Miles, The Hippocratic Oath and the Ethics of Medicine (2005) and ED Robin, R McCauley,
“Cultural Lag and the Hippocratic Oath,” 345 (8962) The Lancet 1422 (1995).
Biotech 3DP digital watermarking
35
against ‘sensibilities.’41 Why, it would be argued, should humans remove healthy
body parts and replace them with superior ones? Or, indeed, merely add one.
This is more than an issue of, say, taxation for health services and so forth but
more the ability of individuals to determine their own physical, biotech, status.42
So, this is an element that can be classified as an ‘uncanny valley’ in the sense
that removing or adding to the human body when it is not required is perceived
as ‘uncomfortable.’ This, in turn, is a further limit to the ability of individuals
to be able to replace human body parts with 3DP biotech ones; it would, after
all, be likely for an individual to wish the ability to be able to utilise 3DP biotech
prints that resemble the human body in addition to those that do not, yet the
former are restricted under the notion of the ‘uncanny valley.’ This indicates that
the prosthetic State would prefer to be able to identify those whom it plugs into
for it is only those prosthetic works that are complex which will gain watermarking protection.
2d. Removal of the human
A final stage in these categories is the total removal of the human from augmentation. Two scenarios would be (a) the gradual replacement of all biological
human body parts (including the brain) with the synthetic43 and (b) the creation
of robots with artificial intelligence and artificial life.44 3DP biotech can play a
fundamental role in the development of these technologies and, furthermore,
developments within these particular sectors are likely to run to, and from, the
areas discussed earlier such as 3DP biotech prosthetics.
In the aforementioned (a) and (b) situations, there is currently extremely
limited involvement by the State, other than in relation to scenario (a) as the
­H ippocratic Oath may intervene if the patient is healthy.45 There is no reason
why direct coding and 3D printing utilising DNA would not be protectable
through copyright law nor any reason why an invention with regard to total replacement of body parts would be dealt differently than with the aforementioned
three situations concerning additions and removals from the human body. In
terms of rules, there are some being constructed in relation to the existence of
41 M Travis, “Non-Normative Bodies, Rationality, and Legal Personhood,” 22 Medical Law Review 526 (2014) at p. 526.
42 See discussion in M Foucault, The Birth of the Clinic (1963) and M Foucault, The History of
Sexuality Volume I (1976).
43 See e.g. the Blue Brain Project, which seeks to digitally reconstruct mammal brain ­circuitry – see
https://bluebrain.epfl.ch/; F Macdonald, ‘Scientists Have Built Artificial Neurons That Fully
Mimic Human Brain Cells’ Science Alert at https://www.sciencealert.com/scientists-build-anartificial-neuron-that-fully-mimics-a-human-brain-cell
44 Inter alia P Domingos, The Master Algorithm: How the Quest for the ultimate machine learning
will remake our World (2015), N Bostrom, Super Intelligence (2014).
45 Note recent controversies concerning the human body transplant, e.g. Anon, World’s First Head
­Transplant Volunteer Could Experience Something “Worse Than Death” at https://www.science
alert.com/world-s-first-head-transplant-volunteer-could-experience-something-worse-than-death
36
Biotech 3DP digital watermarking
semi-­autonomous drones,46 and there are the social norms relating to the rules
of robotics that arose from Asimov’s book i-Robot.47 However, in terms of the
operation of mechanisms that entirely replace the human body, it is likely that
mathematic formula will be involved in an attempt to mimic some of the processes of the human body.48 Overall, we can conclude that where there is the
removal of the human, the same State approach applies – a favouring of complex
identifiable works rather than those that merely mimic existing human bodies.
2e. Where does the law therefore push 3DP biotech developments?
The current legal situation can be summarised as follows: that for visible replacements to the human body, IP protection will be less for those 3DP works
that resemble the human body; that if the 3DP work is within the human body,
it will be more likely to obtain protection; that addition or removal of body
parts for enablement may be impacted by medical regulations; and finally, that
total replacement of the human body is more likely to gain IP protection than
not, provided it meets medical standards. In totality, this indicates that 3DP
prosthetics and augmentations that look less human are more likely to gain protection; that the more artificial and complex they are, the more likely they will
gain protection; that the human body (or body part) should not be removed on
a perceived ‘whim’ to be replaced with a prosthetic; but that the development
of the human body into a new technical form for the purposes of replacement
or to create new artificial intelligence (‘AI’) is going to be able to gain greater
protection.
Ultimately, the current legal protection favours more complex 3DP biotech
works and those works which more broadly fit Foucault’s biopower paradigm,
namely those that can be deemed to prolong life rather than pose a risk to it.49
Currently, the replacement of ‘good’ body parts with artificial ones would fit
within the latter category, namely, posing a threat to life. AI falls outside of the
biopower paradigm at the moment, perhaps because of its nature as a machine.
However, as AI becomes more important to the creation, and maintenance, of
biotech devices, this may change. For example, AI can play a fundamental role in
4D printing – which is where time is a variable in a 3D print – which normally
will mean that the material in a print will change in some way when certain types
of energy are applied to it.50 This can be useful when, for instance, injecting a
46 See e.g. https://www.caa.co.uk/Consumers/Unmanned-aircraft-and-drones/
47 I Asimov, I, Robot (1950).
48 In relation to movement, see https://commons.bcit.ca/math/examples/robotics/algebra_­
geometry/index.html; and for AI see http://theconversation.com/to-create-a-super-intel
ligent-machine-start-with-an-equation-20756; J McCarthy, “Mathematical Logic in Artificial
Intelligence,” 117 Artificial Intelligence 297 (1988).
49 Supra n.4.
50 E.g. M Bodaghi, A Damanpack, W Liao, “Adaptive Metamaterials by Functionally Graded 4D
Printing,” 135 Materials and Design 26 (2017).
Biotech 3DP digital watermarking
37
substance into a patient which then subsequently changes shape or form.51 AI
can be used to develop the algorithms necessary for this change, which may be
extremely complex in a biomechanical substance. For example, it may be possible
to utilise 3D printing to produce a DNA sequence which sits within the material,
which is activated at a certain time due to a change in the surrounding environment. This is the method used in the production of 3DP cancer cells once they
have been injected into the human body.52
All of this fits with the notion of the prosthetic State. By favouring the production of more complex watermarks within complex prosthetics, it provides a
means for the State to be able to interface with the individual’s biotech body.
A work that can only allow for mere identification is unlikely to be able to permit
the introduction of code, but those more complex works will, and those works
are thus open to the possibility of code that enables increased surveillance, increased means of identification and, furthermore, the possibility of changing the
status of the biotech body.
3. The rise of the human barcode
3a. Complexity
It is easier to place a watermark within a complex product than a simple one.
For example, it is argued in another work that placing watermarks into 3DP files
alone can be difficult due to the sparse nature of the file format – it contains
only X, Y and Z co-ordinates for the print and nothing else. In such a situation,
the mark can naturally become more obvious, hence the desire to hide it within
more complex code.
Watermarking technologies come in a number of forms. Katzenbeisser and
Peticolas53 identified that there are passive and active watermarks. For instance,
a passive watermark simply identifies content, whereas a more active watermark
would be involved in the actual policing of how the content is used. As more
complex biotech works are favoured under the current legal regime, there is a
greater possibility to include complex marks.
With modelling of complex watermarks, there have been distinctions made
between standard watermarking technologies which identify information, such
as who is the author, and fingerprinting technologies that are used for the express purpose of tracking content.54 The latter can include algorithms that help
to identify each unique piece of content. This could be used for identifying
51 E.g. O Wainwright, 4D-printing: from self-assembling chairs to cancer-fighting robots, The
Guardian, 10th April 2013. https://www.theguardian.com/artanddesign/architecture-designblog/2013/apr/10/4d-printing-cancer-nano-robots
52 Ibid.
53 S Katzenbeisser and FAP Peticolas, Information hiding techniques for steganography and digital
watermarking (1999).
54 See MGM v Grokster [2007] 518 F.Supp.2d 1197 CD Cal.
38
Biotech 3DP digital watermarking
content for the purposes of Digital Rights Management (DRM) (i.e. to verify
if somebody has bought a legitimate DVD). This can also be used to trace and
track that content. Such a watermark could be searched for using standard Internet search engines in order to establish if a work has been copied. A watermark
could even include a trojan that would report back when the work is on a device connected to the Internet or a simple information call (similar to the blank
images used in emails which contact a remote server to download information,
hence revealing the email and IP information of the email recipient.
Complex watermarking in 3DP biotech products also has other specific advantages beyond the enforcement of IP rights. One should remember that such biotech inventions are becoming a wider market than general 3DP products due to
the need for individually tailored works, so a favouring of complex watermarking
in the 3DP biotech sector is likely to feed into 3DP more generally. So, what are
the specific additional uses of watermarking? Examples that could be relevant in
terms of quality control are:
•
•
•
•
starting materials (cells and tissues) – these are often scarce materials, potentially derived from the patient themselves – means of testing of that material
is limited, but watermarking could provide a quick means to ensure the final
print quality and longevity by observing the mark;
starting materials may be derived from different patients/donors and have
a much higher degree of variability than is normal for manufacturing
­process – watermarking can reveal these variations, again by observing it55;
starting materials, intermediates and final products have a short shelf-life.
This means that administration of the product may need to take place before
all the analytical results from quality control (‘QC’) testing are available;
watermarking can provide quicker testing.
Exquisite control of the manufacturing process is critical as the safety and
efficacy profile may be altered by quite small changes in culture conditions.
Watermarking can be used to detect those changes.56
Digital watermarking, in particular complex watermarking, can provide answers
to those aforementioned issues. In the future, it is likely that 3DP biotech regulations will need to focus more on individual hospital’s certification of facilities
(CE marking, Quality System and ISO requirements), documentation and delivery.57 The key issue between the link of legal regulation of biotech products and
their favouritism towards more complex products is that watermarking is likely
55 JA Thurman-Newell, JN Petzing, DJ Williams, “A meta-analysis of biological variation in bloodbased therapy as a precursor to bio-manufacturing,” 18(5) Cytotherapy 686 (2016).
56 European Commission, ‘Good manufacturing practice for ATMPs’ (Public Health Information). http://ec.europa.eu/health/files/committee/75meeting/2c._2015_10_21_gmps_pharma_
committee.pdf (accessed 7 October 2016).
57 P Li, Digital Health Technologies: Regulation, 3D Printing and Intellectual Property (Forthcoming, 2019).
Biotech 3DP digital watermarking
39
to be used to deal with these 3DP biotech issues. However, as will be discussed
later, legal protection then becomes skewed to copyright proprietary concerns,
with legal protection becoming extremely piecemeal.
For example, a 3DP bioprinted implant requires an accurate understanding
of the physical and biochemical requirements for healthy cell growth and for
integration.58 The effects of using unsuitable software, for example in a ‘metoo’ product that superficially resembles the legitimate one, may not be apparent
for the first few days post-transplant, after which necrosis or structural failure
may occur once the patient has returned home, and this opens the way for unscrupulous organisations to manufacture counterfeit products at a lower price
using machines that are the same as those in properly accredited facilities. Watermarking helps, first, to alert the user and medical professionals to the failure
of the print and, second, to reduce the ease by which pirate products may be
reproduced. If every product has a unique digital watermark that incorporates a
block chain variant, then the products veracity can be confirmed. However, legal
protection for the watermark is dependent upon (a) whether there is a link to a
copyright work (as will be discussed later) and (b), in the likelihood that there
is, whether the 3DP bioprint implant then falls within the ‘uncanny valley’ discussed earlier.59
3b. What aspects of complex biotech goods does
watermarking assist?
3DP biotech products carry with them the risk of introduction of illicit raw
materials and reagents or counterfeit products into the chain of custody. The inclusion of a digital watermark in the construct is feasible provided that the local
change in architecture does not compromise the product features listed earlier.
Such a watermark would consist of subtle but distinct variation in the width of
struts and layers inside the construct in order to display an image in 3D that
could be detected by tomographic scanning.
There have been many concerns about the quality of 3D biotech products, in
particular being able to ensure their quality in terms of source and in terms of
continued operation.60 The use of watermarking is an efficient way to deal with
those concerns. To date, there has only been a limited attempt to barcode 3DP
biotech medical products used in the National Health Service (‘NHS’),61 although this has been done with genetically modified (‘GM’) seeds by editing the
58 Inter alia Q Wagner, D Offner, Y Idoux-Gillet, I Saleem, S. Somavarapu, P. Schwinte, N Benkirane-­
Jessel, L Keller, “Advanced Nanostructured Medical Device Combining Mesenchymal Cells and
VEGF Nanoparticles for Enhanced Engineered Tissue Vascularization,” 11 Nanomedicine 2419
(2016).
59 Infra section (2) ‘The influence of law over 3DP biotech.’
60 Infra section (3) ‘The rise of the human barcode.’
61 BBC, ‘Breast implants and other medical items get safety barcodes’ (BBC News, 29 December
2016). http://www.bbc.co.uk/news/health-38403388.
40
Biotech 3DP digital watermarking
DNA of the seeds.62 Watermarking can contain much more information than a
barcode, and it can also be edited. Furthermore, watermarks can be deeply embedded within products, for example, within its internal structure.
Watermarking is intrinsically related to the development of some of the newer
technologies being developed in the field of bioprinting. For instance, watermarking has been used in relation to DNA printing. Microsoft is using DNA
stored data.63 A researcher in Slovenia has utilised watermarking technologies
in order to identify seeds that are protected by IP.64 There is the possibility of
storing watermarks in DNA similar to watermarks in computer software; the
current CRISPR-Cas9 methods in common use today are capable of inserting
watermarks into DNA through the simple processes of cutting and removing
DNA in particular patterns.65
Watermarking could also be used to help identify standards for medical devices. For instance, in China various stages of approval required different types
of invasive procedures. It is possible that we could use watermarking in order to
be able to meet those standards, such as being able to trace the origin of a complex source material or being able to trace the continued viability of bioprinted
procedures.
Watermarking helps to confirm 3D printing as a viable means of providing
healthcare. One of the issues to date with 3D printing is being able to identify
and confirm the origin of goods in a secure fashion and being able to ensure that
printed products meet the specifications required. Watermarking helps to do
this because it can act as a secure system. Furthermore, the use of watermarking
helps to provide a clear link to tortious liability because it provides evidentiary
means by which to be able to establish who was responsible for actions such
as the active printing, the act of manipulation or an act of implantation. For
instance, it would allow someone with a faulty implant to be able to establish
whether it is faulty because of the implant itself, and it would help establish the
origin of the goods.
3c. The general legal regulation of watermarks
That the law favours the creation of more complex forms of 3DP biotech opens
up the possibility for more complex forms of technical protection, which, in
turn, may also have legal protection themselves. All of the current regulation
with regard to watermarking stems from the rules concerning copyright protection. These rules, in turn, all derive from international agreements, as represented by the WIPO Performances and Phonograms Treaty 1996 and the WIPO
62 Supra n.36.
63 Microsoft, ‘DNA storage’ [2015] www.microsoft.com/en-us/research/project/dna-storage/
accessed 19 December 2016.
64 K Fister, I Fister, J Murovec, B. Bohanec, supra n.8.
65 Anon, ‘The Age of the Red Pen’ [2015] 416 The Economist 8952, 19–22; J Doudna, P Mali,
CRISPR-Cas: A laboratory manual (2016).
Biotech 3DP digital watermarking
41
Copyright Treaty 1996.66 Both have similar provisions. The WIPO Copyright
Treaty Article 12 contains the most generic provision.67
This, in turn, has been implemented through national legislation. This legislation is quite similar between the various signatory countries, but there are some
significant differences. These differences tend to occur not from the specific
provisions themselves but from regional differences relating to the scope of copyright protection. Consequently, it is arguable that some types of watermarking
may not gain protection in the United States but may gain protection within the
European Union (EU) or within the domestic UK provisions. This is because
certain courts may require the watermark to be placed within a copyright work,
which would disadvantage those bioprinted works that fall within the ‘uncanny
valley.’ Other courts may merely require the tangential existence of a copyright
work, whilst other courts may not require any link. These differences will be
considered immediately.
The most developed provision is found in the United States within §1202 of
the Digital Millennium Copyright Act 1998, enshrined within title 17 of the US
Code.68 This provides a list that gives an indication of what could be considered
a watermark. Significantly it does not use the word ‘watermark’ but instead refers
in the same way as the international law to ‘copyright management information
(CMI).’ Section (c) of the provision provides definitions and examples of what
might be covered.
A similar provision exists within the EU in Article 7 of the EU Copyright
Directive (EUCD) 2001. There is an implementing provision of the aforementioned EUCD article in the UK law, s.296ZG Copyright, Designs and Patent
Act (CDPA) 1988, which is very similar.69 As noted earlier, there are some potential challenges in relation to the scope of these provisions and their r­ elationship
to copyright. First of all, these provisions are based within copyright laws. It
is possible to make the initial observation that copyright management information and watermarking within the United Kingdom or the EU have to be
attached to, or involve, a copyright work.70 However, the extent of that involvement is not made clear. Nonetheless, the position is even less clear in the United
States because an associated provision, §1201 Digital Millennium Copyright Act
1998, which deals with digital rights management mechanisms, has been held
to cover elements of works where copyright infringement has not been established. A good example of this is the case of MDY v. Blizzard Entertainment,71
which stated that access controls were a new cause of action and thus capable
66 WIPO Performances and Phonograms Treaty 1996 36 ILM 76 (1997); WIPO Copyright Treaty
1996 36 ILM 65 (1997).
67 The WPPT 1996 equivalent is Article 19.
68 17 USC 1201.
69 Implemented by s.25 Copyright and Related Rights Regulations SI 2498/2013.
70 As per the wording in Article 7 EUCD and s.296ZG as quoted in the body text.
71 MDY v Blizzard Entertainment [2010–11] 629 F.3d 928 (US Court of Appeals, 9th Circuit,
2010/2011).
42 Biotech 3DP digital watermarking
of existing independently of requiring a “nexus”72 of copyright infringement.
However, case law suggests otherwise and indicates that copyright is required.73
These cases are at the same level as MDY. Watermarking technologies and digital
rights management mechanisms often go hand-in-hand since the watermarking
provides the information for the rights mechanism to function. If §1202 were
limited to copyright subsisting works and infringements when §1201 is not (as
in MDY), it would undermine the purpose use and extent of §1201 as well. It
is reasonable to assume therefore that the scope of §1202 could mirror that of
§1201, although this has not yet been put to the test.
If copyright is not required, then this permits 3DP biotech watermarking to
have specific protections, which would exist regardless of copyright. However, if
copyright protection is necessary, this is of significance, potentially, since copyright protection in the United States requires a modicum of creativity further to
the overruling of the sweat of the brow test in Feist v. Rural Publications.74 That
higher standard of originality means that in some circumstances a 3D printed
work might not gain protection, whereas in the United Kingdom, it might. This
might be true of the situation where, for example, a 3D scan is made of a part of
the human body.75 In the United States, it might be arguable that this scan and
the resulting file would not meet the modicum of creativity requirement in Feist.
On the other hand, it probably would make the requirement of originality in the
United Kingdom. So, there is the possibility in the United States that protection
is narrower than in the EU or the United Kingdom, but that narrowness is dependent upon readings given to the scope of §1201 of the DMCA 1998, which
might see a work protected under that heading rather than mere traditional
copyright infringement.
One final legal aspect that is worth considering is the overlap with the watermarking technologies and patent law, especially (as noted earlier) that complex biotech devices are likely to involve inventions. Patent protection is irrelevant to the
existence of a digital watermark since there are no patent law provisions protecting
watermarks based in patentable works. Any relevance for patent law in terms of
watermarking is over the watermark itself, i.e. as an invention. It would not cover
protection of the use of a watermark in the way that might occur under the CMI
provisions discussed earlier. However, it would be useful to use the provisions if
a novel watermarking approach is developed. This might be the case where a biotech watermark guarantees the quality of the original product utilising, e.g. a specific 4D style structure (i.e. self-forming based upon certain energy conditions).
An issue that needs to be borne in mind is that in the United Kingdom computer
software cannot be patented ‘as such’ under s.1(2) Patents Act 1977, as is the case
72 Ibid., at p. 948.
73 Chamberlain Group, Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1203 (Fed. Cir. 2004) at p. 1201 –
“considering ‘access’ in a vacuum devoid of ‘protection’ are both absurd and disastrous.”
74 Feist Publications, Inc., v. Rural Telephone Service Co., [1991] 499 U.S. 340.
75 There is discussion of this in A Daly, Socio-Legal Aspects of the 3D Printing Revolution (2016)
Section 4.
Biotech 3DP digital watermarking
43
under the European Patent Convention.76 This means that the watermarking
technology has to operate with e.g., a ‘technical contribution’ or ‘character’ in the
same way as a physical invention in order for it to be patented.’77
In summary, it can be seen that a complex 3DP biotech product is more
likely to obtain legal protection and, in turn, that favours complex watermarks.
­Complex watermarks might – depending on the court and judge – need to be
based in a copyright work to function. The existence of patents are irrelevant.
The various uses of watermarks, such as to guarantee the continued quality of a
print, i.e. after insertion into the human body, are potentially useful methods to
prevent injuries to people using biotech printing, and yet they have no protection
given to them. It is argued that such protection should be provided.
Nonetheless, the dangers that such watermarks pose cannot be overlooked.
The possibility for the control of the biotech body at the whim of the prosthetic
State or other parties requires there to be a clear delimitation between the operation of complex watermarks and the ability of others to be able to access sensitive
information. This is addressed in the following reforms section.
3d. Limitations to watermarking technologies – why broad
legal protection is required
Watermarks can be subject to hacking attacks, just like other forms of technological protection such as DRM mechanisms.78 The advantages of watermarking,
such as the fact that they should have the ability to trace products and be able to
guarantee quality, are reasonably self-evident, but there are some limits to the
use of watermarking. Perhaps the most significant is the fact that a watermark
does not by itself help to prevent piracy. Whilst a watermark may be highly complex and difficult to reproduce using the same process of watermark production,
if a file can be reproduced in its entirety, then there is absolutely nothing that
a watermark can do to prevent a reproduction being made. Indeed, this is the
rationale in part behind the association of DRM with watermarking in the legal
provisions. This association is key because digital watermarking is protected by
DRM, whilst watermarking, in turn, helps to ensure the efficacy of DRM mechanisms by providing identification information on content. DRM has a long
history in the use of copyright content, but the application of DRM to biotech
products is nowhere near so pronounced. Indeed, the applications to which we
76 European Patent Convention Article 52/3 Convention on the Grant of European Patents [1973]
ILM 13/268; UNTS /199 [1974].
77 For the UK technical contribution approach see Aerotel Ltd v Telco Holdings Ltd and Macrossan’s Patent Application [2007] RPC 7; the EPO ‘any hardware’ approach see e.g. PBS PARTNERSHIP/Controlling pension benefits system (T-931/95) [2002] EPOR 522 but see DUNS
LICENSING ASSOCIATES/Estimating sales activity (T154/04) [2007] EPOR 38 on technical
character.
78 S Shaw, ‘Overview of watermarks, fingerprints, and digital signatures’ [1999] EducatiOn-­Line
JISC Technology Application Programme. http://www.leeds.ac.uk/educol/documents/0000
1244.htm#_Toc456162860.
44
Biotech 3DP digital watermarking
are seeking to put watermarking in relation to biotech products does not lend
them to a co-terminus application with DRM. A DRM system is unlikely to
prevent the replication of a watermarked titanium bone. However, encryption
systems could be used in association with a watermark (even seemingly within it)
to help reduce the incidence of copying; for example, online verification could be
used to ensure each product is unique. Likewise, the practice of barcoding products with patients could reduce piracy, and so could require watermark information to be verified on a central database. Furthermore, the use of a block chain
could be one means by which to verify the origin of a watermarked product.79
In any event, whilst the historical reasons for including the legal watermarking
provisions give a clear indication of a link to DRM protections, in the sector of
biotech the use of DRM technologies is an irrelevance. DRM, whilst of broad
technical application throughout numerous sectors, is not relevant for most biotech devices per se. This is why broader, enhanced, legal protection independent
of DRM would be useful as a safeguard against hacking of biotech products.
4. Moving towards reform
There are two clear situations which are in need of reform. First, the issue relating to the ‘uncanny valley’ and copyright, and second, the issue relating to digital watermarks. With regard to the latter, specific safeguards over the individual
vis-à-vis the prosthetic State will be proposed.
4a. Copyright
As outlined earlier, if a 3DP biotech work bears a close resemblance to an existing human body part, then there is a chance that it will fail the originality test
for copyright subsistence. However, if it is sufficiently developed in order to look
distinguishable from the human body, then it is more likely to obtain protection. It is suggested that this ‘uncanny valley’ be reduced for biotech devices,
since it reduces the ability to gain copyright protection and associated digital
watermarking protection. It directly disadvantages those seeking replacement
body parts to resemble the original human form. The current law holds an extreme view of biopower in that the State will only favour human improvement to
further life rather than risk encouraging any diminishment of the human body.
This is seen most clearly with regard to the replacement of functioning body
parts with what could be superior 3DP biotech.
79 See inter alia D Brown, “Cryptocurrency and Criminality: The Bitcoin Opportunity,” 327
Police Journal 331 [2016]; Office of the National Coordinator for Health Information Technology, ‘Blockchain for Healthcare Proposal’ [2016] https://oncprojectracking.healthit.
gov/wiki/download/attachments/14582699/48-Leidos%20Blockchain%20Proposal_v3.­p d
f?version=1&modificationDate=1474479420000&api=v2; H Kartik, SG Yatish, ‘Roadmap
for a Controlled Block Chain architecture’ [2016]. https://papers.ssrn.com/sol3/papers.
cfm?abstract_id=2822667
Biotech 3DP digital watermarking
45
The lack of IP protection within the ‘uncanny valley’ is something that should
be remedied. It is therefore suggested that with regard to copyright, there should
be a specific provision in IP copyright statutes which would permit the protection of biotech technologies which resemble the human body. This could mean,
for instance, that a 3D scan of a patient could obtain clear protection and the
subsequent use of that scan in a 3D print (which is increasingly likely to be automated). One could argue that this protection could be too broad in that it could
lead to overlapping protection, but the works would be able to utilise the digital
watermarking protection outlined later to establish if the subsequent work was
derived from the original work.
4b. Digital watermarks
The legal regime for protection of watermarks in biomedical devices is not
straightforward. It is clear that watermarking can be protected under CMI if
copyrightable content is involved, but this seems to be an unnecessary requirement for biomedical devices where copyright might well be a peripheral concern.
Furthermore, it is also clear that there is a gap in copyright protection where the
3DP biomedical work falls within the ‘uncanny valley.’ Nonetheless, it would
appear that many forms of watermark can be so protected, and this is significant for those watermarks that are more complex in character and more likely
to be active, i.e. in not merely detecting infringements but also in tracking use
and quality of medical devices. If anything, this research reveals a need to be
able to protect such watermarks free of copyright (or other IP) simply because
the ­watermarks themselves provide an important means by which to guarantee
the quality and source of 3D bioprinted products.
This paper therefore argues that there should be a specific protection which
would protect digital watermarks. This would specifically protect the watermark
as a thing in itself rather than under the current CMI provision. It is suggested,
too, that the existing CMI provisions be specifically reworded so that they do
not overlap with the digital watermarking provisions, for the sake of clarity.
The proposed provision would protect digital watermarks independent of copyright protection. No copyright protection would be required. This would have
two key advantages – first, it would enable protection of watermarks on products
that fall within the copyright ‘uncanny valley.’ Consequently, watermarks placed
within realistic prosthesis would be protectable. Second, it would mean that
the use of watermarks for purposes such as ensuring the quality of biological
materials would be protected. This is particularly important for any forms of
biotech implantation and would encourage investment in relevant watermarking
technologies.
To this end, it is proposed that a provision should be introduced within an
international treaty. This should be a sui generis style protection for biotech
works, though it would not require detail of the level seen in such agreements
such as ‘The International Union for the Protection of New Varieties of Plants’
46 Biotech 3DP digital watermarking
(‘UPOV’).80 A biotech work would be defined as “one which involves the production of non-biological materials whose value comes from its interaction with
biological materials.” The main provision could simply read that:
Digital watermarks on biotech products will be given protection as a sui generis work, and must not be removed or altered without the consent of the
owner of the property on whom it is placed or inserted. Removal or alteration without consent will result in a breach of the rights of the watermark.
This would provide protection to those watermarks placed on works that fall
within the ‘uncanny valley.’ A biotech digital watermark could be defined as:
A mark placed or inserted on biotech property. This may include inter alia
identification information such as the name of the owner, the producer, or
any other identifying information. It will also include transitory information such as the state of the property on which it is placed.
A definition such as this would then also cover those watermarks used for monitoring the quality of implants. As outlined earlier, such a watermark should be
required to be used in a manner that can prevent easy transfer of sensitive material. This could be achieved by requiring that all sensitive data be kept firmly
encrypted. Whilst this may not suffice in removing the ability to link a biotech
work with an individual,81 it can disguise the inner details which could be compromising to an individual and reduce the chances of remote hacking. This also
reduces the ability of the State to directly interface and interact with the biotech
body, provided the legal regulation remains in place, for there are limited abilities to be able to break current methods of encryption.82
4c. Conflict with existing IP laws?
There is the potential for the proposed provision to conflict with existing IP
laws. This is because the fixing of the watermark on an IP work could undermine the scope of existing protection. For example, if a watermark is placed on
a biotech product (otherwise outside of IP protection), a second-hand reseller
cannot remove it without breaching the law, thus undermining their ability to
make alterations to the work which would otherwise be permitted under the
economic copyrights (e.g. by exhaustion of the distribution right). Nonetheless,
the watermarking provision bears close resemblance to moral rights systems,
80 The International Union for the Protection of New Varieties of Plants, 19th March 1991. See
http://www.upov.int/portal/index.html.en
81 Similarly to data encrypted over the Internet – the IP address may be identified but not the actual content itself. See ‘NSA Prism Program Slides’ at https://www.theguardian.com/world/
interactive/2013/nov/01/prism-slides-nsa-document
82 Ibid.
Biotech 3DP digital watermarking
47
such as in France, where an author retains control over a copyright work until and including its destruction. As such, despite issues relating to interference
with regards to existing IPR, the watermarking provisions would strengthen the
existing protection. Given the tendency of international IP provisions to favour
IPR and limit them in only exceptional circumstances, the trend would be to
protect the creation of new rights rather than to frustrate them due to overlap.
5. Remaining issues?
Regardless of any laws, the issue remains that digital watermarks remain vulnerable to counterfeiting if there is no verification of each individual watermark taken
as a group. This is why penalties for the counterfeiting of digital watermarks
should be strong, especially so where the safety of 3DP biotech products is endangered. Other than this issue, though, digital watermarking is a very strong
and effective mechanism to assist in the protection of 3DP biotech products.
Furthermore, it can assist in those issues such as quality assurance. However, it
brings some dangers in relation to the relationship of the State.
The State, through the deployment of digital watermarking technologies in
biotech 3DP, also has the ability to be able to subtly alter its relationship with
the human body. The notion of protecting and extending life for the purposes
of providing a rational existence of the State could begin to break down, as the
existence of these technologies can become more invasive. For instance, if, say,
a 3D printed lung begins to break down due to smoking, this could be detected
by doctors and reported to the State – or even be automatically reported by the
body part itself. Someone who does not do enough exercise causing 3DP biotech
arteries to harden over time could be automatically reported. These individuals
would fall foul of the rational State and could be penalised. 3DP and biotech
printing could also lead to a situation where there is a gradual dividing line made
between those who uphold their rationally perfect beautiful bodies and those
that fail that standard due to the exercise of their individual will. It might not
be Auschwitz-Birkenau, but it is a future that potentially challenges what it is to
be human.
6. Conclusion
The Prosthetic State is a potential State of the future where the individual becomes enmeshed with the State as if it were part of the human body. Biotech engineering, using 3DP, is a key way in which this future may develop. Being able
to code the human body as if it were a computer terminal provides for a future of
limitless possibilities, but it also provides for a potential future of dystopia. The
popularity of the biopower paradigm in common culture is one way in which
this could manifest itself, namely, the ability of the State to be able to control
the biotech bodies of its citizens. However, it is more than that. The manner in
which the State is favouring more complex 3DP biotech systems, and complex
watermarks, provides for a future where the State can intervene in the operation
48
Biotech 3DP digital watermarking
of such marks. These watermarks are capable of providing information about the
state of the human body, thus providing the information that the rational State
requires to be able to intervene to be able to further its programme of biocontrol.
Nonetheless, the chapter has made clear that the lacunae of current copyright
protection for lifelike 3DP biotech works that fall within the ‘uncanny valley’ is
something that should not occur, because it disadvantages those works that happen to resemble the human body. That a physical human body is insufficiently
unique is misleading, a facile reminder that ‘intellectual’ property protection is
just that – for the protection of an individual’s intelligence and not the physical.
In addition to that, this leads to biotech works unable to gain protection not just
from copyright but also the ancillary protection in watermarks. Underlying the
issue of a lack of protection is the repulsion of the State, acting as a combined
collaboration of the human will, against the bodies that fall in the ‘uncanny
valley.’ This response, whether valid or not, is one that pushes us into a future
of complex 3DP biotech body parts, one where the State can become an integral part of the human body, a future where the State can further rationalise its
approach to the human body, becoming at one with it. The body reports what
the human in charge of it has done; and the State can penalise or reward the
individual as it deems fit.
Whether or not this future comes to pass, the current situation is such that
clearly there is a need to consider the protection of the ‘uncanny valley’ and to
protect such works, whilst setting standards for watermarking in terms of protection and in terms of the standards of the marks themselves, especially with
regard to the potential use and invasiveness of the technology. The possibilities
of 3DP biotech are endless and pose the ability to alter and replace the human
body in a manner not seen before. The impact of this upon the State is likely to
be profound, for those that it regulates might no longer perceive the State to be
rational under its traditional paradigm of biopower. The State is, paradoxically,
furthering this possible divergence with its current policies towards 3DP biotech.
Acknowledgements
With thanks to P Li (Sussex), A Faulkner (Sussex) and N Medcalf (Loughborough),
who wrote an earlier unpublished paper with the current author. This chapter takes
ideas from the EPSRC research project, and paper, and builds upon that earlier
work. Thanks are also due to Professor Andrea Lista for his comments on an
earlier draft.
Part 2
3
The interviews
Below are the summaries of the 30 empirical interviews carried out as part of the
Arts and Humanities Research Council (‘AHRC’) project.
Interview A
The interviewees work in a 3D printing (3DP) company aimed mainly at education in schools. They are considering branching out into a city with a large
automobile industry. There are more than 100 car companies in this city. They
are welcomed there to help them establish a research and design (‘R&D’) centre.
This centre will serve for the local enterprises to enhance their competitiveness.
3D printing will have some significant impact in some industries. It is mainly because 3D printing technology will improve efficiency and significantly lower the
cost to produce the model. For example, you want to produce a car headlight.
Normally, there are six options for a car headlight, which means you need to design and produce the mould six times. It will be very costly and take a long time.
However, by using the printing machine, it only takes one week. Their mission
is to provide the solution to customers, to meet every demand from them. It is
also to promote their brand value.
From their perspective, the biggest problem is the low market acceptance and
a very niche market. The competition in this industry is very fierce because of the
exaggeration of the media that attracts many potential entrants. A large amount
of investors entered the market and will be driven out of the market soon. They
have met a lot of people who were full of passion when they entered the market
but, after one year, ended up with nothing. One will have no opportunities if
you enter the market. The market competition is too intensive. It is the same for
all the emerging industries. A typical example will be the photovoltaic industry.
The market for 3D printing is very niche. However, their business activities are
not limited to the application of 3DP. They aim to solve problems for their customers. This is their ‘true market.’ They focus more on their customers’ needs
and how to solve problems for them. While the market for the application is very
limited, the market for solving customers’ problems is indeed very large.
In China, it was considered that licensing of 3DP files online does not make a
convincing case for those in the market, even if participants own many patents.
52
The interviews
Especially when you are in an industry of weak patentability or your business is
not in a leading position in the industry, it will be pointless to highlight your
patents because they are not taken seriously in China. The reason that their com­ hejiang, is
pany has become the one with the most patents in Ningbo, even in Z
that other companies do not apply for patents. It is costly to apply for a patent.
Normally it takes 20,000 renminbi (‘RMB’) to apply for a patent. In China,
patent is often overlooked. It only takes effect overseas or when you apply for
government projects. However, it rarely helps with the market competition.
It is a way to show that they have devoted so much effort to it; it is a way to
prove that they did invest in it. It is not only about selling 3D printing machines
but a way to present their achievement. For example, [someone] designed a new
type of material, which sells well in the market. In most cases, customers do not
know who designed it. With the patent, you can prove that you are the designer.
Although a name is written on these patents, I may not be the designer. The
agent put my name on it only because I am the legal person of the company.
More generally, those in the market are businessmen. They entered the market
only to make money. So, they will quit the market as soon as it is no longer profitable. But if you want to sustain your business, technology accumulation will
be needed. Success does not depend on your capital but your strength. All the
improvement of your technology will contribute to your future growth. After
several years, you will find these contributions really help. Only if you apply for
patents every year will they be accumulated over years. The company’s value will
be valued higher. It can be seen as the preparation for the future growth.
If a licensing platform can be established, the interviewee said he would post
his patents on it to see if anyone needs it or want to purchase my patents. There
are actually few patent transactions in China. In his point of view, China’s patent
market is not mature yet. They have considered purchasing some patents but
found nowhere to purchase them. They think it will not be easy to buy patents
abroad because it will involve a lot of international transaction issues, such as
the law. Only a few companies hire professional legal counsels as their company
does. Most companies do not employ legal counsels.
Good patents always lead to good product lines. A good product means a
big market. If they own a patent that could generate million RMB, it can actually form a big data. Nowadays, the consulting firms hire substantial human resources to do research, and give feedback to the company. But with the big data,
the industrial condition can be easily obtained through online search.
They argue that the Government believes that the more patents a company
has, the stronger the company is. They have never displayed their patents before.
But several days ago the interviewees were reminded that they should present
their patents and photos to the government officers during their visits.
It takes one year for the government to approve their application. But the
truth is they have updated several versions of their equipment or software during
that time. That’s why many people choose not to apply for the patents; technology changes so rapidly. Many technologies may have been updated or eliminated
before they get the patent. Their industrial machines design is something visible.
The interviews
53
But for material industry, such as the Coca Cola’s ingredient, you can never observe its formulation. And Cola has been selling well for so many years. So, they
can conclude that a long patent protection time is essential for them.
The view is that the government has been improving applications. The process
took even longer several years ago. The patent approval time varies from industry to industry. Government needs to appoint professional officials to deal with
the approval process. The number of applications increases every year, which
significantly contributes to their workload. Given the limited human resources,
it is hard for them to solve this problem. And it will be even harder for them to
change the system.
Interview B
The interviewee has built a company for over four years. They mainly focus on
3D modelling technology. They design and manufacture the Fused Deposition
Modeling (FDM) technology 3D printers, and then sell them all around the
world. Until now, they have built a good reputation and a lot of 3D printers.
They try to expand their business. Mostly they manufacture printers and they
are beginning to provide services to their local Chinese companies. If you compare FDM technology printers with others, you will find many advantages. They
sell their printers. They also provide the service of software. But now they do not
licence printers. For software, they don’t sell it. They provide it for free. You can
download and use it. They made several of these and released them about four
years ago. They improve the software constantly.
They print and provide polylactic acid (‘PLA’), acrylonitrile butadiene styrene
(‘ABS’), polycarbonate (‘PC’) and nylon, polyvinyl alcohol (‘PVA’), high impact
polystyrene (‘HIPS’) and Plywood. One of the great advantages is that their
printer registered as a 3D printer is compatible with most other brands’ material.
It is open. So, some of their users will use other brands materials. Sometimes
they buy from the interviewee; mostly they use other brand materials. Mostly,
they do some adjustment on setting via software or control. And they can solve
the problem.
They cannot avoid copying by other manufacturers. It is not easy to copy
their printers. They do a lot of improvements. In other words, they do not
actively protect their printer. They grow fast, and they mainly focus on R&D,
which may protect them. When there is a copy, they have already produced new
products. They have a community of printers and professional users. Mostly, the
upgrade is based on the final requirement of their customers. When they update
the software, they will notify the users. And they communicate with their customers a lot.
They have about over 7000 users. They are trying to provide a bigger platform so that they can communicate on that. They can also collect feedback and
advice. They will do it in the future. It is a forum. They have a good relationship with an English company. STL provides the manufacture platform. They
are going to put their software on their platform. Users can directly download
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The interviews
software, and then slice it, and then print it out…. they also hope they can put
the forum and the software together. It would be easier for users to communicate with each other, and for the company to communicate with them. Furthermore, in manufacturing, many designers could create files, upload them to the
website and then sell them. Mostly they will not collect files from users. They
have run a campaign before where they collected them and provided some – but
they think, first, that it’s not easy to find original users, and it may cause subsequent problems.
They don’t create files, but they can track software. They can track who
downloads and where, something like that. In the 3D printing field, especially
for FDM technology, there are many companies copying other companies’
3D printers and selling them. They don’t put much money into R&D, which
cause losses in other companies. They design and manufacture two-generation
3D printers. They have encountered a situation where another company copied
their printer and sold them a lot, which affected the sales of their own product.
If customers send a file to them and say it is confidential, to them it is confidential, and they won’t use it in public and will sign some agreement. Mostly,
customers just send the file; first they check if is it okay with the printers, and
then how much it costs, then they print it out. For the amended STL file, the
customer may keep it, but they don’t use it for commercial purposes. In China,
when printing providers, they mainly have local customers. Those customers do
not request a copy of the printer file .gcode. So, the interviewee keeps it. The
firm cannot use the files of customers if they do not agree.
Protecting a company’s copyright or technology will motivate the company
and their willingness to do more R&D. If they are easily copied by others, they
may lose profits – and then they cannot survive and stop R&D. It is not good for
technology research. There are few patents from big companies. They sell technology patents to others. FDM technology is open source now. Few technology
patents are sold.
They find that software is more important now than before. Some users will
buy software first, even if they do not use the interviewee’s company’s products.
Then they will realise it’s a good company, and they will choose their printers.
First, software can promote the printers. Second, their customers can get much
better experience than others. The interviewee’s 3D printers have proven to be
workable. The interviewee prints the files before they upload the files. Then,
if it is okay, they upload it. There is also a platform for users and designers to
communicate.
They don’t think 3DP can replace the traditional manufacture. They use
3D printing in small batch productions or R&D development.
They mainly focus on professional users. Of their second-generation printers,
they have sold about 1000. It is not a big number. Most users are makers. They
design by themselves and do small business. They have big manufacture siders,
and they have accuracy. With these printers, it can help customers to save their
cost and time on R&D. Professional users can use 3D printers as tools to create
much more production, which can meet the requirements of more people.
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Interview C
The interviewee is a chief technology officer (CTO). Currently the company
mainly focusses on customer service, including scanning, printing and model
design. They are still in the process of being registered. In terms of motivation,
they want to avoid imitation from competitors. They do not intend to produce
in batches. They start with a few and they are going to see how it goes. In the
current stage, they are focussing on establishing the foundation. Once they find
out that everybody likes it, they may go to the second step. Part of their software
is from the open source. They are thinking of putting everything online. They
do not print the QR Code, but they print human cells, like hearts. They print
cells, the sizes of which have been enlarged 10 million times. For example, when
you go the hospital and get a computerised tomography (‘CT’) scan, they can
convert that to a 3D model and print it out. They have various materials. They
have some environmentally friendly materials, including materials for medical
usage. Like the gypsum for the tooth. It is not easy to implement. Compared
with the countries that have advanced technology, the companies in China are
still in the learning phase. In China, it is really tough to do this, especially in the
3D printing area, given that the imitation in China is too fast. They can copy
their product by simply scanning it. In China, their competitor will catch up
with you when you just finish or even when you are still trying.
In the past companies had to use the traditional moulds to build things, which
is costly and a waste of time. Now with the help of 3D printing, they can save the
budget and time. But in terms of the customers, currently they may not benefit
from this technology, apart from some people who have the requirement for customised usage. Currently there is no such company that takes an obvious lead.
Everyone is exploring this industry. There is no standard. In south of China,
they use 3D printing for culture industry, while in the north they focus on the
sculpture. For the companies in the south, sometimes they have dozens of the
machines for printing and they have already invested over 10 million RMB. This
technology will be the tool for people to realise their ideas. They want to provide
such a platform for people to design their ideas.
Interview D
The interviewee’s company was established in 2014, and they mainly conduct experiments of metallic materials and 3D printing metal. 3D printing includes metallic and non-metallic materials. They focus on metal manufacturing, which is
commonly applied in high-end industrial use, such as aviation. Their customers
may require some technology that traditional 3D printing cannot provide. They
are cooperating with an overseas company, and at the same time they introduced
their equipment to China.
They will get a design from the customers and make some adjustments and
recommendations to satisfy their needs and the functionality of the printer. They
have software to program the procedure, in which the parts are divided into
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The interviews
multiple layers that are only 20–50 μm. Finishing this part requires about ten
hours. It comes together with the printer. It belongs to their company. They
have the industrial level of utility patent and a few invention patents, such as
the support stand, which is a utility patent. Invention patents are mainly about
improvement of material function.
They usually get their customised material from their partners, who specialise
in materials. They participate in quality management, including raw material procurement, manufacture, testing, etc. Their supplier must hold qualifications. The
interviewee said that it is more important to find what the market needs because
this technique is in its developing stage, and a patent will only guarantee something at this point in time. Now the government encourages companies to acquire
IP, so they can get some subsidies and customer recognition. The i­nterviewee is
not sure about copyright in this industry. If it’s related with software, they are not
doing this. Their patent is more about how to use software to print.
3D printing is still a fast-changing industry. If the government imposes protection on certain products, this will do more harm than good. If the industry
has developed to a mature stage, protection will be good to have as a law.
Interview E
The interviewee runs a 3D technology company. They are doing services including 3D design through printers, sample prototype making and small quantity production. They would like to help Chinese manufacturers to develop and
improve their production process. They want to move from ‘made in China’
to ‘create in China.’ They have FDM printers and Stereo Lithography Appearance (SLA) printers. They also import technology from Japan, Germany and
­A merica. They only settled on core market areas, like consumer electronic devices and metal parts for vehicles; for motors like the aircraft; digital medical
examination parts; moulds for food factories – like moulds for biscuits, chocolate
and moon cake. Special patterns can be produced with 3DP moulds, all based on
developing or prototyping.
How to use this technology is the most difficult part, but according to market
research, most customers have their own ideas. You have to put new technology
with old ideas to create new ideas with new technology. For instance, 3D scanning can only scan the surface of a 3D object. But when making, 3DP creators
are making a structure inside, a scan by itself will not work as it has no internal
structure. Creators just draw the design manually using the software. They work
with many universities, and they have a lot of next-generation new designers.
They help creators to understand [what] they can produce with 3D printers, so
they can design much more freely, without too much consideration about structure or the look. So, creators can open their minds.
Most customers give the interviewee the file. 3D moulds come in two parts
in China, one is the structure – the inside part – and one is the visible part – the
outside part. Most customers have the outside part. But the interviewee will do
the inside part as well.
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For contractual relations with customers, they have a document. Customers
must sign for this [saying that] this model file is from them. Or the customers
ask us to design for them. If they lie to the interviewee and get the model from
other places, this document can help the company.
The interviewee does not want to use this technology to help others to copy
things because this is the technology for design, for creating, not for copying or
cheating. They always talk with their customers, [saying that] the technology is
to help them free their mind, to do more design, to do more innovation and to
not to copy things. And according to their research, the customers understand
this – because if they copy things, it’s easier. However, they cannot sell at higher
prices, or even at the same price as the original item, and the market will know
that this company always cheats. So, maybe they will only pay half price. In the
past, why they do the cheating and copying is because the development costs are
too much. For example, let us provide an example of a Wi-Fi device. This allows
for maybe half a year from design to prototype and testing, then they make the
mould to produce that. In old times they did not have 3D technology; it may
cost 100,000 RMB, and it costs a lot of time. So, that is the main problem.
Companies want to copy things because it is easier. Using the new technology,
they only spend 10% of the cost, and at the same cost, they can have ten different
new samples. So, why do they need to copy? Each year they go to business shows,
and they have 20, or maybe more than 20, new samples. They can have more
orders, so they would love this technology.
The firms want to have their own brand. Everyone wants their own brand. Because, at first, Chinese manufacturers were very poor. They just wanted to earn
money, so they did all the dirty work. But now, they want to have their name
clean and have their own brand. So, they want to do the design. They are willing
to. But their profit margin is very low, only 5–10%. Spending a lot on new samples is too risky. But now they have cut their risk, so they come back, and they
want to use this technology, and they want to innovate, not copy. Nearly 95% of
their customers do not do the copy work.
For design patents and utility patents, they work with a very big organisation,
possibly the biggest patent organisation in China. They can help the interviewee
check if a design is original. For each new design, the interviewee asks them
to do the patent work. Before, the system just checked by keywords – perhaps
‘vehicle’ or ‘Toyota,’ just the words of the title or headline. Now, they check the
meaning – maybe some words are different, but they [refer to] the same item,
and they can find out the existing patents. The interviewee has checked the government system and can only find 1000 matches, but according to their system,
there are 2000 matches. Also the government is buying a new system [to replace]
the original one. The government knows they have to change [the meaning of]
‘made in China.’ Made in China is not just copying.
Their system provides free moulds online for download, for education or communication [purposes]. If someone is willing to do that, they will update their
mould/their design; that’s okay. Because, you see, an open resource is the future.
The interviewee believes that if everybody is willing to share their resources, and
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The interviews
if they have some organisations, e.g. non-governmental organisations (‘NGOs’),
to do the work, that the overall output will be better. The interviewee wants to
encourage them to do this. But most designers need a living, they want money.
So, they use a special system. In China, if they use their design, they can have a
share in profit for each product produced. This is just an agreement in their area
[industry] because there is no such law. But they can make a contract to do that.
First you share your design. If they like it, the interviewee will make a 3D sample
and will find out the cost – maybe 100 RMB.
The interviewee can know the cost because they can produce the product. They
do the prototype, including the electronic parts inside. For instance, ­designers
will put their design in Kickstarter, people are willing to pay for that. Then
maybe 10% is your design share. The designer will prefer this new c­ ooperation
system because if they keep producing products that sell well, the designer will
keep getting money.
The patent system cannot ensure 100% that the design is [from] this person.
It’s very hard to find out. In China, for now, for outlooking designs, there is no
such thing. Producing the item is the hardest part; for structure design, they
are willing to protect that. They would use the system to identify whether the
design is a copy or not. If yes they would stop working with the designer. If it is
original, they won’t go to court. But in China, if you win a court case, you get
5000, that’s all. For a designer, during their process, they just look at a lot of
best designs. They will use some resources, maybe change a little. It’s very hard
to see whether it’s a copy or not.
It is difficult for the company to protect the art work. They heard about a
story. Someone wore Google Glasses to a museum, scanned the art and sold
[copies of art] on eBay. So, they did not allow him to enter the museum again.
Everyone can buy a 3D printer, and can make their own copies. Tracking information is very hard. They can use a CA system to track. The CA system is for
China customs and excise – import and export. It is very expensive, and most designers cannot pay for that. For example if I’m a delivery person, I must write my
name and phone number. Because those involved in 3DP do not have A
­ mazon,
it is different. They (Amazon) do all the things in one company, one system,
which is easier. In China, they have Taobao, but Taobao do not do the transport
or delivery work. Also Taobao do not produce [products]. They do not control
all the system. The labour cost is very high. They have heard that in Hong Kong,
they track eggs, fruits and vegetables. For an item that’s under 500 [in price], it
isn’t worth it to do that.
The interviewee considered that for tracking there can be too many parts –
design, factory, delivery and customer. Just one QR code cannot offer all the
information. You see, everyone needs a device to write down information, and
you should use this device to write down your name. And you as an organisation should make sure that everyone obeys the law, which guarantees that they
would not write the wrong information. In China, this is very hard to do. They
can imagine that even the government in Zhejiang province – it’s very hard to
do that.
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For the customer level, everyone can be a designer, and with a 3D printer
they can be the manufacturer; the interviewee plays both parts. They will learn
how to protect their own design. For the large factories, they would do the mass
purchase work. They have heard people say that in the future there will be two
types of factories, one for material and one for producing. They can produce
everything and they can supply the whole world. If they have such huge factories, they will make a standard of all the things, the IP things. Open resources
is the future. They do not always focus on the IP; because this is human idea,
they need to communicate with others to create sparks. They share their idea
and think that with this idea, they can create more. Owning a patent or design
will limit the imagination, ability, which the interviewee thinks is not the way
of the future.
They prefer to do the design, not the scanning. With scanning there are many
little triangles that need their designer to fix – this is too time consuming. They
think that within the technology, this ‘fixing’ is impossible. They live in a 3D
world. Their world is 3D. How can you catch the 4D? How can you catch time?
Because you cannot control that. If you have this technology, you do not use it
to scan, you will use it for time travel…
In reference to a newer 3D printer, the interviewee said this printer is much
more different. It’s more like a machine, not a printer. The customer is some
manufacturer. It is much more intelligent. They can do level change and check
the material and check design for you. Also you can use this to communicate
with different printers. Also they can do item transportation. Each different
printer will have a user diagram. They can talk with each other and share the design. First they have this box to control other brands of 3D printing. They have
protocols for communication. They have protocols for communication from box
to machine, and according to their system, there are differences – some based on
R, some based on X, some based on Linux. Over the Internet they have a special
code, to code and to decode. It is safe, at least at the Secure Sockets Layer (‘SSL’)
level, because someone will use the box to do bad things: for example, piracy. In
the new printer, they put them together so it is easy for them to use. But for now
they just let the customer use the business part, not consuming use. They think
perhaps in the future they would have these needs.
Interview F
The interviewee company mainly sells 3D printers to the export market. For the
domestic market their printers mainly go into schools. In the interviewee’s opinion, the 3D printing industry is now quite common. As long as their products
are not significantly different from existing products in other countries, they will
not pursue IP. For example, only when their products are unique, they would
apply for patents. Many products are the results of building on top of other
patents, so they are not really unique themselves. Many products are finished by
the knowledge of many people and companies, and it is not necessary to apply
for IP. They have never thought about patents – and still would not think about
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The interviews
it. There is no need to get a piece of paper. Many companies applied to get the
funding from the government. They do not need that. They think the real competition is market-based. They are confident about this opinion.
The 3D printing industry is quite saturated these last few years. The amount
of one export order can be equal to many domestic orders. The market is quite
full in recent years. You need a surplus of sales over funds in order to carry out
R&D and to cover expenses. However, if you get projects, it would be much
easier. For instance, if you do a project with a school, the [revenue] would be
hundreds of thousands of RMB, so the interviewee could not imagine why it
would be difficult.
The interviewee argued that some people find the industry attractive and want
to make some big money and leave the industry. Some people withdraw after
investing funds for the reason of high technology. So, if a company can get a
few of these projects a year, there is no way it cannot survive. It is impossible.
There are markets for [certain products], for example. One factory will need one
3D printer normally. So, if they can sell about 20 machines every month, that is
sufficient for the continued operation of the interviewee.
They think the government is right in its efforts to attract more young people
and incentivise them to try new things. It is a great opportunity for the younger
generation to develop and make a living.
The interviewee thinks that they might transition into something else, such
as artificial intelligence. For example, robots and intelligent furniture. They also
find the energy industry attractive, the energy saving. They think energy industry will have a bright future. They may consider other options when their current
business has matured in the coming five years. The most stable way to do this is
to use the profits from the 3D business to support new ventures.
There is no point in protecting your products and not letting others see it. Just
think how professors in universities teach us; it is the same. And it’s not like the
technology is for military use; it’s just normal technological progress and should
be public. IP sometimes is just a way of marketing and promoting. Final customers sometimes do not care if the products are with IP; they care more about their
functions. Moreover, IP might be necessary for some companies when they go
for production; it is just an official way.
The biggest challenge would be two people working on equipment into the
middle of the night, during the early stages of R&D. But it’s all in the past.
Additionally, the funding, they only use the profit to buy other products. They
did not get funding from outside, not like some other companies who got much
investment outside, for instance, the government.
Government support funds are a waste of taxpayers’ money. If you have this
money you wouldn’t work hard on marketing or techniques. They’re too comfortable on the government’s money. They do not see very good result from the
government. You can only rely on yourself to explore new markets.
3D printing is not widely used in medicine; the media has overemphasised it
in order to get investments or funding. One needs to think if one can produce
the products with the quality one mentions in public. 3D printing in medicine is
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similar to its application in industrial contexts – it is used to make moulds rather
than anything else. 3D printing using metal is not perfect, and if you were to
install a 3D printed cervix, it’d have to be stainless steel, but so far 3D printing
cannot be done with stainless steel. It can only make a general shape, and the
errors all need to be smoothed out and fixed. It is still a question if the printed
product could be used and inserted into the human body. The real usage of
3D printing would be to produce a mould, then make the actual component
based on the mould.
Many companies or individuals are interested in 3D printing, but few of them
are professional in it. 3D printing is good and different, but it is not magic.
Maybe 3D printing is not intelligent enough – the machine has to be easy
enough for a five-year-old to use. They think in the next few years we’ll be seeing
intelligent 3D printing. They think the market has infinite potential. It would be
also good for the innovation of children; if the product is competitively priced
and intelligent enough (system and software), there will be a very big market for
it. For instance, the software will be very simple to use, and children only need
to choose the object (like toys) and say ‘print,’ then the products will be printed
automatically.
Interview G
The interviewee works in the Department, and it has three divisions. The first
one is the IP Department, which focusses on the creation of IP, including the
whole process from application to maintenance. The department would also help
to promote these patents, such as by maintaining the platform to attract outside
clients to purchase these patents and apply these techniques. The second division is about technology transfer. Its main function is to transfer the scientific
outcomes to some enterprises and governmental units in order to allow them
to use these transactions and have real applications in the society. The normal
patterns of cooperation are from the aspects of technical service and technical
commission. If a new company is established, then they will have other outside
investment units. The third division is responsible for management of these companies in which the company has shares.
To promote these, the company utilises the WeChat platform (a popular
smartphone app in China like WhatsApp) that focusses on the technology transfer in Ningbo. The company just listed some of the technical outcomes few days
ago before the interview. In addition, the company also renews some brochures
that include the techniques available for sale. Moreover, the company has a website, and the government service platform under that can help to promote these
techniques.
The interviewee mainly focusses on the management of IP, from creation to
the application, but is involved less in other aspects, such as IP protection and IP
disputes. Last year, the company had 49 licences approved. The operation rate of
the department is quite high in the system of Chinese Academy of Sciences. Operation rate is the rate of promised patent to the available patent, which is close
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The interviews
to 10%. Regarding 3DP, however, the company only has the technique, not the
patent, because the team of 3DP began just in 2013.
The interviewee considered that the degree of IP protection and the punishment for offence is so low that the cost of offence is not sufficient for deterrence.
The punishment in fact is not a big deal compared to the benefit obtained from
the offence. This phenomenon (i.e. patent troll) is not common in China though.
The interviewee felt helpless with regard to IP because the company does
not know the difficulty in the process of obtaining a patent and does not pay
attention to the protection of IP. However, this cannot be generalised in China.
Some companies in China may focus on the quantity, while others, like these
big companies, may focus on the quality. The interviewee also considered that
licence authorisation is not a problem in China, but it depends on the sincerity
of the two players since the restriction of regulation is cancelled. The company
platform will not allow automatic licensing deals as it is not the purpose of the
design. It simply breaks the geographical restriction and allows service, negotiation and coordination.
More specifically to 3DP, the interviewee thought that it is needed to establish
a complete patent system for the whole project process, including every part and
function of the 3DP. The patent system can show that the technique is mature,
and then the company can apply for market promotion and licence.
The interviewer suggested that the model of the Copyright Hub is suitable
when the downstream of a technique is the customers. For example, customers
may want to use the technique at home. The small cost for use compared with
the risk of counterfeiting can incentivise the user not to infringe. The interviewee responded that it all depends on people’s awareness of risk and IP issues.
Either the punishment of infringement or people’s awareness of IP protection is
low in China. But these issues are getting better in recent years. That being said,
such a platform does not exist in China so far, since the platform will involve
huge human cost.
Another possible reason is that IP protection still hasn’t drawn enough attention in China. It is essential to decide whether an inappropriate use of IP can
constitute an offence or not. The interviewee said the 3DP technology works
fine, but it is the consciousness of the public that demands attention, namely
in their awareness of IP infringement. The 3DP technology has just developed
for 30 years since the 1980s, so the lack of awareness is understandable, and the
company has realised these problems and is now making efforts on these.
The interviewer claimed that the cost to implement similar copyright protection is not too high (e.g. YouTube). In response to this, the interviewee said
some techniques can’t be identified as IP at first glance. It will cause problem
of infringement of IP later. Therefore it is important for people to have good
knowledge of their IP and increase their awareness of IP protection.
Regarding the implementation of licence authorisation, the interviewee said
it depends on the form of authorisation. First, if it is authorised as permission of
use is in the form of years, it will be followed up later. If an IP is transferred to
you, then it belongs to you totally. It has nothing to do with during the period
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63
of authorisation. In addition, the company can invest the IP to become a shareholder of a company. Then the IP belongs to the company. After all, the company is a scientific research institution; what they want is for the technique to be
useful to the society, not in preventing investigation of any property.
Furthermore, the company does not have any trademarks, although they may
acquire some soon. They are now constructing the third industrial park for incubators. They put the relatively mature techniques in the park to promote their
development. In addition, the patent system can also help protect database and
the content in databases, including publicly available information such as news.
But the interviewee thought that it has not been necessary to protect such information so far in China.
When the interviewee was asked whether trademark, copyright and patent
are complementary protection, he said it is not necessary to emphasise the copyright because what a person create is theirs, whether it is published or not. As
for the trademark, it is necessary. While for the patent, it is not practical unless
someone wants to design the outlook, appearance and so on. Sometimes people
discuss about whether to have design, patent and trademark together. If you can
make the trademark and the design patent at the same time, do it, argues the
interviewee. But if one cannot, one should focus on trademark, which is more
powerful in protection.
Overall, the interviewee thinks the protection for the products of 3DP depends on the particular attribute and usage of the product. If just to protect the
product, it is more meaningful to focus on the trademark. If the product’s design
is unique and valuable, then one should focus on the design right. However,
design is not included in the patent, it is part of the copyright. Also, copyright
and trademark are not overlapping with each other. The copyright includes more
text, while the trademark may have both text and picture.
Regarding the user friendliness of the current IP system, the interviewee said
it depends on the particular industry. For example, the manufacturing industry
may emphasise on copyright, while the service industries may focus on the trademark for their service. For the computer industry, it may be more meaningful
to focus on software patent. Similarly, when applied to the products of 3DP, it
depends on the particular product; its design, its material or its manufacturing
process really matter. To make sure that the public can understand this, it needs
finance support. For patent applications, it may take two years. It can be regarded as a risk, as was for example, solar energy lost its popularity in 2014 but
got public attention back in 2015. Overall, the root of the problem is from the
company’s financial ability.
The innovation game in China is in fact a test of capital capacity. It is common
for any business. To encourage the public without great capital capacity to innovate, a good IP system can first check whether you have infringed others or not.
If not, that’s fine. Then, you need to protect your own IP. We need to consider
the particular product; if I am a commercial company, then I need to check
the other party’s IP. If I am working in the manufacturing industry, I need to
protect my own product. Thus you have many choices. However, it may not be
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useful to give a special right for a particular new technique, as it is likely to be
abused. As the innovation is not that revolutionary in China, therefore it only
needs protection for that small part, not necessarily for the whole process.
Interview H
The interviewee is the founder and CEO of the company. This is the third venture of the interviewee, who established this company in 2010. The main business activities of this company are 3D scanning and data modelling, and the
main application is robots. The data recorded from 3D scanning will be used
for 3DP. This company is one of the earliest to enter the 3DP industry in China.
Initially, 3DP was one of the main businesses, but the interviewee felt that 3DP
technology is open source and did not feel that it is necessary to make a lot of
effort in it. Then, he switched the business activity to 3D scanning. In this connection, the customers are mainly business customers.
The company’s 3D scanning has many applications. One is the reverse design,
from data to objects and objects to data. Second is industry design. The company also combines augment reality (AR) and virtual reality (VR) technology
in 3D scanning: for example, visualisation of robots. The current robots’ visualisation is mainly in 2D. With 3D scanning technology, robots can ‘see’ concavity/curvature and height. So, the company can enable robots to do some other
activities, for example, grinding the hub of a wheel. Because the hub is steep, so
robots cannot solve the problem with traditional 2D technology.
To tell what the object is, the robot needs to be trained. The company’s ability
focusses on building 3D models. And these 3D models can be used for deep
learning. No matter it is 2D or 3D, it can be used to train to the computer. The
company focusses on how to make the data more accurate, detailed and better.
And then, the company can use the data for more applications. Deep learning
is another set of technology. It is not close to what the company is doing now.
The company cooperates with a few companies in Shanghai and Beijing, which
requires more accurate data.
When asked the relationship between 3D scanning and AR/VR, the interviewee used a model to explain. Computers read objects as dots. Using thousands of these dots, a 3D model can be constructed. In simplification of the
model, they connect the dots to triangle. AR and VR are applicable in 3DP
industry, for example, the games. Real objects used to be built by human,
but now 3D scanning can do this. There is a lot of publicity showing people
playing on the table, but they are not really there. The interviewee perceived
that 3DP coupled with AR/VR is the future. Sometimes the original data
have some problems. And some scanning is aimed to restore the object. For
example, the cup has a crack. To make it printable, the scanned data need to
be edited.
STL file is a format used in the 3DP process. There are many formats in the
3DP industry. STL is chosen because its size is small. It is not a very specific
format. These formats can be converted from one to the other.
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If a computer wants a 3D scan of something, the interviewee considered that
authorisation would be required. For example, if the object is an antique, if a
licence is needed, the client will give the company the licence. Some clients are
craftsmen or collectors. They are the owners of the scanned objects. Or, in the
case of the robot factory, they produce robots and need the company to scan
them. Museums are other examples. If they need the company to scan the cultural relics, they will give the company authorisation. This is common in cases in
which the antiques are being moved.
The interviewee said that all the 3D data have a traceable code. It is a QR
code. It can be tracked from the beginning to the end. Currently the QR code
is a separate file from the 3D data, but the company is trying to put them together. However, the current formats are different, one is 2D and the other is
3D, which makes it hard to combine them. The company, however, only handles
3D data and is not printing the 3D objects. To protect the data, the company
made the 3D model on the cloud. You can see but you cannot download; it can
protect data. Unless there is a hacker, the ‘display’ cannot be downloaded. It also
requires a safe cloud service. The company only provides the technology from
collecting data to displaying the models. The whole system is provided to the
clients, who can decide to charge a fee or not. The clients can also decide how
to use the data.
Such an online system provides a lot of business opportunities. For example,
antiques are valuable, so it is hard to display them physically. To facilitate a transaction, the clients need to show the objects to potential antiques buyers. 2D
models cannot show details of the objects, so 3D scanning is used to display the
objects eventually. If the potential buyer is interested in it, then further transaction will be processed. 3D data could be stored as an electronic file to detect the
authenticity, for a comparison in case someone copies it. The interviewee suggested that such service will not lead to monopoly. This risk is low and not likely
to happen. It is a large and open market. A company cannot satisfy all demands.
The major business is not authentication but display to facilitate a transaction.
The artefacts are examined by the experts in the field and QR code or similar
tracking techniques were not used. That being said, there is a code assigned to
the equipment so that which machine was used can be tracked. However, there
is no tracking information of the objects.
There is an easy way to protect against hacking. The simplest way is to store
all the data in a private cloud to prevent the outflowing of data. If the data are
going to outflow, then they need the interviewee’s authorisation. If the data is
seen outside, then it means they have been infringed. However, it is applicable
at the file level. If the data are completely the same, then it can be mentioned
to the customer. If there are two similar objects, then it cannot be told to the
consumer, then it is too much of a challenge for the company. However, the interviewee is not doing the data security part, and they need to find a professional
team to do this.
The interviewee had not yet considered that if someone reuses the data then
the system will report to them. The current solution is to use safe cloud-data
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management method. For example, every data copy is recorded, which includes
who, where, when and how. It is similar to the computer code management.
Code is a core secret of a company. If the code is written in a half way, then it
needs to be uploaded to the cloud. Managers from each level will have various
authorities to approach the codes. The company is not professional about data
security, so they only can adapt the safest method-cloud service.
The company also uses patents to protect IP but only at the software level. Up
to now, China doesn’t have relevant patent laws to protect contents. For example, if you are a painter, you don’t have a legal certification to prove that your
paintings are from you. If anything involves infringement, you need to show
your original copy and so on. It seems like the whole international society does
not have relevant laws about electronic data patent protection. The software is
written by the company staff and has both patents and software copyrights. The
company makes applications monthly whenever a new function is developed.
The fee to acquire a patent is about RMB 5000. For copyright, the fee is about
RMB 1400, which is not only the registration fee but also the fee involved in
the whole process, which includes the certificate. Patents are more applicable to
hardware. Copyrights are more relevant to software. For example, the company
has seven or eight patents regarding scanners. Software only has copyrights over
several parts, for instance, scanning copyright, and data optimisation copyright.
First of all, IP firms could help the company to apply patents once the company has finished the document part. Then the government offers some help.
The company has never sued or been sued in this regard. In the last few decades
in China, people have no idea of protecting IP. But now companies like the interviewee’s are paying more attention to IP.
Regarding protection in the 3DP industry, the interviewee said licencing can
only protect certain functions. In other words, you can produce phones but you
cannot produce a patented function. It is the same in the 3DP industry. You can
protect something specific but you cannot prevent others from entering into the
industry. If you develop a function, the design, structure or software would lead
to more efficient outcome, which can be protected. But it would not stop anyone
from doing 3D scanning. So, some marvellous projects are open sourcing, which
means everyone can use them, and they can lead the industry to faster and better development. During the process of development, the interviewee company
used open source computer vision library (‘OpenCV’) and open graphics library
(‘OpenGL’), which was applied to commerce. The libraries are free and can be
used globally.
From a commercial perspective or social perspective, the interviewee considered that if a technology is being widely used, it is more valuable. For example, people can get something valuable from the Internet for free. But if it is
overprotected, it might be prohibiting the development of the whole society or
the industry, despite the fact that the company can get large revenue in a short
run. The process of setting up benchmarks is not straightforward and needs a
lot of companies’ efforts. Now, resources are opening, everyone can use them,
which helps develop the whole industry. And the interviewee also thought that
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a business model could be rebuilt. It is more about sharing economy now. The
total cost is low, and the efficiency of the whole society and industry is better.
This is what the interviewee pursues rather than licensing.
The company made the system online to make money for business, but maybe
one or two years later, the company will open up content to the public. One can
develop more interesting things based on the 3D scanning system. 3DP is the
future; how much it can be used is up to the imagination.
Interview I
The interviewee is a Sales Representative Manager based in Shanghai. He is in
charge of the business in the Eastern Region of China. The company mainly sells
3DP parts. For example, monitors of 3D printers, 3DP control board and so on.
They are manufactured in-house, assembling electronic and optical parts, etc.,
such as a projector that is located above the 3D printers. The light coming out from
projector is blue light, while this 3D printer’s screen produces UV light. UV ­curing
is one of the important 3DP processes, which hardens materials, for example, polymer. The company is a distributor of such products, and they own the patent.
­ evelopment.
Based on their technology, they are conducting a second phase of d
The component, which is protected by patent, is a radio frequency identification
(‘RFID’) chip in the monitor board. The function of the RFID chip is used to
transfer the image. The outcome of the chip is the convergence of UV light.
Through the utilisation of digital control, the devices can digitalise the image,
which makes it printable with the 3D printer. To clarify, they are not selling the
components but the whole devices. The company is a solution provider for a big
multinational company (MNC) instruments provider. The company also helps
that MNC to market the 3DP products in China via applications. For instance,
a customer might need a different accuracy – there is 0.1 mm, 0.4 mm and 0.05
mm – so the company recommends which chips/lens/monitor board is suitable
to meet their demand. This is the solution mentioned earlier.
The company is a B2B business. The clients’ demand is also the market demand. For example, one client is in the jewellery industry, and their printed object is small in size (so is the mould). In this connection, the jewellery company
will require this company to mix and match the lens or chips that can fulfil their
customer demand in order to print a mould for jewellery. The products or solutions provided are varied, and there is no one-product-fits-all strategy. Nevertheless, the chip may have a universal function, but the largest dimension that it can
print is 65 mm × 80 mm. They are now conducting a second stage development
on the chip axis to improve this.
Because 3DP in China is developing and is underdeveloped compared to the
West, the demand is still rather low. Moreover, the material – photosensitive
resin – has many types and is accustomed to many applications. This chip is too
advanced, to the extent that not all materials can match with it at this moment.
The company does not sell 3DP materials, although they are open-minded to
do it. But the main reason for not doing this is because there is insufficient talent
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in relation to 3DP materials. The material is indeed important to grow, but it is
unlikely for the company to do this due to the aforementioned issue. Each value
chain has their profession in it. Focusing on the product is the current strategy
to improve the company. The materials in the West are better in quality to the
extent that is fine to apply. The company has suppliers for materials and they will
use the company’s products to test if the materials are printable or not. They
will also attend conferences, exhibitions or activities held by 3DP associations to
expand the current marketing channels.
An alternative is to licence the materials. The company had discussed this, but
there is a policy stating that in order to purchase materials from overseas, they
need to purchase from distributors; they can’t purchase the materials directly
from [a particular organisation]. Some effort needs to be put in place to overcome this policy. Meanwhile, all the materials are in liquid form, and the government has strict control on them. That being said, the company just purchases
the materials from the providers, so the interviewee is not sure if there is any IP
involved. But in such a case, it would be the contract between the foreign material companies and the material distributors. The 3DP industry involves many
stakeholders, and in the opinion of the interviewee, the overall improvement of
the stakeholders and 3DP industry will be preferable, rather than just the interviewee’s company investing to develop the materials market.
The interviewee considered that there is no need to track information regarding the usage of activities. It will not be beneficial as there is no available team
to develop such a technology. The competitive edge of this company is that they
are the first cooperative partner of another group and that group licences this
company to sell the products. No one has the ability to ‘copy’ the technology of
that group. If the tracking ability is a must, it will be developed by that group,
not this company. But the interviewee said if they can realise the tracking technology, they will get some benefit from it.
Apart from 3DP printers and solutions, the company also sells MNC other
products, such as photosensitive resin UV light, and other products not related
to 3DP. The interviewee perceived that AR or VR is an application, and 3DP has
already involved the application of AR or VR. It depends on how you apply and
look at AR or VR. The 3DP technology in fact is a technology used to realise
the concept of VR. Different companies will have different ways to realise VR.
If there is a single copyright 3D printing platform, IP of the company can be
protected and cannot be imitated. It is good initiative. If the platform’s IP is
protected under international law, the interviewee believed that it would be more
useful than if it were protected only by the Chinese law. This is due to the fact
that the main players of the 3DP industry are from foreign countries. It would
be great if the West is practising this idea, as eventually China will follow in the
footsteps of the West.
Interview J
The company is a 3D technical company working with 3D technic. In the
very beginning, the company developed 3D printing and 3D reconstruction
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software, and developed a 3D printer Part of the business is scanning patient’s
data from computational tomography (‘CT’) and magnetic resonance angiography (‘MR A’). The system updates data to software to reconstruct the mimic
model of the patient and then it builds the patient’s body with the company’s
3D printers. The surgeons are able to take a look at what the patients look like. It
is part of the preoperative plan, so they don’t have to practise the skill on a dead
body or on other patients. They can practise the technic on the exact same body
of the patients. It is basically a 3D reconstructed software.
When the interviewee, the manager of the company, was asked if they produced the products or parts, the response was yes. More importantly they developed another software package. The manager stated that it is not very new and
it is designed from similar products used in other big companies in the market.
But what the company does now is use the data, the 3D data of patients, and
then tries to design the next generation of medical devices. They have all the data
of the patients, and then they design the coding guidelines, and artificial hip
and elbow to fit the patients’ internal size and shape. The company designs the
medical device customised for that patient. That is the important bit that differentiates the company from the others. So, the next step for the company is using
their 3D printers to manufacture the medical devices or the reconstructed model
of patients. The company has three types of materials and different medical devices, and can provide some medical devices for fracture rehabilitation. That
being said, they only made two 3D printers, and the other one was purchased
from the United States.
During the interview, the manager also showed one of their products, which
is a patient’s specific fracture rehabilitation tool. For example, if someone gets
a fracture on his foot, the company can scan the foot, generate a 3D printed
object to enable rehabilitation and allow someone to install that on the patient’s
feet. The advantage of it is that there is no need to use the conventional method,
which, for example, does not allow the patient to take showers. For this one, if
the patient wants to take a shower, he can uninstall it and install it again after the
shower. So, it is really a handy device.
The company also provides personalised solutions for its collaborators, such
as colleagues. If the students want to learn something about 3D printing, the
company can deliver lectures like a package. The students can thus have a look at
the company’s software to see how it works. Another model could be work with
hospitals, such as with surgeons.
The interviewee considered that IP protection is very important to the
company. They have an IP department with three employees working in this
area. The company is not devoted to things like coding DNA or printing the
­biological material. For now the material they use are plastics, not biological
material. In the future, it could be a very interesting area to the company. They
have plans to work with the biochemical materials. The interviewee considered
that printing plastic is useful for the company because there are several materials,
for example polylactic acid (‘PLA’), a material that has already been approved.
The interviewee therefore thought it to be a safe area to play with. There is no
point in investing huge money in materials that have not been approved. That
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is the company’s strategy. The company purchases materials from the providers.
The company prints medical devices for hospitals.
For the software the company does the licensing part as mentioned before;
and for the printers, they sell the printers directly to the customer. For example
if some colleagues want to use the software but not the printers, the company
would use licensing, and the R&D team would work on technicalities to provide licensing via encryption. They just work in ten or 20 softwares installed in
computers. If they copy that directly in other computers without the permission
of the company, it will not work. The company does not use licensing for parts
(e.g. watermarking).They rely on patents. However, the company did consider
licensing technology. For example, printing the devices with the patient’s name
and the brand. One benefit is that doctors would not mix up two or more patients. This is also regulated but is not restricted to electronic form, which is
handier. The company has never used QR code for this purpose, despite the
technology not being an issue. QR might be useful in packaging, for example,
for tracking delivery.
Regarding the providers of materials, the experience has been fine. In terms
of finding providers it is quite a standard procedure to follow. The company
required certified suppliers to provide the raw materials. This is very serious
and the company will check their identity, whether they are qualified to provide the raw material, and so on. So, you can check their certificate and documents before purchasing. There are several standards for medical devices. The
certificate is issued by the institution called China Food and Drug Administration (‘CFDA’), similar to the US Food and Drug Administration (‘FDA’).
To see whether you are qualified to provide the raw materials, there are three
classes. First class device is not in contact with blood. There are also the second and third classes. The second class is more serious, and it takes longer to
get approval. The third one is the highest. The company is mainly dealing
with the first class. The interviewee considered that type two or second-class
medical devices may require the watermarking licensing technology because
the CFDA want to know exactly where the material comes from or what kind
of material it is.
3DP technology is quite new, and CFDA, and even the US FDA, is still working on the relations, such as law and rules. This is about patient-specific medical
devices, so how can we define that kind of medical device? Is it as safe as the traditional one? Maybe we need to use some technic to make sure the technology
we use is safe to the patients. It could be a solution. The government has very
high authority in this area. They are very conscious about it, but in the same way
they want to promote new technology, such as the 3DP (e.g. in the Made-inChina 2025 initiative). The government is promoting new material, processes,
3D printing and so on. They are high technology areas, so, in one way they want
to promote 3D printing. They want to boost business in this area, and in the
other way, they are very serious about the regulations; so, regulation in this area
has a somewhat positive impact. If the medical sector can demonstrate a more
successful model, that will help boost regulation.
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The company is working on VR. There is a team developing the technology.
For example, a patient can play with the model provided by the company. So, for
example, if they want to see what the patient’s version looks like, the company
can provide this object. But surgeons always want more: they want the whole
experience of the surgery. During the surgery they are not dealing with the
bones. They want feedback: for example, the doctor wants to feel how the operation changes when the leg is open. By using the VR technology, the company
can create parts for the surgeons: for example, the way they cut the patient’s leg
open. And the company can give them feedback in terms of force and feeling.
The company has just started this, so they haven’t got any material products yet.
But they are working on it.
Likewise, there is no licence about this, but in the future the company will
deal with this. The interviewee thought that it would be critical and is very
important. Because they are not a big company, they need to protect their technology, both hardware and software. In the 3DP market, 3D printer is like the
body, but the software is like the soul. Without the soul, one is like a dead
person. That is exactly what is missing in China. 3D scanning can fit in the VR
market in the future. The data can be used to come up with a design rehabilitation medical device so 3D scanner is also part of the business. A lot of the products are customised, so the licensing system for 3DP products could be a new
business model. However, the company hasn’t encountered that kind of issue.
For regulation the CFDA is tight now. They regulate and inspect 3D printing
methods, not just a single product. The regulations always work on quality of the
products like medicine. They have some comparison tests, for example, between
the 3D printing medicine and conventional medicine to see whether the former
is also effective.
When it comes to tracing systems, the interviewee does not have any idea
about it. The interviewee, though, thought that their software could naturally
work with watermarking (after he was briefed what watermarking system is). By
using a watermark technology to protect software IP could be potentially helpful
for the company but not the physical products.
Privacy is two parts of the company business. If they want to try the 3D
printed medical device on patients, first of all they have to get the permission of
the surgeons. There is a procedure to make sure that all documents in relation to
this are reviewed and signed properly. This is not always possible as some patients
are still old-fashioned and, for example, just want their knee or hips replaced in
an old fashioned way. The company will have to get the permission from patients
as well if they would like to publish some academic papers to widen the audiences. It is general information, not name or confidential information. There is
government regulation that the company can only use the data for publishing
the papers; the privacy information such us name and others are not showed in
the paper.
The company has a system after the surgery to protect privacy. Patients and
surgeons can trace how their surgery works. In the future perhaps the company
may put it in the cloud so the surgeon can change the surgery technique. The
72 The interviews
company will make sure their information is not leaked as they have a high standard of protecting patient’s privacy. There is no regulated law so far in China, but
before any law comes out the company is not going to put the information onto
the open platform. It is just between the company and the hospital under the
regulation so far. If one wants to check how a 3D printer works, then one can
check with the collaborating hospital and see the surgery, but a third party is not
allowed to see the patient’s information.
To further protect privacy, the company can translate a patient’s name to some
other codes without any meaning. So, in the later processes one can just see
the codes and how the surgery goes. There will be some mechanics to protect
the data from hacking. The area the company is working with is orthopaedic
surgery, but some other areas could be more sensitive. For example if someone’s
treatment history is leaked to the general public, they could be discriminated
against in their workplace.
The company gives surgeons and patients advice like how your knee could be
cured, but they don’t tailor a product to them. It is the company strategy to scan
the patient’s information just for him or her. They don’t have a database to store
others’ information and make use of them.
Copyright is the more important form of IP to the company. The two main IPs
are medical software and the technical solution of 3D printer. The G
­ overnment
has a sort of national strategy aiming to promote that awareness of the IP protection. They are very serious about that.
There could be some applications with AR, when the products come out. The
company should be very careful of whether they have valid competitors. Before they
launch a new product, they have to gather intelligence on their competitor’s product
line. So, there is a lot of work to do. For reverse engineering, this is not a big issue
in this industry because the competitors do not launch their technology in China.
In the future, the company thinks it should not be too enthusiastic about 3D
printing. This is because it is just a manufacturing method like other conventional
methods. For example are you going to use 3D printing to print that bottle? Of
course not because the current moulding is quite convenient, and the company
can make the bottle cheap and nice. 3D printing only works when other technologies cannot develop or manufacture. So, medicine could be an area of application. No two people have the same structure in terms of bone and other soft
tissues, for example, but by using 3D printing you can produce a patient-specific
medical device to cure the person. That is how useful 3DP can be in the medical
area. Another is, as in the high technology industry, for it is a waste to develop a
prototype and mould using the conventional method. 3DP can stand out and give
you an economical solution. Even though 3DP is developing quite fast, they think
they should still keep a clear head and that they should be neutral.
Interview K
The company was established in 1990 and is 25 years old. It has been in operation since the appearance of 3DP technology. The company is a listed company,
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so it has different branches in different regions. The business covers Asia, North
and South America and Europe, where its headquarters is based. The biggest
R&D centre is in Malaysia because South Asia is better developed in terms of
3DP, and the market there is easier to enter than in China, where the company
encounters many restrictions.
The interviewee introduced the business mode with a comparison between
traditional manufacturing and 3DP. This is the idea of the traditional process:
first you get the idea, and someone handles the design. Then, they program the
design to a machine or open a mould and design the whole set of machinery and
workflow. After that they begin to manufacture it in the traditional assembly line
way. For them, 3DP is a similar process, but it changes with the tools. If they also
have 3D, when it comes to design, they use software and 3D printers because
traditionally one has to design the machine and mould based on what you like
to produce. But 3DP changes the old way so that one does not have to design
the machine or mould. They can also put into manufacturing parts on a bigger
scale. Their business offers everything except 3D printers and materials. So, they
provide design service and software licences for their customer to design or make
adjustments. They have three main software packages for manufacturers to do
the design, for details like texture of the module so that you can add more technology onto it. If you do that with the traditional design, you’ll have to think
about how this would be realised. But with our software, you already made
some default settings there, and the software can handle the calculation. They
can use another software package for the surgery plan, focussing on the wounds.
The software can transfer your 3D images into 3D modules for surgeries use.
­Doctors can analyse what the damage is and how treatment can be done. X-ray is
an option, but it is not really comprehensive because they can only see one angle
of it, but if you have 3D images, you can see a better picture.
At the headquarters, the company prints objects using titanium but not here
in China. It is because in China there are lots of regulations, and the interviewee
is also in the process of developing it. So, they might have some collaboration
with some local companies. They are also considering introducing more into
China, with more regulations to be considered. If it’s just a mould, the restrictions are not so strict. But this is not the case if you build things that are used
in hospitals. So, at the moment in China, they have not reached that stage yet.
The interviewee’s software is widely used for surgery plans for diseases that are
more difficult to treat, and most hospitals are limited by regulation from being
able to use it for other applications. To control the 3D printers, the interviewee
also provides some hardware. In addition, they have another software product
for machine controlling. With regard to manufacturing they focus on 3D printers, and aspects such as work flows and how a design is transformed from original design into an STL file that 3D printers can recognise and control. They
have lots of experience of doing this as well because they have several factories in
Europe. This also supports their software. Overall they also do consulting services for companies who want to establish 3D printing factories and need overall
suggestions. In China they mainly provide service, software and training. They
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The interviews
don’t have much manufacturing service here. So, now it is more for design services, or if they really want good-quality and high-end designs printed out, they
can do this at their headquarters. The Chinese market now is broadly divided to
two parts: high end and low end. The interviewee has clients who are into highend designs, but for low end designs there are lots of fused deposition modelling
(‘FDN’) machines, which are desktop machines that are really cheap, and many
companies are selling them. Therefore, the market is larger. Since they provide
software, consultancy and services, they would not compete in this market with
our original equipment manufacturers (‘OEMs’) and other partners.
In the Chinese market, their products were once very medical, but now it is
mainly software. They also support different industries quite widely, such as
aerospace and also automobile, design and mould manufacturing industry. They
also work with 3D printer manufacturers in China. They think most of their
clients are 3D printer manufacturers indeed. These are their core values. Last
year they brought more value to the industry. They also provide more back end
software for people who can send the file and provide printing service. So, the
whole idea is kind of to franchise their company in Europe. It’s one of the biggest projects last year. They also have quite a lot of collaborations with Taiwanese
research centres for 3DP technology, especially with laser-controlled machines,
and for medical parts they have collaboration with a hospital. They mainly focus
on bones and congenital heart diseases. For copyright part in China they are
mostly engaged with copyrights and trademarks, and sometimes with patent but
not too much. It is because patent administration is centralised with the headquarters, in particular that which passes and approves the patent cooperation
treaty (‘PCT’) patents. Those in China are mainly engaged with copyrights for
software and trademarks.
They have not really got patent infringement yet but encountered some illegal
software usage. Because their software is a pioneer, they have a big market share.
But in China, the market is not as big as they imagined. The issue is not that
they have to compete with big competitors; it is actually some illegal usage of
the software itself. Maybe one can check online, there are lots of software being
sold, and the damage is quite serious there. For the interviewee, they are simply
losing business. Even worse, because their software is applied in the medical field
the impact is bigger if there are incidents caused by bugs of illegal software.
So, for the machine side, they think Chinese regulation does not ‘work’, as
3DP in China is still in its infancy. For two or three years, people who did not
work in this industry came to know this and think it’s something new. They may
have found it fascinating and think that if I get this desktop machine I can do
exact the same thing. However, the interview thinks the key aspect is instead
the quality of the products. How they regulate the objects they printed is still in
a vague and a grey zone in China’s law and regulations. So, this is the key area
that they are concerned with. Now China is really promoting 3DP, and they
call it additive manufacturing. As a result many people will really look into this.
But if something bad happens in the industry, it will be a setback for the whole
industry, which will affect all sectors of the industry.
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The interviewee would really want to talk about the CFDA for 3D printed
implants products. They are doing it in other countries but not here. It is because
the idea of CFDA legislation for implants requires the exact detail of the implants, so the interviewee want everything stated on paper. But the idea of 3DP
for implants products is the opposite. They want to use 3DP because everyone’s
bones are different. So, they want to customise the implants for the patients. But
this legislation just totally blocks it. In the interviewee’s understanding, CFDA
would like to do have guidelines. But the implants products are difficult because
the CFDA don’t have a clue yet of how to do this.
So, the company thinks that including the laws and regulations for a 3D design module and how they can protect their copyright are really not clear at this
stage. If they create a 3D model, and it is a digital file, can they patent it as a
design, or can they copyright it as a surface design?
Interview L
The job of one interviewee is to deal with the contract management internally
for legal affairs and the issue of legal conflicts. The other aspect of the interviewee’s job is anti-piracy, and IP enforcement. The other interviewee is responsible
for legal, human resources and information technology.
Their company does not host a website to which people can upload their files
to be printed. Actually, they do have one that provides the whole system framework, and then people can operate it by themselves. In headquarters, the interviewee’s company has a website for the same function in Europe, and in China
they have an exclusive collaborative relationship with them, and the head office
provides the technology and advises how they run the platform. The back end
is really one of their software products. The interviewee built up a website with
their clients, and the back end of the whole machines they are going to purchase,
and they have separate machines. They also provide the entire software package.
So, it is a kind of licensing and a bit, but not exactly, like franchising because it is
not under the interviewee’s logo, and the interviewee do not mark it as such on
their website. So, when people use that system to upload a file onto the website,
they will use the software to edit the file and print it. Before someone uploads a
file, there will be some person to contact, and they will check the product they
want to print. They are not allowed to print, for example, weapons. And now
the contracts clearly say that the interviewees do not print weapons, and they
think it is clear. So, they don’t work directly with any weapon or army-related
companies. For example they don’t print weapon-related products. But if they do
research about it, that’s a broader discussion. They have not heard any Chinese
law banning it.
The interviewee had heard about the discussion on IP protection. For example they have some physical objects, and some other companies have certain
software that can do a 3D scan and then add something onto it, changing the
ownership of the copyright. The interviewee once attended a conference with a
professor who also discussed this; for now there is no regulation on this. It is
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difficult for them to judge if this is infringement or not. For example, they have
design, some companies already infringe that as they produce almost 70% similar products. That’s also something they want to know how to deal with. They
once talked about this with a copyright centre, and they were told that maybe
they could copyright this model, but the centre did not clarify how to define the
model, how much the model was or how much the manufacturing was.
For the interviewee’s clients to avoid printing infringing designs, it is crucial
for the interviewee to discuss the issues with the client and check the statement
of non infringement. The interviewee will not help them to print these objects
if they fail to pass this stage. Of course it is always difficult to make sure and it
has to be judged on a case-by-case basis. Sometimes companies give them their
original designs, which is not an issue. But it is hard for the company to judge
because they are not authorised to do so. Particularly in situations in which
someone is taking someone else’s file and editing it, it is difficult to identify
the original design and the copied one. But from their understanding, if the
copy can be printed out as the same, the cost should also be the same. This also
causes a lot of problems. If they have an infringing file printed, how does the interviewee control this? It cannot be copyrighted because then it is disclosure. If
they keep it as a trade secret, people can still scan it. So, it is quite ambiguous. It
is impossible for the regulations to protect this situation now. They have to look
more deeply into the technology itself, to get a precise view of related laws and
regulations. The key thing to prevent piracy is primarily a technical issue rather
than a law. At least it is a combination of legal and technical discussions. Because
this technology has totally changed the traditional way of thinking, maybe laws
have to change as well.
They are still figuring out how to adapt to the trend. Because they are now
facing lots of problems from different ends, like the piracy problems, they want
to control this. However, the law is not clear; they have to go to a previous report
system for piracy issues. But the extent of industrial software is not as popular as in
other industries, so if they go to some authorities, they’ll say ‘it is not important.’
In China, they focus on a 3D printing machine. They don’t change the standard products much, but they may combine different options to provide different options. They don’t collect personal information about customers, but they
work with original equipment manufacturers (‘OEMs’), who may collect end
users’ information. They tell them which part they need to update and what
kind of service they need to adapt. For the medical part they directly work with
the distributors or hospitals. They don’t collect any of the personal data from
the hospitals. That being said, they don’t think there are regulations around the
use of personal data of confidentiality to protect the privacy, particularly in the
medical sector. They don’t think there are clear rules in 3DP, although they have
rules for the hospitals in a general sense. They do have some collaborations with
hospitals. The hospitals want the company to keep any files they sent to them to
help the company provide the services confidentially.
It will be useful to have more regulation to govern this. The first thing is
that they need to get a licence to use the 3D printer because not everyone can
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buy a 3D printer and print whatever they want. Printers and software should
be authorised. If they use the official version, at least they have quality control,
and it will not break down during the surgery, for example. But if they crack
the software they have to open the library, so the data may be released to some
illegal source, and they will never know. This might be the problem. Because
laws are not clear in China now, the interviewee assumes that the lawmaking
authorities are learning from the United States and Europe as these are the two
leading regions.
Some 3DP companies are reliant on certificates. Most of the time, legislation
is super clear and simple. But when the interviewee applies for the certificates it
is totally another story. Most of the time they have to hire attorneys to do this
because it is difficult to interpret the information clearly, and there are some
manipulations that make the procedure really long. They have this difficulty
overall, not limited to certificates. It also depends on what district they are in.
Sometimes they get information in the national website, but that doesn’t mean
it works here. If they look into options extended into the future, it is sometimes
hard to even think of such decisions, and it is quite frustrating.
The regional rules are more complex because the national ones are simple,
just 1, 2, 3 and 4. If you go to the regional rules, they also apply it there, but
they also have 1.1, 1.2, 1.3… they often give a name for a need. For example if
you want to report an infringement to the responding group, they don’t list any
materials there. But if you talk to people with experience they’ll tell you that you
have to prepare this and that in case they ask. This is not listed on paper. The
best way to access the regional rules is from BBS or forum. Another difficulty is
that it is easier to find the laws in Chinese but not bilingual. The interviewee has
to a pay membership fee to get the English version because the interviewee needs
to explain them to the overseas headquarters.
They have not heard about any regulation on watermarking in China. But
they heard something about watermarking earlier, and they have a lawyer in the
headquarters in charge of this because the interviewee is mostly responsible for
the manufacturing part, and they must know more. They have not heard about
augmented technology or VR or 4D printing. They think they had a case with
VR, where they needed to print the framework. The technology area now is
really booming, and they think it will be more widely used in 20 or 40 years,
enough even to take over half of existing manufacturing work. In China there’s
a bigger change because of government support. The market is growing faster
than any other industries.
An automated licence system is not crucial in China. When they want to apply
for a licence they can go to a website to apply for a trial use; they think this may
be a decision of business model adapted to the Chinese environment. The complaint is mainly about the price. So, after they have purchased hardware, they
don’t want to spend extra on software. That will be a slow process for software
companies in china.
It is interesting that if you have software that allows you to print something
where you can actually identify the size of it before you print it. It also can
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identify how big the file is, and you can even adapt to material used. That is why
most Chinese 3D printing companies are using their software. That is what they
have and others do not have. They have this free software with which they can
edit the model a bit. It only has very simple functions; one can input changes but
cannot output with STL. Their software is for commercial use. The interviewee
company employs many people – a big investment.
Developing hardware in a particular way can make piracy of software more
difficult, but they have not stepped into this area yet. They heard about this
method from antipiracy specialists suggesting us to do so, and the experts suggested that the interview do not sell software directly e.g. just a serial code. In
some other industries they sell the software with a universal serial bus (‘USB’)
physical key. The interviewee does have USB version of that, but it is not popular.
Sticking with the STL file format is not a cause of piracy. What contributes to
the problems is what contributes to the infringement problem, more with separate individuals that are difficult to control. Mostly people want to access this
technology but they don’t have enough funding for it. Also now accessing the
technology requires no licence.
Interview M
Their company is a technology-based company. They do 3DP-related business.
Normally, they design their 3D printers by themselves. It is for plastic. They also
corporate with other big companies and other Chinese companies to sell metal
3D printers and resin. They also do business related to 3D printers because it
is just not independent. They also do 3D scanners. If they need to print something, they need to model it first. So, how can they get the model? First, they can
make a model by themselves, or others can scan objects and then get the models.
The interviewee business is related to research, 3D printers and sales products.
Their role is to build relationships with universities and other big companies,
and to find customers. Because it is a small company, they have to do everything
by themselves, including R&D and marketing.
They don’t have any products that currently are licenced. They just do research themselves, not licensing the other parties. Their technology primarily
was developed by their group and is patented. They also sell other types of machine, such as metal 3D printers or resin. They got licence or permission from
the manufacturer in order to sell the machine. Those manufacturer are foreign
companies. The interviewee’s company is a kind of reseller or distributor, and the
relationship is one of cooperation. They do not pay any licensing fees as they did
not develop the machine. There are many open sources in the market. Based on
the open source, many companies develop their own machines. Those companies think they don’t have a licence because they are originally from open source.
If they try to develop new machines, the interviewee like to make use of the
open source rather than design their own machine. Normally, they have the best
sources because they are from the Internet and they have many society sources,
which were developed all over the world. There are two different trends; one is
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pro-patenting, and the other one is pro-open source. They are more pro-open
source in terms of R&D. But in terms of protecting the company’s innovation,
they need to acquire patents for the key technology. In the future they will be
happy to licence this technology to other businesses. They take two tracks for
managing their IP.
It is very easy to apply for Chinese patents in China, so throughout all these
R&D processes of 3DP technology, the interviewee seldom encounters any
IP-related issues. But they are not very familiar with these if they are applying
for patents in the United Kingdom, Europe or the United States. They may
have to wait for a long time. The interviewee contacted some UK-based IP companies; they said that they need to wait up to 18 months to apply for a patent.
This is quite a long time. In China, if you have ideas ready and ask the company
to write the application form, the application time will be very short. It is difficult to enter into international patent preparation. It is especially so for smallor middle-­sized companies because they have no such people to write out an
­English patent. Even for them, they have nearly eight patents, but they don’t hire
professional people for patent paperwork. Normally, they write most of them in
the beginning. But now they try to just ask a patent company to help them.
The interviewee has not thought about a method to disseminate or to licence
those patents. They just keep it to protect themselves so it is just like a title. However, their machines all have this certification. Their patent strategy is more for
defensive purpose. If other companies would like to do a little bit of alteration to
the technology or bypass certain specific details, then they will not be infringing
their patents. Normally, it’s difficult to find the changes, and it is incremental.
Mechanical and electrical technologies have been developed for so many years.
All these machines sold are a result of incremental developments. A machine is a
combination of existing machines. Therefore, the interviewee argued that their
strength is not in the technology. The strength is in the market: they try to improve the service first and the printer quality. Normally they compare the quality
to American standards; their quality is sometimes better than the United States,
and their price is just half of it. They think machines in China will be better than
foreigners’ machines. They have sold nearly hundred units of this machine. Their
main customer is from universities for educational purposes. They don’t design
the machine and they got the design from the Internet. So, the consumers can
also go to the online platform to download their printers.
In their opinion, maybe they should develop something for the industry. If
the machines can be accepted by the industry, they can be used to generate
profit for the company. That will be very popular in the future. More and more
companies are doing research or developing metal-based machine, 3D printers.
The interviewee is thinking of cooperating with others to develop automatic
online licensing platforms. These platforms will assist in protecting the copyright of designs. The value they can extract from such a platform would depend
on how it will help their technology. If it can be accepted by the market, it can
be commercialised and generate good profits. The platform would be useful
if they have good technology. If such a platform helps them to display their
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technology and later most people are interested in the technology, they can
cooperate with others. If the interviewee technology will be more transparent
to the industry, the interviewee will automatically approach them to pay for
licences, patents or skills. They would also like to see copyright management
information (CMI) protected. For example, how has their technology been
used? It is because nowadays companies may be more interested not only in
copyright or patents of the technology itself but also in how their technology
has been used or adapted by other stakeholders. They don’t do this now because of limited capacity. However, it would be beneficial for the future development of the business.
The main IP asset of the company is patent and software, which was developed
based on open sources. The patents are still the main sources of IP invention.
For example, the injector head of 3D printers, which is the key component of a
printer. However, the time to acquire an invention patent is still long (up to two
years). If the application time can be shortened significantly, it would be more
helpful. It is not just for the 3DP industry but for all industries in general. That
being said, the patents are 20 years long and it should be sufficient.
If the platforms can be connected with certain funding companies, such as
crowdfunding, it will be more versatile. Currently they only attract ­Government’s
talent awards given to the business. The funding only lasts for several instalments, and you should demonstrate some progress to get the balance. It will be
helpful if online licensing can be combined with crowdsourcing funding mechanisms in order to attract interested investors, and interested industry, and to
put the crowdfunded project on the platform. Having an idea alone is a little bit
weak. It is also a long way from developing a prototype into a final product. For
example, one invests in the product and it takes one year to launch the product.
However, one may find that the market has already changed.
It is a global market now. Everyone can search for the products from all over
the world through the Internet. Price-quality ratio is important. But it is just
one of many comparisons. Machines with the best function should be the best
in global market, not in China. Their edge is still on the pricing. However, they
still need to synchronise their business to the global market. That is why they
have to work with overseas companies. Now their strategy has changed. Because
nowadays the products and techniques are changing so quickly, and customisation is the key. They need to be aware of and cater to the customer’s demand.
Now their 3D printers are mainly used for education, which does not require a
high level of customisation and machine. And they can make some mass production. But for high levels of requirement, such as when a customer wants to print
silver material, it is quite difficult to find such equipment. A company may have
skills, but it is hard to find material that is suitable for the machine. But they have
a large space for 3D printers. Different materials need different machines, such
as silver or otherwise.
Their next step is to print silver or gold directly. They can make it true now.
But it’s not so convenient for such a small one. But a bigger one could make it.
For silver, the process chains are linked closely with each other, such as silver
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powder and printers. The interviewee has consulted many international manufacturers and devices; it’s difficult to find a suitable one equipped with powders
and printers or parameters at the same time. Some device companies claimed
that they were capable of it, but actually they do not have powder. Maybe there
are such companies in foreign countries, but within China, the interviewee does
not think so. The whole industry chain is immature.
The structure of automatic licensing platform is important, to find the best
on materials providers, and the best materials related with printers or best companies. They already have one trademark and a design patent of robots or 3D
printers. They also do the robots, service robots for the restaurant. They are fine
with and not confused by copyright or patent, trade mark, trade secret, design
patent, confidentiality or passing off. 3D printing, interestingly, touches upon
every side of the IP: a bit of patent, a bit of copyright, a bit of trademark. So, different products, such as 3D printers, have different IP protection needs. A special
right can make things easier and more efficient. They don’t need to worry about
trademark or something for the 3D printer. If there is a special right, it can improve the efficiency and cut the cost. Only without such burdens can companies
focus on their technology development.
As for IP, they hope that it can be easier to apply for an international patent. Now they have government support for the international patents. They are
thinking of the support before the application for the patent. It would be perfect
if they could get government funding before they kick-start the international
patent application. After the approval of their domestic patents application, they
will be supported with RMB 10,000 for an invention patent. But for an international patent, it takes 18 months to get the support. If the government really
encourages the industry, they think they should shorten the time or duration.
This can motivate more people to get IP.
Now they have a good business model. And manufacturers would like to invest a lot of money. Devices can be developed better and better. The pace of
replacement is speeding up. Devices tend to multifunction or be smart. The
speed of change is so fast. This type of product was very popular last year but not
this year. People have too many options, and they switch to another with low
cost. So, manufacturers can stop producing the old product when the new one is
launched. It is uncertain what kind of world market adoption there will be, and
the business mode is unclear in this industry.
Interview N
The interviewee’s company has begun to sell the 3D printer. They focus on developing an educational market. They provide them with 3D devices as well as
learning packages, including modelling and 3D applications. They also provide
3D printing service for customers, including developing impressions for factories. For example, if a Foreign Trading Company (‘FTC’) sends the sample to
them, the interviewee’s company will scan, model and print it out. They produce
the sample for them. The order is finished very quickly. The customer needs a
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sample before production. They can process it very quickly. Their target market
has transferred from selling hardware to provide 3D application service. They
are cooperating with some professional engineer to develop their custom-made
devices: for example large device/equipment with the size of 1 m x 1 m x 1 m.
So, they may not purely focus on self R&D, but they have been cooperating with
others on R&D.
Generally speaking, the price of foreign devices is three to five times more
than the domestic one. But they know that the idea of making a product is
different. Foreign companies may focus on high-end products. They have good
quality. But the quality of a domestic product is hard to control; the competitiveness of a domestic product is the cost performance. It is cheap. There are several
domestic companies performing quite well.
It is hard to implement technical licence or patent in China. All the producers, including agents or companies that are specialised sellers in foreign
equipment, are developing their products following [an existing overseas seller’s] ­structure. So, in the view of the interviewee, a domestic machine is fake/­
imitating others, then the manufacturer makes some changes and claim that
they have ‘licence.’ The substance is copying. Their company has several patents
for invention and designing patents – about six or seven in total. But, the interviewee said, honestly, it is still copying others’ designs. There were several thirdparty organisations that told the interviewee that there will be some subsidy if
they have licence/patent, although they haven’t received it in two years. But they
just keep it – the interviewee continued – to be honest, these licences are form
more than substance. They are not using the licence to develop product. Although they have applied for them, they have already been widely applied in the
market. Because the patent itself is originating from a foreign country, applying
it just means that the company has the licence nominally. There is conflict in the
licences of ­Chinese companies. The licences have many problems.
In local China, people’s sense of protecting patents is weak. The interviewee
thinks that many of the documents are unauthorised or that the documents,
which were bought to use, were resealed on the platform. For example, some
documents may cost ten dollars to download, and this allows only him to use
them personally. So, he cannot use the documents for business purposes, but he
may sell them on platforms for 100 dollars or more.
It is hard to prevent such an issue now. With regard to 3DP files being made
available online, one can regard the situation as similar to the online music industry ten years ago. It is hard to control. The market will be standardised only
when there are laws settled by the government. Unfortunately, there are no laws
that focus on [the] 3D area. The illegal actions are hard to control as the cost of
breaking the law is low.
There are two points, the interviewee stated. First they are benefiting from
free downloading’ the files are made from open source. From the viewpoint
of the user, even though the users know they may need to pay for the design,
if somebody shares it freely, then they will use it for free. They are the users of
free downloading, so they will not try to stop free downloading. Also they have
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never spread the designs intentionally or gained profit from them. They just use
them to demonstrate the printing. These designs are just some simple modules.
Domestically, people’s senses of IP protecting is so low that the IP problem of
Disney cannot be solved, so it is too early to talk about the design patent protecting. Even they talk about it; it has not been practicable in recent years. It is
required that the customers accept the market. Because people are used to using
something free, it is hard for them to pay. This is the situation in China. People
are sharing everywhere.
The main problem is that no one enforces it, just as when no one checks riders’ tickets on a bus, no one buys the tickets. But there is no ticket checking in
foreign countries, and yet people will buy tickets themselves. There is a gap in
people’s quality. People may buy the design in Britain or Europe; this does not
happen in China. The European will buy the tickets, even when there is no ticket
checking.
They have an open-source platform, but the company will not talk about this
while selling the 3DP machine as the domestic customers don’t care too much
about the patent. They just focus on the quality and price of the equipment.
Every version of the printer they import has some improvements and features
they didn’t have before. And people find that the domestic printers don’t have
the features, but within half a year, there will be new machines copying from
the foreign one.
They believe the light emitting diode (‘LED’) industry and the 3DP industry
are quite similar. The pattern and future of 3D industry are the same as in the
LED industry. In the beginning, many companies found this industry profitable
and joined in the market. There are 5000 3D printer companies in China. 4700
of them are focussed on FDM. The other 300 may focus on SLA or DLP. The
production has already met the saturation point.
There are two kinds of competition. For example, the interviewee imports
the printer and sells those printers, but the foreign companies have agents in
China. If they are a company in [redacted – Chinese city], the agency located in
[redacted], and a person obtains a printer from [redacted], there is some profit
gained by the agency. But the interviewee’s team is doing international business;
they know how to import the foreign printer directly. So, they get the printer
directly from the foreign countries, and they have a significant advantage on
price. They sell directly to the school; there are no other people in the chain of
distribution. So, they have a price advantage. But there are more people doing
this business, so the average profit ratio becomes lower. They can still live on
this, but it might not be as profitable as before.
Interview O
The interviewee began by outlining the operation of their company. The clients
provide a 3D printing model, and they finish it following printing. The other
situation is one in which the company designs and develops 3D printing models
for their clients, and clients provide their ideas.
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They feel that IP is weak, but since the consumers have paid for this service,
the file or the document belongs to their company; consumers are paying for the
services, not the file. When they buy something, you want a logo, you ask the
company to design a logo, you just pay for the use, but the logo still belongs to
the company. For example, a logo company designs logo for [a large car company]. The logo company asks the large car company to print the logo out. So,
the agreement lies between the [large car company] and the logo company, and
the other agreement lies between the logo company and the interviewee’s company. They would not like to approach [the large car company]. The industry
keeps these as tacit agreements. They don’t sign any contract.
When the interviewee was doing design business, if he designed an item, then
it belonged to him. If his clients asked him to design a logo or a building, the
clients pay for that, then it belongs to the clients. It is perceived as a tradition
and morality.
If an individual requires a print that contains elements of another IP-­protected
work, the interviewee will enquire as of his purpose. If the client requires printing out a [the large company] logo, and buys a [large car company] logo model,
and it is not about commercial purpose, then it is not necessary to confirm that
with [the] company. If they need to print out a car model, then they need data.
The client needs to communicate with [the large car company] and get the printing data. If he cannot get the data, then it proves that the client has a problem.
If he can get the data, then it proves that [the large car company] has already
authorised him to do that. In addition, the client will display some physical letter
to tell the purposes of the printing items. Since the client will show necessary
documents, they do not need to confirm that with [the large car company].
[A company] would claim infringement against the entity that really uses it,
not the interviewee. Just like Apple against Samsung, they would not sue the
manufacturer.
They only provide printing service to the clients. First, they will obey the
rules, which means that they would not spread the print. They would not copy
the print. If they want to promote the product, they would ask for their client’s
agreement. There are specific rules about that in their field. They will insert a
chip if it is necessary to do so. If they insert a chip, then it may be an infringement to the clients. In other words, the interviewee is tracking the clients path.
Tracking how the documents are being used is another kind of infringement.
For example, a chip being inserted in one’s shoes to record one’s exercise is another way to report their location. The manufacturer could know every consumer’s location. So, the consumers’ privacy has been exposed.
The interviewee argued that when he buys a phone, nobody asks him to assign
anything. Most people do not read the consent information displayed by Apple.
If he takes some photos at home, they will update to web automatically without
consent. He argued, “I am living in a house with windows. What if I live in a
house built of glass? Will you still live there? Telecommunication companies can
track all your call records.” There are both positive and negative impacts. If they
want to supervise their product and be responsible for their clients’ information,
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he thinks they can use memory sticks in their products to prevent copy or something similar. And he thinks everyone has their privacy; you cannot monitor
your clients because they buy your products.
In terms of developing 3DP software, the interviewee believes he can modify
it based on the open source, which means that he is learning from it. If he adds
something new to it, he can apply for IP. If they have a high percentage similarity, he cannot apply for IP. If they have 10% to 20% similarity, then he can apply
for IP. It is judged from the patent bureau. At this stage, they are updating all
the time, so it is not necessary to encrypt. But when they enter a mature stage,
they will encrypt. This encryption allows them to see who is breaking.
If IP is protected very well, further copying can be avoided. For example, VR
initially is developed in the United States; now, quite a lot of countries have these
technologies just because someone purchased their products and made some
changes. If infringement only happens once or twice one can of course sue them,
but if infringement happens hundreds of time, who has the motivation to sue the
infringer? With the watermarking, it works.
A 3DP sui generis right may work to some extent, but who is the one to publish
the rights is important. For this moment, it is hard for the 3D industry to form
an association with authority. 3D printing companies like small fish – there is no
big fish like Apple in the mobile phone industry. If a big fish in the 3D printing
industry appears, then it is likely to be a monopoly, and all the rules will be made
by the big company. For example, HP will enter into the 3D printing industry.
Everyone wants to control the industry, so everyone cannot make the rules. As
the interviewee argued, “Just like everyone wants to divide a cake with a knife,
but no one makes the first move because the cake is not ready. When the cake is
ready, who gets the first piece depends on their power.”
If 3D printing can continue to develop for the next 20 years, it will be like
computers at the moment. 3D desktop printers can be used in every family, and
the United States promotes that there should be a 3D printer every three to five
kilometres. Every family should have a printer. 3D printer saves more time and
cost than traditional industry at this stage. After 20 years, they do not need to
buy clothes; they can just print whatever they want out. But this is based on
imagination.
Interview P
Design files are from the customer, the clients have made the design themselves.
They just print them out. The [product] display [of prints produced by their
company] downstairs is printed on the approval of customers. It still belongs to
their customers, they are just doing minimum revisions to make the design apply
to their printer. For tracing of product use, for those like the lamp, they will not
care too much. But for the product of medical use, they have interest to follow
up as it is related to people’s life.
As they are doing the print for clients, they may require their own brand
name on the products. So, they will not print their logo on the product. All the
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printing is based on the customers’ requirements. It is highly possible to print
such watermarks, even now.
Customers will be concerned whether the 3D file will be used by others. The
designs are a secret of the company. If they are disclosed too early, the clients
might lose market. So, they will keep them confidential. Watermarking technologies will help them, and it is highly feasible to incorporate this technology in
the 3D industry to keep track of it. Customers are aware that foreign companies
use cookies to follow Internet use, but they don’t know that there is the same
technology here in China. They are not just cookies; they are digital marks basically watermarks on files to enhance searches. They will email the right holder
when their file is online. Some gaming companies use this technology as well
in China. They think it will apply in China as well when the market is mature.
Clients are not interested in the tracking software, especially when the amount
printed is little: for example for five copies, it would be too expensive. If the
copies are very valuable, then the clients may be interested in figuring out the
inscription because it is costly. In addition, the companies most likely to adopt
the watermarking are big design websites. There are a few start-up companies
here, but they are not mature.
Interview Q
The company is concerned with educational uses of 3DP and inventions. The interviewee raised content tracking and stated that he cannot track use of 3DP files.
He gives the buyer the source code. They would do some modifications based on
his product. If they change the source code a little bit, it will be a new thing. They
can apply for a new patent for the new thing. Therefore, it is illegal to trace that.
If the content was distributed through a specific channel online, it would
be easy to track. Currently, 3D printers in China are offline; you don’t need to
connect to the Internet. So, it cannot be tracked. In addition, a lot of software
in China is open source; you watermark the software, but the watermark can be
removed later. Currently, 3D printer applications are limited. The application is
not so practical. The key point is that if he is the buyer, is he willing to upload the
information? There is an application case that by editing software and hardware,
the product only can be used in the condition of linking to Internet. Then it can
be tracked.
They have considered protecting material by IP. The main material of 3D printer
is polylactic acid (‘PLA’). Their work in electronic liquidity is not complete, so they
have not applied IP. The interviewee has considered the performance of material
for watermarking purposes. It would be useful if the original material company
can provide the material information with codes online for tracking.
Interview R
The interviewee’s main business is to provide an application and service platform
for 3D printing in the Ningbo area and around Ningbo, such as in Zhejiang.
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Their services mainly cover 3D printers, equipment, modelling, application of
software and equipment sales. As a distributor, the interviewee has two distributorships. One is domestic. Another one is from an American company. They deal
mainly with SLA printers. SLA is a method of using a liquid called photosensitive resin, which is similar to acrylonitrile butadiene styrene (‘ABS’), to create
production parts layer by layer. The key components are UV laser and a control
system. When they get the design from a customer, they start to remodel it. They
store the 3D modelling data in the 3D printer, and then the 3D printer will print
the material into tiny pieces, about 0.1 mm, layer by layer, covered by resin.
Before they start the service, they will sign an agreement with our customer
first. Once the agreement is signed, the file will be sent through email to them.
Then they will download the file from email. Next they will start to download
the email, remodelling and slicing it according to the customer’s requirements
to make it printable. They will suggest to the customer what they can do and
what they cannot do. However, when there exists some unavoidable defects on
the 3D printer, they will give some feedback to the customers until they reach
an agreement. All of the ownerships must belong to the customer. Once the
product is finished, they will destroy everything about the agreements and data.
They will not keep anything.
The customers mainly are originally from electrical or home electrical and
spare parts for automobiles. They normally produce for the customer in a small
quantity, ranging from 50 to 100. The purpose of the business is to help the
customer to build models and then give feedback on the design to the customer
and make some fix. But the purpose of producing in small quantity is to test the
assessable accessibility of the market and acceptance of market.
As a service provider, the ability to trace is not so important. However, for
academic and product development, it is quite important. For example, in the
instance of the Chinese market, if the service provider uses the data somewhere
else, such as in customisation based on the data, and then produces new products, which are fundamentally from the manufacturer, then the customer might
feel that this is not morally ethical, and it will do harm to their own patent.
In the view of the interviewee, if the content is online with a watermark and
are very old, they believe that it was approved by the manufacturer. It is okay
to do so after the products have been launched in the market. Otherwise, they
would not feel that it is morally ethical to get the latest content from other people and post it online. This is not good in the industry. They do not really agree
with such behaviour.
The contents of a print, for them, is not so important. Instead, they pay more
attention to the quality of the final product. This, the interviewee argued, is how
it works in China. One might get the contents easily, but the point is that how
one makes the product different from others in the market is quality. The final
stage product matters more rather than the data or the contents.
After they complete the agreement with customers and finish the products,
they would destroy the data. It could be called wasteful. Sometimes, they wonder
if they should update models and data that they created by themselves. However,
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after deep consideration, their customers are mainly from the industry. They
provide service to the industry provider. This will waste effort and the value will
not be as high as they expected. In other words, it cannot provide value for the
interviewee. Industry providers do not have such interest in purchasing contents
online because they want to keep it as secrets. They feel that those with interest
in doing so like purchasing 3D printing contents online are students majoring
in design.
With regard to medical 3DP, the business focusses mainly on the simulation
experience before the surgery. It is very difficult to obtain medical certification
in China with regard to producing medical 3D printing materials, and those
that can be put inside the body. The Chinese Government controls the amount.
Currently doctors do not care much about the quality of the material because it
is just an experiment before the surgery. Once they get the model, they would
take it back to the qualified provider, who can produce the bones or something.
The quality really depends on the printer. Once things are printed there is the
question of how to make these their functionality better. They will have a group or
team to modify and make it function more properly. Customers care more about
the functionality of the final products, which is as important as the quality.
When one company gets a very special design, they will go to apply for the
patent. But there is a group of people in China, they develop something based on
the patent and change it a little bit. And then they use it to apply it for another
patent. In their opinion, IP protection is quite important. For example, if their
team spends three years designing and developing a product, and it is launched
on the market. After only one year, there is another group or team that sees
the opportunities and starts to the copy and modify our product, which will
do harm to the interviewee’s patent and their profit. In such a situation within
the market, a good product and service will not sell to its full potential, while a
product of worse quality can be sold and compete with the interviewees.
If the law can ensure qualifications for 3D printing, it would be much better
for protecting the IP. For example, the company designs one thing and gets a
patent, but when their competitor sees an opportunity, they can still enter into
the market. There is no qualification system preventing the competitor from doing so. It would be best if the law can restrict this group of people from entering
into the market and require them to have qualifications. In other words, it is
better to reduce the barrier to getting a qualifications system.
For example, in the 3D printing industry, if their company has qualifications,
a customer company can purchase 3D printing equipment. This will be the best
equipment. But at the stage where everyone can sell 3D printing equipment, this
can cause bad, harmful competition between the industries.
Interview S
The interviewees are in marketing – to decide the positions of marketing and
­direction – and the other interviewee is the general manager of the company. The
main activities of the company are the sales of 3D printers; to develop and research
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3D printing materials; to investigate 3D scanning; and backward design – reverse
engineering. The interviewee mainly sell the machines. The customer will provide
the CAD file to the interviewee, or the customer will provide a sample, and they
will print it. Normally they wouldn’t do any changes because what they receive is
the final ready-to-print. Because they have signed an agreement with the customer,
they will not put it online. They have patents. They stated that they are unlikely
to breach the contract and will not put anything online. The interviewee is more
inclined towards respecting the IP of 3D printing content, so they would not take
any risks in breaching the contract for a short-term benefit.
For the 3D printing and scanning service, there would not be any limitations for the interviewee in IP. The interviewee stated that everyone can do the
scanning. As long as one does not make any changes in the design, it does not
constitute as infringement of the copyrights or design patents. From the side of
the company, as long as they finished the printing, they will delete the document
accordingly. Meanwhile, if the company wants to get the CAD file for further
product development, a non-disclosure agreement will be signed between the
company and customer, so the interviewees believe their customer will not be
worried too much about copying the design. They find that it is relatively difficult to trace the originality of the content that the customer gave them. For
example, if someone gave them an iPhone, they would know that it’s from Apple.
But most of the time when they get the product, they have no idea where or who
the product/content belong to. It is difficult to know the source. Meanwhile,
the customers will feel annoyed when they ask too much about the originality
of the content. The customer’s bargaining power is stronger than the interviewee’s; customers are facing more choices and can always choose to go to another
company for printing when they are annoyed with the company’s insistence on
originality. In this instance the interviewee would continue to print the file.
They would not want to trace the origin of the content. In China, most firms
do not like this origin of [content] feature. It may be viewed as a waste of effort.
And since nobody is doing that, why would this company be doing it?
With regard to medical 3DP applications, they felt the law was too restrictive.
Entering the market is difficult – the first is material problem; next is price.
Third, they feel that the application of 3D printing in medicine is not wide. It is
just used to improve the accuracy of pre-surgery experiments. For other applications it is limited.
For IP infringement, they find the cost is very high to sue someone. They
prefer invention patents that could bring more value to them. Suing for infringement was not considered common in China. They prefer licencing to selling
products. In China pirating due to lack of IP is not a threat. The products you
see mainly do not have patents, which is why the interviewee will not view this
as a threat. If 3DP companies are held liable, they thought that the industry
would die. As long as the product is being produced in a very big amount, they
may apply for a patent. However, what is currently happening in China is that if
people have a very specific design, they post that design online and sell to consumers online.
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Interview T
The interviewee is a representative of a 3DP company printing objects for customers. Normally they get agreements from outside. They complete the service accordingly. Customers include direct ones and those via agents. Normally
they just purchase the applications. It usually works this way. All are purchased.
The software and machines are bound together. Normally a customer would
ask them to design in-house. Customers bring drafts of what they want of the
product and do not ask for the designs because those are different things. So, the
files are the company’s property. The company basically just does the services as
customers require. For example, a manufacturer wants a model for a machine to
display, they design that. Designing creative and unique products has not been
their focus right now. For example, if a customer asks them to design a cup, they
usually do not consider it as a unique design that solely belongs to them that
needs a patent to protect it.
The interviewee stated that the company just uses offline contacts at this point
in time. They would advertise themselves in the industry website because they
do not have their own. But as they now are planning a transformation, they are
designing their own website through which they will make contact with customers. They already have a pilot website that is mainly for display purposes. Because
currently everyone is doing this, they are at their researching stage to find a
model that fits best. Because switching existing offline customers to online will
cause economic loss, and designing websites for new customers is hard without
a certain profit level.
The company prefers to just manufacture the products. This is usually stated
in the contract by their clients that they can only make models for them and cannot make any IP out of the models. The clients are usually big companies who
emphasise IP. The interviewee then clarified that it is okay for them to register,
but they try to avoid possible conflicts with their clients for small matters. They
are already happy to work with the big companies.
The interviewee believed that their products are mainly highly customised and
that this means low demand. The commercial value of a single model is high but
little for a patch. So, piracy is not a problem. They currently are not targeting a
market for scale-produced products like toys. They are thinking about how to
enter this field and how to protect relevant IP.
Currently they just ship the products to customers once they are finished. But
they are considering tracking too. Now they basically track their products by
phone and email, and by feedback from customers. This is slow and inefficient.
To develop an online system to track the use of a product they are considering
using a third party because they do not have the specialised equipment for this
matter now.
In terms of tracking IP violations, which involves business secrets, the interviewee stated that the procedure of negotiation and lawsuit could be tedious because regulations vary across countries, and Chinese legislation is pretty
weak regarding protection of IP. So, the company tries not to focus on tracking;
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instead, they can upgrade the product to protect the business. In fact, it is a
general situation of Chinese IP owners that updating and upgrading are more
practical. From the perspective of business, all the information, if used properly,
is useful.
If they have information about how customers use their products, it is an
advantage in the value chain. Then it comes to the morality problem. The interviewee did not know about other companies but they themselves wouldn’t
obtain information from clients without consent. They knew some of the companies doing tracking business, but because of the language barrier they do not
know about some of them. They interviewee’s company found tracking useful,
but when it comes to operation, they are not sure how much value it can bring
to them. Their target is just to make a model for displaying; this means making
it similar is enough. The equipment they are using actually has a tracking function, e.g. a built-in tracking system telling them hours of work and customer
feedback… it’s in the printer. There is no other way to stop tracking. They do not
own this technology. When they are printing the machines are not connected
to the Internet. So, at this point the content is safe because no one is tracking
the printer.
They do not know how others use their information. They are totally blank in
most of the areas they have been interviewed on.
They feel that every industry should put some effort in IP, but it is not that
common in present China. Now people are focussing on profit, so maybe ten
years from now there will be more effort. The Chinese Government would likely
support all kinds of new technology. Large multinational companies can afford
it. Second, the technology is still immature. There is no regulation regarding
safety issues now.
Interview U
The interviewee company was established in 2004. For the first few years, they
worked only with 3D CAD. Not until 2007 did their company begin to engage in 3D printing – they have worked in the 3D printing segment sector for
almost ten years. Their company plans to do some independent R&D this year.
Presently, they are cooperating with some of China’s top scientific research
institutions and universities, as well as the local government. Their research
results cover the whole value chain of 3D printing, including the modelling,
materials and the printer. They are not only for sale but also for their own
use. Their final goal is to build up a 3D industrial ecosystem. So, they will
continue to do some 3D printing investment. They mainly focus on the R&D:
the 3D printer, printing materials and specialised applications. By ‘specialised
application’ they meant, for example, in the aerospace field, car industry or
medical sector.
Compared with other printers, theirs are self-developed. They have an R&D
centre and cooperate with an academic. They believe this research centre will
be the core of their 3D ecosystem. Besides, they are working on developing the
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extensive application of 3D printing in various industries. Their partner will take
charge of the research part while they will focus on management.
They did a lot of investigation and survey in the market. The 3D printing
industry in China is relatively weak. A complete system of rules and brand has
not been established yet. Because of the low entry barrier, there are many competitors in the market. However, the competition is not regulated. It can be
attributed to the insufficiency of funds and the lack of creative ideas. Actually,
some universities have acquired advanced technologies. The problem is that they
have no idea how to commercialise their research results. So many companies,
such as some military industrial industry enterprises, may cooperate with those
top universities to do R&D. Most universities engage in this kind of cooperation
passively. So, what they plan to do now is to use their capital to match the market
and the scientific research result. Obviously, they need to combine these universities’ R&D capability, their capital and the government’s support together to
reach this goal.
One of the biggest problems that the 3D printing industry is facing now is
the lack of a nationally accepted standard. So, they plan to set standards for
3D printing industry, along with other universities that are currently engaging in 3D printing researches. This standard will not only act as guidance
for the industry but also ensure the quality of the 3D printing products. You
know, there are a lot of small companies entering the 3D printing segment
sector with little capital investment – just thousands of R MB. They may use
some resources in universities or their communities to promote their products,
which are of low quality. You know, the media can be misleading sometimes.
The interviewee personally got to know 3D printing in 1997 (the first generation) – but not until 2007 did the interviewee begin to promote 3D printing.
Most of their knowledge about 3D printing comes from the media reports, but
interview argued that those media reports tended to exaggerate the power of
3D printing.
There should also be standard for printing materials. So, the main problem
now is that they do not have a standard to measure the material’s physical properties or mechanical properties. That also explains why many customers are concerned about the actual effect of the 3D printing. They think it may be different
from those made of models. To address this problem, the difference between the
product made of models and printing machines should be identified.
For customers, what concerns them the most is the functionality of the product, which is related to the printing material and the printing process; as for the
industry itself, the printing process and the safety of the printer will be more
essential. So, it’s quite different from different perspectives.
There are a lot of people who are interested in the 3D printing-related work,
such as 3D printing modelling and 3D printing design. However, they are worried about the profitability. If there is such a good way to protect the IP of
3D printing work, people will be more willing to invest in this industry. You
know, if there are more people engaging in 3D printing modelling, their industry will expand and progress more rapidly.
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Under the interviewee’s system, the one who uploaded the design will be
considered as the owner of the design. But, of course, this person needs to go
through the authentication. And what they can do is to ask this person to sign a
contract. Then if any infringements happen, they will be protected by the contract. Last month, they contacted a [company] that deals with all the IP transactions in a legislative district. Presently the government is establishing a formal
platform for patent transaction.
In future, they believe that sales of the 3D printing products will increase
rapidly. Actually, many of their consumers have heard about 3D printing before.
It is not only because of the need of their work but also as a result of the government’s promotion. So, it is obvious that the market for 3D printing will keep
growing in the future. Basically, their customers can be divided into two groups:
enterprise and university – the group that makes up a great proportion – and
individuals. And there are a lot of potential customers who are quite interested
in this industry. Their company has to deal with a large number of telephone
counselling and visits every day. The only problem is that they hold extremely
high expectations, so, the actual product always disappoints them. But as the
technology becomes more advanced, their expectations will be met one day.
Interview V
The interviewee is an engineer and mainly works on developing software for 3D
scanning. The company focusses on collecting data for 3D printing. For example, if they want to print human figures, they need to scan their body first to get
the 3D model. And they need to process the data to make it printable. They deal
with different types of 3D scanning and make it a package to sell with the 3D
printer. For most of the cases, they scan the human body. But sometimes they
scan some delicate objects that require high scanning accuracy. For example,
if you find the exterior design of a mouth, it is very elegant. Then you can use
industrial scanners to scan this mouth. The model can be directly used for manufacturing or defect monitoring.
As for the design, they do not do it themselves but ask another company to do
it for them. In the view of the interviewee, companies working on 3D printers
are in a dilemma. If they go for the high end, it will be too complicated for them
to complete, so many of them have given up. However, if they go for the low end,
they will find that there have already been a lot of designs in the market. You
can even download one from the Internet. But their qualities are also very bad.
For the 3D scanning, all the software and hardware are designed and produced by their company. So, they have the IP. It is about not only the dots
per inch (‘DPI’) but also the size. The bigger the object, the lower the density
of scanning. [The lower the DPI, the greater difficulty in inserting tracking
information]
The interviewed company are the manufacturers of the 3D scanner and they
sell the equipment to design companies. And then they will use their equipment
to scan. They only scan to test the equipment’s accuracy and to ensure it can
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meet their customers’ needs. If their customers want to scan something, they
will send it to these design companies. This business model is true for most
companies. But there is another business model for the human body scanner.
Since the price for this type of scanner is very low, they also offer printing service
to their customers and charge a service fee. But this business model is very new.
If they accept all the requirements, they cannot focus on their major business,
which is to develop software and hardware for 3D scanner.
Regarding tracking, it is still very controversial at this stage. Nobody has ever
looked into this issue. Some customers may keep the file for their private use. But
others may send this file to them and ask the company to check for them. So, the
ownership of the content is still undetermined. However, there is an exception –
when it is for promotional use. In this case, they need to get the permission of
the owner of the data. In most cases, they just have oral contracts. For most
customers, it is a complete sale.
Since the 3D scanner carries the company’s logo, they can only sell it in the
second-hand market. But it may cause some trust issues. They have IP for the
circuit design and copyright for the software. They started the development of
the software since 2008. At that time, there was no reference for them to do
second development. So, they do everything themselves.
For the software in China, the protection is not clear. They can only protect it
through the hardware or encryption. Although law can solve the infringement,
the process takes too long and the result may not be very satisfying. Someone
did break the company protection on the software, but after they updated their
software with a stronger encryption method, there was no longer such an issue.
The hardware is getting more complicated now. There were just two cameras
and a projection in the scanner at that time. So, the encryption method for it was
very weak, which allows for the possibility of infringement.
The basic principle of the encryption is that, in order to operate the software,
you would need to use an encryption key. Without the encryption key, part
of the programme cannot be run. As long as the programme is complicated
enough, you can encrypt your software. And since their software cannot be used
without the hardware, they can also encrypt our software through the hardware.
The encryption for the hardware is much easier to do.
For 3D printing, tracking is mainly about collecting data. It is easy for them to
know how customers are using the data. And for another business model, which
is mentioned earlier, tracking the subsequent use of the data and protecting the
data may be of greater importance. But at the current stage, it is not their main
focus. They have tried and are still working on it, but they are not sure whether
it will work and whether this business model is suitable. They are still not clear
about what the core value of the watermarking technology is.
The interviewee has carried out some market research about it. There are some
companies providing data online presently, but they are not using the watermarking, which is a better way to protect copyright. Without the watermark, the
downloader could redistribute the content easily. That is why watermarking is
useful in this case.
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From the interviewee’s perspective, watermark is something that indicates the
origin of the file and cannot be removed very easily. But what if people realise
the existence of the owner and still use it without permission? Are there any ways
to control the infringement? Of course you can safeguard your IP through legal
channels. But it takes a long time. It was noted that if a sui generis automated
right can really help with the protection, it will be very beneficial since people
will be motivated to create more new content if their work is protected. The
interviewee said that the law in China is being updated to accommodate innovation, such as in recent changes for digital copyrights that have been proposed.
With regard to scanning (which has implications for watermark tracking), an
experienced operator can generate scanning files that are printable without editing. But, actually, the scanning process is very complex. A couple of factors affect
the final result of scanning, such as the scanning angle, which is quite difficult
for an inexperienced operator to control. So, it is very common for the interviewee to edit the file after scanning. Some of their customers have done some
secondary developments on our printers. Once people stand there, the scanner
will scan them automatically. They use some mechanical equipment to make the
scanner more automatic. As a result, it is easier to operate but the final effect may
not be so good.
From the market perspective, a 3D scanner will have higher performance but
lower price in the future. Therefore, it is common for all the 3D scanning companies to have a smaller profit margin. In this case, the content will be increasingly essential.
It is more about the direct use and distribution of the scanning content. For
instance, after our customers have scanned the object, they may want to improve
the data they captured. Then the processing of the data will become a point of
profits increment. Besides, if customers want to print their files or produce them,
they will need a high-quality printer. This will become another sector that adds
value to the interviewee’s services. Also, they will develop some branch business
in related fields. For example, human body scanning appeared in the last few
years. The market is not mature yet, but it will definitely become a trend in the
near future. Although the 3D printing market is not very big, it can actually be
further subdivided in the industrial field so that the competition will not be so
severe.
We think the 3D scanner can be further developed, like a digital camera or a
SLR camera, simply as a method of capturing images. It can be applied to our
daily lives. Once you spotted something, say, a leaf, you can capture the data
immediately and use it for your own purpose, either for VR or for printing. We
believe it is the foreseeable future.
With regard to scanning and tracking, in terms of copyright infringement,
the interviewee gave an example of a cup. Imagine that you want to use the data
of a cup; you need to have a clear cognition about the cup. But the data itself is
not labelled. In this case, you may need some sorting algorithm. There has been
several research projects carried out and the interviewee believes this sort of algorithm will be available in two or three years.
4
The Ningbo Workshop,
August 2016
In August 2016, the Arts and Humanities Research Council (‘AHRC’) funded
project ‘A technological licensing framework for 3D printed content: A focus in
China’ workshop was successfully organised at Ningbo Sofitel Hotel Conference
Hall. The workshop gathered approximately thirty professionals from academia,
industry practitioners, Ningbo Patent Bureau representatives and an intellectual
property (IP) lawyer. They addressed the opportunities and challenges in establishing IP when disseminating 3D printing content, and information sharing
between important stakeholders within the value chain.
The workshop consisted of three parts, namely the project introduction, a demonstration of the feasibility of watermarking technology in 3D printed content and an
industry panel discussion. In this chapter, we summarise the last part of the workshop, which took place for about 30 minutes, and which was chaired by Dr Phoebe
Li from the University of Sussex Law Department. Participants included Mr H from
a Ningbo-based 3D printing (‘3DP’) company; Mr Y, Chairman of a provincial entrepreneur alliances; Mr Z, a patents and trademarks lawyer; and Dr M, a chief engineer from an international 3DP equipment design and manufacturer.
The participants of the panel session sat in parallel, and discussed the current phenomenon of IP protection in China with regards to 3D printing. They
express their opinions towards an online licensing platform proposed by the
research team.
Mr H is from a four-year-old 3DP equipment supplier with more than 20
registered patents. He reflected that
Patent is a grey area when it comes to entrepreneurship in China, a lot of
innovations in 3D printing are inspired from open source platforms. Personally, I would allow others to share my designs for aesthetic or sharing purpose. But, only if someone uses my designs to generate commercial value, it
is then construed as IP infringement.
He has further supported his opinions by demonstrating a situation that his
company has encountered:
A client of mine bought a machine from my company, but later we discovered that the client deconstructed the machine and reverse engineered the
The Ningbo workshop 97
design. I can understand this motive, which is to obtain the technology
quickly, but as of now there is no existing system in China to protect my
right under this kind of situation. Firstly, the cost in legal process is much
higher than what I can obtain from this infringement. This is also why for
most start-up, smaller companies take infringement risks. Probably big companies have very high technologies, so they would need to apply to protect
their IP. The awareness of Chinese citizens are still low when it comes to
protection of intellectual property.
Regarding the online licensing platform proposed by the research team, he
commented,
Open source breeds innovation, the easier access of available technology
will inspire more innovators to dig deep, to improve existing technology.
It is unlikely to constitute infringement of intellectual property law when
particular open source files are use for research purpose. The 3DP industry
in China is not matured yet to regulate with this online licensing platform.
Meanwhile, Mr Y expressed that his main concern with IP issues in the 3DP
industry is that the cost of breaking the law is too low in China. He personally
believes that the government should set in to play a leading role in the supervision and execution of infringement law. As a representative of an entrepreneur
alliance, he demonstrated his preference for open source. He stated that
Indeed, the 3D printed content should be protected by intellectual property law, but the profit that underlies creative content is considerably more
than the threat of punishment in infringing others work. That is the reason
why majority of makers neglect intellectual property law when facing the
dilemma between profit and IP protection.
Also,
Open-source technologies have boosted the progress of many industries,
including the 3D printing industry. We would not have a flourishing market
for desktop 3D printers if not for the patent expiration of patents of SLA
and DRP technologies, and hence we would have so large number of small
DRP and SLA companies in China. The reason that there aren’t as many
SLS or SLM firms is because of the patent protection. Engineers desire open
source so that technologies can improve; companies desire patent protection
for them to maximize profit in a limited period of time; to figure out the
balancing point between the two is what entrepreneurs should do. Taking
Android as example, besides registered platform core patents, they also allow people to make changes on that basis, it then breeds various improved
systems like Xiaomi system, HTC system. I think this is what we can learn
for 3D printing industry.
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The Ningbo workshop
Regarding the online licensing platform, Mr Y stated,
I think we should not focus on the issue of whether there is infringement
in the distribution of STL files, but rather focus on the printing and manufacture process. If they manufacture it for commercial purposes, then it is
infringement; if it is made for discussing and sharing purposes, with the permission from the original owner, it is acceptable, and this is not infringement.
Mr Y further added that
The platform could demonstrate a greater value by filling the information
gap between international and domestic patents. For instances, Xiaomi paid
a lot of money for 700 patents to Microsoft. In fact, many industrial firms
are eager to obtain such patents as well, especially larger public firms, such as
medical firms. For Chinese medical facility manufacturer, they could not sell
their machines abroad due to the reason of patent protection and conflicts
in foreign countries. The platform could further discover the commercial
point that lies within the gap.
Mr Z, a patents and trademarks lawyer, is holding a positive attitude towards the
online licensing platform because 3DP is changing traditional manufacturing
processes, and the law provides for the welfare of the creator:
A market driven force is needed to develop this online licensing platform,
the value lies upon on the public awareness on intellectual property. At that
stage, this platform will automatically working as a regulator to boost the
development of China’s 3D printing industry.
Considering the supply chain of 3DP involves various stakeholders, such as those
producing printers, materials, software, content providers – a licensing platform
could theoretically neutralize each stakeholders’ welfare while guaranteeing the
development of the industry itself. He further expressed that
In 2009, the Supreme Court in Beijing has published a principle regarding
IP infringement — even if it’s for personal use, it still counts as IP infringement. Nowadays the firms in the industries are often experienced with technologies. Hence, the legal problems associated with them. However, for a
service provider, it might be difficult to establish a clear definition for the
legal risk during the development process for all the industries. But, companies should always be aware of legal issues as it is easily fall into lawsuits,
technology changes quickly, so does the law associated with the technology.
Meanwhile, Dr M said,
For 3D printer manufactures, there are a lot of problems to consider when
applying for a patent. For example, what country should the patent be
The Ningbo workshop 99
effective in? Patent applications are very demanding in terms of money and
resources. Hence, it is important to have a system where we can see the situation both in China and globally, it is necessary to have a platform where
we can search and find this kind of problems both domestically and internationally, if possible, get deals done.
From his rich industry experience, Dr M commented, “The Singapore government has invested huge resources in implementing intellectual property in the
3D printing industry. We are holding a positive perspective on the impact of
online licensing platform.”
Lastly, based on the opinions and suggestions from the participants, the representative of a local government official said the government is currently looking for a solution to balance the private and public benefits while ensuring the
development of 3DP industry:
In China, actually we have one administrative method to protect the patent,
the cost is relatively low compared to the legal process and it is efficient.
When the IP owner realizes that someone else or other company is using
their right to earn commercial profit, then he/she could take photos as evidence and inform the government officials from the bureau. We will use this
evidence to go to the infringers and enforce them to stop the infringement
behaviors. Additionally, there is a patent trading platform in this city and
the aim of it is to allow the deals of patents, though it is not specialized in
3D printing.
Dr Phoebe Li ended this panel session by urging all local practitioners in the
industry to find a sustainable way to use IP in order to protect the welfare of all
participants within the 3DP industry. She argued that everyone in the industry
would suffer if it was not growing in a sustainable manner.
5
Opening transcripts of
the Shanghai workshop,
December 2016
The Shanghai conference was an opportunity for the 3D printing (‘3DP’) Arts
and Humanities Research Council (‘AHRC’) project team to be able to present and discuss their findings. There were in attendance one hundred members
of 3DP companies, alongside project staff. What follows are transcripts from
the opening session. Note that this transcription is from a translation of the
speeches.
Part 1
Master of Ceremony Kathryn Zhou
Please allow me to thank the organisers today: University of Nottingham
Ningbo China and all the team members of this whole research team. Thanks to
their hard work we can sit here today and gather in Shanghai. Today is the winter
solstice, and we wish you all a happy winter solstice. Allow me to introduce the
members of the research project: law professor and project director Dr James
Griffin from Exeter University, Professor Hing Kai Chan from University of
Nottingham Ningbo China, Dr Huileng Choo from University of Nottingham
Ningbo China and his PhD student Jerry Niu, and Dr Phoebe Li from the University of Sussex. Of course, today we give thanks to the guest speakers… I wish
our activities to have complete success today, thank you. Now we welcome the
program director and law professor from the University of Exeter, Dr James
Griffin, to make an opening speech.
Dr James Griffin, University of Exeter
Hello, welcome. It is so lovely to see you all, especially all the colleagues with
whom we have worked together this year in China. It is my pleasure to present
to you our findings and the outcomes of our research project. The research in
the Chinese field is very important for 3D printing because, I think it is fair to
say, it has not been developed to the degree that some people may expect. I think
this is because 3D printing is not engaged with the end consumer enough. And
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so, our research is mainly focussed on how to engage those end users. We have a
lot of organisations that have been involved in our research project: in particular
The University of Nottingham Ningbo China. The project was funded by three
bodies: The UK Arts and Humanities Research Council, The Newton Fund and
the Ningbo Science and Technology Bureau. The funding has been significant
and has received a lot attention in the United Kingdom and China.1 We have
many other partners involved besides Nottingham Ningbo University China:
the University of Sussex; Durham University; my university, the University of
Exeter; and the University of Politics and Laws from Peking, and SLM Solutions
from Singapore.
During the past few months, my colleagues from the United Kingdom and
I went to some of your companies for interviews, and I am so happy to see you
again. We also have a placement with a 3DP company, which was held by Jerry
Niu. He will present the final outcome of this project he has been working on;
it is amazing. You will be surprised by the system he has built. We also thank
the Ningbo JK Brothers for their support of this project. Back to the aim of the
project, we are seeking a means to disseminate 3D printing technology to end
consumers in a way that will make the technology more easily accessible. Understanding the current practice of organisations is important, as is to work out the
technical system to engage end consumers in a more efficient way. So, from my
perspective – can you see the PowerPoint slide, and if you can, can you recognise
what TV series it is? This is Star Trek – The New Generation – I have watched
it since I was eight in the 1980s. This is a replicator machine which is quite like
3D printing; items will magically appear, and you can print a beef burger and
pizza…as has been done with 3DP. What is impressive to me is that the process
does not involve a money transaction, but you still receive an actual object. A
flexible licensing system, which enables people to print and produce something
they want in a way which is easier and in a way that can eliminate the threat of
actions of copyright infringement with a minimal fee. Maybe you are already familiar with some websites, like YouTube (it is like Youku Tudou).2 On YouTube,
there is a licensing system that is quite similar to the system we have developed,
and it can track and trace your upload content to detect if the copyright has
been infringed. But YouTube is limited to processes with video and music files,
whereas our platform is dealing 3D printed content files. I have mentioned that
we are building the system and that we have conducted interviews in order to
understand how the local 3D printing companies deal with patents, trademarks
and copyright, and how they view intellectual property more generally. So, I will
introduce preliminary findings of the interviews later on. Now, for an example
of licensing systems in the West, we have the Copyright Hub in the United
Kingdom,3 and in the EU, there has been discussion of copyright identifiers in
1 For a list of publications, please see the appendix.
2 www.youku.com
3 http://www.copyrighthub.org/
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proposed reforms.4 The proposals are similar to what we endeavour to achieve
through technical means. We must also remember that whilst what is being
discussed here is mainly concerning 3D printing, there are other technologies,
such as 4D printing, augmented reality and artificial intelligence, to which our
proposals may also apply. We all need to bear in mind that what we are doing
might be applied to all industries.
I will now give you an example of digital watermarking. I refer to a competition that took place a few years ago, run by an anonymous organisation. This is
a competition that enables that organisation to identify coders who knew how to
trace content. The initial clue is on the PPT [it is a picture of a cicada].5 These
are the initial clues that we are given… this process of information disguise is
very similar to what we are proposing. The first task involves revealing something hidden in the image. By altering the brightness, there is a picture hidden
electrically behind the main picture. If we then take that image and load it into
an ASCII editor, we will read a clue that directs us to a book – in this particular
example, the ‘Book of Law.’ This book, in turn, provided another message – and
so on. This is, in essence, a digital watermark.
We are designing a system that that can hide data, code, in 3DP objects –not
just code but also the physical object itself. It can assist in telling where the product came from. Some of this technology is being used currently, like YouTube.
If you listen to music, and you do not know what music is playing, an app is able
to identify the music.6 This is using very similar technology, so it is useful, especially when it helps to identify content. We are using similar technology, so that
you can know when a 3DP object is being used, either in file form or through
the use of the physical print. If any photograph or video footage is uploaded to
the Internet, it will be possible to identify an exact print, revealing a breadcrumb
trail of everything that the object has done in view of a recording device. So,
Jerry [Niu] will later demonstrate the watermarking system proposed. In the
meantime, thank you for your participation in the conference.
Professor Hing Kai Chan, University of Nottingham Ningbo
Honourable guests, ladies and gentlemen, my name is Hing Kai; I am from The
University of Nottingham Ningbo China, or you can call it UNNC. Please allow
me to represent UNNC in greeting you with the warmest wishes. Today is a very
special occasion, what we called Dongzhi, the Chinese winter solstice. It is a
festival to celebrate with family. I hope you will enjoy the event.
My colleague, James Griffin, has already briefed you on the details on what
we have done in the project and what we aim to achieve. Of course, Jerry and
4 See ‘Public Consultation on the review of the EU copyright rules’ at http://ec.europa.eu/inter
nal_market/consultations/2013/copyright-rules/docs/consultation-document_en.pdf, p. 19.
5 See for example https://www.telegraph.co.uk/technology/internet/12103306/Cicada-3301Who-is-behind-the-hardest-puzzle-on-the-internet.html
6 https://www.shazam.com/
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my colleague, Huileng Choo, will give some details about the system, the watermarking system we developed in the project, so I would not talk further about
the system, I will leave it to Huileng. So I would like to take the opportunity to
talk more about the UNNC.
Well, UNNC belongs to the University of Nottingham family. We are truly a
local and international university; we have three campuses in the world. We have,
of course, the UK campus and one campus in Malaysia: the KL campus. We also
have the Ningbo campus in China. The UNNC mission is to transform the life
of our students, staff and local community with globally excellent academics and
research. We are a truly international university, we aim to provide high quality
education in China, but this is built upon our British style learning, management system, network and reputation. More importantly, we are also localised
within the Chinese context. We not only deliver courses in the UK manner but
also take local contexts into consideration. We also aim to develop leaders and
entrepreneurs; that is also why we are here to talk to you. Our main audiences
here are industry practitioners, not just academics. You can see this project is very
research-intensive; in fact, research and innovation are the DNA of our institution. We emphasise impact, not just academic impact but also industrial impact.
We develop core expertise in research and produce world changing outcomes,
which improve human life, and to improve social economics. So we work closely
with the industry; we are not just living in the ivory tower. This is how different
we are from the traditional academic researcher.
UNNC started its operation in the year 2004, and now it has extended the
research to the marine economy, advance manufacturing and materials, and digital economy. Our strategic plan 2020 is to ensure academic excellence. We also
emphasise and diversify our investment to aligns with our ambitions, especially
in the key research area I just mentioned. Additive manufacturing is relevant
with the event today.
Now, back to 3D printing, our core subject here today. On our UK campus, we actually have a big group of 3D printing researchers. We have invested
quite intensively in this area. We have a centre in additive manufacturing and
3D printing, which is funded by the Engineering and Physical Science Research
Council in the United Kingdom. This is in partnership with Loughborough
University, Newcastle University and The University of Liverpool. The primary
objective of this centre is to deliver advanced research in additive manufacturing
and 3D printing which is able to tackle scientific and engineering challenges.
The Centre is now seeking talent to make this area lead to a better economy,
environment and society.
Development of the economy is crucial to create real industry impact; on the
other hand, the soft and hard sciences cannot be overlooked. We talk about
watermarking, and the reason to add watermarking in 3D printed contents
is of course to protect 3D printed objects. I am sorry that I have to say that
current technology and regulation are not able to protect 3D printed contents
properly. Here, I will take the opportunity to thank our sincere supporters:
the 3D ­Printing Technology Alliances and Shanghai Additive Manufacturing
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Association. Two presidents are here: President Luo and Prof Wang and his delegate Dr Zeng. I would like to cut my speech short; to conclude, it is Dongzhi in
China. After today, the daytime will be getting longer and longer. I believe our
workshop today will help lighten the 3D printing industry, just like what we are
doing. Thank you.
Part 2
Introduction by a prominent industry figure
Distinguished guests, dear friends, it is my pleasure to be here for the workshop
on the conference.
So today’s topic is about 3DP Intellectual Property (‘IP’). In 2012–2013
­China’s IP bureau had approached me, hoping that we could place more emphasis on the IP of 3DP. In this connection, I have a lot of interfaces with the
IP bureau about how to improve the production of 3DP. At this point, we do
not put much emphasis. So, this target is to learn more about the project and
how you view this topic and the current achievement you have got for 3DP that
has existed for over 30 years. Nevertheless, its development is not as quick as we
have expected.
We have more and more new technology over the past ten years. Recently,
I went to the United Kingdom for academic exchange with some universities. We
found that the technology is a very old one; we still see more technologies come
to the market. Maybe this technology is not revolutionary or even is a replacement of the old technology. But over the recent years, there are some changes
on the old technology. The SDM technology is an example. Because now we see
that SDM technology can be used for liquid, even if we do not use it for fibre.
We could make it more quantified and we are now applying for the patent and
copyright for it. And some supporting materials for 3DP are in the urgent need.
And now we have some technologies that do not need any supporting materials
or some ultrasonic technology.
For the development of the 3DP we still have a lot of improvements. Such as
that we still need to pay attention to the project from the perspective of 3DP IP.
From [our] point of view, we like to corporate with all experts for the progress of
the IP of the 3DP. In this connection, let me introduce what we are doing and
maybe you could participate more actively in this industry.
Why has this technology not developed as quickly as we expected? First, we
do not have a very good ecosystem. We are trying hard to manufacture the
specificity. How many 3DP companies do we have in China? I do not know, but
I think it is more than 100 companies, and 70 per cent of them claim themselves
as the producers of the printers. China is the biggest country to use 3D printers.
They can sell printers for metal parts. We can look out of China. Outside of the
China there are just a couple of them, no more than ten companies. Now we are
in the situation trying to reproduce, replicate and copy at a very low level the
competitive conditions.
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105
China has not been industrialised. So the education of industrial foundations
has not reached that height compared to the West. Now we have not finished the
industrialisation, so that is why we simply cannot achieve innovation overnight.
The developing of 3DP is not very optimistic, in terms of the number of companies. There are a lot of 3DP companies but I do not see innovation among
them – which includes not only the manufacturing industry but also academia.
They are also replicating technology. This is something that attracts our attention. Everyone knows this situation. Now we have over 100 metal printing
companies where we sell our products to. If you look at the data, you may think
China is doing well; there are a lot of producers. Second, it is a big market; we
have done the research: out of the 100 metal printers, 80 do research and design
(‘R&D’), but they have not applied that R&D. The remaining 20 perform the
application. I have been doing a lot of promotion and application, but I have
found a lot of difficulties. The Government is not thinking about how to promote technology; they are too busy working on production.
When I visited Nottingham University and Cambridge University, I saw that
the research they conduct starts from the materials. They have been promoting
materials, looking for the better materials. I think that is the right way; that is
the basic. But in China, few people look at the materials, few people start the
research from the materials. They are focussing too much on the manufacturing
of the printers. It is, in terms of technology commercialisation, the appropriate
business model. There is a lot to discuss.
First of all, we are printer manufacturers. It is not technology that is very
difficult to replace. There are lots of people who do not know the technology;
they do not know how to solve it, how to use it and how much value it produces.
Frankly speaking, it is not suitable for every company. 3DP can be used in ever
industry, but the application is limited to narrow areas. That is why we need an
open service so that the users can know that we do not need to buy a printer but
can still actually use the printer. We have hope in the industry only after they
know the technology.
Second, we do not have a lot of talent. In China, we want to recruit master
and doctoral students in 3DP, but it is very difficult. I have done several things.
First of all, I am building an open platform; we have purchased millions of yuan
of facilities. Next, to develop talents, we have looked for many training courses
with world leading universities, University of Nottingham Ningbo China is one
of the universities. To train talent, the courses vary from one to three months,
and the requirements are very simple. The students just need to know what 3DP
is, what they can do and how they can make things happen. Those are the most
basic objectives of the training. Currently 100 students study 3DP, so my objective is to train the people to industrial level in one to three months.
And for the high level talents, I am working with Sheffield University and
University of Nottingham Ningbo China. Next year we are bringing master
and doctoral degrees to students. In this school, we produced 20 graduates.
Over three years, we have tens of thousands of new people, new blood into the
industry.
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Premier Mr Jiabao Wen talked about 3DP. Then, two years ago, Chinese
Academy of Sciences produced a report. I do not think the report is very authentic or genuine. These researchers in China close the doors and do the research,
and think they are always better than other countries. So I think the report
produced is always biased. In contrast, we have been advertising and promoting
3DP and that is why we have attracted much attention. National leaders have
been promoting 3DP, including President Xi. Last year, the Financial Minister
has published a plan to promote 3DP in three to five years.
In terms of the growth of 3DP, the revenue is 50 billion yuan. Back in 2012
it was about ten billion yuan; in 2020 my estimation is that it will be 100–150
billion yuan. The biggest market is in America, which is about half of the global
value. Europe is about 30 per cent, and China and Japan are similar. In Japan they
do not have the core technology. The core technology is mainly from the United
States and the EU. The United States has taken 50 per cent of the global market,
but if you ask the people from the United States what 3DP is, they probably would
not understand. This is because currently most of the 3DP technologies are used
in military and defence industries, mainly in producing weapons. Anyway, the
industry is commercialising the technology to consumers. Recently, you can see
a lot of traditional companies are acquiring 3DP companies. This is good news.
Through the development of the European market, 3DP now has 70–80
3D devices in the Chinese market, but less than 20 per cent have been used for
application. The other 80 per cent is used in academia. So, I think in the future,
maybe over 50–60 devices will be put into practice. This is the biggest challenge
for our 3DP industry. The difference between domestic and international market
centres is that the domestic market would concentrate more on development,
and the international market would emphasise the collaboration.
We have a lot of companies making good profit with the sales of 3D printers.
3D printers can be sold to public schools. This is why they could make good
profit. Actually, it may not be effective because the students do not receive systematic training on 3DP. I think 3DP technology reforms other future trends
and we need to start from the materials reformation. For example, the aerospace,
defence bodies that have not used 3DP technology are very widespread because
they do not have confidence in the 3DP technology.
We also do not have a very authoritative judgement for some tests for the 3DP
technology service function, and we need to research more on the 3DP technology and materials. 3DP material is our future trend, so how to develop it more
effectively with a better reliability and lower our cost are requirements for the
future development.
Traditional 3DP technology now is like a device. For the sake of the development of the technology, we need to have platforms instead using different
devices. Devices are only a preliminary product, right? We are now talking about
intelligent manufacturing for the same platform, so we could realise more functions. And this is an inter-connective, informative and integrated platform with
a lot of functions for the better convenience and rapid usage of the functions. So
this is the future of intelligent material manufacturing for 3D printing.
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We need to do some processing after printing. So, we need to make a change.
We need to compare our 3DP, Computer Numerical Control machines (‘CNC’),
big data and cloud manufacturing in order to put them together to form a platform. A German CNC centre is now trying this trend. For example, 3DP can
be processed by a CNC and does not go through other processes anymore.
The current technology of 3DP is quite old. Although we have seen some small
technology improvements, in the end, it is still basic 3DP as in the past. We
need to adapt to it. We have not seen a very dramatic transformation or reformation in this technology, but we still need to encourage them to make more
improvements. Technological innovation and process shape innovation should
come from materials innovation and technology for this industry.
We need to promote 3DP, but we can’t go too fast. We need to follow the
scientific rules. So I would like to take this opportunity to share with you about
my opinions. This is all about IP. I would like to have more corporations with
you. Thank you.
Second presentation from an authority in 3DP
First of all, thanks for the invitation from the host. The topic I am presenting
is 3DP in IP. 3DP is a new emerging industry. It is a revolutionary technology
and has brought new opportunities. A lot of research studies have showed that
in the next few years the industry will welcome a breakthrough. 3DP has been
widely applied in different industries: for example, aircraft, culture creation and
industrial manufacturing.
The technology itself has seen great application in a lot of areas. For example,
in body parts, we have witnessed many successful cases in implantation, based on
Shanghai research. In Shanghai, there are more than 10,000 cases. In jewellery
as well, 3D design and 3DP have been widely used. Aerospace was the first industry in which 3DP was used. It is rapidly developed, for example, from desktop
printer to micro printer.
3DP standard has seen many developments. In 2012, in China, the automobile engineering association published two standards. One is for titanium alloy,
and the other is for laser. In 2009, the American Society for Testing and Materials (‘ASTM’) started to work on 3DP and they published four standards. It can
be seen that we are paying attention to customers and the market, and the needs
of the industry to ensure the quality and reliability of the products they produce.
Standardisation brings benefits for the product. First of all, we can improve the
product safety and reliability. In terms of process of product manufacturing,
3DP requires less human recourses. We can produce a legal document that can
be referenced, and communication is made clearer. It also eliminates the difficulty arising from geographic separation.
In our country, we are paying a lot attention to IP. The Government has made
several suggestions in terms of strategic movement of the market. We want to
become a stronger nation. Specifically, there are four aspects. First, to enhance
the IP management system. Second, to improve the protection of IP in terms of
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punishment on infringement. Third, to improve the level of collaboration. And
fourth, to make the registration of IP easier. Through the protection of IP, it will
cultivate innovation and creativity of entrepreneurs. There are a lot of classic IP
cases in China and the West.
The development of 3DP has many stages. First, before 1999, the patent requirement in this industry was minimal due to the high investment in R&D. In
2007, the number of patent applications is increasing at a stable rate. After 2007,
there is a boom in number of applications. In 2015, it reaches a peak and they are
mainly from businesses instead of from individuals. The new patents are mainly
in China, the United States and Japan, but China is leading in this regard. We
have achieved a lot, and you can tell from the number of IP registrations. China
is ranked first.
Also, the collaboration of industry and universities has led to high quality patent
applications. China is ranked the lowest. One of the important reasons is that we
do not have good integration between the technology and wide range of applications in the industry. That means that 3DP hasn’t yet commercialised very well.
China needs to move from low-quality manufacturing to precise distribution
of highly customised products. Integration between traditional industry and
3DP industry is important in developing the industry. In order to grow the industry, we need collaboration with academia, Government and industry. There
is always a gap between all the stakeholders, so it requires the Government to
support the research in order to fill the gap. Our enterprises need to strengthen
their own technology, and the target is to apply the technology to as many industries as possible.
We wish to develop a platform that increases the awareness of IP amongst the
users, also to improve the standard and regulation in this industry. Though if
you have any suggestion, please contact us directly; we need to hear your voice,
and we will help to bring these voices to the Government. This is the end of my
speech; thank you everyone.
The third presenter, another well-known 3DP industry figure
Before my presentation, I would like to introduce myself to you. Our institution
was founded in 2001, with research mainly in 3DP. 3DP has been existing for
many years, but we focussed on the research in biomedical in 3DP. In our centre, we included training for some talents. In 2001, we also offer services to the
industry to improve the level of implementation. In the following, I will share
with you my research on the biomedical in 3DP.
I will talk about the background of biomedical 3DP. The concept of 3DP
was first introduced in the last decade, and it might be difficult for people to
understand the terms. As 3DP is becoming widespread in application in the
biomedical industry, this is about the manufacturing of organs and the interface
of organs and cells. This is the basic idea. The meaning of biomedical is clear.
Because our cells and tissue is important as are bones and then organs, so biomedical printing will contribute much in improving human life.
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In terms of future markets, the market will be very large. If the research in the
biomedical field is successful, the impact is promising. But the research cannot
be done overnight. We will not do it in a profitable way now because you need
to prepare, and the research in the biomedical field will take five to ten years or
even longer. Although our target is to solve human biomedical issues, we have
proceeded through four previous stages. First, in the last century, we have done
pre-surgical research. This is the application of 3DP. Now, we still do some
research in implantation. Lots of hospitals use titanium alloy as 3D material.
Third, we have innovative applications that are not applicable in daily life. At this
stage, a lot of people are doing experiments on animals, like rabbits, pigs, etc.
We are still in the experimental stage on animals. The last stage of progress is
the printing of cells and tissues. We are still a long way away from using printed
cells to make organs directly.
In the biomedical area, and in the domestic and international markets, different
people carry out different research. Some research focusses on applications, some
focusses on the methods. Some of them are already mature, but application of electric spinning in biomedical is more promising. We use electric spinning to make
membranes, which can be made very thin. Therefore, the same membrane can be
used on bone tissues. Another one is to combine both technologies for micro-nano
structure. It is difficult at the current stage. We can use 3DP to solve micro-nano
structure now using electric spinning to take advantage of both technologies.
The equipment of biomedical is a popular topic. The research studies about
biomedical equipment are mainly carried out in universities. Companies are now
more involved in the research in this area, as the area has a promising future.
Today, biomedical printing is still new. But is the technology mature? You
can think about it. Materials matter in biomedical printing. Many scientists are
researching on the ingredients/formula in biomedical printing. For example, is
the formula fixed or flexible? But the biomedical printer is fixed. So, it has a long
way to go. Let us put it in this way: you can buy a biomedical printer, but you
can’t use it well. The process is not ready.
Our research is not solving the problem of biomedical printers in isolation
as it also involves input from the Computed Tomography (‘CT’)/Magnetic
­Resonance Imaging (‘MRI’) we get from doctors. When we get the data, we
perform biomedical modelling. Then, we look at the modelling system and the
production system. We have some patents with our biomedical research. This includes modelling software research and others about producing system, etc. We
talk about 3DP and electric spinning just now. We have the foundation already.
Next stage, we will focus on developing skin.
This is biomedical equipment like the one we saw before. The history of developing medical equipment is that we first use equipment from companies. After a
while, we found that the equipment could not fulfil our research. Consequently,
we changed our direction because we have talent in designing biomedical equipment. We have research collaboration with others. We need to collect their data.
Of course, we are happy with our research in 3DP. Maybe the technology
today can solve some problems, but the environment is changing fast. Maybe
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tomorrow when a new technology comes out, the old technology will become
obsolete. What we can say is that the cell we print can live, at 95 per cent of
probability. Next is the artery of the heart, but this research is still in progress.
From the beginning to now, it has been almost ten years. No one foresaw biomedical printing. We started doing this by ourselves. We read a lot of academic
papers internationally. Through our research, we want to produce more organs
with biomedical printing. Media coverage has been talking about the printing of
body parts, but they need to be realistic about the fact that academics have not
yet figured out the mystery of the bodily organ, the connection of vessels and
organs, etc. It is difficult.
Our research studies are reported by international and national media. I think
the development of biomedical printing in China and other countries is almost
the same. In term of industrial printing, there are quite a lot of differences. That
is the end of my presentation, thank you.
Jerry Niu, University of Nottingham Ningbo, PhD student
and Project Research Assistant
Good morning everyone, my name is Jerry. I received a doctoral degree from
the University of Nottingham. My subject of research is in metal printing for car
parts that achieve a light weight. I am honoured to join the team to work on the
IP system in 3DP. My works are completed under the guidance of my supervisor,
Dr Huileng Choo.
The objective of the research is to find new approaches for 3DP business to
protect the IP right of enterprises’ design. First, I will talk about the present
licensing methodologies. Then, based on that, the team conducted interviews
with enterprises, and we developed a new licensing platform accordingly.
There are many applications of 3DP – for example, medical and aerospace. Last
year, I was honoured to visit a company. They are doing ship engine printing
with aluminium alloy. All the printings are based on digital models. So, there
is no product if there is a lack of a digital model. The traditional watermarking
in terms of texts and pictures is very mature. These are 1D and 2D signals, but
for 3D, we look at the shape. The dimensions are complicated. We cannot use
the 1D and 2D on a 3D object. IBM initiated 3D watermarking. They have a
few methods. Now we have 3D watermarking based on mesh. We have animated
motion watermarking. This is something we are looking into. For traditional
3D watermarking, we add some information to the basic object, we embed it
onto the object in a way that could not be seen with human eye. It is invisible.
The watermarking cannot be destroyed in any way.
It will not have any damage on the watermarking process. During the presentation in August, we received a lot of suggestions from enterprises about their
technology limitations. The key technology is about how to embed the watermarking and how to extract the important algorithms. Generally, we use spatial
algorithm. We give it a coding and embed the key information; it is intangible,
you can use a special software to extract it.
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For the traditional method, it looks perfect. But when we look at the printed
object, it looks like yours, but you can’t guarantee that it is really your model,
especially when you do not know how to access the object, First of all, the
3DP format is different: it can be STL, G-code or numerous others. Even if you
have the watermarking, you cannot trace it. Some are quite visible but are not
resistant enough to encounter attack. This is the challenge.
From the result we received from the interviews, we developed a new algorithm. We do not change the mesh, we don’t change the curving shape, but we
produce a new method instead. All files are in different Computer Aided Design
(‘CAD’) files, we mock different styles and save in different databases. But people do not know where we have modified. This is how we can protect the IP.
Let’s take a logo as an example. This is the original model. We have modified it a
bit; can you spot the difference? It is intangible and hard to see with human eye.
Through special software, we could extract key coordinates of the model. We
produce variants of the model. For each model, we find a record in our databases.
We can then assess which is the original work and which one is the modified
work. At first glance, it might not be easy to spot the difference - but we know
the differences after we use the software to detect them. This is the initial stage
of printing. We will then proceed with the manufacturing. We use Selective
­L aser Sintering (‘SLS’) to make an actual prototype. Then we will use some keys
in reverse engineering. We want to convert this model to another model via 3D
cloud data. We can add it to CAD files. This is a complex process, and we have a
high demand requirement for it; the accuracy is 0.03 mm. We have limited time
in delivering my speech, so I will end up here. But, if you have any questions, we
can discuss them during lunch. Thank you.7
7 Note that a further paper will be produced subsequent to this work with a detailed description
of the technical process (patent pending). An outline that will not invalidate the patent can be
found in the Appendix.
6
The materials panel of
the Shanghai workshop,
December 2016
This is a translated transcription of the materials panel.
Presenter 1
Without protection from the law of intellectual property (IP), the 3D printing
industry would not be able to develop in the right way. Some of you may say that
this is over exaggerating, but I am confident that you will agree with me after
the following speech.
This room is quite favourable for someone like me, quite similar to the one in
which I have my doctoral classes, which allows more interaction and exchange of
ideas. This room facilitates our discussion later. I was told that we have around
30 minutes in total, within which we could have a further and deeper discussion
of the relevant problems.
The presentation has been modified and simplified, which could be concluded
into the following four parts. First are the legal relationships of IP. Technically
speaking, the 3D industry has not been developing as well as expected so far;
currently it is lacking protection and support from the relevant regulations,
which can be considered as a major cause.
Take the design as an example. Spending a great deal of time and effort, the
designer finally comes out with an excellent work, which might be immediately
copied once it has been published onto a virtual platform. What is worse, the designer may find it difficult to claim their ownership rights due to lack of time and
relevant law terms or guidance. Our team once worked with a design ­company –
an excellent team, the members of which are all the top designers in the world.
They were reluctant to display their most valuable works but also worried about
a smaller possibility of not being noticed by the purchasers.
Considering that being copied may cause a huge loss of profit, they are stuck
in a dilemma. A while ago, an investor offered to purchase 10% share together
with the same amount of copyrights of their works, with RMB 10,000,000.
While evaluating the intellectual assets, they particularly mentioned about the
confidentiality and protection of all the relevant information. As a pioneer in this
3D printing industry, one of the representatives especially highlighted the issue
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of IP protection and asked for legal advice. Their problem may be quite a typical
one in this industry, for a great number of enterprises, design companies, manufacturers or even the purchaser of products. The demand for getting a solution
for this issue is quite pressing, and to provide a sufficient protective legal system
to the 3D printing techniques, machines and materials, the first step would be
a clarified awareness of the relevant legal relations. The definition of the law of
IP can be summarised as a combination of adjustments of all the social and legal
relationships regarded.
I would like to sum it up as follows: the legal relationship can be formed
between any designers, consumers, material and machine manufacturers, users
and printers in different kinds, which shall all be protected with legal supports.
­Disobeying the laws and regulations in any of these parties could be considered
as a tortious act. All the relationships between any parties shall be regulated
by relevant legal terms. The property owners may have different kinds of legal
rights, such as the copyrights of the design and package, and of the logos and
brands.
In the United States, a marking system has been adapted to claim the ownership of such property, which means that all the products shall be marked with
a circled letter ‘C,’ as well as the name of the owners and claims, so as to be
protected. Without any of the marks mentioned earlier, this may be regarded as
an abandonment of the copyright. Therefore, publishing on an open platform
may have the same consequence. The closed platform may prevent such a case.
However, the design works on open platforms are normally of lower quality.
The best ones are concealed from being copied with minor modification of certain cultural elements. Such closed platforms may play an essential primitive
role on the commercialisation of the whole industry, so it is a priority to build
and strengthen such a system, so that all the good work could be published and
printing paid for in the future.
The machines and materials may be the main concern for the law, which are
closely related to the manufacturers and providers. Apart from the material and
techniques, the appearance of the products shall be copyrighted as well. A key
to being a top enterprise in this industry is the ability to obtain all the most
advanced technologies and patents worldwide. Nonetheless, there is a lack of
awareness for most of the companies in our country, while in the Western world,
there have been a great number of firms with a particular team specialised in
such an analysis. So, here I would like to suggest all the companies to pay more
attention on such acts, which could be invaluable, to master the latest techniques.
After being analysed, any product with a single feature outside of the scope of
protection would not be judged as potentially tortious (or infringing), and so
can be produced in a large scale and put onto the market without worry. Most
manufacturers, with the right material and machine, could download a numeral
serial from certain platforms and print them out. The relationship among each
party should all be subjected to the relevant legal terms. Otherwise, a tortious
act would be inevitable between the copyright owner and these parties.
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The second part regarding the infringing acts can be classified into several
parts. Applying protected features on any products without permission could
be considered as an infringement act. A principle of substantive examination has
been conducted on this issue, which means that the product should be featured
with all the protected aspects to be an infringing act, and in addition, any single
feature that is not on the original product can be patented. A special kind of copyright on 3D printings is on the appearance. The special design of the product
can be legally protected only if it is related to certain kinds of product or a part
of a product. Once it is protected, other products with a similar shape or look
could result in a tortious act.
Since 3D printing is directly copied from a real product and comes out as an
exact replica after modelling, a feature of an infringing act is that the act can
result in financial profit. A problem here is that if a consumer could make a
product instead of purchasing it, the result is a loss of profit for the owner. The
whole process includes scanning and printing, and could all be related to the
copyrights, which do not have to be registered to be protected. The registration
is a certification of the ownership rights and could be claimed on at Court.
Lastly, my personal suggestion is to build up a copyright trading platform, on
which the material, machines or even appearance ownership could be traded in
a wide ranging manner. Regarding the logo copyright, we could either purchase
it on the platform or make a revision on the serial number to remove the logo
from the product.
In summary, I recommend the establishment of a 3D patent trading platform.
There is a platform for people to spend money to buy. There is also a suggestion
that we should have a trading platform for copyright licensing. Finally, for trademark licensing, we can take the normal way to buy permission.
Finally I put forward three suggestions. The first is that we have to respect IP
rights. If we do not respect IP rights, the 3D printing industry will not have vitality. The second is that it is best to establish a copyright trading platform, such
as an open or closed platform. The third is to establish a knowledge industry
alliance to deal with some of the industry’s IP issues. Thank you.
Chair of session
Our speaker has systematically introduced the legal relationship of 3D printing
of IP, but with a lot of vivid cases for explanation, and put forward a suggestion
for development. Our speaker has provided a lot of useful information that we
can benefit from. Let us give him a big round of applause. Are there questions
from the floor?
Question from the floor
I have listened to what the speaker said about customer modelling IP issues. We
do 3D printing; we directly accept the customer’s model and then sell directly to
customers. Is there any IP right?
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Presenter 1
If you buy data and then print through modelling, the infringement liability is
on them (the customer). You are the third party. But the premise is that you do
not know it is infringement.
Question from the floor
Is it possible to sign an agreement before?
Presenter 1
Yes. I wish to tell you that the infringer’s burden of proof is to prove that you
print not knowing this is infringing products.
Chair of the session
We know that this 3D printing with metal materials, and the 3D printing industry more generally, is currently an important area of industrialisation. Next, we
would like to ask our following speaker to give us a detailed introduction.
Presenter 2
We started printing from the 1980s. In the last 30 years, 3D printers developed
from printing simple models to final complex spare parts. 3D printing has been
applied in a number of fields, such as those of aerospace and biomedical as well
as some aspects of automotive mould design. 3D printing principles are based
on a digital model, through the addition of materials layer by layer, finally forming a solid model. Then, according to the different materials, we can divide the
3D printing material into five types. The first type is UV curing. This method
is through the UV irradiation of liquid photosensitive resin, forming three-­
dimensional entity. This method is characterised by high precision, usually used
in the production of a biomedical model. The second method is our most common desktop printer, selective laser melting (‘SLM’), a 3D forming technology.
The third method has the most potential in the field of 3D printing – selective
laser sintering (SLS). The utility model adopts a laser or an electron beam to
form a connection to a metal foam or a thermoplastic. The last two are layered
solid manufacturing and three-dimensional foam technology. However, for
these two methods the application is narrow, and the application in the market
is limited.
As to the relationship between 3D printing and IP rights, I think it is mainly
involved in three aspects, the first is the patent, the second aspect is copyright
and the last is the relationship between the trademark of 3D printing and patents. We know that a patent is subject to the approval of the patent office, and the
requirement for a patent is the novelty and originality of the work.
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Materials panel of Shanghai workshop
3D printing technology relates to the equipment; in this there can be infringement. The same is true of the 3D printing technology related to the material.
The copyright issue of 3D printing is the core issue of IP rights because it relates
to the reproduction and reasonable use of 3D printed products. If we print the
product, and it is only used for teaching or public welfare purposes, then it will
not cause problems. However, if it is used for commercial purposes, resulting in
commercial interests, it is likely to cause copyright infringement.
The relationship between 3D printing and trademarks are mainly related to
three levels. The first is consumer. The second is a three-dimensional data model
company. The third is the network-sharing platform. But at present, some of the
trademark issues of 3D printing are suspended in the sense that they have only
occurred at the level of sales and not at the legal level. So, we should further
standardise these problems. I think we should make some improvements from
the following five aspects of 3D printing copyright issues. The first is to increase
capital investment to promote 3D printing technology innovation. The second
aspect is to improve the legal system of the protection of the property rights of
3D printing, especially the trademark law, the patent law and the law of the people’s Republic of China as well as competition law. The third is to develop a strict
and perfect 3D printing protection mechanism. The fourth is to accelerate the
improvement of IP rights. The fifth is to prevent excessive copyright protection
and moral hazards. Because, although the protection of IP rights of 3D printing
is important, if excessive, it will result in the privatisation of IP rights, and then
3D printing will further cause the destruction of the entire ecological chain.
The second part is the development of 3D printer material. 3D printing mainly
involves three aspects: software, equipment and materials. The development of
equipment and software is relatively perfect, and the development of the material
is the 3D printing industry. There are three main problems with 3D printing
materials. The first is that the variety of new materials cannot meet the demand.
There are hundreds of thousands of traditional materials, and 3D printing materials are only a few, far from meeting the demand, so that it limits its application.
The second aspect is the high cost of development of new materials. 3D printing
is different from the traditional processing methods, so they have a high demand
for materials, leading to a high cost of development. The third aspect is that the
development of 3D printing materials has not yet formed a unified development
process. In view of these three aspects, we should improve in the following three
aspects. The first is to evaluate the properties of materials and products. The second aspect is the development of industrial chain deployment materials. There
will be a market demand, so we have a combination of materials development
and market applications. The third aspect is that we should further strengthen
the research of new materials standard.
3D printing manufacturing involves IP rights – from the composition to
the optimisation; the preparation of materials to post-processing technology;
and the –3D printing engineering applications. There will be a series of patent standards, which will be protected by IP rights. The recent development of
3D printing materials also has new features. The first is to print high-quality
new materials by computer simulation technology. The second aspect is based
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on the core idea of the material genetic engineering group, the establishment of
public welfare organisations and the performance of the database; the last is to
carry out the communication of 3D printing materials to achieve the degree of
gradient material preparation.
Finally, we briefly introduce our work. We are now mainly doing testing, polymer materials testing, ceramic materials and shock absorption technology; in
recent years, we have also developed 3D printing technology. And we set up a
printing materials engineering technology research centre. Our research and design (‘R&D’) advantage is that we have complete equipment conditions. We have
now put into operation German imports of equipment and vacuum smelting
equipment as well as German technology printers, with a powder grading system, the product of the thermal low-voltage system. We have a complete material
testing and evaluation technology, with complete physical equipment, while we
also have third-party manufacturing qualifications, including aerospace industry
qualifications. We have also done a lot of work in the field of IP rights protection,
for which, in the last few years, we have developed a number of projects. At the
same time, we also apply for a number of manufacturing production patents.
This is our focus in the development of high-quality 3D printing technology
services materials, materials that can be used for electron beam selective laser
sintering as well as laser stereo moulding. Our materials are characterised by
good mobility and low oxygen content. Now our products have been supplied to
customers. At the same time we also do some 3D printing application services.
Our goal is to build a special platform to provide metal 3D printing materials
and provide material performance testing and evaluation services. Thank you.
Chair of the session
Our speaker introduced the process and current situation of the development of
new materials but also focussed on the field of material development. Are there
any questions?
Question from the floor
I wonder why the cost of 3D printing is limited?
Second presenter
The first reason is the cost of the current product. For example, for a part we seek
to improve the speed of the process of making a mould. But in fact, 3D printing
material costs are relatively high, and it cannot be done directly to the application but also needs some processing. I think its biggest drawback is the size
limit. In most cases, the critical value should be relatively large, but, for example,
its size is only 300 mm × 300 mm, which limits its use. We are now the main
customers of aerospace companies. These are large companies, and they are willing to buy at international costs. However, some small companies cannot afford
those costs. Another issue is the cost of materials and so forth.
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Session 2
Chair of session
Over the last three years, a number of companies in China have embarked on independent R&D and production to replace imported materials. One company in
2010 succeeded in the localisation of production of titanium alloy and achieved
an international standard and market certification. Now let us welcome the project manager to give us his talk. They produce both powder and the end product
of 3D printers.
Presenter 1
It is my pleasure to come here, and today I will introduce the three main technologies as well as the situation of batch production in this industry.
I will mainly talk in three parts, and the first is the source 3D printing metal
powder of the titanium alloy. I will introduce its production process and its
situation in China. The second part is about how we choose 3D metal printing
powder to make the quality of the metal solidification relatively stable. The third
part is about the situation of titanium alloy fasteners in China nowadays.
The preparation of titanium alloy powder has developed from the 1970s,
beginning with the rotating editing process, so what is the current mainstream
technology? It is ALD, a German patent, called electrode flow, and this technology is bought by seven or eight companies in China. The titanium alloy
powder production depends on it. Plasma in China is relatively limited, around
two or three groups are working on this, and this is the current domestic
situation.
I will briefly introduce this production process. At the beginning, noble gas
becomes compound, and next I’ll mainly talk about the current mainstream
called electrode softening. The device provided by the German ALD company
has a titanium rod in the cabin, and there is a compressed air to squeeze the
titanium rod down. This yellow thing is an induction coil, wrapped around
the ­t itanium rod with no contact, so in this kind of process the production of
titanium powder is relatively pure because the titanium rod has the same composition as its ingredients. So, this technique is more suitable in the aviation field.
This is a titanium powder composition of two processes; the upper one is the
SLE laser process, and the other the EDF electron beam process. What are the
main differences between them? The main choice of the powder particle size is
not the same. Powder control includes its oxygen content. Material with low oxygen content is ELI1300 TPM. A lot of customers who choose to buy our powder
would say “do you have 500PPM? Because the less oxygen content, the better
performance of the fastener is.” In fact, the oxygen content is not the smaller the
better, when medical data requirements related to the oxygen content is higher,
the higher its medical properties are, but its elongation decreases, so it depends.
Next we will see how to choose the specific powder.
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I will cover the period of forming the plastic pattern to processing final treatment. What is the importance of powder in this process? Actually, the homogeneity of powder in laying powder is nice only when powder is laid coat by coat in
the layering powder procedure, otherwise there will be cracks on or in products.
This shows the mobility of the powder is important.
The mechanical property of powders has different oxygen content. Powders
of high oxygen content have high stability but low ductility. The choices of different types of powders depend on their application fields, such as medical treatment, aviation and model.
The characterisation of the powder is divided into several points: the first
point is the degree of hardness, that is, the size of the powder, particle size
distribution, and it is mainly characterised as the mobility of the powder; the
wider its normal distribution, the better the mobility of the powder. The second
is chemical composition, that is, the content of oxygen, nitrogen and hydrogen,
and oxygen content is mainly used to select the field of application. The third
point is liquidity. The fourth is the type of the powder, what are the ingredients,
and if it has micro ball or hollow powder. The fifth is density, which contains
two densities: true density and light density. True density is mainly reflected on
the absence of hollow powder, and light density is mainly to reflect the particle
size distribution of powder and powder flow. The sixth is the humidity of the
powder: the greater the humidity, the less fluid. Humidity and our packaging,
warehousing and transportation have a great relationship.
Third, I will introduce the main applications of titanium alloy in Chinese
3D printing. Before we performed C919 batch production, we did a lot of experiments and spent three years with ten tons of titanium alloy rod to do stability
testing in nine batches to get market certification. It means our production can
be used in some of the structural members. At present, we have already started to
do C919 batch supply of spare parts from the beginning of the year, and they are
relatively stable. This is some supply of door parts to C919. After the completion
of the 3D printing process, post processing is needed, like cutting, milling the
surface because the surface finish requirements are relatively high, so grinding
is needed.
We have also done some work in 3D printing used in medicine, including our
titanium alloy powder in clinical trials, such as using titanium alloy powder to
make human bone or teeth, and we began to apply for medical certification last
year. This process is relatively long, requiring about two or three years to get the
certification. These are some of the things that have been printed. Today I will
stop my presentation here, thank you!
Chair of the session
Our presented has covered titanium alloy powder material, its performance characteristics, production process, the quality control and the application in medical
and aerospace industries. We have ten minutes to explore this work further.
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Materials panel of Shanghai workshop
Question from the floor
Prices of domestic titanium powder and imported titanium powder vary widely,
and what is the difference between them?
Presenter 1
In the past, the domestic enterprises bought titanium alloy powder from abroad,
but after a Chinese company made titanium powder, the domestic price is down,
about 3000 yuan per kilogram, cheaper than that of foreign material by a few
hundred dollars. It is mainly about the characterisation of the mobility of powder; in the past it was very poor, so it produced things with cracks. Now the
company’s powder production can be said to be the strongest one, with the
annual output of 60 tons.
Question from the floor
Do you have any new knowledge about copyright to share with us?
Presenter 1
Up to now, our company has owned many patents – this year, we applied for
a milling technology patent, and it has been approved. Although the tech is
brought from Germany, many details still need to be optimised. I personally
think that the patent application in China is not much useful; however, if there
are other people to compete with you, then you can accuse them.
Chair of the session
Now let us move to our next speaker.
Presenter 2
Hello everyone, today what I want to talk about is not directly related to the material but how to make full use of materials. In fact, there are a lot of companies
suggesting that we use 3D printing to print something, but we feel that their
products actually do not need to be 3D printed.
What I want to say today is that we should use the lattice structure to do some
analysis – I mentioned we have to do lightweight design, and there are many
different ways in which to do so. The first is the simplest: the direct exchange
of materials, with some advanced materials, such as composites. The second is
the topology optimisation: it is relatively easy to achieve, but it has a drawback
in that sometimes the topology optimisation of the product appearance is not
what we expect. The third method is the lattice structure using our own design
method to replace the entity into a lattice structure.
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121
Next let us explore the tensile properties. To do this experiment, we first have
to build a 3D model, and then we can do analysis and print out the product.
The first step is to make a 3D model. We used our own method for this. First
of all we form a basic unit. Regardless of the size of it, we do it first. When this
model is done, we can cut it into the required size directly. For example, because
we do the tensile test now, we put it into a square of a side length of 20 mm and
length 50 mm, and we cut it out, let it become this model, but after incision,
we may find some form of an irregular boundary. These boundaries have some
problems, as they do not carry load because it is not complete. When we use incomplete boundaries to do analysis, the analysis will encounter many problems,
and the solution is to add a number of pillars in the irregular boundary on both
sides. Basically, this is our model; we locate the edge position, and then, on the
right side, we add a pull-up for it because we are interested in tensile strength,
so we can directly put a 50, 100, 200 N force, and then we find out the Young’s
modulus of it. At the beginning, we just select some parameters, and this is our
final model.
We print at least three and then carry out the tensile tests and finite element
analysis. We obtained some interesting results. You can easily see when the relative density increases, the Young’s modulus increases, and it can increase the tensile strength. The best of all is the triangular prism, the second is the cubic and
the last is the hexagonal. However, if the parameters change slightly, the Young’s
modulus also changes – and these are large changes. For example the triangular
side length is the same, the height is almost the same, our column thickness,
only for 0.1 mm difference, but then we compare the relative density about two
times difference. If the Young’s modulus is changed slightly, that change has a
great influence. This time we print it out, and then do the experiment. Then
we compare our tensile test with finite element analysis results, and we see that
this deviation is generally below 6%, so we say that our analysis is correct, it is
possible, and then we don’t have to do the experiment, it can be directly used
for analysis.
7
Additive materials stream –
Shanghai conference,
December 2016
This chapter contains transcriptions from the presentations in the additive materials stream. There are four speakers in total.
Session Introducer (Dr Phoebe Li)
This morning we specially discussed the application of 3DP to the ordinary programmes on biomedicine in detail. And there are still many problems in terms of
that, the solutions to which are not that clear. One Chinese idiom usually cited
is that we should wade the river by groping for stones. We feel that many things
are new, for all of us are newcomers. We are really wading the river by groping
for stones on many things. And I feel grateful for the warm welcoming and
friendly treatment during my several visits here. I learned a lot from my visits.
Working on this area of law, I feel that our research should not be divorced from
the reality after my visits. We should make active contact with society, with the
government, with the manufacturers, with the patients during the process of our
review. I believe it is quite significant. So, I am glad to say that this year, every
guest can take part in this discussion.
Presenter 1
I am honoured to introduce our recent development for 3DP on behalf of our
company. 3DP is not a new concept. It was put forward during the last century –
the name was material additive manufacturing then. By laying down successive
layers, it makes materials layer by layer. By contrast to the traditional 2DP, it has
one more dimension in space. Since it is connected to the computer, we get exactly what we see. In that case we can manufacture products that are impossible
using a traditional approach. For example, we can make some complex parts.
Eliminating the process of opening the mould, we can quickly check out whether
our new products are advanced in performance. When applied to medicine, there
is the advantage of individualised products. 3DP can be used to design, as well
as make, complicated structures that cannot be done with traditional methods.
We can design individualised products according to the characteristics of each
patient. 3DP for medicine can be described as having a bright future, but a
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tortuous road lies ahead. It has applications in every aspect. An earlier speaker
referred to medicine but also materials. Indeed, some products can now be used
in practice, such as individualised medical instruments. Its bio-inert material
will not trigger rejection after being implanted in the body. We can design many
porous structures that are widely used nowadays. Thus there exist differences
between research and practical applications, and future development is bound to
emerge to be aimed at the compatibility of the products and human beings. We
should have such a concept when understanding this kind of manufacturing that
it is not simply a tool that prints a plastic mould, at once to be put into an office.
It is tied with very complex methods of data acquisition and data handling. In
view of the common scanning methods of 3DP, we have flat scanning and medical imaging process. For instance, flat scanning is a common method of processing in the dentistry department. Dentists hold a scanner that is able to scan the
structure of patients’ oral cavity. The scanner must be delicate. It can scan the
structure of patients’ teeth. The data acquired is called flat data, which can help
make individualised dental moulds after processing. Further, two-­d imension imaging process is based on the medical image inside the patients. For example,
data from computerised tomography (‘CT’) and magnetic resonance (‘MR’) is
used to rebuild the moulds of the patients’ bones or cartilage. Those are two
completely different ways. According to the common manufacturing process of
3DP, it also contains methods of selective laser sintering (‘SLS’), fused deposition modelling (‘FDM’), selective laser melting (‘SLM’), etc. So, considering
data acquisition methods and manufacturing methods of 3DP products, we can
see that it has many branches. We choose different methods of data acquisition
and material proceeding based on the usage of specific materials and their applied
areas. We can see from this process that printing is performed after acquiring
3D model data, which prints and processes the material based on the material’s
own features. Thus every step in the process is tied to technical innovation as
well as problems we may face – after the technology has been applied for a related Intellectual Property (‘IP’). Any problems occurring during the process
will affect the product subsequent to its launch. Developments of 3DP can have
a bright future worldwide, of which the medical area is developing the fastest.
The growth rate is more than 26% and is the highest. In the case of China, we
have a population of 200 million elderly people. The number is far more than
that of the United States. With the increase in people’s affordability, the related
orthopaedics funding and the morbidity, individualised 3DP materials have very
bright market prospects for our orthopaedics market in China. At the national
level, the country has pushed on greatly, irrespective of whether it is 3DP or
individualisation healthcare. During a just-concluded orthopaedics conference
in November 2016, the 3D-printed implantable individualised medical devices
were emphasised as a key point. So, we think it is promising in terms of scientific
research, government policy and marketing.
I can make a brief report on the development of individualised 3DP medical
devices abroad. Large orthopaedics device companies began to use 3DP to conduct research on individualisation medical devices a decade ago. In recent years
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they have centred on promoting them. However, they do not offer individualised
software. That is to say, they use common traditional software of (for example)
CEP to process and design 3DP products. Thus, their software is not for sale,
focussing on offering individualised artificial implanting. An American company
has now produced individualisation implanting of knee joints. But it has not
planned to enter the Chinese market. Therefore, our company is mainly focussing on the Chinese market, aiming at designing and producing individualised
medical devices that are Chinese and meet Chinese people’s structures. We can
see from the 3DP production line that what you see is an individualised joint
when applied to patients’ bodies. But behind that we must acquire many levels of
technologies to design and produce them. Take this joint, for example, our design is connected with many parts of software and hardware. And the software
part has two branches. First, we need to delicately rebuild patients’ bones, to
design the individualised joints and provide surgical guidance. Second, during
the process of production and manufacture, we need to develop the 3D printer
that is appropriate for processing the features of the material. Thus, when we
focus on the products, software and hardware are related. The software part allows the medical devices to be used in surgery. As for the software part, we can
see the mostly internationally used one is the most common, which is not available in China now. It is mostly used in common industrial work. And now we have
been developing a software specially for medicine, which has been developed to
its third generation and for which we have applied for a patent. The first software
can delicately rebuild patients’ soft or hard tissue, which will become the stepping stone for the surgeon programming afterwards, and the individualised
medical devices’ design. The second is a surgeon’s programming software applied to the operation process. During the operation of knee arthroplasty, doctors have to locate the limb alignment, which is an important spot in human
anatomy. Doctors should be sure that after a knee joint implantation, the patient’s leg, hip, knee joint and ankle joint are on the same line, which allows the
patient’s leg to be straight. However, the traditional way includes a process of
opening the medullary cavity to attach a very long implant into the patient’s
bone, which is likely to increase his rate of being infected. But if using individualised medical devices, doctors can programme the limb alignment and get the
3D device placed in the patient’s joint easily during the operation. And it can
meet the requirements of the operation. I was here to tell you a little episode.
When I was a doctor, my mentor was a very good orthopaedic doctor, who told
me that when learning joint surgery one must draw correctly as well as programme a variety of parameters. One should be conducting the operation process in a very detailed manner. One time, he was in surgery and he went to
perform the necessary drawing. However, he found his teacher had done the
operation very quickly, by the time he was about to do it. He pointed out that his
teacher neither programmed the parameters nor used all of the parameters. Only
that his teacher told him that what he said before merely helped to give him a
sense. The process of programming the parameters is to make you familiar with
the improvement of operation. Thus, the process of an operation depends mostly
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on the doctor’s experience, which is usually called ‘experience medicine.’ Medicine has not developed into a stage where doctors perform an operation by strictly
analysing the patient’s physiological anatomy. So, doctors, especially young doctors learning a new technology, will spend a lot of time grasping the method of
processing the parameters of the patients and reading images. Such an accumulative process cannot allow a doctor, especially when a young one is doing the
operation, to perform effectively. But we can solve this problem easily using the
operation programming software. First, we rebuild patients’ models using rebuilding software and paint the key dots and surfaces, according to which we
design the individualised surgeon guide (editor: a print that can be used to assist
with surgery). In that case when it comes to application in operation, doctors can
follow every stage. We can see the location slots and holes, and the synthetics can
be applied in the operation when the surgeon guide is applied to the patient’s
joints. First, this avoids the traditional disadvantages mentioned earlier, decreasing the infection rate of patients when their medullary canals are opened. Second, it can remarkably increase the effectiveness of a doctor in mastering a new
technology, which can be done by our software. Third, it contains the usage of
individualised joint implantation designed by individualised operation programming and medical device design software. We replace the patient’s worn joints
with metal prothesis after the operation. The prosthesis is produced in mass customisation in the traditional way, which cannot ensure that every patient’s bone
matches the prothesis perfectly. For example, osteotomy can result in the problem that the prosthesis implanted will become loose after being implanted and
the patient will feel pain when it affects his or her joint. If an elderly person in
your family has been through such an operation, he may suffer pain for a year or
two, which is normal because the prosthesis will have a process of running-in
with the patient’s bones. Therefore, we can say that our patient can avoid that
problem if we use the individualised artificial joints, which are designed and processed, and produced based on the bone characters of the specific patient. Let me
share some cases with you. The first is about the process of osteotomy. The cross
end is near the thighbone. If using the traditional way, the doctor can only judge
by 2D medical images before having the operation. However there exist some
large arteries near the thighbone. A young doctor is not likely to know what will
happen next for certain during an operation. But with this software we can program the operation, check the size of the disease location and its spatial location
relative to other organs so as to ensure a satisfactory operation programming
before the osteotomy. The osteotomy guide will be applied to the body part of
the patient to correct the less perfect limb alignment before. The second case is
about a patient whose left and right limb were not of the same length. He had a
fall when he was in kindergarten. Later he went through a corrective surgery but
it did not work. After some years, people noticed that his two limbs were of different length, affecting his life and confidence greatly. When faced with this kind
of situation, doctors will have an osteotomy corrective operation in which the
shorter limb is cut to make a distance between the upside and the downside so
the bone will grow in the gap. When it has grown to a certain length, the doctor
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stretches the limb to make the two limbs to be of the exact same length. If there
is no operation programming, the cut spot may be not ideally chosen, and in that
case the operation has to be redone and the patient is going to suffer again. However, with the help of the programming software, we print the model of the bone
of the diseased spot. The doctor can perform several simulations on a 3D model
to ensure a satisfactory spot and formulate an operation scheme to be applied to
the patient. Because the model is based on the patient’s own characteristics, the
operation can be far more accurate. The third case is about a knee replacement
operation. Nowadays many people are fond of running. But they neither get
enough warming-up before running nor have enough stretching afterwards, resulting in the cartilage and the soft tissue around it being worn in the long run.
This happened to the elderly a lot. They may bear it if it is one or two decades
ago. However, people of my age or older than me will go straight to dancing in
public squares right after the operation [editor note: many people in China like
to dance in public places]. It is estimated that the number of people having a knee
operation will exceed three million. Thus, the future of the individualised knee
operation market is very bright. With the individualised operation programming
software and the individualised medical device designing software, we can rebuild patients’ 2D medical image in a 3D way and apply the individualised operation guide designed to the patient’s body. Its application is bound to be great
because with this method doctors can not only improve the accuracy of the operation performance but also decrease the rate of the patients being infected. The
fourth case is a little complex for the patient involved, who had severely worn
cartilage and a mismatch of the limb alignment. He had gone through two operations in the traditional way: first, his knee joint where the cartilage was worn
had to be replaced. Second, the spot above his knee had to go through osteotomy
as you can see. Without the operation programming, the doctors will do two
operations while the patient must be tortured twice. Now, with the operation
programming software, we can rebuild the model of the patients. When programming the operation, we need the surface, the size and the location of the
osteotomy to design two surgeon guides according to the osteotomy scheme.
The doctors can reuse the two guides after opening the patient’s bone cavity.
One operation, two problems solved. Besides, the maximum time for the operation is half an hour less than that of the traditional way. And it can also decrease
infection. This is the image before operation. We can see that the three key spots
have returned to be on the same line after the operation. This is the image two
months after the operation. The patient began running again afterwards and his
living conditions improved greatly. This case is also about the design of a fracture
brace. The data of those cases we just mentioned is from 3D and micro imaging
scanning. There is a scan of the patient’s limb in a similar way to a scanner making a dental model, thickening it according to the limb and acquiring the brace
that matches the limb. This has one benefit. Plaster is airtight. Thus, with the
traditional plaster brace, the patient is likely to have his or her skin allergic when
summer comes. The individualisation brace that is made with 3DP can fit the
patient’s body perfectly. Besides, the buckle structure designed is easy to be
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disassembled. If the patient needs to change medicine, he or she only needs to
unfold the buckle and then change medicine. Compared with the traditional
plaster, it is portable, air permeable and easy to carry. And another character is
that it is aimed at every patient. For the young patient who is unhappy with the
fracture, we can ask him or her if he or she wants to have a cartoon pattern. For
example, if the child wants a Mickey Mouse or other cartoon patterns, we can
manage that. For one, the brace’s breathability is guaranteed. For another, the
brace’s weight is lessened. That is to say, in the case of doctors, we can offer better
therapy service, which can be done by 3DP to customise the patients. Our outlook for 3DP is the last aspect we will talk about. 3DP or the technology to print
biological cells in the future should have the ability to print materials that are
bioactive. In the area of cartilage and vessel repair, biological 3DP has a bright
future because cartilage repair is complex but it is not related to too many kinds
of cells. So, 3DP in the future can make customisation of every patient’s treatment come true, cartilage repair being the ‘sally port.’ Finally, please allow me to
spend a little time introducing my company. We are now dedicated to making
contributions to the individualised medicine in China. Now our company’s main
products are 3DP; software based on 3DP; and individualisation medical devices
manufactured, including medical devices of one, two and three classes, among
which Class One has acquired regulatory permission. Class Two is expected to
have the certificate, and Class Three is expected to be put into the manufacturing
of joints with 3DP after the compromise with the manufacturing base in Shanghai. Today’s meeting is about the intellectual property (IP). Although our company is young, we have had good achievements in the patent application of
software and hardware, especially the special award for IP we got in Shanghai last
year. And up to now we have applied for numerous patents for software production and patents related to 3DP. Last year, we have many applications for patents
in the United States. We have really got achievements in this area. In the future
we are bound to put emphasis on applying for more patents. And we will definitely meet problems and we sincerely hope we can keep touch with you in not
only the area of IP but also the area of related medical device production. We
hope we can keep communicating with all of you to improve our enterprise. And
finally thanks to all of you for giving us this opportunity.
Dr Phoebe Li
Thank you. Yes, this company is young and these three leaders are all full of energy. The outlook is quite promising. Then let’s welcome our next speaker, who
it is an honour for us to have here. We look forward to hearing about how to deal
with some of the problems just discussed.
Presenter 2
My thanks to the host. I have been in many meetings, but this one is the most
special. We are involved with five kinds of production, including controlling
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items, medical items, supporting items and healthcare items as well as medical
devices, known as ‘4 items and 1 devices.’ 3DP is not a processing method at the
moment. Thus, the definition of medical devices in China is different from that
abroad. 3DP is popular these years. I myself learned about additive manufacturing in the 2000s, when I went to Hangzhou. They told me that companies
in Hangzhou are working on car parts, among which one or two is made with
additive manufacturing. Then in 2005 I got to know a kind of material for oral
cavities imported from Italy that is also processed with additive manufacturing.
And last year, President Obama was planning to restore manufacturing in the
United States. In our country, the CPC and state leaders, including Chairman
Xi and Prime Minister Li, gave special approval to 3DP. So, this area has been
given much attention. What will it bring about? I myself think that it brings the
concept of digitisation above all. Many things are probably virtualised. Your production, your capacity of manufacturing and your factories and co-­workers all
don’t matter. They are mostly virtualised things. This includes 3DP oral transplantation, which is done by scanning the image at home before uploading it to
the cloud, designers abroad downloading it and rebuilding the software before
uploading it again – and then designers at home designing according to the
drawings. So, there are many virtualised things. This method of processing will
make big changes to the production and distribution system, and the medical
profession too. We are now considering establishing a printing department in a
hospital one day. In the Ninth People’s Hospital, nearly every department has
used 3DP, much to its advantage. It is precise, swift and personalised. Apart from
that, the printing speed is high and it is said not to be expensive, the latter point
with which I don’t quite agree. A 3D printer alone may not be cheap. Consider a
patient waiting to have an operation whose specifications are unclear to us – we
have to spend much time to find a suitable printer. But once we have individualised printing, we don’t need additional identical printers, which is one of its
advantages that it can lower the overall price. This is the rough process of 3DP,
as I said before. Implantation or artificial joints are all made in such a process.
I don’t know how many of you are working in a hospital. But the situation is
just like that. I think the process using the 3DP most is skull repair, which not
only needs 3DP but also many other technologies. Of course it is customised. It
is precise, and each patient has a different one. You cannot make standard those
specifications that are changing. It must be personalised. From the point of view
of our country, standards must exist for its good quality. But companies dismiss
the need for standards. For example, we can see an ear which is being made by
scientists in Shanghai – but how is it being done? First the cartilage is made using
3DP, which is an absorbable material. Then the patient’s own cells are used to
make that. It is very good. The ears of a minority of children born nowadays are
abnormal. We have to make one and they should be symmetrical. We can make
it more delicate using 3DP. This is a teacher from Peking University Third Hospital, who is said to be the first one to make the 3DP ankle joint that was given
approval in the country. We have a few meetings. There is also the example of an
oral cavity, which was given approval once in Shanghai and we think it is alright.
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It is printed with metal and has false teeth made of ceramics outside. There is
no problem for the strength. But there will be problems if four or five false teeth
have to be made. So, they have to pause after making one. And another one is
one of what we are making, which is for orthopaedics, which has a good market
with low risk. However, professional therapists have to be there if a clinician or a
company wants to design one.
It is said that 3DP has solved the problem of designers being afraid that
their designs cannot be actualised. In the past for the configuration of the
large vessels in the heart, shapes are difficult to produce. Now with 3DP, there
are no such worries. Yesterday we saw news about a product made by the creature’s own cells being given approval. Using other stem cells or cell printing,
and deep printing mentioned just now, are probably not given approval. This
is not the problem with 3DP. It is because we still don’t have a clear idea about
stem cells. Cells of human beings have a life cycle. But stem cells are beyond
a life cycle. It is unclear if you try to explain what these cells are. I only know
that we print cells to make models so as to go on with research for new medicine. Technology is far behind in terms of being applied to human beings.
Because it is not only a single cell or layers of cells. It has to have vessels and
nerves. Without them, it cannot live on tissue or cannot live with feelings and
cannot solve any problems. We are working on this problem. There are many
papers – but the road to perfect manufacturing and application is still long.
The only possibility is to use body cells like a holder, which will be mentioned
afterwards.
Regulation of the area is under the regulatory bureau of the medical administration of the State Council. Medicine itself has medicine law. Medical devices
have medical device regulatory rules. In the past few months, our country has
enacted nearly eight chapters and 80 rules. We use classification management just
like abroad, including the definition. 3DP for implantation is now sorted as Class
1. Guides (editor: as discussed by the previous speaker) are sorted as Class 2.
You should apply if you are to manufacture that. About 3DP, our country has
gone through discussions – and we think first that design and manufacturing
are not one subject – and doctors play an important part. Regulation is different
from the regulation of batch management as performed under earlier medical
production techniques. Second, it is its data which result in the dispersal of our
production methods, as was discussed previously. You may have a company but
your printers lie in hospitals while your software is in the company. Besides,
you may be able to make things at home. Manufacturing in one place exists no
longer. Third, there is individualisation. There is no storage. Shapes are changing according to the patient’s parts they are applied to. You must use it in two
or three months or the patients’ parts are likely to change and it will not fit any
more. Generally, approval is six months. The last point is about individualised
customisation. This is not about difference between sizes. It is customisation on
forms and structures. Now we look at the main risks of this area. Regulation is
based on the risk. I think the first risk may be our own experience. Digitalisation
is up to doctors’ experience, and it is vital to production. Regarding IP – it is
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not the main issue. We are not anxious about that. Of course the software and
materials are important, but the most important point is that we lack clinical
experience. We still do not have a database and do not know how to forecast the
clinical effect of the things designed. Many years have gone by, there is still no
clinical data to give feedback to my ideas and methods, which is our weak point.
We are in a condition where an institution has applied and approval is given.
At the country level, there was approval too. It is necessary to consider that.
When we have communications with Taiwan compatriots, they will feel that the
mainland has been far ahead of them because they still don’t know how to give
approval to such things, but we do, even to false teeth. And in terms of technical
specification we have some considerations.
What problems should we pay attention to in relation to 3DP? One is the doctors. We still have debates. Before we always went through the medicine companies.
The law neither disagrees nor agrees. But we think a manufacturing company is
an imperative. We had a discussion recently. There is the possibility, e.g. that approval can only be given to a hospital and it can only be used in this hospital. You
cannot give approval to the products being produced in a large scale. That is our
idea. Those are all my considerations. Maybe factories are more professional. The
parameters, the materials, etc. Products are printed and we decide whether we give
approval to them. Recently the United States has put forward a proposal, which is
now undergoing consultations. Maybe they think more carefully. I think this is
because for a new technology, protections from the regulations and laws for IP are
not that clear. 3DP itself is not wrong but good. The key is the application. 3DP can
make a gun and parts of a submachine gun for certain. It can print whatever you
think. And now the digitalisation and virtualisation of 3DP is unique. For example,
someone can print something and put it into the patient’s body. You cannot foresee
what will happen. So, there should be requirements for 3DP IP. That is all. Thanks.
Dr Phoebe Li
Thank you. I think this really is challenging to our IQ. We need to think.
Presenter 1
I am from an African country where there is a stem cells industrial base. My
question is that in Shanghai there is no bioactive 3DP involved in the areas of bioactivity and cells. The country has put forward regulations for cells last Friday.
I would like to know what your opinion is on that.
Presenter 2
First, for the area of stem cells, it belongs to medicine rather than the area of medical devices. I have to tell you that based on the science theory, stem cells these
years cannot be replaced in application except for the patient’s own cells. We can
see that in the United States or in the European Union, their researches on that
will not be worse than us. But one of us has pointed out that our disadvantage is
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that they have just managed to cure the disease with the patient’s own cells, which
will take us an uncertain time to master. I do not know very well about that. But
I know that there exist many problems in this area. Because your cells and other
people’s cells are all different from the cells our God made for us. We have no idea
what kind of cells they are. And this is the American opinion. But research on it
is an imperative. The key problem is that we have a principle of risks and benefits.
The risks and the benefits need to be balanced. If it is about cancer cure, even
if the possibility is 3% or 1% and the rate for risk is 99%, the project can receive
approval. However, if it is about curing the cold, even if the rate of effectiveness
is 99% and the rate of risk is 1%, it will not receive approval. Why? We can take a
rest. Nobody will take that 1% risk. There is absolutely no wrong or right. Because
there are no criteria in technology, experts have different opinions. But based on
the most recent strict criterion, we need to improve. We do not give approval to
clinical research projects. But if it is about medical devices, it is clear that you
should conduct tests in front of us and those should be passed. And your samples
should be guaranteed by the quality system. If this is all done you can produce
it and it can be used in the clinic. Not any doctor who grabs something abroad
can use that in the clinic. One particular hospital in this regard had a disastrous
experience. About the artificial heart? Right? It belongs to clinical research. As for
medicine research, a regulatory body gives approval to products. The products are
for manufacturing and sales, which are different from clinical research.
Presenter 2
Now the technology falls too far behind manufacturing. For example, we can
learn much from a case that I found astonishing when I heard about it last year.
A Chinese PhD student, based in the United States, had made a specimen: an
insulin patch which can release insulin and can be pasted on the belly. Its benefit
is that it can examine your blood glucose and release insulin according to your
blood glucose data. It should be patched on the belly once a week. It is very
good. You do not need to test the blood glucose and inject insulin daily. It can
release insulin gradually. Once I asked one of my relatives, working in a company
in the United States that focusses on insulin research, development and designing, what he thought about this technology. He answered after three hours. He
said he had asked his colleagues, and the result was that this technology could
hardly be produced. Why? Because of the lack of the part supplier. You don’t have
the supplier, and you cannot make the parts. Thus, it is the difference between
the technology and products. Why should we take care of the process of manufacturing? Because we need to know the quality system. If you are in pursuit of
stability, you should not produce just one or two products but manufacture in
batches. You should consider the after-sales service. There are many problems.
Presenter 3
We have received good support, like the document released last year by the
State Council and the national plan released by the Ministry of Industry and
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Information Technology (‘MIIT’) and the National Development and Reform
Commission (‘NDRC’). They all mentioned that the country is going to attach
great importance to 3D biological printing. When it comes to legal regulations,
approvals and management of products made with 3DP biological printing is
by medicine management law and medical device regulatory rules. Upon examination of the 3D biological printed registered products, we found that most
of them are similar to those made abroad. 3D biological printed products may
well be registered to medical devices. There are regulations on registering 3D
biological printed products, which are simply arranged by us. Most people tend
to register it to medical devices of Class 2 or 3. For example, some products that
contain medicine and devices will be sorted into Class 3 by us. And those that
can be absorbed into the human body will be sorted into Class 3. So will the
medical plastics like artificial skins.
I will put forward some problems that we will research into more deeply in the
future. First how do we define this area at the legal level. Whether it is for our
patent approval or for medicine register that we define, this is complex. If it has
two substances, how do we define that? If we adopt examples in Europe, we will
find that in Europe these kinds of products have a special category called medical
use products. Well, it is actually dependent on medicine and medical device. Shall
we separate these products and establish a special institution, instead of having
an overall special institution to give approval, which is a problem? The second
problem is that these products are for printing. Printed things have irregular
parts. We think that there should be a special category for good manufacturing
practice and a special production specification. We cannot simply attribute it to
drugs or another thing. The third problem is about ethics. Stem cells like can
be from a human’s own body. If the material is from some people, it will raise
an ethical problem, which is the problem that we will discuss in the future. The
last one is an IP issue, which is about how to define recent technology because
a patent is based on innovation. If the products are not innovative, it should not
be presented with a patent. Then we know that patent has three features (editor
note: novelty, inventive step and industrial application). The most important is
about the innovation for sure. It is most obvious for experts in the same area. 3D
biological printing is brand-new technology. How could we define the experts?
People that know this area well are in a minority. How do we define the experts
in this area and how can we define the innovation in this area without the input
of the experts in the same area? This is the problem we need to discuss in the
future, too. And I hope that all of you can participate in the discussion to share
your ideas. And that is all. Thanks. Kindly give us your advice, please.
Presenter 2 (with simultaneous translation)
Thanks for listening. Today, my topic is on the focus of this conference, and
I will focus on the IP regulation in Australia and New Zealand.
今天我们要讨论的主题与这次研讨会的主题相关，都是3D打印知识产权相关，
那么我今天讲一下澳大利亚和新西兰的知识产权的状况。
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So, it is a very exciting area involving the two complicated areas of bio technology and patent.
那它包含的两个，那它一个非常令人（7:43）的两块领域它包含了专利和知识产权。
And it contains the institution and the human body parts, but the question is,
is it expected to be even more controversial.
那它包含了，包含的是你机关和人体的部分，那我们的问题就是它会不会将来变
得越来越有争议性呢？
I am focussing on these topics that are the core of what we are talking about.
Is it a method of treatment of human beings?
那下面的话题就是我们的中心了，它是不是指人类的一种治疗方法。
Then what are the issues applying for patents raise？
那还有哪些可申请专利性的问题出现？
And what is the approach in New Zealand and Australia?
那在新西兰和澳大利亚我们采取了哪些方法？
First, I just want to show Australia and New Zealand and the United States.
We were all influenced by the Statute of Monopolies in the United Kingdom.
我想先讲一下，不管是在新西兰还是澳大利亚还是美国，我们都受到了英国的垄
断法影响。
The next thing I want to say happened long ago, even earlier than the Statue
of Anne. It was in 1623, and the King of England was just giving more property
to people around him.
那我接下来要说的这个事情就很早了，那它，它甚至比安娜法令还要早，那是在
1623年，那时英国国王。詹姆斯国王他就把一些专有的权利分发给他身边的人。
So, I would call this a statute against monopolies
那我把这种法律呢叫做反垄断法律。
So, unless it is a manner of new manufacture the statute says its patent is
not guaranteed unless it is a manner of new manufacture. That means it is not
against the law and the state’s benefits.
那这个法律的意思就是对下面的例外情况声明垄断无效，允许任何新的方法授
权实现你的专利，但这个前提是不触犯法律，不损害国家利益。
So, a patent cannot increase prices and other risks
那就比方说，你申请这个专利就不能哄抬物价，也不能产生其他的危害。
And then the United Kingdom (as a whole), the United States, New Zealand
and Australia are all influenced by the statute of monopolies
那接下来在英国，在美国、新西兰、澳大利亚的法律都是收到了我刚才所述的垄
断法的影响。
Our New Zealand patent regulations came into effect only in 2013.
我们新西兰的专利法，刚刚在2013年才开始生效。
Some regulations copied the regulations in the United Kingdom as at 1977.
其中有一些内容呢，一些条例是跟英国1977年颁布的法案是一致的。
The next thing I want to show is that the United Kingdom does not mention
the manner of manufacture anymore.
但是我想提一下英国的法案已经不会再提到生产方式这个词了。
I guess that is to be consistent with that in Europe.
我猜测目的可能是为了跟欧洲保持一致。
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New Zealand and Australia are the only two countries to use this old-fashioned
word.
因为这个词已经非常老式了，我们新西兰和澳大利亚是唯一的还在使用这些词的
两个国家。
So, a manner of manufacturing needs to be defined again.
所以生产方式我们需要对它们进行定义。
So, our definitions on that are very similar whether it is in New Zealand or it
is in Australia. First question: Is this a manner of manufacturing?
那不管在新西兰还是澳大利亚，我们对它的定义，它的门栏都非常类似，它是不
是一种生产方式？
Next there will be some criteria. Is it new?
接下来我们定下几条标准，第一个：它是不是新的？
Is it involving innovative movement? Is it useful?
第二个它是不是包含一种创新性的动作？第三个它是不是有用？
It took New Zealand 14 years for the reform to come into effect.
新西兰花了14年的时间终于在2014年才改革完成。
We make our patent consistent with the international minimum; in
New ­Zealand it is very convenient to get a patent. We ignore what’s happened
outside New Zealand, we only focus on what is happening in New Zealand.
我们把我们的门栏调整到和国际认准的最小值一致，那之前在新西兰我们申请
专利其实是非常方便的，因为我们知道国外发生了什么，但是我们还是以国内新西
兰的标准通过专利的申请。
Now we consider everything worldwide, and we will synchronise with Australia.
Besides, we will try to meet the needs of the biology industry.
那现在我们考虑的就是世界范围内的状况，包括我们会和澳大利亚保持一致，然
后我们也想去帮助生物打印。
So, what is the meaning of a manner of manufacturing?
那生产方式到底是什么意思呢？
This is a case about NRDC and very long ago in 1949.
在1959年，这里有个案例，它是关于NRDC，就是国家研究发展公司，还有专利
发行方的一个案例。
NRDC is decided by the highest court in Australia.
NRDC决定的是由澳大利亚最高法院得出的。
The court said the criterion is that first is it artificially created or is it natural.
法庭说它的标准是它首先是不是人工创造的一个事物，第二呢是不是自然的还是
人工创造的
If you harvest the cotton in the field it is a product of nature and it is
unpatentable.
那比如说你现在去田里收割，采了点棉花，那这个棉花就是自然的产物，不是人
工制造的。
And if you harvest the cotton and manufacture it in a factory to make clothes,
then it is artificially created.
那再进一步说你把采下来的棉花拿到工厂里去生产了一件衣服的话，那就是人工
的产物了。
And cotton for us is useful. So, it is patentable.
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那再加上因为棉花做成的产物对我们是有用的，所以它就是能申请专利的。
So, in New Zealand and Australia today we are still influenced by this case.
那今天在澳大利亚和新西兰我们还是受到了这个案例的影响，影响我们现在的
做事方式。
We still have some international responsibility related to WTO.
我们还有些国际的责任跟WTO有关。
And we are a member. So, we provided invention with patent, no matter it is a
product or a technology. But first it should be new, involved with profits, which
can be industrialised.
在WTO引领签署的一个贸易相关方面的知识产权协议，我们也是这个协议的签
约国，所以新西兰承诺，可以颁发专利给所有的发明，不管这样的发明是一种产品
还是一种工艺，不论何种科技，但是前提呢是要新，包含利益相关，还有利益可以
工业化。
And it can be eliminated from the patent to protect society and ethics.
当然我们也可以把它排除在专利外，就是为了保护社会和道德。
So, the next one I want to talk about. It is not impulsive. The word is may,
not must. That is to say, the methods of diagnosis, therapy and surgery aimed at
human beings or animals can be eliminated from patent.
下一点呢就是它不是强制的，也是我重点想提的，因为你可以从英文的行文中看
出来，may的意思是你可以，不是你必须。就是如果说你是以治疗人类或动物为目的
进行诊断、疗法和手术方法那是可以排除在专利外。
So, we eliminated treatment method in the newest regulations. And we can
see that if the invention is a treatment method, it is not patentable whether it is
a method of operation or another.
所以在我们最新的法律中就是2013年的法律第16款，我们就把人类的治疗方式
也排除在外了，那我们可以看到，如果说发明是一种人类的治疗方式，不管是通过手
术还是其他疗法都不可申请专利的。
Of course methods of diagnosis are not patentable.
当然包括诊断方法也是不可申请专利的。
So, we call this the exception of medical treatment. First it means drug treatment. Second it means the professional knowledge of doctors, including their
knowledge of treatment and operation.
所以我们把它叫做治疗的例外，那它指的第一个是药物的疗法，第二个是医疗专
业人员的专有知识，包括他对疗法，治疗方式，手术的了解。
The law considers humanism.
这是对人文主义，就是对人性的考虑。
So, this is the reason that technology and work of a physician or surgeon to
lessen pain does not belong to trade and business.
因为他的原因呢就是考虑到不管是内科还是外科医生的技术、工作来减轻人类
的痛苦都不是贸易和商业的范畴。
So, this 1983 case and two other cases will explain that you cannot patent
treatment.
这是1983年的一个案例，我还有两个非常重要的案例都说明了你不可以给治疗
方法颁发专利。
So, in 2013 we added that to the 16th regulation.
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在2013年，我们在第16款中把这一点加入进去了。
But in the United States and Australia, they allowed it; you can patent it.
但是跟它相对在美国和澳大利亚它又是可行的，又是可以申请专利的。
But we have copied the United Kingdom, and medicine treatment is
unpatentable.
但是我们是和英国的法律体系一脉相传，所以英国和新西兰一样，都是不可为治
疗方法申请专利。
The United Kingdom has gone further. Treatment to protect animals is unpatentable for the British like animals.
当然英国比我们更进一步，包括保护动物的治疗方法也是不可申请专利的，因为
他们比较喜欢小动物。
So, now if you compare law of New Zealand with that in Australia, you can
find that the foregoing regulations are the same, about the process of human and
creature. We do not allow for patenting on that.
现在我们比较一下澳大利亚和新西兰的法律，我们看到前面一条都是一样的，就
是人类和生物的流程，来为他们的生成都是不可以申请专利的发明。
But we follow the regulations in the United Kingdom. So, treatment of human beings is eliminated.
但是因为我们跟随了英国的法律体系，所以人类的治疗方法我们是把它排除在
外的。
Thus we have a regulation about the elimination. But Australia doesn’t.
所以我们是有排除的一条法律的，但是澳大利亚就没有这个法律了。
So, everyone asks what the blank means from 1990 to 2013.
所以从1990年到2013年我们都在想这个立法上的空白到底意味着什么。
And in 2013 there was another case. And the parliament is not persuaded by
the highest court to eliminate medical treatments.
到2013年又发生了另外一个案例，最后最高法庭去说议会并没有被说服把治疗
方式排除在专利法之外。
The case is important for it guarantees that treatment is patentable. The case
is about psora.
这个案例有非常重要的意义，因为它保护了治疗方法在澳大利亚可以申请专利的
地位，这个案例是关于牛皮癣的
So, the highest court asks what the differences are between invention of treatment and invention for others.
那最高法院当时就问了，人类治疗方法的发明与其他的发明有什么区别。
So, they say is it a manner of manufacture.
他说你的治疗方法是一种生产方式呢？
Then we go back to the test of NRDC.
那我们再回到刚才NRDC案例的测试
At that time we got two questions. Is it artificially created, and is it useful?
我们问了两个问题，第一个它是不是一个人造的事物？第二，它是不是有用的？
It is patentable if it is novel, artificial, innovative and useful.
只要它符合三个标准，是新的，是人工的，是创新的，是可用的，那它就是可以申
请专利的。
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So, we can see the breakthrough of bioprinting in Australia.
那我们再看看澳大利亚生物打印的一些突破。
In Queensland University of Technology, their technology is 3D bioprinting
manufacturing process, which means adding biology and living body factors
into rapid prototyping technology. And there is 3D printed material to be used
in skulls.
昆士兰科技大学，他们的技术是3D生物打印制造工艺，就是在快速成型技术中
加入生物和活体的因素，那3D打印还有3D打印聚已内酯支架用于头盖骨。
And what does Wollongong University do? They bioprinted skin, cartilage,
artery and heart valves, with report in the Australia IP case report edition
2014.
那卧龙岗大学做了什么呢？他就是做了3D生物打印的皮肤，软骨，动脉和心脏瓣
膜这个报告是来自澳大利亚知识产权案例报告2014年版本。
I have said that the United States, China and Australia have all made great
contributions to bioprinting, and just last year we released innovation patents.
那我刚才说到美国中国都在生物打印上面做出了巨大的突破，澳大利亚也是一
样。就在去年9月份我们就颁发了一个创新专利。
The next two things are the objects. One is method of manufacturing 3D
holders of carrying cells and the application. The other is the method of manufacturing the cell holders.
那下面两个呢就是专利颁发的对象，一个是制造承载细胞的3D支架和应用的方
法，还有一个是细胞支架的构造和制造方式。
The innovation patent is different from common patent. Because innovation
patent only has eight months’ period of validity.
那创新专利和一般的专利又有所区别，因为创新专利只有8年的有效期。
And it is convenient and you don’t need the whole to be innovated. You only
need to demonstrate that it is better than others. There is no need of complex
process. And you can acquire the patent once you demonstrate it to be improved
and makes contributions.
它也比较方便，因为你不需要是完全创新性的，你只要证明你的发明比现有的要
好，也不需要通过一些非常复杂的流程，只需要证明它比现有的有所改善，并且做出
贡献的就可以获得。
Queensland University of Technology will have the first bio institution in its
affiliated hospital next year.
昆士兰科技大学在明年就会在大学所属的医院里就会有第一个生物制造机构。
Their dream is to bioprint human beings’ body parts.
他们的梦想是可以生物打印人体部分。
A professor of that university pointed out that it cannot happen tomorrow.
那个大学的一位教授说这个不是一夜之间可以实现的。
But the aim is to 3D print bio-organs and lessen the waiting time of the patients. For example, we print that using the patients’ cells quickly, which lessen
the time and the rejection rate.
目标就是可以3D生物打印器官，减少患者等待的时间，比方说用患者的细胞赶
紧把它打印出来，这样的话首先可以节约时间，第二个也会降低排异的概率。
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You have are two different patents, different from each other.
你得到的两张不一样的，相互独立的专利。
The legislation foundations of the two countries are very similar. So, we would
like to have some cooperation. There exists exception in the area of 3DP. There
are some little differences between us two countries. We will see how we develop
in the future.
因为两国立法的根基都比较类似，所以我们想要实现一些共通，但是在3D打印
还有例外方面，我们两国之间会有一些小小的区别，那我们看接下来怎么发展。
Part 3
8
A call for a doctrine of
‘information justice’
James Griffin
Introduction
Empirical interviews carried out by the author1 which are presented in this
chapter reveal the need for a principle of ‘information justice’ in information
regulation. Existing regulation focusses too much on the form, the ‘stock,’ of
the information rather than the use, or ‘flow,’ of the information.2 Copyright
holders increasingly want protection of information about use, which reveals the
need for protection to also exist around information flows. Various proposals in
the United Kingdom and European Union have been suggested to protect such
information about use; however, it is submitted that these are inadequate. This
is because they do not take sufficient regard of the broad nature of information
‘flow’ and instead remain rooted in traditional conceptions around information, namely the ‘stock’ that is provided by property rights. Further, regulatory
property ‘stock’ may affect information ‘flow,’ resulting in a ‘quantum paradox,’
so called because regulation has insufficiently recognised the simultaneous –
quantum – nature of information. The laws and rules which comprise information regulation are themselves information, information which is also ‘stock’
and ‘flow’ – regulation which as it becomes more digital in form may begin to
impact information ‘flow’ more directly. This is because information regulation
has not explicitly recognised information ‘flow’ as a concept, even though that
1 Funded by the SLS in 2012–2013, focussing on the impact of information use upon intellectual
property, in particular copyright law within the music and book publishing industries. Quotes
are from the research and interview transcripts are on file with the author. The author would
like to thank Professor Christian Witting, at Queen Mary, University of London, and Assistant
Professor Annika Jones, University of Durham, for their insightful comments, as well as those
who provided comments on a presentation made at the SLS Conference at the University of York
in 2015. Note this chapter has been previously published in the Intellectual Property Quarterly in 2016 ([2016] IPQ 44) and is reprinted here with the kind permission of the publisher
Sweet & Maxwell.
2 The phrase ‘information flow’ was introduced by N Elkin-Koren (see N Elkin-Koren, “Cyberlaw
and Social Change: A Democratic Approach to Copyright Law in Cyberspace,” 14 Cardozo
Arts and Entertainment Law Journal 215 (1996). This chapter takes this basis and develops it
within the notion of quantum waves and flows, and develops the link between flows, capitalism
and the State.
142 A call for a doctrine of information justice
regulation itself may act as a ‘flow.’ In order to remedy this, it is suggested that
there be a principle of ‘information justice’ focussed not just on property ‘stock’
but also on information ‘flow.’
Information about use is increasingly becoming not just something of physical
or even simple intangible embodiment but is akin to a quantum wave. It is simultaneously both a fixed ‘stock’ entity and a flow. In the same way that capitalism
has led to money being, in Marxian terms, both a fixed ‘stock’ and a ‘flow’;3 in
the same way that postmodernity has led to our perception of the world being
less certain;4 and in the same way that quantum mechanics has led to the possibility of matter being both a particle and a wave,5 so commoditised copyright
knowledge itself is becoming quantum in form due to the increased use of, and
nature of, digital code.6 This is crucially important in an information-based society for the quantum nature of information changes the traditional nature of
information regulation. This chapter suggests this shift in regulation requires
a clear quantum (simultaneous ‘stock’ and ‘flow’) conception of ‘information
justice’ akin to ‘economic justice.’ In so arguing, this chapter (1) assesses empirical research carried out by the author into information regulation today, with
reference to the concepts of ‘stock’ and ‘flow’; (2) discusses how and why new
UK and EU approaches have a different impact upon ‘stocks’ and ‘flows’; and
(3) proposes a requirement of ‘information justice’7 for the Information State,
derived from the empirical research and based around the notions of the quantum state of ‘stock’ and ‘flow.’ A quantum information paradox, where regulation becomes self-regulating8 due to the quantum state of ‘stock’ and ‘flow,’ will
result unless a principle of ‘information justice’ is implemented, as detailed in
this chapter.
1. From stocks to flows
Information about the use of copyright works is increasingly becoming a form
of valuable commodity which will usurp traditional forms of economic exchange
such as money. Whereas in the past copyright information was broadly limited to
larger, less transferable, economic units such as books and music, the information
3 K Marx, Das Kapital (Penguin version, 1990) inter alia at p. 231–232, M Weber, Economy and
Society (University of California Press version, 1978) at p. 335, D Harvey, Justice, Nature and the
Geography of Difference (1996) at p. 50.
4 T Kuhn, The Structure of Scientific Revolutions (2nd edition, 1970), J Bronowski, The Ascent of
Man (1973), Chapter 11.
5 D Bohm, F Peat, Science, Order and Creativity (1989) at p. 40.
6 Note information theory includes quantum information – see J von Neumann, Mathematical
Foundations of Quantum Mechanics (1955), and M Redei, M Stoeltzner (ed), John von Neumann
and the Foundations of Quantum Physics (2001).
7 Building upon the notion of economic justice, as discussed inter alia in C Macpherson, The rise
and fall of economic justice (1985).
8 N Luhmann (1986) “The Autopoiesis of Social Systems” in Sociocybernetic Paradoxes: Observation, Control and Evolution of Self-Steering Systems, eds. F Geyer and J Van d. Zeuwen (1986) at
p. 172–192, N Luhmann, A sociological theory of law (1985), G Teubner, A Febbrajo, State, Law,
and Economy as Autopoietic Systems (1992).
A call for a doctrine of information justice
143
that is protected today is in much smaller units because of digital technologies.
This change in the nature of copyright – from being a form of stock to also
­becoming a commodity flow – is instigating a change in the manner of regulation.
This research investigates the impact of this regulatory change upon those operating within the content industries. Empirical interviews were carried out with
the support of the SLS during 2012–2013, which focussed upon the views of 15
right holders into the existence of property rights, in particular property rights
in copyright. The aim was to establish to what degree these right holders considered property to be a valuable boundary, as a means of commodifying property
as stock. The results were intriguing in that they revealed a shift in right holders’
perceptions about using information as ‘stock,’ or restrained within a physical
form. Information, in particular information in a digital form, is more fluid in its
boundaries; it can be fixed in a bounded form or it can trans-mutate – shift from
one form into another or cross over forms. For instance, ideas, which in the past
would have resided within an element of a physical work, can now be expressed
in a digital form in a much smaller unit than was previously the case – low distribution costs and ease of reuse of the copyright work being a key driver. This
also leads to increased creation of information about the use of copyright works,
that information also becoming a financially valuable copyright work in itself.
The empirical research revealed that most right holders willingly embrace this
change in the nature of information due to the new opportunities it provides in
terms of content use and in terms of commercial exploitation. It is not just that
new commodifiable information is being produced about the use of content but
also that it is possible to exchange information in new ways and thus be able to
create new analogous revenue streams.
The research has since been followed by a European Commission consultation
into the future of EU copyright law,9 which also contained a question about
identifiers – that is, information about the use of information. From the 950 responses received, this revealed, as well, that the nature of proprietary boundaries
within information works is radically changing. These changing boundaries do
not just represent an alteration in the means of production, for they are reflective
of a fundamental change in the manner of exchange. Traditional exchange as a
part of capitalism involves the exchange of monies, goods and shares. The flow
that results is from the process of exchange. However, what the newer form of information exchange does is to blur the boundaries between the act of exchange
and the act of flow. This is the consequence of convergence,10 the network effects
of technology upon economy. In the same way that technology, by its nature,
leads to more individuals using the most interoperable means of communication
9 European Commission, Public Consultation on the review of the EU Copyright rules (see
http://ec.europa.Teu/internal_market/consultations/2013/copyright-rules/index_en.htm
(last accessed 14th April 2015). The consultation document itself is available at http://ec.europa
.eu/internal_market/consultations/2013/copyright-rules/docs/consultation-document_en
.pdf (last accessed 14th April 2015).
10 For discussion of convergence within network theory, see S Menon, “Policy Initiative Dilemmas
on Media Convergence: A Cross National Perspective,” 24 Prometheus 59 (2006) at p. 60.
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A call for a doctrine of information justice
possible, so it is natural that the method and manner of exchange and flow
should converge and become increasingly as one.
It is within this convergence, then, that the regulation of information enters.
Traditional copyright law focusses on the issues of proprietary boundaries11 and
the means by which those boundaries should be delimitated, and the consequences of that upon the issue of flows has been largely sidelined for historical
and practical reasons and concerns. The future of regulation needs to deal with
this change, and yet it has to date been very slow to do so. This is revealed by the
empirical research. It also reveals a further factor, though, and this is one further
challenge which regulation needs to deal with – that of convergence between the
regulated information and the regulation itself.
In essence, what is required is a law that can deal with the changing nature of
information, the convergence between stock and flow, and the further convergence of information and regulation. This is the factual situation that regulation
must confront and that it must come to terms with. The convergence of stock
and flow is such that information can be either stock or flow, and so, if regulation
is to deal with this, it must adapt a similarly quantum approach towards that
information. This requires that law takes a similar quantum approach, but which
will, however, lead to its increasing convergence with information. This is the
quantum information paradox and the challenge which the law must confront.
2. Empirics demonstrating the convergence of
information with regulation
This chapter is posited on the belief that the actions of individuals, especially
creators and distributors of knowledge, are influenced by the regulation of the
State. In particular, attention should be paid to the means by which creators and
distributors exchange knowledge and information, and how they are influenced
by a structure provided by the State. The position is supported by the analysis
and collation of the results of the 2014 European Commission Consultation concerning the EU Copyright Code and further to this empirical research funded
by the SLS in 2012–2013. The results of both elements show how the function
of the relationship between State, seller and purchaser will be influenced by potential forthcoming information regulation in the field of cultural works.
In summary, what the empirical work demonstrates is the start of a shift away
from the traditional proprietary, bounded principles towards a more fluid, flowbased set of principles. Proprietary principles have traditionally been enforced
and set through copyright laws, whereas it is clear from the empirical research
that bounded ownership per se is becoming less of an issue than being able to
harvest user information. The empirical research concerning licensing established the degree to which right holders were being influenced by the transformative and fluid forms of digital information. The increasing convergence of
capital and information, and their quantum states in the information society,
undermines the traditional notion of bounded property. In addition to that, the
11 For instance, by the provision of property in copyright, see s.1(1) CDPA 1988.
A call for a doctrine of information justice
145
information itself is increasingly digital and thus potentially literary in character, which paradoxically presupposes a greater degree of bounded proprietary
protection. However, the reality is that the growth in copyright scope matches
directly – and exponentially – with the desire to increase protection of information concerning content use. Thus, any increase in the scope of copyright’s
proprietary protections and consequent bounding is intimately tied with the
quantum aspect of legal protection not just being bounded but also being a flow.
3. Economy of cultural works
In light of this, the manner in which the State governs the economics of copyright will become increasingly important, since economy is the most common
means by which the individual expresses the will – typically through capitalist
acts. The more that information regulation, such as copyright, becomes broader
in terms of its own subject matter, and in terms of its fluidity, then the more
likely such regulation will come to cover more aspects of societal interactions to
a deeper level. The regulation of economy through information has the ability
to make the State more overt in its responsibilities to its citizenry. The new
economic reality of information regulation will be such that it will reveal the
‘brutes,’12 it will reveal the ‘truth and method,’13 and it will reveal the ‘shadow
law’14 of the capitalist State. The desire of the capitalist market to gain access
to information usage, and thus to try to obtain regulation of the flows of information, will become reflected in the semantic and structural paradigms of the
State. It will be a State where capitalist reflections of the individual spirit can be
reflected contra legem upon the individual; a State which will come to govern
that individuals own aspiration, future and will. The State will gain an Oedipul
standing over thought,15 a Father of capitalistic structure, foundling and nurturing the capitalistic acts of the individual.
In essence, the discussion of the empirical results will demonstrate a complex
web of relations between the State, the information recipient and those who hold
rights over information or information about use. Just as with the Foucaultian
dimension of power,16 the concept that the existence of power is interrelated and
interdependent at all levels, the web is a means by which to consider the relationships of State, recipient and maker. Within the empirical research, it became clear
that there were two main groupings of stakeholders influencing legal development. These groupings concern (a) those who wish to make existing proposals
operate as ‘efficiently’ as possible (as far as they perceive it within the quantum
confines of law, to maximise their current position) and (b) those who wish to
put forward their own agenda as far as possible in order to replace or significantly
12 See the movie C Chaplin, The Great Dictator (1940) at 1 hour 57 minutes.
13 H G Gadamer, Truth and Method (1975) trans. Barden and Cumming.
14 Meant in the broadest sense of norms: e.g. H Kelsen, The Pure Theory of Law (1970) trans.
M Knight; cf. S Bibas, “Plea Bargaining outside the Shadow of Trial,” 117 Harvard Law Review
(2004) 2463.
15 G Deleuze, F Guattari, Anti-Oedipus (1977).
16 See inter alia M Foucault, Power: Essential Works of Foucault 1954–1984 (2000).
146 A call for a doctrine of information justice
amend the law outside of its current norms and confines. In many respects this
mirrors the notion of flow and stock, in the sense that those arguing for greater
efficiency wish to maintain certain boundaries, whereas the agenda setters are
willing to consider new boundaries. Furthermore, the way in which flow and
stock intersect is similar to the manner in which these two groups intersect in the
interface between the issue of perceived ‘flow’ efficiency and agenda setting. The
recent growth in discussion concerning identifiers is an example of this, where
some right holders focus more on the issue of the breadth and purpose of regulation, whereas others focus purely on efficiency within the existing framework.17
This is by no means a new phenomenon – the introduction of copyright legislation in 171018 saw a large number of incumbent publishers argue for protection
which mirrored the most efficient method of current exploitation, whereas lobbying by groups outside of the traditional stream led to later extension of copyright protection to new areas.19 More recently, a commonly cited example is that
of access and use rights under the Digital Millennium Copyright Act 1998 in
the United States.20 A certain type of digital control, known as ‘access controls,’
was originally defined as a new form of control to cover pay-per-view access by a
group of right holders putting forward their own agenda.21 Issues of efficiency
led to the application of those rights in line with technical standards rather than
in line with the ‘pay-per-view’ agenda per se, and this led in practice to the notion
of ‘access controls’ being construed so broadly that they could cover more than
just pay-per-view mechanisms22 – they could cover virtually anything accessed
in some digital form – and digital data have to be accessed in order for it to be
used at all.23 Consequently, the application of efficiency led to a complete change
in the intended plan of the agenda setters because ‘access controls’ ended up
covering everything that had to be accessed on a computer. This is, in essence,
an issue of agency where both groups are acting, unwittingly, in concert. This is
similar to the invisible hand of capitalism, 24 in the manner in which individuals
are acting together in the development of a capitalist society without necessarily
being aware, or knowing, of the larger capitalist picture.
17 See the following pages.
18 Statute of Anne 1710, 8 Anne Ch 19, the long title of which is “An Act for the Encouragement
of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies,
during the Times therein mentioned”(hereafter ‘the Statute of Anne’).
19 B Kaplan, An Unhurried View of Copyright (1967) at p. 8–9
20 Digital Millennium Copyright Act 1998, Pub. L. No. 105–304, 112 Stat. 2860 (Oct. 28, 1998).
21 J Litman, Digital Copyright (2001); J Litman, “Copyright Legislation and Technological
Change,” 68 Oregon Law Review 275 (1989).
22 R Reese, “Will Merging Access Controls and Rights Controls Undermine the Structure of Anticircumvention Law?” 18 Berkeley Technology Law Journal 619 (2003).
23 Unless the code is already present in computer memory and simply ‘read’ by a scanner such
as Datel’s Action Replay. This is a very specific scenario but one which can occur with older
computing technologies, in particular computers such as the Atari ST, Commodore Amiga and
Nintendo GBA.
24 A Smith, The Wealth of Nations (1776), Book IV, Chapter II.
A call for a doctrine of information justice
147
These example is a demonstration of how perceived regulatory efficiency,
c­ ombined with the notion of individual agenda, is what leads to regulation
­becoming self-defining. In the same way that a resonance can occur within an
object, so resonance can occur within law. It is this that can lead to the law
holding a self-defining autopoetic prophecy.25 Within the EU Consultation document responses, it is possible to begin to identify exactly this situation. In the
first instance, there are those who wish for greater EU efficiency in the establishment of standards; on the other hand, there are those who are arguing for a
greater wealth of standards. With regard to the former group:
•
“The authorities of [the] EU could promote this organisation and recommend to use its services, as far as it offers very easy solutions for automated
or semi-automated communication between right holders and those who
want to use content.” (3 responses)
With regard to that latter group there were numerous references by bodies to the
manner in which regulation could be achieved efficiently:
•
•
“We appreciate the efforts of the European Commission in promoting a
joint declaration on the role of identifiers and the inherent value of interoperability between the two identifiers. This declaration has been discussed
and adopted within the framework of the Stakeholder Dialogue Licences for
Europe” (16 responses)
“Firstly, the EU should act as the people’s representative, serving their interests over those of companies, as such resisting attempts to include control/
surveillance and/or fining/punishment of citizens. In general, if standards
can be agreed upon, the EU could (perhaps should) enforce these by funding universities etc. wishing to enter the project. One could picture a central
EU database (free of commercial interests)”
The overlap can be observed between the desire to extend the notion of standards for identifiers and interoperability to cover new areas, tied to the concept of
efficiency in the classification and identification of content. In theory, standards
could cover everything from the most basic uses of content, through to the most
comprehensive and detailed. It is with the latter that there arises the issue of an
overlap of bounded property and flows. This can occur in two ways – first, the
information itself can change character, and second, information about use can be
appended and monetised (capitalised). In any event, though the information itself
can become of inherent value, the protection provided to the making and storing
of that information in whatever form still requires some funding, some monies,
25 N Luhmann (1986) “The Autopoiesis of Social Systems” in Sociocybernetic Paradoxes: Observation, Control and Evolution of Self-Steering Systems, eds. F Geyer and J Van d. Zeuwen (1986) see
n.8 at p. 172–192, N Luhmann, A sociological theory of law (1985), G Teubner, A Febbrajo, State,
Law, and Economy as Autopoietic Systems (1992) supra n.8.
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A call for a doctrine of information justice
in order to support it. As with regulation of books in the past, where publishers
were needed to financially support the distribution of those books, 26 so it is with
digital cultural works and usage information. Information is not entirely free,
particularly with regard to the storing of information and the dissemination of
it. We can see that there has, therefore, been a tendency for there to arise a link
between the issue of the capital funding and the development of identifier standards. Amongst the EU Commission consultation responses, the most common
response was to question the funding that the EC could provide to the setting
of ‘standards.’ As these standards concern the issue of identifiers, and thus ultimately the form and structure of content, the funding of ‘standards’ could define
the future modalities of communication, and the manner in which information
can morph from being flows to stock and vice versa. Yet, that issue of the relationship between funding with capitalist stock and modalities was not addressed:
•
•
•
“Such common standards require investment and ongoing costs to maintain. But more important than that such common standards need to be
actively adopted and used by all participants. A clear commitment from producers, broadcasters and users of rights to use such standards is crucial for
facilitating the handling of data and for ensuring good data quality. Support
of the EU Commission could be provided by welcoming and funding new
initiatives for such common standards.” (2 responses)
“It could also be envisaged requesting funding support from the Commission. European programmes like COSME (EU programme for the Competitiveness of Enterprises and Small and Medium-sized Enterprises (SMEs))
and the ICT 2014- Information and Communications Technologies can be
considered in this regard.” (20 responses)
“The organisation that is maintaining and promoting the standard has to
bear the financial burden both of developing and of promoting the standard
while organisations are persuaded to commit. Financial support from the
EU would be valuable in these circumstances.”
However, the issue of the link between funding and the provision of content
information was addressed more squarely in relation to the UK level Copyright
Hub, 27 which seeks to set standards in a similar fashion to that addressed in the
EU Consultation (indeed, that Consultation even makes a reference to the nascent UK system). From the outset, it became apparent that the proposed system
could enter into competition with other right holder systems. This is because,
unlike the EU level identifier proposal, the initial fully drafted proposal kept
open the possibility that the Hub could enable the actual distribution of content.
This meant that it was virtually self-evident that it could enter into competition
with already existing online delivery services such as iTunes. Hence, the issue of
26 B Kaplan, An Unhurried View of Copyright (1967) see n.19; J Feather, The Book Trade in Politics, 8 Publishing History 19 (1980)
27 http://www.copyrighthub.co.uk/
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the level and scope of protection and the impact of that upon the availability was
immediately apparent, albeit principally in terms of the portal use rather than
due to a focus upon the details of the content and usage information. However,
what this also meant was that the use of identifiers and the consequent impact
of that upon the use of information as flow or stock was indirectly considered:
The Copyright Hub supports copyright and is opposed to its further erosion, but it has no allegiance to any particular approach to its management
or exploitation. While it is a project of the UK creative industries, which
generally follow a commercial business model, the Copyright Hub explicitly recognises that financial reward is not the sole reason why creators and
rightsholders wish to use the rights given to them by copyright law. The
infrastructure developed by the Copyright Hub will therefore support any
model, commercial or not, through which a rightsholder chooses to exercise
their legal right to decide what happens to their work and on what terms,
and it can also be used to recognise the status of content which is in the
public domain.28
The discussion within the quote of ‘financial reward’ as not being the sole reason
for using copyrights reflects the indirect realisation that the traditional bounded
rationalisations of property in copyright are not the only ones and in essence,
therefore, leads to later discussion that information could be stock or flow.
Ultimately, the actual impact of the Hub system may be different to that intended, and of course there remains the concern of whether the ‘market’ as such
has been adequately defined. The Hub may still push the use of information in
particular ways and thus may still result in artificial fixations in the quantum
state of fluid information. However, there is a core difference between the EU
and the UK discussion. The UK level has principally concerned the provision of
flexible standards, i.e. the provision of the licensing code language to enable –
importantly – information as stock or flow, whereas the EU level has clearly been
geared towards a specific aim – ultimately the direct protection of an author utilising defined means of communications which tend to protect existing bounded,
stock-focussed, interests. This can be identified for a number of reasons. First the
EU level consultation has not been created in a vacuum. It is a process that began long ago with the founding of standards for collecting societies.29 Second,
the discussion about identifiers forms part of a broader consultation about the
EU Copyright Title,30 which seeks to bring (whether voluntarily or otherwise)
28 The Copyright Hub, Blueprint summary and business requirements, Version 1.2, July 2014, on
file with the author.
29 Consider, for instance, Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-­
territorial licensing of rights in musical works for online use in the internal market.
30 See http://www.copyrightcode.eu/ (last accessed 14th April 2015). Also see E Rosati, “The
Wittem Group and the European Copyright Code,” 5 Journal of Intellectual Property Law and
Policy 862 (2010).
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A call for a doctrine of information justice
an element of harmonisation between the EU legal copyright cultures – i.e. between the UK economic system and the continental droit d’auteur system. The
consultation system also has resulted in a number of responses from EU level or
EU funded bodies. The UK Copyright Hub proposals, and the identifier systems discussed in relation to the Hub, have developed outside of that situation
and were instead the result of independent reviews focussing on the possibilities
for copyright reform and making intellectual property (IP) ‘appropriate’ for the
digital age.31
Thus, what the UK approach has achieved is the ability to define flexible
standards that are not so affected by the notion of bounded protections. The
manner of creation is clearly more driven by technological requirements than by
broader political/territorial aims, and thus it has the potential to provide a more
impartial basis for future discussion.
The underlying rationale for the identifiers and protections thereby given
is such that clearly differing aims are present. The UK aim has been one that
matches the UK system of economic reward – economic rights – whereas there
have been requests emphasising the ability of the author to control the use of the
work under the EU consultation. One would perhaps expect that the UK-based
proprietary system would lead to further bounded controls based around identifiers, but it would appear that it is the EU approach that leads to greater bounding. Whilst an in-depth discussion is beyond the scope of this article, the level
of control afforded to the author under continental systems is clearly such that
the means of communication through cultural works can be closely controlled.
It is well known that in continental systems it is possible for authors to not just
control the initial dissemination of a work but also be able to control the use or
presentation of a work right through to its destruction.32 This is different from
the United Kingdom, where rights are invariably licenced exclusively or assigned
to a publisher. Whilst the UK system has been based around bounded proprietary principles – which would imply a greater tendency to ‘stock’ information – it
is the continental system that has been the one that has led to greater control
over works. It is therefore, perhaps, somewhat of a paradox preexisting within
the legal systems that it is not the bounded proprietary system that leads to information being the most ‘stocked’ but the continental moral rights system. This
paradox is rather similar to one referred to in this chapter that is found within
digital regulation in that regulation is capable of influencing the stock and flow
of information in ways that are unexpected and unintended.
So, in summary, it is more than possible to state that the history behind the
EU and UK proposals is such that the underlying nature of regulation is therefore markedly different between the two. In part this is perhaps because of the
broader growth of capitalism within society and the fact that in the United
Kingdom, the development of the system is predominantly around the capitalist
principles of economic rights. In contrast, the EU approach is one based around
the principle of authors’ rights, and hence the directing of culture is less neutral.
31 R Hargreaves, Digital Opportunity: A review of Intellectual Property and Growth (2011) at p. 7.
32 Huston v Turner Entertainment (1992) 23 IIC 702.
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151
In reality, it is the ultimate supremacy of the capitalist market within Western
Society that is making the UK Copyright Hub approach appear neutral with
regard to stocks and flows. The appearance of choice that is provided by capitalism, and the mirroring function of that to the processes of creativity, have in
actual fact led to the paradoxical situation where that mirroring function has led
to the use of the Copyright Hub to be more neutral in impacting the distinction
between information as stock and information as flow.
In this sense, the UK system could be described as tending towards being
autopoetic,33 for the use of a capitalist means of cultural regulation has developed into a culturally capitalist society – thus tending to mirror the notions of
stock and flow that are generally accepted within capitalist practice.34 However,
care needs to be taken for the underlying licensing standards are still nonetheless technological in nature. If the proposed standards are truly technological
and market neutral, then this suggests a subtle shift away from merely capitalist
principles – and also away from even direct d’autuer principles – towards those
governing use – and if they govern use, they are in effect directly governing the
mode of communication. Thus, notions of stock and flow are affected under
both UK and EU systems, even if the impact appears more pronounced in one
system or regulation than another. Indeed, the technological basis, as mentioned
earlier, will reveal a difference between capitalistic, bounded, forms of communication of information and ‘flows,’ which, though ‘flows’ are present within capitalist theory, are different in information form because the non-rivalrous nature
of information means that they can replicate, whereas capitalist flows cannot do
so in the same way. For instance, ‘flow’ may refer to the ‘flow’ of capital monies –
but these cannot replicate when held other than by means of investment (or
loans) which are not strict replications. Information, though, may replicate in
the mind of the individual, on occasion uncontrollably such as with useful or
repetitive information. Meanwhile, the change in focus within the continental
systems is more evident, with the technology more overtly leading away from
considering information as a bounded and controlled unit.
It is at this level that we can observe the far reaching consequences of any
technical identifier style regulation, with the shift in focus away from purely
capitalist concerns to use concerns. The two can, to some degree, be considered
co-terminus, and, of course, that is the centrality of focus currently with regard
to the compensation of right holders for use which the system seeks to adhere
to. However, the flexibility in technical standards has the potential to affect the
use of information in ‘flow’ form and thus to limit the quantum states of information which may limit the future creation of new information. For instance,
the fixing of information as a technological ‘stock’ can limit the future use and
subsequent exploitation of that information. A typical example today would be
the use of DRM mechanisms that prevent, for instance, public domain elements
33 See earlier supra n.8.
34 K Marx, M Weber (supra n.1) make use of stock and flow in this sense, and indeed, perhaps this
explains why Weber, even though he struggled to identify why the common law system could be
rational, can indeed be utilised to explain the operation of common law.
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A call for a doctrine of information justice
from being reproduced.35 In the future with technical identifiers, this could
extend to cover the flow of communication, hence, the digital language used
by which to transfer information could lead to it being ‘stocked’ both between,
within and outside of the devices. Information in the form of code could be hidden (e.g. programming), interactive uses restricted (e.g. how a computer game
is interactively played) and information interpretation restricted (e.g. Google
Glass, Google Project Tango or at other levels where digital technology can
interact with the physical world).36
Naturally, one of the inherent tensions within copyright law has been between
the words of the law and the actual application of that law.37 Laws may prohibit
acts but that does not mean those acts will not occur.38 As such, it is possible
that proprietary stock might only be operational within a flow, i.e. in the sense
that the legal IP acts within the flow of use. Within copyright law, private copying has been an historic example – technically not legal but something likely to
have happened in practice.39 This has enabled the law to be, on its face, overtly
proactive in protecting the stock interests of right holders when in reality it has
not always been so. The same argument may also be laid at the door of copyright
legislation in light of the continued copying of right holders’ works on the Internet. Additional legal protections have been given, but all indications are that
unauthorised reproduction of copyright works is on the rise.
So, when discussing the importance of stocks and flows, one must keep in
mind the general applicability of the discussion to reality. Certainly, within the
prevailing literature and within the legal discourse, the notion of copyright and
the associated discourses have been the dominant ones. However, what these
discourses have not particularly invoked is a look at practical application and
hence the importance of flow. There is a void in terms of literature looking at the
empirics of copyright both in terms of right holders and users, and likewise, there
is an absence of literature that looks to the records of violations of copyrights on
the Internet. When we are discussing the notion of technical identifiers, though,
we have the broader issue that these identifiers are a fundamental element in the
distribution of content and hence the issue that a traditional aspect of flow, that
of use, becomes a legal aspect which now introduces the notion of flow into that
of stock, directly within the legal discourse.
So, whilst the legal (invariably copyright) discourse has in some measure been
the dominant discourse within literature, the concept of technical identifiers
or forms of technical distribution hubs such as the UK Copyright Hub shift
this discourse to consider the more practical realities of flow. This extends the
35 There has been much discussion of this in works such as L Lessig, Free Culture (2004) at
p. 147–161.
36 See https://www.google.co.uk/intl/en/glass/start/, https://www.google.com/atap/projecttango/
37 Consideration could be given to Habermas and the notion of colonisation of common sense –
Habermas, Theory of Communicative Action, Volume 2 (1981)
38 Inter alia L Lessig, Code (1999) Appendix 1; L Fuller, The Morality of Law (1969).
39 Note recent amendment by ‘The Copyright and Rights in Performances (Personal Copies for
Private Use) Regulations’ 2014 SI 2014/2361 implemented in s.28B CDPA 1988.
A call for a doctrine of information justice
153
discourse and it draws this parallel, referred to earlier, between the process of
distributing works through technology and the notion of capitalist exchange
through stock and flow. However, it also raises the spectre of regulation which
mirrors technology, and that technology interfacing directly with the regulation:
a new form of regulatory ‘code’ whereby the regulation also takes on the characteristics of stock and flow but, because of the likely network effects, will spread
either a notion of stock or a notion of flow. It is not just at the level of regulation
but the manner in which individuals and right holders may use information. If
the regulation encourages users to utilise ‘flow’ information such as usage rights
rather than bounded proprietary rights, then there is the potential for regulation
to be expanding into aspects of flow which might be those that have previously
been outside the scope of regulation. Thus, the realities of piracy, and the information flows therein, might become more restricted and subject to regulation
than was previously the case; for instance, observing and tracking content will
open possibilities of observation of illegal conduct which would previously have
been outside the visible realm of the right holder.
The issue of regulatory impact upon the operation of stocks and flows demonstrates that there is a degree of subliminal regulation starting to take place
whereby the notion of ‘stocks’ is being extended into the sphere of that which
has traditionally been a flow, namely, the transmission of information between
individuals once that information has been abstracted from a fixed form. There
is some evidence of the subliminal nature of this with some of the discussion
regarding the two independent reviews leading up to the creation of the UK
Copyright Hub.40
The issue of subliminal direction is perhaps best evidenced by a question in the
empirical research about what the focus of the UK Copyright Hub should be.
One of the most common responses by those questioned about the Hub within
the empirical research was the manner in which the Hub could act as a repository. It had been stated that the Hub was not intended to be a repository, and
yet this was something not realised by the majority of respondents.41 Instead,
an iTunes style service with upload and download facilities had been envisaged,
reflecting the older repository style model. However, that is not to say that the
Hub could not, in effect, provide a system of similar worth – i.e. a private hosting system regulated by the State in a manner that guarantees the longevity of
content.42
40 Hooper Feasibility Study – Hooper and Lynch, Copyright works: Streamlining copyright licensing
for the digital age (2012); Hooper, Rights and Wrong: Is copyright licensing fit for purpose for the
digital age? (2012).
41 “Yes! There should be a repository that shows what there is, who are all the people around it, who
are all the participants involved in it”; “an exchange system that would be great if you publish
a book and you have a pool of images which you just can search through and you have got the
means to get the copyright cleared as well… well put together that would be a very useful thing
for local history publishers or whoever else. If done well that would be a good thing.” (copies of
the interview transcripts are with the author)
42 Department for Business, Innovation and Skills, Digital Britain (2009) at p. 113, 116, 132
and 135.
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A call for a doctrine of information justice
The expectations, the rationalities of stock and flow, which technology brings
undoubtedly effect legal regulation. The function of the ‘good ruler,’ of Fullers
Rex,43 is gradually changing because of the technology involved. The utilisation
of legal technologies spells the start of an era of economic regulation where the
State plays the role of jurist and priest (Deleuze)44; more closely integrated not
just into the direction of regulation and the use of content but also the adjudication in terms of dispute. The technology that is used for regulation is largely the
same as the technology used for traditional capitalist acts of exchange. It directly
interfaces. It is therefore not surprising that for those arguing for efficient legal
regulation have called for more direct State involvement in the policing of any new
technological form of control. Such an approach favours enforcement of current
stock at the expense of regulating flow. For instance, one of the fears held by right
holders and users alike was the ability of the State to deal with rogue registrations:
•
•
Q “There has been a proposal for a State system which would actually distribute content, so artist could up-load stuff directly to it.”
A “They will regret that. They will regret that.”
Whilst traditional law has relied upon police and courts to implement adjudication
of disputes, technology may increasingly play a function in that role. Indeed, the
policing function in relation to information may exponentially expand with digital
technologies as more of the citizenry decide to communicate ­using such technologies. Enforcement of regulation will, if regulation is increasingly shifting towards
information flow rather than just stock, change in nature. Whilst information per
se has been regulated in the sense of censorship laws, there has not been such regulation over information flows per se. So, whilst there is more than a mere argument
that the State has always been involved with the regulation of information,45 the
potential for closer regulation has undoubtedly increased. Whereas the physical
nature of the Police or courts would naturally have a degree of separation between
the citizen and the State,46 digital regulation can occur more regularly and more
invasively, building up a comprehensive record of expressions of thought.47
In essence, the traditional court system acts as a buffer – and judges can act
to keep the law current as under the notion of ‘living law.’48 Inconsistencies
and uncertainties in the law merely enable this buffer to continue in operation.
However, when these inconsistencies and uncertainties are removed, it can reveal
43
44
45
46
L Fuller, The Morality of Law (1969) supra n.39.
G Deleuze, F Guattari, A Thousand Plateaus (2004) Chapter 12.
E Higgs, The Information State in England (2004).
This lies behind the notion of increased surveillance within the Panopticon writings:
J ­Bentham, The Panopticon Writings (Verso edition, 1995); C Emsley, The English Police (2014)
at p. 160–170.
47 Note in particular the Snowden files – see Anon, Edward Snowden’s surveillance revelations
explained, available at http://www.theguardian.com/us-news/the-nsa-files (last accessed 13th
May 2015).
48 L Brandeis, “The Living Law,” 10 Illinois Law Review 461 (1916); E Ehrlich, Fundamental
Principles of the Sociology of Law (1936 (1962 reprint)).
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perceived irrationalities in the law. The State can become discredited and crucially not seen as impartial in disputes.49 Considering that an online licensing
system such as the Copyright Hub might very well have online appeals systems,
it is important for there to be a means of impartiality. Indeed, this has become
clear in comments made by right holders:
•
•
“And our view is, when people try to do really innovative things, with business models around creative content, is difficult to automate it because no
one understands the value of the use.”
“I think there is an unrealistic expectation on the part of academics and on
the part of technology companies”
One of the potential issues is that if the online licensing systems as developed in
the United Kingdom or EU cannot deal with technological change or indeed with
market change, then the system will become discredited, and there will be a mismatch of rationalities. It can change the operation of stock and flow, as previously
discussed, but this may also change the manner by which individuals rationalise
the State, not just in terms of traditional perceived rationalities but also in the
manner in which individuals relate with the State but also the means by which
they interact in capitalist terms.50 If the State impacts stock and flow, the network
effects of technology are such that there is likely to be a knock on effect in other
areas. This is precisely what has occurred with peer-to-peer file-­sharing technologies, which were pushed in a particular direction by copyright law, namely away
from efficient sharing and towards more anonymised systems. Indeed, what this
demonstrates is that the system of stock and flow might evolve in a manner which
becomes not just divorced from the State but underground and on the edge of the
reach of the State.
The future of technological regulation, the economic reality of copyright
regulation, may thus depend on the utilisation of technology to provide some
buffering between the State and the regulated. If this is not done, the relationship between the State and the individual is imperiled because of overreaching of property regulation into information flow rather than continuing
to reside within stock. However, these issues pertaining to stock and flow are
often subsumed within other debates which obscure the importance of those
issues. For instance, the concern about open standards often predominates
in discussions about any Hub style system. It is regularly argued that open
standards will allow for increasing interaction both at the personal and technological level.51 The argument suggests that an open standard would allow
49 J Griffin, “Copyright evolution – Creation, Regulation, and the Decline of Substantively Rational Copyright Law,” Intellectual Property Quarterly [2013] 234; M Leiser, The problem with
‘dots’: Questioning the role of rationality in the online environment, Chapter submitted to the
BILETA annual prize, on file with the author.
50 G Deleuze, F Guattari, Anti-Oedipus (1977) supra n.15 at p. 240–271.
51 R Stallman, Free Software Free Society: Selected Essays of Richard M. Stallman (2002);
M O’Sullivan, “Making Copyright Ambidextrous: An Expose of Copyleft,” Journal of Law and
Information Technology 2002(3).
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for more ‘open’ competition in the market and allow for more technological
innovation. Thus, it provides a form of dialogue which will allow either for
standard setting powers or a means by which to set such standards in the future. However, the State is still defining the structure of the stock and flow dialogue, yet this critical issue does not appear in terms of the openness debate.
The failure to observe the wider dialogue is shown in that only a minority of
responses (less than 1%) suggest that the first priority of the State should be to
resolve some of the broader issues concerning copyright law. Perhaps there is a
similarity that can be drawn with the invisible hand of capitalism,52 in that in
the same way that there is an invisible guiding force pushing individual selfish
acts to lead to an advancement of the State, within the dialogue of change there
is a tendency not to discuss or observe those larger questions of direction. Even
though changes in the market have led to new, different, types of right holder –
such as the digital aggregator – who are beginning to place copyright law reform
in their sights, such as by prioritising the issues of content identifiers over the issue of proprietary copyright protection, the broader issue of producing potential
imbalances and uncertainties does not play much function in the resolution of
disputes concerning copyright. In part, rather like the invisible hand of capitalism, we can posit that the imbalances and uncertainties play a role in providing
the field in which disputes are played out.53 Uncertainty in the resolution of disputes merely serves, perhaps paradoxically, to provide a means to enter discourse
through the laws of the State. Consequently the certainty of the law, Fuller-Rex
style,54 is something that may reveal here the benefits of traditional law as opposed to technologically enforced law, which, if applied successfully in technological terms, could lead to less perceived rationality. However, notwithstanding
that point and the issue mentioned earlier that there has been insufficient focus
on the practical implementation of the law, technology can nonetheless make
law more accessible and thus increase rationalities in other ways. Clearly, lack of
access to legal mechanisms has historically been an issue in the implementation
of copyright law:
“I have never brought any copyright infringement action, never even
thought of it.”
“It was one of the benefits of being a member of the publishers association
that they had this copyright law consultant and you had access for free if you
are a member.”
In addition, there have also been issues with a general lack of legal knowledge:
“one of the concepts one our lawyers told us once, it [the public domain] technically doesn’t exist whereas one of our other lawyers told us it
does exist.”
52 A Smith, The Wealth of Nations (1776), supra n.24 Book IV, Chapter II.
53 Compare to Frank, Law and the Modern Mind (1935).
54 L Fuller, The Morality of Law (1969) supra n.39.
A call for a doctrine of information justice
157
However, these combined issues of lack of access and lack of legal knowledge do
serve to provide a degree of flexibility which digital technologies will change. The
traditional ‘invisible hand’ behind copyright, namely the lack of certainty, is thus
endangered because of the lack consideration of the historical importance of flow.
The flexibility with digital technologies would appear to be in relation to enforcement rather than the issue of access and legal knowledge, although knowledge of
how to break copyright management mechanisms can clearly be relevant.55 The
UK Copyright Hub provides direct information about licensing and through its
automatic licensing platform structures, will be increasing the perceived certainty
of law. Of course, the complexities relating to issues such as copyright infringement remain, but the technological system acts, in practice, as an initial screening
point. This screening may very well be inaccurate, but it does give the appearance
of certainty. This has been seen with the Creative Commons licence, which allowed authors to declare their works as ‘public domain,’56 whereas the reality was
that the works were covered by copyright but to be treated as if they were public
domain works provided that the contract was enforceable – the latter being something which may differ between countries and states.57 The same issue also exists
with the automatic licensing systems such as that used on YouTube58 – there can
be mistaken identity with copyright content, for instance, and a possible failure to
accept what courts might construe to be de minimis use.
What this does raise is whether any form of automated licensing procedure
will be able to deal with market nuances. In the empirical interviews concerning the Copyright Hub, it became evident very early on that many reuses that
individuals were seeking licences for were not ‘basic’ reuses, i.e. of ten seconds
of music, but instead reuses of aspects or of elements slightly altered but which
nonetheless might lead to the threat of legal action. Automatic licensing in these
sorts of situations may be fraught with difficulty, even if there is a complex system of digital watermarking or digital information recognition system involved:
•
•
“But the unfortunate part is that’s not the way the world is moving. What
I just described is easy licensable kinds of services are not the compelling
business models of the future they are not sophisticated enough, they are
not robust enough. So that’s where you get back into the individual licensing issues.”
“But I think at the same time we believe that there is a misconception at
the heart of some this debate which is that the really innovative stuff that
everybody is really interested in… I think there is some belief that the Digital Copyright Exchange can make all that terribly simple.”
55 J Griffin, “The Rise of the Digital Technology Meritocracy: Legal Rules and Their Impact,” 15
Information and Communications Technology Law 211 (2006).
56 J Dvorak, ‘Creative Commons Humbug’ (2005) at http://www.pcmag.com/article2/0,1895,
1838251,00.asp
57 See J Boyle, The Public Domain: Enclosing the Commons of the Mind (2008).
58 For details on the operation of the system see https://support.google.com/youtube/answer/
2797370?hl=en-GB
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A call for a doctrine of information justice
It was widely recognised among right holders that users will increasingly demand more complex uses and likewise an associated concern as to whether any
form of digital licensing system will be able to deal with such complexities – as
well as do so in a sufficiently flexible manner so as to allow for market developments. This is a concern that has been addressed specifically in the blueprint
document issued by the Copyright Hub.59 The underlying issue doubtless is
the realisation that the slow-changing nature of copyright law at a positivist
level has tended to favour commercial interests (even if the reality might sometimes be different):
•
“That’s not to say they wouldn’t all embrace the DCE but my suspicion is
the DCE - the initiatives they come top down they come from Government,
from university of administrators and from budget holders who see magic
benefits in cutting out library budgets and starving academics of their research budgets to buy books.”
When considering traditional interests such as these, the main focus –
­u ltimately – is upon the manner in which ‘stock’ is being used in order to
protect commercial interests. Property is used to create the boundaries to help
construct the ‘stock.’ Flow – the flow of capital – can pose a challenge to such
notions of ‘stock’ and therefore also pose a challenge to the traditional commercial interests. It is the rise in copyright management information, CMI, 60
which has marked the shift to newer market models and to different types of
right holder. In essence, information becomes commodifiable through the use
of watermarking technologies, which provide identification of the flows. The
system can provide a complex set of user data, building beyond that provided
by mere sales information:
•
“One of our aggregators… watermark their content. It can be tracked…
down to the very user who generated the original page.”
The more detailed this information the more valuable it potentially is. However,
the value of encouraging such information is to be found in the comments of
some of those who stand to benefit from its functionality:
•
“So, iTunes provides us with a daily report. A very detailed report, they will
give us a post code of the person who actually bought the track because we
can’t ask (…?) clients because all kinds of horrible problems… we kind of restrict it to the nearest major post code and pass it onto our clients. So you can
see sales. If I bought a track today, tomorrow you be able to see that someone
in Sheffield bought that track rather than someone two miles that way.”
59 Copyright Hub Blueprint Version 2.0 Executive Summary p. 6.
60 As protected by s.296ZG CDPA 1988, implementing Art 7 of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society, with the US
equivalent being §1202 DMCA 1998, Pub. L. No. 105–304, 112 Stat. 2860 (Oct. 28, 1998).
A call for a doctrine of information justice
159
4. The impact of the change from information as
intellectual proprietary stock to information flow
The nature of information as both stock and flow challenges many traditionally
held, fundamental beliefs, concerning the foundation stones of society. That information as a unit of exchange as both stock and flow has meant that the notion
of boundaries of exchange units are collapsing. Of course, this is reflective of
those larger changes within society, within the scientific community, in particular, concerning quantum theory and postmodernism. We have been willing to
tackle the complex question of where boundaries lie within the physical world,
but the time has now come to realise that the notion of exchange within the
most fundamental elements within our society will now similarly change. It will
change the very nature of the existence of our society. Information boundaries
will collapse, more will become ‘free’ than are ‘open,’ and the notion of capitalism as a unit of exchange will be subsumed within the notion of technological
network effects.
Many have discussed the notion of the Information State, the Information
Society or the Information Age.61 There has been a complete failure, though,
to realise the full impact of the information society upon the notion of capitalist
exchange or information exchange. It is not just the issue that the Information
Society provides the ruling elite with enhanced surveillance technologies or
that there will be a groundswell to ensure the ‘freedom’ of certain information.
The change in the nature of information will similarly lead to a change in the
nature of regulation, and it will lead to the State becoming enmeshed within
the deepest questions within our society, influencing not just the areas of regulation but also our own thought processes and our own notion of ‘being.’
The relationship of the individual and technology has been much discussed
(see Shneidermann)62 but the insidious relationship of State, individual and
technology has been less discussed. The revelations of Manning and Snowden
reveal the manner in which the State can observe and anticipate many of our
thoughts and actions when expressed within technology. However, the change
in the nature of exchange and thus the regulation of exchange goes even deeper
than effecting the thought processes of the individual. That most fundamental
element in the development of our society – exchange – is about to change, and
it is about to be opened up to a more complex and deeper form of regulatory
framework.
The information concerned requires a degree of definition. Theoretically,
one could argue that there are two main types – the information that is in essence the signifier (the content) and the signified (the data about the content).
61 See inter alia The Computer Science and Telecommunications Board, National Research Council, The Digital Dilemma: Intellectual Property in the Information Age (2000); J Beniger, The
Control Revolution: Technological and Economic Origins of the Information Society (1986).
62 B Shneiderman, Software Psychology: Human Factors in Computer and Information Systems
(1980), B Schneiderman, Leonardo’s Laptop: Human Needs and the New Computing Technologies
(2003)
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A call for a doctrine of information justice
However, the distinction itself is fallacious within the Information State for such
information can easily shift and mutate between categories. This mirrors the
debate of Freud63 against Deleuze and Guattari,64 with the replacement of signifiers with the notion of flows.65 However, the distinction is nonetheless useful
in that it enables us to consider whether we deal with a flow or stock in that we
can tell if information is being utilised as knowledge in itself or as a means of
imparting or protecting other knowledge. Thus, we can identify if information
is being used as a means of exchange or if it is the exchange itself – or is acting
as both simultaneously or in quantum form. It is a natural development of the
inherent nature of digital technologies to lead to ever closer unions between
different aspects – what is known as ‘convergence.’66 Regulation of the tracking
data concerning the use of information, and the actual use of that information,
occurs both by necessity and regulatory imperative. It is therefore useful to know
whether the information that is being regulated is in the form of a stock or a
flow; failure to recognise this could lead to over breadth of regulation. It could
lead to the situation where information about an individual’s Internet usage is
protected through bounded rights rather than as a flow, thus possibly preventing
such protection (and thus making obtaining that information less attractive as a
means of exchange).
The consequence is that the information society is one where information
about usage is becoming regulated in a way that could extend the notion of proprietary boundaries into a previously unregulated field. That process of extending regulation will increasingly lead to traditional information flows becoming
bounded unless the nature and content of regulation changes. Furthermore,
the digital nature of information may lead to the situation where that information can be regulated by digital code, that digital regulation directly interfacing
with the regulated information. This may lead to a convergence of code and
information. This could result in either the underlying information becoming
bounded in the same way as it is expounded by the regulatory code, or it could
lead to the situation where the information flow is regulated by a new form of
regulatory flow. Whichever approach evolves, there is a need for that regulation
to be sufficiently controlled, for otherwise the possibility of information control
is such that the free thought of individuals, the development of society and the
State, could become embroiled in an ever closer union. The union would lead
to a reduction not just in freedom of thought but also the freedom of exchange,
that most fundamental cornerstone of societal development. There is a need to
address this fundamental difference, a need to protect it and nurture it. Without
such adherence to difference, without the ability to exchange, we risk the development of the end of society; as with Deleuze and Guattari when they argue
63
64
65
66
S Freud, Totem and Taboo (1960).
G Deleuze, F Guattari, A Thousand Plateaus (1987) Chapter 1.
F Dosse, Intersecting Lives (2011) at p. 356.
S Menon, “Policy Initiative Dilemmas on Media Convergence: A Cross National Perspective”
see n.10.
A call for a doctrine of information justice
161
that capitalism will end when the ultimate bargain in struck,67 so the State will
end when the ultimate exchange is made. This is the ultimate paradox of digital
copyright regulation: ultimate regulation will lead to the ultimate destruction of
stock and flow. The paradox is that perfect regulation of exchange will lead to no
exchange at all – and hence no State to regulate.
5. An information justice to deal with the paradox
We have entered a period of transition, a moment during which there is a shift
from traditional forms of economic regulation to that of information regulation.
This transformation is occurring due to the infrastructure of the Information
Age, the way in which it influences our means of capitalist interaction. Nowhere
is this truer than with the rise of automatic online licensing, where information
should be licenced not according to strict economic imperatives but in a manner
where information itself acts as the means of exchange.
Information justice is a concept introduced in this chapter as means by which
to address the issue of perfect regulation leading to the eradication of the State.
It is, in essence, a means by which to maintain an invisible hand – whereas
the invisible hand of capitalism, ever present in Adam Smith’s treatment of
­capitalism – kept the people acting in capitalist harmony despite acting in self-­
interest. Economic justice plays a function in maintaining – paradoxically – a degree of imbalance to maintain that self-interest. It maintains the uncertainty that
Deleuze and Guattari cite as a central component to the maintenance of capitalism, to avoid the final, ultimate, self-destructive act of ultimate exchange.68 So,
the notion of information justice will, in the same way, keep present the invisible
hand of information. Any notion of the invisible hand is such that it should be
self-regulating – in the same way that the invisible hand of capitalism is present
within the minds of the individual, so should information justice. In terms of
capitalism, the invisible hand is present by means of regulation – e.g. contractual
regulations, competition regulations, but the hand itself is not regulated per
se. Only the conditions for existence are maintained. So, the same should be
true of information justice if it is to become a pervasive element of information
regulation.
When dealing with the notion of justice, the first thing to note is the relationship of that term to underlying technologies. Traditional economic justice,
for instance, did not exist until there was a widespread means of mechanical
mass consumption and production69; likewise, the need for information justice
did not exist until there was a widespread means of consuming and producing
67 G Deleuze, F Guattari, Anti-Oedipus (1977) supra n.15 at p. 262–271.
68 G Deleuze, F Guattari, Anti-Oedipus (1977) ibid., at p. 271.
69 C Macpherson, The rise and fall of economic justice (1985) see n.7 at p. 3–8; for the impact
of mechanisation upon information the following provides a good oversight of Marxian
approach – ‘Marx and Engels On Literature and Art’ at https://www.marxists.org/archive/
marx/works/subject/art/ (last accessed 16th April 2015).
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A call for a doctrine of information justice
i­nformation on a mass scale. In each instance, there was a gradual separation
away from the earlier means of production; i.e. in the case of economic justice,
there was a move away from localised, domestic, industry. That separation paved
the way for monopolies, oligopolies and concerted practices which required a
new paradigm of thought in terms of regulatory action.
With the era of economic justice, the conception developed that the individual should obtain proportionate economic reward according to their labours or
other meritorious worth – and to then utilise that economic wealth to create
future wealth. In the era of information justice, the shift moves towards the
conception that the individual should be able to obtain access to information in
order to encourage further information production. The invisible hand of Adam
Smith70 that guides the capitalist process is the same hand that guides the information exchange process, namely, the idea that exchange should be a possibility.
However, this is the point at which the congruence between the two sets of
justice ends. Economic justice is not consistent with information justice. Capitalism, with its schizophrenic aims of ultimate capture and ultimate destruction
through the conflict of economic will, pervades economic justice, where that
justice is merely an attempt to prolong the conflict in order to lead to every
amortised and diversified optimality of economic production. Conflict is not an
indispensable requirement of information justice, though, for information justice depends on the creation of work and not the destruction of it. Destruction
can play a function in the production of information but so can collaboration.
Consequently, information justice is an inherent good, unlike economic justice,
which merely delays an inevitable decline into capitalist schizophrenia.
The rise of capitalist schizophrenia71 – i.e. through the processes of mercantilism, industrialisation and the structures of modern day exchange and ­production –
is what led to the development of the individual as a ‘disciplined’ unit 72 involved in the production of items of commerce for the enjoyment of others.
However, that reactionary focus was misplaced, for it was the information
that lay behind the capitalist revolution that was critical – it was just that
the means of dissemination had not reached the stage where it had become
separated from physical production. In this sense, economy became skewed;
and thus it ultimately led to the reaction of Marxism, the idea that production and exchange had become notions which worked to the economic
disadvantage of the actual physical producer– the worker. Thus, during the
time of the rise of capitalism, the ‘information’ concerned was often an element secondary to the physical product. Factories produced physical goods,
not information per se, i.e. cotton goods, etc. Information was very much a
secondary concern. However, the rise of the ­I nformation Age changes this.
70 A Smith, The Wealth of Nations (1776) see n.24 Book IV, Chapter II.
71 G Deleuze, F Guattari, Anti-Oedipus (1977) see n.15 at p. 240–262.
72 This is a reference to discipline in the Foucault sense – M Foucault, Discipline and Punish (1991);
M Foucault, The History of Sexuality (1990).
A call for a doctrine of information justice
163
Information is the new physical good. Information does not need a factory or investment in making larger economic units in order to produce
further economic units. Today the factory is replaced with a far less costly
means of production such as a computer when it comes to information, although there still remain some aspects which involve economic investment,
and it is these aspects where we have an interchange between economic and
information justice.
Nonetheless, the change in the method of information production removes
one central element of economy, one central pillar of economic injustice. But –
economic injustice remains, information still needs economic elements to spread.
This leads to a need for an insertion of economic justice principles into the n
­ otion
of information justice. Information is required to reproduce itself to spread, information in part needs to reproduce itself on servers to spread efficiently, and such
information passes through cables and conduits. ‘Data’ space is a commodity that
has to be ‘regulated’ and bought,73 so the State regulates, in order to ensure some
accessibility to those other than the initial creator; a common point of infrastructure. In the financial sense, keeping and transporting data is not free, nor is the
making of many information works. Some information is free but not all, i.e. the
making of films, and therefore it is suggested that the information law be used to
recompense these creators, i.e. through automated licensing or taxation systems,
in a way that does not undermine the notion of information justice. Recompense
though general taxation laws would be one such example. Economic factors thus
remain and these factors will be underneath all forms of information communication, although paradoxically so in the sense that it is information that underpins
those economic factors. Those concerns about economic justice are relevant in the
context in that economic control over these aspects will impact the dissemination
of information. Hence, there are the discussions of net neutrality, of ‘natural law’
which are designed to be able to identify the means by which information can
be transferred independently of these sorts of concerns.74 Thus, there is not just
the paradox that information regulation may lead to that regulation imposing
notions of stock and flow on the nature of previously unregulated information by
becoming in nature that very information but also that the notions of exchange
that have been based on economics (which are, in turn, based on information) are
becoming influenced by information principles that are based on those economic
principles. In structural terms, each is being influenced by preexisting norms and
principles which lead to the notion of the paradox.
Economic justice is a concept that enabled a full discussion of the distribution
of wealth. It suffered from a period of stagnation but it enabled a paradigm
shifting discourse. Information justice can enable a similar paradigm shifting
73 Note the debates around spectrum regulation. See http://stakeholders.ofcom.org.uk/spectrum/
and inter alia L. Lessig, The Future of Ideas (2001).
74 Inter alia C Marsden, Net Neutrality (2010).
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A call for a doctrine of information justice
discussion, and like the economic debate before it, it can enter all technical aspects of relevance. As economic justice penetrated the arena of political justice
and political discourse, so information justice stands to penetrate the discourses
of the notions of exchange that underlie the State. This can already be observed
in the proposals and potential operation of the proposed Copyright Hub and
associated technical guidelines, as well as the more nascent proposals at the EU
level.75 All of the proposals are primarily geared towards finding a means of
discourse that is equal and open, and not just open in the sense of ‘open’ code
but in the sense that they provide for discussion of the basis of information
exchange. Whilst the UK system provides for a greater openness in discussion,
both the United Kingdom and the EU are providing a step in the direction of
discussion of exchange and thus a means to discuss what information exchange
means in the development of society and, in turn, the need for provision of information justice.
Conclusion
Information has always been important to the development of the State; indeed,
it has been central to the formation of the State. Without information, the economics of exchange and the rise of capitalism would not have been possible. State
regulation of information has often tended to focus upon the protection of economic interests of itself and of its subjects, with less emphasis upon the importance of information regulation per se. Whilst censorship rules have been of vital
importance at certain times in history in the maintenance of State hierarchies,
the information that has underlain the commonplace every day activities have
become regulated through the norms of economics. Those economic principles
have been achieved through the imposition of proprietary concepts over information, in particular with the rise of property in intangible works, most latterly
in the form of what has come to be known as IP.
The so-called rise of the Information Society, with the greater dissemination
of information, is a means by which to identify the regulatory boundaries of the
State. The traditional boundaries of the State lay in defining what law could regulate, what could be observed and what could be given proprietary boundaries.
The Information Society, with the rise of this new dissemination, provides new
means for the State to regulate information which it was not previously possible
to regulate. The State can begin to interface with information in new ways. This
has far reaching implications, for it means that regulation can begin to take on
the characteristics of the information that it regulates. For instance, digital regulation could regulate code in a digital fashion. However, it is crucial to realise
that the full impact of information regulation goes considerably beyond this
jejune characterisation.
75 See earlier.
A call for a doctrine of information justice
165
The nature of information, and the effect upon human perception, has
changed drastically with the rise of modernity, modernism and postmodernism.
Regulation of these genres of information has traditionally been achieved in a
linear, two-dimensional fashion, reflecting the physical form in which the information was transmitted rather than the nature of the deeper information contained therein. However, this information brought into being different notions
of perception, different ways not just of perceiving the world at large but also
the means by which regulation is itself perceived. The perception of information
has passed through the world of two dimensions into multidimensional space,
through to the notion of quantum physics and the notion that information can
be in the form of a wave or a particle. In the same way, it has become clear that
information itself can be capable of existing not just in the form of a bounded
stock, in a property based form, but also in the form of a flow. This lack of
bounded character, which in itself is a reasonably novel phenomena in the field
of information regulation within the economic field of exchange, is thus not just
novel because of its inherent nature but also because the notion of information
can both be stock and flow.
As this possibility of information existing in a quantum state is being realised
by the State, so the State has come to realise that such information must also be
regulated in a form which mirrors this quantum existence. This is the underlying reason why there was the first nascent step towards regulating information
flows with the CMI provisions at the turn of the century, and it is why there is
now similar discussion, albeit more developed and invasive, with the Copyright
Hub and EU identifier debates. Development of the law requires broadening
the scope of traditional regulation, and that means focussing more upon use.
Traditional information usage regulation has tended to focus around issues such
as censorship or state licensing rules, whereas today the use of digitally formed
and implemented regulation can more closely take the form of that information
itself. This also means that like the regulation itself, it does not need to provide
rights that are bounded in the same way as stock or indeed just as flow but can
be a quantum form or mix of the two. If protecting usage information as a form
of stock, then traditional concepts would apply and there arises the prospect of
arguments suggesting that old methods of distribution are being enforced over
usage. On the other hand, there are the new entrants, new information right
holders, who would prefer the law to protect the use of information as a flow,
in order to extend the scope of regulatory protection. The moment such extension occurs, there arises the fact that information is being protected as stock
and flow; as bounded property and as an information flow. Information flow, as
something traditionally not regulated through property, has been an important
element underlying the development of State economy and State capitalism. The
breath of capitalism has come from the lungs of information exchange. To start
to regulate information in a new way raises the possibility that regulation will
stifle the use of information in a way that will impact the fundamental rationales
and existence of exchange, that very notion of exchange which was central to the
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A call for a doctrine of information justice
development of society. This is the ultimate paradox that information regulation
brings, and it is why this regulation must also be subject to the notion of information justice. In the same way that capitalism will ultimately annihilate itself
with the ‘ultimate’ exchange without sufficient State regulation such as contract
law or competition law, so information exchange can lead to self-annihilation.
The difference is that with information it is the State itself, in making regulatory
information protections, which can lead to the process of annihilation due to the
convergence of the technology and the law.76 This is why a notion of information justice is critical, not just because such information underpins capitalism but
because information exchange underpins the State.
76 Similar to the notion of self-destructive capitalism: see G Deleuze, F Guattari, Anti-Oedipus
(1977) supra n.15 at p. 240–262 cf. Compare J Habermas, Theory of Communicative Action
Vol. II (1987) p. 332–373 on colonisation.
9
We become what we think
Machine laws in machine
minds1
James Griffin
Introduction
There has been a rise in machinic methods to regulate intellectual property (IP)
and to detect infringements. One of those machinic methods is digital watermarking. The development of such technologies enables regulators to be able
to directly interface, via computer code, with an individual. Today, this is so in
relation to implants that respond to computer code; already there are technologies that enable the coding of DNA, which can mean that the law could interact
and influence the human body directly. This poses a challenge to the rationality
of the State, and it challenges the status quo concerning the relationship of the
individual to the State.
This chapter will (1) outline how there is a new archaeology of machines, in
the sense that there is a historical lineage of machines that have enabled State
interventions in the human body. It will then (2) establish the nature of the relationship between the State and the individual regarding machinic intervention,
and then (3) focus on the use of surveillance mechanisms and what these imply
about the machinic future of the State and the individual. Lastly (4) the chapter will consider the possible future direction of machines and the rise of the
machinic homo-legalis, focussing on where current cutting-edge technologies
are developing and (5) consider what the response should be from the State, if
indeed the State will still exist following such machinic change.
The new archaeology of machines
To those familiar with Foucault, the reference to ‘archaeology’ is to that in ‘The
archaeology of knowledge.’2 Generally put, this was a work where Foucault took a
methodological approach that critiqued existing approaches to history of ideas.
One could argue, for instance, that discourses are as important to human history
1 This chapter was produced subsequent to AHRC funding – see http://socialsciences.exeter.
ac.uk/law/research/projects/project/?id=548. I would like to thank colleagues who have read
the chapter, as well as those attended its presentation at various conferences.
2 M Foucault, The Archaeology of Knowledge (1972).
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Machine laws in machine minds
as representations of famous historical figures. That same starting point is used
here, namely, to identity the machinic methods of discourse.3
In this chapter, this Foucaultian archaeological approach is taken by the deliberate use of the word ‘machine’ rather than ‘technology.’ What is a machine?
A machine is an assemblage, an assemblage that is unthinking and designed or
used for a particular end.4 A machine has a physical embodiment or process, often designed to make tasks easier. Technology, by contrast, is broader. The word
itself may stem from techne,5 a consideration of relations that can (for example)
make knowledge possible. A technology may include things such as language
and techniques of governance.6 A machine could be considered a technology of
machinic assemblages by which the State and individuals can seek to communicate with one another utilising the machine of law.
Machines have been around for as long as humankind has used tools,7 and
typically complement, or remove the need for, the human body.8 A machine
implies more than one part, something more than just a tool. However, when it
comes to the discussion of devices, in particular digital devices, they are typically
referred to as technologies, for instance as digital technologies or information
technologies, rather than just machines.9 Whilst there appears to be no coherent
reason for this, it may be supposed that this is due to technology being an all-­
encompassing concept. It can include the user and broader experience of utilising a machine. However, in the particular context of this chapter, it obscures the
importance of machinic code. Perhaps this is clearest when considering the notion of the State. Today, if one were to refer to a technological State, one would
assume this would be a State that has kept up with ‘technology’ developments,
a means by which the State would grow. However, a ‘machine’ State is one
which focusses upon the machinations – the ways in which the State is linked to
the operations of individuals, by utilising machines. It is a means by which to
3 Ibid. The Introduction of The Order of Things, pp. 3–17, provides a useful overview.
4 For a discussion of machines and assemblage, see J Deleuze and F Guattari, A Thousand Plateaus, at 378 and 382. Consider also H Marcuse, One Dimensional Man (1964), in particular in
Chapter 6 at p. 130, where there is a translation of a quote from A Simondon, “One might call
autocratic a philosophy of technics which takes the technical whole as a place where machines are
used to obtain power. The machine is only a means, the end is conquest of nature, the domestication of natural forces through a primary enslavement.” (A Simondon, Du Mode d’existence
des objects techniques (1958) p. 127); “Today political power asserts itself through its power
over the machine process and over the technical organisation of the apparatus” Marcuse, p. 20.
Note, however, a lack of detailed consideration of the internal regulatory nature of ‘machines’
themselves in all works cited in this footnote.
5 D Roochnik, Of Art and Wisdom (1996); R Rojcewicz, The Gods and Technology (2017) Part I,
esp. p. 57 onwards on ‘Ancient Technology’; M Heidegger Plato’s Sophist (1924–25) trans.
R Rojcewicz, A Schuwer (2003).
6 Heidegger, Being and Time (1927) Note SUNY edition trans. J Stambaugh (2010) at 100–101.
7 Inter alia J Pfeiffer, The Creative Explosion (1982).
8 See inter alia W Rosen, The Most Powerful Idea in the World (2010), J Diamond, Guns, Germs
and Steel (1998), Watson, Ideas (2005).
9 For example, ‘information technology’ is a common phrase whereas ‘information machine’ is not.
Machine laws in machine minds
169
address the means and methods by which a State can directly interface with the
human body – not by external factors per se but through internal interference.
The law can directly interface with the human body. There are four main eras in
the development of the machinic interface between the State and the individual,
leading to the machinic homo-legalis, and these eras will be considered in turn.
The first is the era of machinic withdrawal. We can go back to prehistory to
find the earliest examples of initial regulation utilising ‘machinery.’ A basic example would be the use of tools to enable hunting.10 One may suppose that the
use of broader technologies such as the use of animal traps and hunting tools
such as axes and spears would have been analogous, for there is evidence that
such hunting often took place in groups.11 Breaching the code of a group, one
could surmise, would result in expulsion from its benefits.12 This negative, withdrawing, use of machinery is what we could call representative of the first era of
machinic development.
The second era concerns war. The most egregious use of machinery would be
weaponry against non-conformist citizenry or outsiders, and there are numerous examples of this within the ancient world.13 Likewise, the use of machines
in torture is well documented. However, these examples are particularly blunt
instruments. They can only operate as a device of repression, designed more to
eliminate than to provide a nuanced method of State-citizen interaction. This is
the second era; the war machine.14
The third era relates to the gradual rise of machines to control internal populations. Bentham’s Panopticon is the best early example. He argued that a
prison could be constructed to make the prisoners feel constantly observed.15
This develops through the war machine era, through the use of camps (e.g. in
South Africa) to control populations.16 However, in such a controlled environment it begins to become possible to use machines to control those populations
more precisely. This became clear with the machinic apparatus used in the Nazi
concentration camps, from the borders of barbed wire through to the killing
ovens.17 This was the rise of the push-button order,18 that could directly extinguish life almost through the push of a button, due to the level of machinic
control over populations.
We now have the development of a fourth era. This is the era in which the
machine no longer represents an attempt at a push button order with all the inherent bluntness that this brings. This is the era of more precise, refined control
and the rise of the machinic homo-legalis. This is the era in which machines
10
11
12
13
14
15
16
17
18
Supra n.7 and n.8.
J Pfeiffer, The Creative Explosion, supra n.7 at 62.
With reference to modern day hunter gatherers, ibid., at 63–64, and supra n.8.
See discussion in Keeley, War Before Civilization (1996) throughout.
A reference to the War Machine in Deleuze and Guattari, supra n.4 Chapter 12.
See J Bentham, The Panopticon Letters, in M Bozovic, The Panopticon Writings (2011).
J Gooch, The Boer War (2013) 15–17.
C Cesarani, Final Solution, Macmillan (2016), L Rees, Auschwitz, BBC (2005).
J Bronowski, The Ascent of Man (1973) Chapter 11.
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Machine laws in machine minds
are no longer purely external to the human body but one in which they become embedded. When describing such an era, the reader may consider previous
works of science fiction involving augmented bodies, for there are certainly no
shortages of such works.19 However, it is increasingly the era of what are called
biotechnologies, which are not limited to the insertion of computer chips in
individuals, but which are also biological devices created by humans, as well as
naturally existing natural code, such as DNA, which is edited and coded, 20 by
humans. Floridi has described this as a “fourth revolution,”21 as have others, 22
but this chapter argues that it is the legal and bio-machinic integration that will
characterise this stage rather than there being mere provision of information or
the physical form of the machines. Information is a part of, but not the whole,
story of the fourth machinic era.
The relationship between the State and the
individual in the fourth era
In the past, in all previous eras, one key element that characterised the relationship of the State with the individual was a degree of separation between them.
This gap between the State and the individual has been portrayed in various
ways, and perhaps one of the most notable was that of Habermas, who argued
that, for instance, there was law and common sense, and that law was starting to
colonise the notion of common sense.23 This fits with the notion of bureaucracy
that Weber argued was a sign that the State is both developing and failing; in the
sense that greater bureaucracy leads to an emphasis upon setting targets divorced
from the wider goals of the State. Bureaucracy leads to greater form filling and
greater emphasis upon meeting bureaucratic self-defining targets in an attempt
to make the broader populace conform to the bureaucratic needs of the State.
Whilst that process may be argued to be ongoing within the current State apparatus, it has remained the case that there is a distinction between the individual
19 Inter alia I Asimov, I Robot (1950); PK Dick, Do Androids Dream of Electric Sheep? (1968);
films such as Metropolis (1927); Blade Runner (1992).
20 S Chen, ‘Scientists hack a human cell and reprogram it like a computer’ Wired (2017) at www.
wired.com/2017/03/biologists-made-logic-gates-dna/
21 L Floridi, The fourth industrial revolution (2014). I take issue with the notion that there is a
fourth revolution – it is an evolution, hence the used of the word era. It is only a revolution
if insufficient account is taken of the transitory stages leading up to the revolution and if insufficient account is taken of ontologically significant machinic, as opposed to technological,
developments.
22 Consider, for example, K Schwab – “The fourth industrial revolution is not just about smart and
connected machines and systems: its scope is much wider. Occurring simultaneously are waves of
further breakthroughs in areas ranging from gene sequencing to nanotechnology, from renewables to quantum computing. It is the fusion of these technologies—and their interaction across
the physical, digital and biological domains—that make this revolution fundamentally different
to its predecessors” K Schwab, The Fourth Industrial Revolution (2016) at 19.
23 J Habermas, The Theory of Communicative Action Vol II (1985) trans. T. McCarthy (1985)
Chapter VI.
Machine laws in machine minds
171
and the State, in the sense that the State has remained as a ‘body’ in it its own
right. This is inherent within seminal works, such as those by Foucault discussing biopower, analysing how the State controls the biological body through
various apparatus.24 Meanwhile, artistic works such as those by Joseph Beuys, in
particular the Honey Pump work, have sought to articulate the machinic and organic processes both within nature, the human and the State.25 Nonetheless, the
barriers between these aspects, which have also girdled the traditional threefold
theory of Politics, Economics and the Spiritual Self, 26 did not take the approach
that there could be a physical machinic integration of the self with the State.
However, it is this that is occurring.
The ability of the State to be able to interface more directly with the individual initially arises with the regulation of code. The initial steps were taken when
copyright law began to regulate computer software, invariably as a literary work.
Bainbridge, in what is ostensibly a textbook on IP law, makes the remark that
the key difference between traditional literary works and computer software is
that the latter is more ‘active.’27 This is initially confusing since a literary work
can invoke strong variable emotional responses and thus on its face this appears
a facile distinction. However, computer software can have a mechanically active
nature, allowing it to become a machinic method to influence human behaviour.
Copyright became a means to be able to protect machinic coding instructions.
Whereas literary works could, of course, contain instructions seeking to control
an individual (e.g. a road sign, stating, “STOP”), an individual may always ignore them.28 That is not to argue that an individual cannot ignore a computer
program, but a program has the ability to not present certain choices that could
otherwise be present, which can then influence the actions and thoughts of the
individual. An example would be preventing interactions in a computer game,
changing the interactive elements and thus thought processes and creative possibilities of the individual using it. Again, passive works can do this to some degree, but the point is that the computer could do this in ways that can be more
directed from the software itself.
With the development of computer software as an industry, computer piracy
became more commonplace.29 It should be immediately recalled that one of
the key mechanisms of a computer is to be able to copy, from the initial basis
of reproducing logic gate order through to the displays of code on a screen.30
There was a machinic norm to be able to make copies. This, in turn, fed through
to users, who also perceived this norm. There are many potential factors behind
piracy, such as the cost of original products, but one of the factors is undoubtedly
24 Consider for example M Foucault, The History of Sexuality Vol I (1978).
25 J Beuys, ‘Honey is Flowing in All Directions’ (1976) a copy of which is available at www.tate.org.
uk/art/artworks/beuys-honey-is-flowing-in-all-directions-ar00128
26 R Steiner, World Economy (1922, reprinted 1990) throughout.
27 D Bainbridge, Intellectual Property 9th edition (2012), p. 256.
28 See discussion in J Austin, How to do things with words (1962), and J Derrida Inc (1988) p. 13.
29 J Gantz, J Rochester, Pirates of the Digital Millennium (2004); A Johns, Piracy (2009).
30 Consider J Von Neumann, The Computer and the Brain (1958).
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Machine laws in machine minds
the ability of computers to be able to easily make duplicate copies as a default
position.31 The rise in piracy, in particular in the 1980s, has meant that there
have been increasing growth of methods to try to reduce the ability of users to
make copies.32 This is the first mass attempt to limit what users may want to do
with a computer, as opposed to diverting their choices (e.g. as in a computer
game). The attempt to limit copies was originally designed through the use of
nonstandard sectors on media and through the use of protections such as copylock.33 Various analogue mechanisms were also used, such as code cards and
items placed in instruction manuals.
Many of these systems were ultimately broken or worked around.34 However,
if a casual user wished to make copies, then they may have struggled to do so
with certain software due to the variations in copy protection. This would be the
case regardless of copyright laws. Even if a piece of software did not meet the requirements for copyright, if it was encrypted and protected then it could prevent
copies being made of even non-copyrightable elements. These are machinic limits. This begins what has become a reasonably established norm – that computer
software can legally utilise machinic mechanisms which protect non-copyright
content. In the United States, this has been construed as being a ‘copyfraud.’35
However, machinic access has been a long-standing principle of computer systems.36 Right from the early days of computing, users were granted machinic
rights to access content, and that has led to assumptions between copyright and
access rights.37
These assumptions became important with the rise of specific legal protections for copy control mechanisms, known as DRM.38 These additional legal
protections were for the mechanisms themselves, over and above standard copyright. Breaching the mechanisms, either for access reasons or use reasons,
could result in a breach of the law without necessarily needing to demonstrate
copyright infringement per se. These provisions were set out in international
treaties and then incorporated into member states laws. 39 There has been some
debate in US courts over whether or not copyright is required to be involved or
that infringement be present – some indicate yes,40 some indicate no,41 but the
31 A Johns, Piracy supra n.29.
32 See inter alia M Mihm, Software Piracy and the Personal Computer: Is theThe John Marshall
Journal of Information Technology & Privacy Law
33 http://codetapper.com/amiga/interviews/rob-northen/ Rosenblatt, Trippe, Mooney, Digital
Rights Management (2002)
34 Consider inter alia S Gordon, The Slow Death of DRM, The Register (2007) at www.­t heregister.
co.uk/2007/02/09/steve_gordon_drm/
35 J Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (2011).
36 B Rosenblatt, B Trippe, S Mooney, Digital Rights Management: Business and Technology (2002).
37 Consider any Unix based operating system, for instance, or early mainframe systems.
38 For the standard texts, see L Lessig, Code (1999), Lessig, Ideas (2001) or Lessig, Free Culture
(2004); Vaidhyanathan, copyrights and copywrongs (2001); Goldstein, the copyright highway
(1994).
39 WIPO Copyright Treaty 1996 36 ILM 65 (1997); WIPO Performances and Phonograms Treaty
1996 36 ILM 76 (1997) Articles 18 and 19.
40 Chamberlain Group, Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1203 (Fed. Cir. 2004).
41 MDY v Blizzard Entertainment [2010–11] US Court of Appeals, 9th Circuit 629 F.3d 928.
Machine laws in machine minds
173
point is that DRM laws paved the way for copyright style regulations to cover
non-­copyright elements. It provides the basis for the establishment of a norm
with regard to a particular style of machinic regulation.
Notwithstanding the extension of copyright style regulation to non-copyright
elements, in particular with regard to digital machines, DRM remains a law that
is more firmly rooted in the analogue than the digital. One may suppose this
is because it has its roots in international treaties from 1996,42 before digital
machines were sufficiently developed to deal with the niceties of legal enforcement and because, being an international treaty, the original provisions were
generalised and thus implemented in a reasonably standard (analogue) fashion
by signatories.43 The digital aspect related to the machinic DRM as utilised by
right holders, under the ‘blessing’ of the legal (analogue) provisions. So, where
do we find physical machinic laws and not merely legal attempts at persuasion?
There are two main areas where machinic laws come into existence. First, in
relation to law enforcement of existing analogue laws. Examples might include
the use of digital technologies in general law enforcement,44 but more specific
examples would include the use of machinic methods in tracking down those
accessing undesirable content on the Internet.45 This is intricately tied with
the use of surveillance methods utilising the Internet, which is discussed in
more detail later. The analogue law is given a rigidity, a zero or one binary
answer replicating the binary nature of code. It is up to those utilising the digital code to subsequently decide whether or not to implement the discovered
breach. This begins a trend towards a machinic indication of illegality. In areas
where there is a large discretion given to an enforcement officer, one might argue that this is not too dissimilar to any other evidence given to that officer – it
is one piece of evidence amongst many.
The issue has become more distinct with the increasing use of machines to
enable copyright licensing. Originally, licensing was limited to a basic acceptance of a written agreement (i.e. as in Microsoft Windows), in part due to the
limitations, again, of the digital architecture.46 However, users might need to
accept such an agreement to get software to work (even if the software was pirated!). Declining acceptance of licence terms could lead to an aborted software
installation (important as the dominant Windows personal computer operating
system requires installations due to the operating system architecture, so that
licence terms can be displayed as part of the installation procedure). These forms
of licence are, of course, primarily private agreements.47 This is not, therefore,
so much about law per se, but it sets a norm that the creator of machinic software
42 Supra n.39.
43 E.g. as with the amendments in the UK to the CDPA 1988 (s.296, 296ZA-ZG).
44 E.g. the use of digital speed cameras from the late 1990s. See D Lowe, The Transport Manager’s
and Operator’s Handbook 2006 (2005) at 239.
45 A Nair, The Regulation of Internet Pornography: Issues and Challenges (2018).
46 In contrast to many other OS where folders of data were simply copied between disks, Windows
required installation due to poor OS design.
47 J Griffin, “The nature of the interface between copyright and contract: A new approach” 2(1)
European Journal of Law and Technology 5 (2011).
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Machine laws in machine minds
could utilise a legal form to influence machinic conduct by users. This would not
have been unusual, for computers have to be coded, and those doing the coding will influence and create the perceived freedoms that users experience when
utilising their machinic systems. There is, though, a slight difference in that
the OS would have given wider freedoms initially, in the sense of being able to
make copies without permission, only for that to be limited through the use of
reductionist mechanism. It is a limit which would have appeared as a restriction
to a user, rather than being a necessary consequence of computer architecture.
The natural parallel to the widespread use of computer coded licences was the
rise of DRM. These mechanisms were similarly used to enforce licences, and
they were closely aligned to the notion of user rights rather than just merely
copyright­-related rights. They were restricting the abilities of users to do certain
acts with goods, rather similar to the licensing mechanisms. Again, the actions
of the coders behind DRM was being aligned to the law, even if on occasions it
could be argued that the protections given overstepped that of the law (depending on jurisdiction and case law).48
There is thus a norm developing; the machinic characteristics of the digital
can presuppose legal application. It is not a reinstatement of Barlow’s notion of
an independent State,49 but more a realisation that the physical world cannot be
forgotten.50 The physical machines of law will ultimately trump the intangible
machinations. It is into this physical realm that the future of legal regulation
becomes mired. The machinations of computer systems are physical, and thus
the State as a machinic entity itself becomes increasingly reliant on the need to
exert physical machinic control over citizenry. This begins with the development of State surveillance utilising Internet communications. The rise of the
machinic State, in addition to the rise of machinic laws, has led to a trickle down
of these technologies into the realm of watermarking and tracking, the area
of ­intersection between the physical biological body and the physical machinic
State, and the start of the rise of the machinic homo-legalis.
The machine of State surveillance
The rise of surveillance techniques using digital machines was a natural evolution of the combination of traditional (analogue) surveillance methods and the
rise of the Internet. The Internet provided an unparalleled database revealing
basic information, such as what users were doing online, but also revealing information about the way users think, who they communicate with and their
48 Supra n.29.
49 J Perry Barlow, A Declaration of the Independence of Cyberspace at www.eff.org/cyberspace-­
independence (and in N Spiller, Cyber Reader: Critical Writings for the Digital Era (2002) at
pp. 270–273).
50 A parallel with the views of economic view of Physiocracy is tempting – this is the belief that
the wealth of nations was purely derived from agriculture. See inter alia E Fox-Genovese The
Origins of Physiocracy: Economic Revolution and Social Order in Eighteenth-Century France,
1976.
Machine laws in machine minds
175
general characteristics.51 Information prior to the Internet was limited to physical, situated, observations. The initial use of the Internet was primarily to extend
traditional techniques of surveillance. However, it did not take long for States to
be able to realise the extent of information that was available and the profiling
that could occur as a result. One of the first countries to take advantage of the
system of interconnectedness was China, which developed a system that brought
together information from web addresses, hotel addresses, passport information,
closed circuit television (‘CCTV’) cameras, car number plate registrations and
the physical location of an individual vis-à-vis other individuals.52
Such systems are no longer restricted to China. The United States and the United
Kingdom (along with the other ‘five eyes’ countries) have had a long-­standing system of surveillance which involves the recording of telephone calls by citizens and
the ability to access Internet records, such as website addresses and email correspondences. This came to prominence with the leaks by Brian Edward Manning
and Edward Snowden.53 This was the start of the use of machinic-based methods
where it was possible to develop a detailed view of an individual. The enforcement
mechanisms remained distinct, though, which meant that enforcement of evidence
gathered in this form relied on traditional, analogue processes.
However, as time passed, there was greater development of automated procedures. For instance, use of key words in phone conversations can trigger physical
results (as the author can attest to!), and individuals in the United States have
used ‘swatting’ against others,54 where the use of phrases in phone calls and
other communications results in the automatic sending of armed US Special
Weapons and Tactics (‘SWAT’) teams. It is the use of more automated procedures, tied with AI, that leads to the more direct involvement of the State as a
machinic entity.55
These machinic AI elements are not limited to enforcement of the State.
Whilst DRM has not made use of AI in the predictive manner discussed earlier, AI has been developed from surveillance technologies. For instance, one
51 Further to discussion in S Grey, The New Spymasters (2015).
52 C Liang, ‘Red light, green light: Has the PRC achieved its goals through the 2000 Internet
regulations?’ 34 Vanderbilt Journal of Trans-national law 1417 (2001); S Feir, ‘Regulations
restricting Internet access: Attempted repair of rupture in China’s Great Wall restraining the
free exchange of ideas,’ 6 Pacific Rim Law and Policy Journal 361 (1997); G Walton, ‘China’s
Golden Shield: Corporations and the Development of Surveillance Technology in the PRC’
Rights and Democracy (International Centre for Human Rights and Democratic Development)
at http://go.openflows.org/#; G Barme, and S Ye, ‘The Great Firewall of China,’ Wired Issue
5.06 (June 1997) at www.wired.com/wired/5.06/the PRC_pr.htm; J Wang, ‘The Internet and
e-commerce in China: Regulations, Judicial Views, and Government Policies,’ 18 Computer and
Internet Law 12 (2001).
53 See ‘The NSA files’ pages at www.theguardian.com/us-news/the-nsa-files (one of the original
sources).
54 For examples see www.slate.com/blogs/crime/2013/03/13/justin_bieber_swatting_what_to_
do_when_the_internet_sends_a_swat_team_to.html; http://uk.businessinsider.com/what-doesswatting-mean-2015-3?r=US&IR=T; https://wccftech.com/13yearold-boy-arrested-swatting/
55 A useful text to understand the broader issues is N Bostrom, Superintelligence (2014).
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Machine laws in machine minds
company has utilised facial recognition technologies associated with wide-scale
CCTV surveillance into their use on farms to establish whether cattle are suffering from spinal diseases.56 These technologies, in turn, find themselves used in
private means to establish evidence for lawsuits, for instance, in the development
of licensing technologies.
New forms of control – the rise of machinic law
The issue with digital proof is that it is easy to incorporate into automated enforcement mechanisms. The inherent nature of convergence within digital machines57 leads inexorably to enforcement becoming tied to surveillance, licensing
and copyrights. This has been limited in the past due to the inherent lack of
reach of machines: for instance, an individual could always go ‘offline’ to commit
breaches or otherwise hide from the law. The same is true today but increasingly
less so due to the continued online nature of society.
It is with the rise of more finely grained machines, and the development of
ever integrated machines into the inner thoughts of the individual, that the centrality of machinic law to the future of society becomes apparent. Initially it is
possible to observe this with watermarking, as discussed earlier, as it is a means
by which to follow specific pieces of content, which can consequently leave a
breadcrumb trail of events.58 That, in turn, enables enforcement mechanisms to
follow those breadcrumbs, leading to enforcement. This is why the DRM and
CMI legal provisions have always been in close proximity, despite DRM being
more predominant almost to the exclusion of CMI since inception – until the
last few years, with the decline of DRM as a standard use mechanism.59
CMI, however, is not limited to interfacing with DRM. Due to convergence,
it already can interface with other areas of code, creating a secondary set of contractual agreement. Software such as a Media Player will require CMI on a file
to understand if it is DRM encrypted, for instance.60 However, CMI can relate
to flags and other measures which are present on files; indeed, these are often
present in order for a computer to understand how to utilise content. It is this
element of computing which machinic law can interface with, bringing together
legal regulation and code into a machinic convergence.
It is in this way, then, that the expansion of contractual agreements between
users and right holders (in a non-copyright sense) leads to the establishment of
a territory upon which law can then begin to regulate directly, through the machine itself. Traditionally, as noted earlier, even in areas such as DRM and CMI
more generally, the law has taken a more distanced approach to regulation as
56 The author was at a closed presentation by a representative of the company in 2015.
57 See inter alia M Roco, Coherence and divergence of megatrends in science and engineering 4
Journal of Nanoparticle Research 9 (2002).
58 See, for more detail, Chapter 1.
59 See e.g. supra n.34.
60 See, for example https://support.microsoft.com/en-gb/help/835861/fix-you-cannot-plaympeg4-encoded-content-in-windows-media-player-or-i
Machine laws in machine minds
177
these laws are analogue in nature. However, this changes with some of the more
recent initiatives with regard to CMI. In the United Kingdom, for instance,
there is the Copyright Hub (originally Digital Copyright Exchange) which is
a quasi-governmental body set up to facilitate licensing in the digital arena.61
Digital licensing, as we know, is a commonplace activity online. The regulatory
step forward that the Hub took was to seek to provide guidelines for regulation,
which was not just analogue guidance per se but an actual attempt to side out a
file format-esque means by which content could be licenced. This in itself is not
anything unusual by itself, but this is, in effect, Government seeking to establish
file format rules over machinic interaction.
The importance of this step should not be underestimated. Previously, there
had been attempts by various Governments to alter computer code, but it was
not in such a nuanced way. One example, for instance, was the US Government
banning more secure forms of encryption, which led to variants of Internet Explorer with weaker encryption.62 However, these were not so specific as to be
able to alter the fabric of use. Setting code standards, which can then be used
with enforcement mechanisms, is a measured step forward.
The potential is far reaching. Indeed, even within the initial Government report that led up to the establishment of the Copyright Hub, it was mooted that
the system could operate similarly to iTunes, enabling the uploading and downloading of content.63 Nonetheless, this step forward in terms of file procedures
does demonstrate how the State is becoming involved within the use of machinic
computer code. In the attempt to regulate computer user behaviour, it is perhaps
inevitable that the State will focus increasingly upon using the machines themselves to regulate. However, what about the changing nature of machines themselves? Will this encourage a convergence between law, machines and people?
Augmented realities
AR is one significant step in the development of the machinic homo-legalis, as
AR has the potential to become an integral element in society. AR refers to the
overlay of content over what an individual perceives with his or her own eyes.64
This immediately raises issues relating to societal access, in that citizens who
cannot afford to pay for certain content may, in effect, be looked out of aspects
of society that are taken for granted. Examples might include the provision of
public information at bus stops, shops displays or other such content.65 AR could
also revolutionise the living space, making house interiors more varied and interesting places to be – but only, it is argued, for those who can afford it. The
61
62
63
64
65
www.copyrighthub.org/
For examples see https://msdn.microsoft.com/en-us/library/cc722908.aspx
For discussion see J Griffin, The Digital Copyright Exchange, 27 IRLCT 5 (2013).
For an introduction see B Furht, Handbook of Augmented Reality (2011).
See the forthcoming 2018 Smart Cities or Smart Machines: Data Infrastructures and
the Rule(s) of Law Special Issue, IRCLT - http://explore.tandfonline.com/pages/cfp/
cirl-law-special-issue-2q2017
178
Machine laws in machine minds
overlap with regulation comes mainly in the form of IP law. Content, provided it
meets subsistence requirements, would be protected mainly through copyright
law. Currently installation of AR software requires the acceptance of licensing
terms, and the content itself may utilise CMI.66 Thus, copyright law can become
an integral element not just within cultural works but more generally in terms of
access to visual, aural or other clues important for societal involvement. For example, whilst copyright may protect buildings and the architectural plans, currently there is little that a right holder could do to prevent an individual looking
at a building (and perhaps taking a photograph or video). Reuse in a commercial
publication may require copyright clearances, but that is a step removed from
the mere ability to look at something. Digital augmentations to buildings could,
however, be limited to contractual signatories, with the mere additional backing
of copyright law for those who are not contractual signatories.
This extension of regulation is highly significant. However undesirable it may
(probably) seem to the reader of this chapter, an individual can choose not to
watch films, read books and other such works if they do not have the financial
means to obtain them. However, this is not quite the same when it comes to AR,
which could, in effect, become compulsory for individuals to be able to participate within the day-to-day workings of society.
Bio-machines
DNA coding is now a matter of fact, and not of science fiction, and is the next
stage in the rise of the machinic homo-legalis. It is possible to alter the bases
of DNA, in order to influence and affect the development of proteins.67 There
has already been DNA coding by private parties for the purposes of enforcing
legal regulation – Monsanto use DNA editing to place watermarks on seeds.68
Biotechnology is in large part about the coding of biological matter. Regulation
of bio machines thus raises the possibility of eventual direct regulation of the
human body.
There is, in effect, a movement towards a symbiosis between the law and humankind, through the changing notion of the machine. The machinic methods
used in legal regulation now become relevant for the human body, through the
inherent machinic nature of the unlocked human body. There would appear to
be several currents of interface: that which involves the editing of existing humans through DNA, the provision of body surveillance through such coding,
the bioprinting of biological material and the more traditional effects of biopower through traditional regulation.
66 From the personal experience of the author and interviews carried out as part of AHRC-Newton
Fund-NSTB 3D printing project - https://socialsciences.exeter.ac.uk/law/research/projects/
project/?id=548
67 For a basic introduction see https://ghr.nlm.nih.gov/primer/basics/dna
68 K Fister, I Fister, J Murovec and B. Bohanec, ‘DNA labelling of varieties covered by patent protection: a new solution for managing intellectual property rights in the seed industry’ [2017] 26
Transgenic Research 87.
Machine laws in machine minds
179
It is the direct forms of bio-machinic power that concern us here. Coding
through DNA takes two key forms – one is coding utilising the clustered regularly interspaced short palindromic repeats (‘CRISPR’) technique, which involves cutting and pasting sections of DNA,69 and the other is coding of the
actual bases.70 The more precise the coding is, the less it will be possible to
diverge from the direct legal interventions. Regulation of bio-machines already
takes place in terms of medical controls and certifications,71 but this is different to regulating the development of the bio-machines themselves. So, what
forms could DNA coding take in terms of legal regulation? Some coding would
be likely to include regulations over medical conditions. This can be extremely
controversial; one could end up in a situation similar to enforced sterilisation of
patients as occurred in Canada.72 At a more esoteric level, DNA coding could
be used to influence processes in the human body (notably protein generation),
which could be protected by IP as a literary work, similar to digital computer
code. This could lead to limitations on the self-editing of DNA.
Surveillance through DNA coding might also become possible.73 Conceivably,
DNA could be coded so as to interface with digital computer code (since digital
code is binary with two bits, and DNA has a three-base codon).74 Thus, it could be
possible that one could use DNA itself to be able to indicate something about an
individual, such as internal changes due to a medical condition. This could mean
that a regulating State could seek to control what an individual can or cannot do
(for example, drive a car). Naturally, this fundamentally changes the relationship
between the State and the individual, and is the ultimate form of the machinic
homo-legalis. A symbiotic being, a combination of coded person and coded law.
The response of the State
There are therefore, in summary, certain key risks inherent in the use of machines in the regulation of individuals:
a
b
c
That there can be a removal of any buffer between the State and individual
That the level of legal control can be extremely precise
That there can be a failure to acknowledge the physical convergence of legal
machines with humans
69 www.neb.com/tools-and-resources/feature-articles/crispr-cas9-and-targeted-genome-editinga-new-era-in-molecular-biology
70 E.g. N Gaudelli, A Komor, H Rees, M Packer, A Badran, D Bryson & D Liu Programmable
base editing of A-T to G-C in genomic DNA without DNA cleavage, Nature 551 464
(23 November 2017).
71 See discussion in Chapter 1.
72 See inter alia ‘Canada’s Human Rights History’ at https://historyofrights.ca/encyclopaedia/
main-events/eugenics/; CBC News, Alberta Apologizes for Enforced Sterilization at www.cbc.
ca/news/canada/alberta-apologizes-for-forced-sterilization-1.169579
73 Consider E Hosman, ‘Mass Surveillance: DNA’ www.psychologytoday.com/us/blog/geneticcrossroads/201510/mass-surveillance-dna
74 Akin to a 3D four bit ‘system’ of binary (4Xx4Yx4Z).
180
Machine laws in machine minds
It is argued that the State should take into account these risks. Of course, the
key issue is how to achieve this. It is the State’s prerogative, if you will, to enforce
the laws and rules which have been promulgated. Indeed, there is ample evidence
that enforcement of State laws is a key concern of the State – laws that are not enforceable will often be amended or reformed until they are.75 So, not seeking the
most efficient and effective means of enforcement would be seen as an anathema.
Wriggle room in the regulation of the public has been a core component in
the existence of the State. Without this, the public will be able to immediately
perceive whether or not a law accords with their perception of rationalities.76
For example, under current law, there are specific speed limits on motorways.
The evidence suggests that most motorists exceed the speed limit, and even
the enforcers, the Police, have chosen not to enforce the speed limit on many
occasions.77 Occasionally, machinic devices such as automated cameras are
used that will remove an element of human intervention – and such cameras have much negative press around them. Machinic involvement with the
restriction of discretion and limitations of enforcement will be unpopular
if laws have previously been tolerated due to a lack of enforcement. A more
direct example could be the use of DR M in computer software – something
that may, in practice, be circumvented but not so legally, for if there is a recorded violation of the relevant statutory provisions one may still be sued by
a right holder.78
How, then, is the issue to be resolved if the State is not best placed to regulate
the breadth and depth of its own legal regulation? One could immediately suggest that an outside impartial body could oversee the issue. However, this would
be placing immense power in the hands of either an unelected body or, if it was
elected, another variant of the State. Perhaps there could be a body to oversee
the issue placed within the legislative process, but again, this could be subject to
the same complaint – of holding too much power. So, the solution would appear
to need to not come from the State itself or any other body. Perhaps the solution
could come from the technology itself. If standard setting organisations, such
as ISOs, could begin to define standards to protect the individual user from
overreaching State activity, that would be a good place to begin in the sense that
it avoids giving power to the State, by never providing the means for it in the
first place.
That approach has much to commend it. For instance, the development of
Internet architecture was never based around any notions of anonymity, so as a
75 A reference to L Fuller, The Story of King Rex, in The Morality of Law (1964) seems appropriate
given the discussion therein about failures to govern. Similar discussion within the framework
of rationality can be found in J. Griffin, “Copyright evolution - Creation, Regulation, and the
Decline of Substantively Rational Copyright Law,” Intellectual Property Quarterly [2013] 234.
76 Ibid.
77 Supra n.44.
78 Note discussion earlier, supra n.38.
Machine laws in machine minds
181
consequence, it has been possible to identify the activities of individuals on the
Internet, enabling suppression in numerous countries.79 If Internet architecture
had been built with anonymity in mind, this issue would not have occurred.
The solution is, therefore, to build into file formats and hardware standards the
means by which individuals can be afforded wriggle room, which would help
to preserve perceived rationalities in the State. For example, DNA coding could
have a standard whereby ‘core’ elements, such as the editing of DNA cases, are
isolated from State regulation. The lowest level of code, be that in DNA, augmented reality (‘AR’) or 3D printing (‘3DP’), could be excluded from legal protection. This would not prevent people from seeking to restrict access to content,
but it would mean that the ultimate basis for being able to hack content would
remain, as a form of pressure valve.
Ultimately, what this chapter is proposing is that when developers are taking
machines and utilising them in new or novel ways, and making new machines,
they should adhere to core principles when those machinic devices are being
produced. That core principle would simply be to ensure that the physical individual cannot be dictated to by a State utilising a machinic device at the lowest
possible level of code. This could be similar to Asimov’s Three Laws – adapted
as follows:
1
2
3
4
Acting through the lowest level of code, a regulatory machine may not restrict a human being or, through inaction, allow a human being to come to
harm.
A regulatory machine must obey the orders given it by human beings acting
through the lowest level of code, except where such orders would conflict
with the First Law.
A regulatory machine must protect its own existence as long as such protection does not conflict with the First or Second Laws.80
Asimov also created a fourth principle that precedes the others, which
may be adapted as follows:81
A regulatory machine may not harm humanity, or, by inaction, allow humanity to come to harm, by acting through the lowest level of code.
The adoption of principles initially designed for robots may seem counter-­
intuitive, but this is not so since machine learning plays a critical role in the
design of code.
79 Note that whilst various programs utilise encryption e.g. in the Spring uprisings, there are numerous means by which to currently get around this and obtain individual information. This is
due to the structure of the Internet. Furthermore, the encryption processes are likely, at some
stage, to be broken by States.
80 I Asimov, Runaround (1942) (included within I Robot, 1950).
81 I Asimov, Robots and Empire (1985).
182 Machine laws in machine minds
The future
The regulation of machines has clearly begun to reach a critical juncture where
the State itself is becoming part of the machinic process. The State will be adopting the characteristics of the very machines that it purports to regulate. The
potential impact upon the perceived rationalities of the State could be momentous. As argued earlier, one of the fundamental aspects of the State is the lack of
ability to be able to control many aspects of everyday life. However, once those
aspects become digitised, in conjunction with the development of machinic regulation, that lack of ability of enforcement changes. We have an example of that
starting to happen with digital watermarking, where the watermarks can be used
in a manner that enables the State regulation of 3D printed objects.
There have been analogous situations before where the control exerted by the
State had machinic qualities, but they have not been exclusively kept with the machinic domain. For instance, the existence of DRM mechanisms and the specific
legal protection afforded to them passed through non-machinic legal forms –
namely, traditional statutes. Those statutes did not mandate particular digital
forms, and thus they did not eliminate the possibility of individuals breaking the
controls and freely sharing broken files – away from the eyes of the State. The
future, though, poses a possibility of becoming machinic in all-­encompassing
ways, a consequence of the ever-increasing convergence of machines.
It is therefore imperative to recall that even a machinic apparatus is dependent upon standards in order to maintain its operability with the machines with
which it interoperates. It is also dependent upon standards due to the pressures
of convergence; otherwise other regulatory means may establish themselves.
Consequently, the provision of standards should seek to be able to ensure that
individuals do not become machinic slaves to the State apparatus.
The proposed withdrawal of the lowest level of code from State regulation
does have some limitations. To begin with, one could argue that it places a limit
that is undemocratic upon future generations of elected leaders. However, it is
proposed that the regulatory limitation could be set subject to the notion that
the standards would be achieved in a manner that is policy neutral. This is why
the four rules of regulatory engagement are proposed. These would be aimed at
ensuring that there is a reduction in the machinic approach towards the regulation of people through code.
Appendix Part I
Current strategy for copyright
protection of 3D printing content
Hui Leng Choo and Jie Niu
Almost all the publications related to this area are focussed on digital watermarking only. A current published method embeds digital watermarking information onto the original digital model and then extracts it from the digital file
for comparison (see Figure A1):
During the embedding process, a watermark is embedded in the spatial or
transformed domains of the original 3D model, so that the watermarked 3D
model (i.e. stego model) is acquired. For example, a watermark bit can be embedded into the original 3D model surface to obtain a watermarked or stego model.
The stego 3D model is transmitted or sent through various channels, during
which it may be subjected to a variety of attacks, including unintentional attacks
and intentional attacks. Unintentional modifications are applied to a data object
during the course of its normal use, while intentional modifications are applied
to the data object with the intention of modifying or destroying the watermark.1
In many 3D model watermarking algorithms, a watermark is embedded
through altering of the vertex coordinates. There are still few watermarking
methods for 3D meshes, in contrast with the relative maturity of the theory
and practices of image, audio and video watermarking. This situation is mainly
caused by the difficulties encountered while handling the arbitrary topology and
irregular sampling of 3D meshes, as well as the complexity of the possible attacks
on watermarked meshes.
The limitations of 3D digital watermarking system for application in 3D printing
are as follows:
1
2
It is a digital-to-digital based monitoring method, where watermark information is lost after printing.
The 3D printing process induces various signal processing and geometrical
attacks.2
1 R Ohbuchi, H Masuda, M. Aono, ibid.
2 J Hou, et al. ‘3D Print-Scan Resilient Watermarking Using a Histogram-Based Circular Shift
Coding Structure’ in Proceedings of the 3rd ACM Workshop on Information Hiding and Multimedia Security (2015).
184
Appendix Part I
Figure A.1 Diagram of watermarking technique for digital 3D model.3
3
4
5
Any obscured part of the mesh may be lost during the 3D scanning process.4
A 3D mesh model can have few vertices, so the payload capacity can be low.5
There are multiple representations for the exact same models and 3D model
because of the lack of an inherent order.6
3 R Ohbuchi, H Masuda, M Aono, Watermarking three-dimensional polygonal models. in Proceedings of the fifth ACM international conference on Multimedia. 1997. ACM; R Ohbuchi, H
Masuda, M Aono, Embedding data in 3D models. in International Workshop on Interactive Distributed Multimedia Systems and Telecommunication Services (1997).
4 Ibid.
5 Ibid.
6 J Cho, R Prost, H Jung, “An oblivious watermarking for 3-D polygonal meshes using distribution of vertex norms,” 55(1) IEEE Transactions on Signal Processing 142–155 (2007).
Appendix Part I 185
6
7
Because of their irregular sampling, it is very difficult to transform a 3D
model into the frequency domain for further operation and thus we lack an
effective spectral analysis tool for 3D meshes.7
Insertion of watermark information can distort the original shape and therefore limits the amount of information that can be encoded.
One watermarking technique that is viable for 3D printing was published by
Hou et al.8where histogram-based circular shift coding structure was used. This
method has shown to be able to extract watermark information from 3D printed
parts. However, for this method to work, the 3D printing must be carried out
along the base-axis which is the orthogonal direction of the printing layer. To
extract watermark information, the same base-axis must also be used.
From this information, it is evident that watermarking of 3D printed parts
is still in the early development stage. Development of more robust techniques
which can allow the watermark information to resist various attacks are important if the use in industry are to be considered.
7 Z Yu, H Ip, L Kwok, “A robust watermarking scheme for 3D triangular mesh models,” 36
­Pattern Recognition 2603 (2003).
8 H Luo, Z Lu, P Wang, 3D Model Watermarking, in Three-Dimensional Model Analysis and
­Processing (2010) at 305–370.
Appendix Part II
International press articles concerning the AHRC funded research and
conference:
•
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•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
3D打印与物联网应用国际专题研讨会在深圳召开 – http://www.premierasp.
com/news/whys/516.html
3D列印與物聯網應用國際專題研討會在深圳召開 – http://www.chinesetoday.­
com/big/article/1186030?from=groupmessage&isappinstalled=1
3D打印与物联网应用国际专题研讨会在深圳召开 – http://www.ljmqc.com/
wap/?1198.html
华人头条 – http://www.52hrtt.com//webservicepage_getInformationPage.
do?isApp=1&id=D1482402165013&areaId=12&infoCentreId=D1482402
165013&flag=1&from=singlemessage&isappinstalled=0
葡新传媒 – http://www.huarenpt.net/article-24022-1.html
3D列印與物聯網應用國際專題研討會在深圳召開 – http://www.a1126.
org/DispOneMessage.asp?txtOrgCode=CCEF&Category=17& ID=
CCEF4283996076260&Page=1&from=groupmessage&isappinstalled=0
财视澳洲 – http://xn--bzw76ce03bj8c.com/html/xwzx/ymzx/7843.html
香港新闻传媒网 – http://www.hongkong-news.com/Html/?4222.html
日本华商网 – http://www.cecjiaren.cn/news/zhzx/1049.html
3D打印与物联网应用国际专题研讨会在深圳召开 – http://pty.52hrtt.com/
webservicepage_getInformationPage.do?id=D1491576885981
俄中新闻资讯网 – http://www.0101132.com/news/zhzx/3557.html
中非日报 – http://www.ljmqc.com/news/?1077.html
东盟华商在线 – http://www.bizasean1.com/index.php?c=content&a=show
&id=3595
西非华人在线 – http://www.xifeizaixian.com/content/?3007.html
韩国新华网 – http://www.koreaxh.com/html/2016/tbbd_1223/10992
.html
意大利侨网 – http://qwitaly.com/portal.php?mod=view&aid=4393
埃中新闻网 – http://www.e-cnews.com/news/?2493.html
华府网 – http://www.chineseindc.com/article-72240-1.html
欧洲新闻网 – http://www.eztv.cc/Item/Show.asp?m=1&d=5880
Appendix Part II 187
•
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捷迅网 – http://www.jiexunwang.cn/a/jingcha/qiyezhijia/20161223/16499
.html
金边传媒网 – http://www.jinbianwanbao.cn/product/17454.html
澳门商报网 – http://www.macaocp.com/a/xw/gn/2016/1224/60507.html
世界华人网 – http://www.sjhrzk.com/a/xinwen/shehui/2016/1224/27234
.html
迪拜新闻网 – http://www.dubainews.cn/kjqy/3966.html
欧洲新侨网 – http://www.new-broad.com/index.php?m=content&c=index&
a=show&catid=16&id=998
泰亚新闻网 – http://www.thaiasianews.cn/ppzc/29433.html
中英携手构建在线3D打印自动化授权平台 – http://www.hkstv.tv/index/
detail/id/47592.html?from=singlemessage&isappinstalled=0
http://www.blodico.com/r-0/75882753056e74d23e64d52/universidad-­
exeter/ (no longer operational)
New study to tackle piracy issues caused by growing use of 3-D printers
http://esciencenews.com/sources/physorg/2016/03/14/new.study.tackle.
piracy.issues.caused.growing.use.3.d.printers
New study to tackle piracy issues caused by growing use of 3-D printers
http://phys.org/news/2016-03-tackle-piracy-issues-d-printers.html
Study tackles piracy issues caused by the use of 3D printers http://
production.electronicspecif ier.com/3d-printing/study-tackles-piracyissues-caused-by-the-use-of-3d-printers
http://edgcnews.com/investigadores-desarrollaran-un-sistema-antipirateria-por-las-impresiones-en-3d/ (no longer operational)
http://diariodecampeche.com/archivos/89091 (no longer operational)
New study to tackle piracy issues caused by growing use of 3D printers
https://www.politicshome.com/document/press-release/university-bath/
new-study-tackle-piracy-issues-caused-growing-use-3d-printers
中英学者携手研究解决3D打印带来的盗版问题 – http://maker8.com/­article6088-1.html
中英学者携手研究解决3D打印带来的盗版问题 – http://3dprint.ofweek.com/
2016-03/ART-132106-8130-29080441.html
中英学者携手研究解决3D打印带来的盗版问题 – http://www.mw35.com/
Article/NewsItem/15469
http://tec.ianjia.com/tech/232490.html (no longer operational)
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Index
2D medical image 128, 129
3D biological printing 135
3D patent trading platform 117
3D printed medicines 13
3D printers: business related to 80;
development of 119; for education 82;
export marketing 61–2; features of 61;
and professional users 56
3D printing (3DP): application of 112,
113, 125; bio-inert material 126;
biomedical industry in 111–13; concept
of 111–12; copyright issue of 119;
cost of product 120; creators of 58;
dental model 129; development of
107–8, 111, 126; digital model 118;
drawbacks 120–1; electric spinning 112;
growth and marketing 109; intellectual
property of 107–10; intelligent
material manufacturing for 109–10;
IP protection 15; legal regulation of
2; legal relationship of 117; licensing
methodologies 113; materials 69–70,
72; medical device regulatory rules 132;
moulds 58, 59; operation programming
software 128; oral transplantation 131;
orthopaedics device companies 126;
outlook for 130; patent, copyright,
trademark of 118; problems of 119;
process of osteotomy 128; processing
methods 119; programming software
129; property rights of 119; regulation
of 24–5; research funding bodies 104;
scanning methods of 126; selective laser
melting 118; selective laser sintering
118; situation of batch production
121; software, equipment and materials
119; surgeon programming software
127; surveillance methods 179;
technology falls 134; testing of 120;
trademarks relationship 119; traditional
manufacturing and 75; two-dimension
imaging process 126; UV curing 118
3D printing (3DP) companies 3, 22,
99–102; agreement with customer 89; art
work protection 60–1; business model 96;
certificates, reliance on 79; cheating and
copying 59; in China 7, 75–6, 94; clients’
demand 69; cloud-data management
67–8; competition 85; confidentiality
56; copyrights 56, 64, 65, 68, 74;
crowdfunding 82; customer service 57;
dialogues 11–14; encryption, principle of
96–7; enterprise and university 95; foreign
companies 84; future of 95; government
support funds 62; human figures 95–6;
imitations 55–7; intellectual property
system 7–8, 11; international patents 81,
83; IP management 63–6, 71, 78, 89, 90,
93; licences, use of 11; logo designs 86;
market competition 53; marketing and
direction 91–2; multinational company
69, 70; non-disclosure agreement 91;
open resource 59, 61; operation rate
63–4; patents 53–5, 58, 64, 65, 68, 82;
privacy 73–4, 78; qualification system
90–1; research and design team 53, 56,
72, 81, 84, 94; response of 10; software
56, 68, 71, 72, 74–6, 80, 82, 96;
stakeholders 70; standards for 94–5;
sui generis right 87, 97; tracking
information 60, 70, 73, 86, 93, 97;
trademark 65; unique design and
products 92; watermark 88, 97
3D reconstruction software 71
3D scanning technology 66–7,
91, 97–8
196
Index
acrylonitrile butadiene styrene (ABS) 89
active watermark 38
aesthetic body parts 32–4
AI see artificial intelligence (AI)
American company 89, 127
American Society for Testing and Materials
(ASTM) 110
analogue law 177
AR see augment reality (AR)
‘The archaeology of knowledge’
(Foucault) 171
architectural democracy 16
architectural interface system 15–17
artificial intelligence (AI) 37–8, 62
ASTM see American Society for Testing
and Materials (ASTM)
augment reality (AR) 66, 70,
181–2, 185
Australia 136, 137, 138, 139
automated licence system 80, 83, 162
automobile industry, 3D printing in 53
Barlow, J Perry 178
Bentham, J 159n46, 173
Beuys, Joseph 175
bioarchaeology 31
bio-machines 182–4
biomedical printing 112–13
bioprinter liver 34
biotech 3DP digital watermarking 3, 29–30;
addition/augmentation of body parts
35–6; advantages of 44; aesthetic body
parts 32–4; artificial intelligence 37–8;
biopower 29, 31, 35, 37, 48–9;
complex watermarks 38–40, 44; conflict
with existing IP laws 47–8; copyright
management information 42, 46;
copyright protection 32–4, 42–3, 45–6,
49; CRISPR-Cas9 system 41; digital
rights management 39, 44–5; DNA 36,
38, 41; Hippocratic Oath 35; human
barcode 30–1; International Union for
the Protection of New Varieties of Plants
47; issues in 41, 48; legal protection 40;
MDY v. Blizzard Entertainment 43; and
national legislation 42; non-aesthetic
body parts 34–5; patent law 43–4;
physical body alteration 31–2; prosthetic
State 38, 48–9; quality control 39;
‘removal of the human’ 36–7; safety of
48; ‘uncanny valley’ 3, 35, 36,
45–7, 49
‘The Book of the law’ (Crowley) 20
CAD see Computer Aided Design (CAD)
Copyright Alert System 60
CCTV cameras see closed circuit television
(CCTV) cameras
CFDA see China Food and Drug
Administration (CFDA)
China: automobile engineering association
110; awareness of IP 111; biomedical
printing in 112–13; imitation in 57;
innovation in 65; IP bureau of 107;
IP management system 111; level of
collaboration 111; licence authorisation
64; medical devices in 131; orthopaedics
market in 126; patent in 53–4, 59;
protection of IP 111; registration of
IP easier 111; Taobao 60; watermarking
regulation 79
China Food and Drug Administration
(CFDA) 72, 73, 77
Chinese Academy of Sciences 109
‘Cicada 3301’ competition 20
closed circuit television (CCTV)
cameras 179
cloud-data management 67–8
CMI see copyright management
information (CMI)
CNC see computer numerical control
machines (CNC)
commercial business model 153
complex watermarking 38–40, 44
Computer Aided Design (CAD) 114
computer numerical control machines
(CNC) 110
computer software 11, 44, 175, 176, 184;
licensing of 11
content ID system, YouTube 18,
21, 26
copy control mechanisms 176
copyright 56, 64, 65, 68, 74; laws 148,
176, 182; licensing 177–8; trading
platform 117
Copyright Designs and Patents Act 1988
(CDPA 1988) 23, 42
Copyright Hub 19, 20, 25, 64, 153, 155,
159, 162, 181
copyright management information
(CMI) 12, 23, 42, 46, 82,
180, 181
crowdfunding 82
Crowley, Aleister 20
culture industry, 3D printing in 57
customer model 117
customer service 57
Index
deep learning 66
Deleuze, G 164, 165
design patent 59, 60, 65
dialogue, notion of 8–11
Digimarc 14, 21
Digital Copyright Centre 1
Digital Economy Act (2010) 25
digital licensing system 162
digital machines 177, 179, 180
Digital Millennium Copyright Act 1998
(DMCA) 17, 42, 43, 150
digital rights management (DRM) 11, 17,
23, 39, 44–5, 176, 177, 180, 181, 186
digital watermarking 2–4, 21; on biotech
products 30, 46–7; complexity 39;
legal regulation 25–8; protection
of 32, 45
DRM see digital rights management
(DRM)
e-book verification 18
economic justice 166–8
electric spinning 112
Elkin-Koren, N 145n2
Engineering and Physical Sciences
Research Council (EPSRC) 2–3
EU see European Union (EU)
EU Copyright Directive (EUCD) 42
European Commission 147
European Union (EU) 109, 134, 145
‘experience medicine’ 128
FDM see fused deposition
modelling (FDM)
FDM printers see fused deposition
modeling (FDM) printers
Feist v. Rural Publications 43
fingerprinting technologies 38–9
Foucault, M 4, 10, 171; archaeological
approach 172; biopower 175
Freud, S 164
Fuller, L 158, 161
fused deposition modeling (FDM) printers
55–6, 58, 76, 126
German CNC centre 110
German technology printers 120
The Gods and Technology (Rojcewicz)
172n5
Google Glass 22
government support funds 7, 9, 62
Guattari, F 164, 165, 172n4
197
Habermas, J 10, 174
Heidegger, M 32
Hippocratic Oath 35
histogram-based circular shift coding
structure 21
homo economicus 4
HTML code 26
human barcode 30–1
human body scanning 98
industry design 66
Information age 164, 166, 167
information justice 4, 166–9; capitalist
schizophrenia 167; convergence of 148–9;
creative commons licence 162; cultural
works, economy of 149–63; deal with
paradox 166–9; intellectual proprietary
stock 163–6; principle of 145, 146
intellectual property (IP): customer
modelling issues 117; 3D printing
manufacturing 119; infringement
act 116; legal relationship 116, 117;
machines and materials 116; machinic
methods 171; agreement 118;
trademark licensing 117
intelligent furniture 62
international patents 81, 83
International Union for the Protection of
New Varieties of Plants (UPOV) 47
Internet regulation 105, 165, 179, 185;
characteristics of 24
invention patents 58, 92
iPads 22
IP system: enforcement issues 14;
protection for 15; technical
architecture 15–17
I, Robot (Asimov) 37, 185
iTunes 18, 153, 158, 181
Japan 109, 111
Katzenbeisser, S 38
Landes, W 16
legal affairs and conflicts 77
legal regulation 24–5
Lessig, L 17, 23
‘Liber AL vel Legis’ see ‘The Book of the
law’ (Crowley)
licensing standard 26
light emitting diode (LED) industry 85
logo copyright 117
198
Index
machine: copyright style regulation 177;
description of 172; future of 186–7;
machinic law 180–2; regulation of 186;
State surveillance 4, 174–7, 179–80
machinic homo-legalis: analogue laws 177;
augmented realities 181–2; bio-machines
182–4; state, response of 184–6
machinic technologies 4
Manning, B 164, 179
market competition 53
material genetic engineering group 120
MDY v. Blizzard Entertainment 43
medical software 74
medicine, 3D printing in 62–3, 71–2,
90, 92
Merges, R 16
metal 3D printing technologies 57–8
micro-nano structure 112
Ministry of Industry and Information
Technology (MIIT) 135
‘mixed reality’ settings 25
Napster moment 24
National Development and Reform
Commission (NDRC) 135
Nelson, R 16
Netflix 18
New Zealand 136, 137, 138, 139
non-aesthetic body parts 34–5
non-governmental organisations
(NGOs) 60
Obama, Barack 131
Of Art and Wisdom (Roochnik) 172n5
Office of Communications (OFCOM)
code 25
One Dimensional Man (Marcues) 172n4
OpenCV see open source computer vision
library (OpenCV)
open graphics library (OpenGL) 68
open source computer vision library
(OpenCV) 68
The Order of Things (Foucault) 172n3
original equipment manufacturers
(OEMs) 78
ownership rights 115, 117
passive watermark 38
patent(s) 9, 10, 63–5, 82; application
process 54–5; in China 53–4; Copyright
Designs and Patents Act 1988 23, 42;
design 59, 60, 65; invention 58, 92;
licensing system 11, 19; protection 34,
43, 68, 100; troll 64; utility 58, 59
patent cooperation treaty (PCT) 76
patient-specific medical devices 72, 73
patient’s privacy 73–4
Peticolas, F 38
photosensitive resin 69, 89
photovoltaic industry, 3D printing in 53
physical body alteration 31–2
polyactic acid (PLA) 72, 89
Posner, R 16
printing plastic 72
pro-open source 81
pro-patenting 81
QR code 67, 72
quantum approach 148
radio frequency identification (RFID)
chip 69
research and design (R&D) centre 53, 56,
72, 81, 94
reverse design 66
robots 62, 83; visualisation of 66
Rojcewicz, R 172n5
Roochnik, D 172n5
SDM technology 107
second-generation printers 56
selective laser melting (SLM) 118, 126
selective laser sintering (SLS) 114,
118, 126
semiotic democracy 16
Shanghai workshop (2016) 3; additive
materials stream 125–41; authority
in 3DP, presentation from 110–11;
biomedical industry in 3DP 111–13;
3DP Intellectual Property (IP) 107–10;
Griffin, James, opening speech 103–5;
Hing Kai Chan, speech 105–7; Jerry
Niu, project presentation 113–14;
Kathryn Zhou, master of ceremony 103;
materials panel of 115–24; Phoebe Li,
session introducer 125, 130–6
Shazam 21
SLA printers see stereo lithography
appearance (SLA) printers
SLM see selective laser melting (SLM)
SLS see selective laser sintering (SLS)
Smith, A 166
Snowden, E 164, 179
Society for Legal Scholars (SLS) 147
Index
Stakeholder Dialogue Licences for
Europe 151
stereo lithography appearance (SLA)
printers 58, 89, 100
stereolithography (STL) file format 21, 55,
66, 76, 80
sui generis right 3, 87, 97
surgeon programming software 127, 129
SWAT see US Special Weapons and Tactics
(SWAT)
Taobao 60
technical licensing framework 2, 8
technology transfer 63
telecommunication companies 87
A Thousand Plateaus (Deleuze, G. and
Guattari, F.) 172n4
titanium alloy powder: C919 batch
production 122; characterisation of
122; chemical composition of 122;
Chinese 3D printing applications 122;
copyright 123; domestic price 123;
EDF electron beam process 121; lattice
structure-lightweight design 123–4;
mechanical property of 122; SLE laser
process 121; tensile properties 124;
Young’s modulus 124
UK Copyright Hub 155, 158, 161
UK Intellectual Property Office
(UK-IPO) 19
‘uncanny valley’ 3, 35, 36, 45–7, 49
United Kingdom 104, 106, 107, 136,
137, 139, 145, 179, 181; Copyright
Hub 155, 158, 161; economic rights,
199
principles of 155; online licensing
systems 160
United States 109, 111, 116, 130,
134, 136, 139, 176, 179; copyright
protection in 42, 43; Digital
Millennium Copyright Act (1998)
42, 43
universal serial bus (USB) 80
US Food and Drug Administration
(FDA) 72
US Special Weapons and Tactics
(SWAT) 180
utility patent 58, 59
UV curing 69, 118
virtual reality (VR) 66, 70, 73, 79, 87
Warwick, Kevin 35
watermarking: benefits of 19; cost 14;
efficacy of 18; enforcement issues 14;
impact 22–5; integrity and quality
13–14; limited perception of usefulness
14; medical devices 13; origin of goods
13; privacy concerns 13; regulation
of architecture 18–20; robustness of
17–18; technology 20–2; traditional
form of 21; traditional 3D technique
113; see also digital watermarking
WeChat platform 63
Wi-Fi device 59
WIPO Copyright Treaty 42
WIPO Performances and Phonograms
Treaty 42
YouTube content ID system 18, 21, 26