For many years 3D printing was nothing more than science fiction. This changed dramatically with the lapse of important patents in 2009 and 2014, giving 3D printing an enormous boost in its development and making it increasingly accessible to the average person both in terms of usability and price.
 
3D printers use a Computer Aided Design File (CAD file) which can be created from scratch by human creativity, or by simply scanning an object. The printer uses a CAD file to print thousands of tiny slices of an object. These tiny layers stick together to form a solid 3D object.
 
Possibilities of 3D printing are infinite
 
In the medical sphere, it is already used to print 99% of hearing aids, many dental implants and prosthetic limbs, sometimes within minutes. Current biomedical research extends to bioprinting skin, organs, bone, cartilage, ligaments and tendon scaffolds. In April 2019, scientists revealed the first 3D printed heart, complete with cells, blood vessels, and chambers.
 
In the textile and fashion industry 3D printing has entered the runway in full force, with Dutch fashion designer Iris van Herpen showcasing full 3D-printed ranges in both the 2018 and 2019 Paris Fashion Weeks. Rumour has it that van Herpen, in collaboration with TU Delft University in the Netherlands, is currently experimenting with ‘4D’ printed materials - items that ‘self-assemble’ to fit on demand.
 
At the 2018 South by Southwest festival in Austin, United States, the first fully permitted 3D printed home, meant for housing people in the developing world, was completed within 24 hours and at a cost of $10 000. The printer is specifically designed to work in places where factors such as availability of power, water, and technical assistance are unpredictable, making it a perfect tool for disaster and crisis management globally.
 
3D printing will revolutionise manufacturing and entrepreneurship in the modern world, and in the African context it holds promise to help alleviate Africa’s ‘resource curse’. It could assist in democratising business and encourage innovation and social entrepreneurship in Africa by allowing communities to produce their own locally-relevant products easily and in real time.
 
Legal implications of 3D printing
 
Though full of possibilities, 3D printing also raises many legal, ethical and practical concerns.  For example, it is very difficult to control what is printed. While any form of homemade weaponry is illegal in South Africa, foreign courts have had to rule on the legality of 3D printed weapons, a consequence which was unfathomable 10 years ago.
 
In terms of Intellectual Property law, questions arise concerning copyright, patent, design, and trademark protection. From a copyright point of view, an important distinction needs to be made between a 3D printed object for private use versus commercial use. Most countries provide for specific copyright infringement exceptions where copies are made for private or educational use.
 
Copyright law (but not the law of passing off) allows for a further exception in the case of ‘reverse engineering’, which is a process whereby an object with a practical purpose, available in the public domain, is reverse-engineered in order to make some sort of copy of that object. Whether the 3D scanning and printing of an object will fall under the reverse-engineering exception is yet to be determined.
 
Other important issues arise in terms of civil liability and insurance.  In South Africa, manufacturers have strict liability for products which they manufacture. Consumers may have remedies in terms of the Consumer Protection Act and the common law for harm that is causally linked to a defective product. But who bears the risk for harm caused by a 3D printed object? Is the manufacturer the creator of the CAD file, the owner of the printer, the software developer, the supplier of the materials, the end seller, or even the machine itself? The answer depends on who is responsible for the defect causing harm or otherwise negligent. The insurance industry will need to price for risks related to 3D printing technology. Brokers and insurance providers will have to consider new possibilities around product recall, product liability risk and professional indemnity due to 3D printing.
 
Need to regulate 3D printing globally
 
The EU Parliament has started to discuss how to deal with 3D printing, and it seems that the accepted solution is to create entirely new legislation. In South Africa, we await 3D printing to be raised in parliament. In the meantime, it is important to consult your lawyer for advice on how to protect your rights.
 
When selling items online or even in–store, terms and conditions should be displayed clearly for consumers. Specific attention should be drawn to what consumers can and cannot do with the product. For example, may they make a derivative or adaptation of the work? If so, who owns that derivative? Designers and inventors involved in 3D printing should carefully structure agreements to set out who the owners of rights are at each step in the printing process, which rights are being sold, and how the sales structures will work.
 
Soon 3D printers could be present in our homes just as commonly as a microwave or a kettle. Make sure you are protected contractually until the law catches up with technology.

Written By Claire Kotze, Candidate Attorney at Norton Rose Fulbright South Africa