Category Archives: Intellectual Property

The call for a harmonized “Community” License for 3D Content – Part I

It doesn’t matter whether you believe that the current boundaries of intellectual property protection do not go far enough to protect the rights of content creators or if you believe that copyrights, patents and other forms of intellectual property protection have been stretched well beyond their intended scope – the conclusion still remains – “Houston, we have a problem.”

You might believe that this is an area that has already been entirely thought through – in particular because of the very popular use of the Google 3D Warehouse.   For those of you who may not be aware, Google launched the 3D Warehouse in the 2006 timeframe as a repository for content generated by their Google SketchUp product (which they had just recently acquired from the folks @Last).  It’s my belief that they did this as a natural way to generate and populate content to their Google Earth service (because models created in Google SketchUp can be easily geo-located within Google Earth).

But, You would be wrong if you thought there was uniformity.

A Review of Approachescclogo400.jpg

Services in the ‘capture-create, modify, make’ ecosystem which host, and/or produce physical deliverables, deal with the thorny issue of intellectual property in two main ways.  Some place the burden entirely on the content contributor (e.g. the person who uploads the model).  Others have a framework leveraging various flavors of the existing Creative Commons licensing scheme (www.creativecommons.org).   For the reasons that I will outline below, I believe both of these approaches are flawed – despite best intentions – and what we really need to move to is a harmonized “Community” style license addressing all branches of IP, from copyright, to patent, to moral rights and beyond.

A (Little) Background

These issues are not new.  While “new” in the context of the ‘capture-create, modify, make’ ecosystem, the question of how to appropriately share, attribute and re-use content has been around for a while and various ideas and themes have been developed.  Ideas and implementations run the spectrum from expressly granting works and ideas to the “public domain” (i.e. so the original author or inventor has no further downstream ability to control access or usage) to schemes that keep the title to any underlying work or invention with the original IP rights holder but which authorize a limited or expansive set of downstream rights.

Most of the previous efforts, however, have focused exclusively on copyright concepts.  This should not be surprising, because many of these initiatives sprang out of the software industry, and at the time (in late 1970s and 1980s) no one would have really thought that patent law could have been extended to cover software inventions.

Concepts (and there are more) include:

  • Grant to the Public Domain – An individual can expressly release all IP rights in a work, invention or other creation.  Normally this relates to the release of copyright.  Once done, however, that individual cannot restrict how those materials can be used, modified, or re-distributed, in the future.   As a result, copyleft concepts have been developing over time.
  • Copyleft  — This is a concept which allows for copyrighted works (software, photographs, other creative works) to be modified and freely distributed so long as the downstream work carries the same permissions.  Software copyleft licenses require that downstream recipients receive everything necessary to modify and compile the work.  Copyleft licenses, however, come in various “’strengths” depending on how many rights are extended (or restricted) to the downstream users.  The General Public License (GPL) is the most well known implementation of copyleft concepts, the Creative Commons License (CCL) (with its “Share Alike” license type) is also frequently used.
  • GNU General Public License (or “GPL”) —  This license was originally written by the GNU Project in order to support he re-distribution of the free GNU Unix-like operating system which the project created.  The GPL is perhaps the most well known “copyleft” license.  The Free Software Foundation sponsors the GNU project.  For more generalized background on the GPL, see: http://www.gnu.org/licenses/ andhttp://en.wikipedia.org/wiki/GNU_General_Public_License.
  • Creative Commons License (or “CCL”) – this was created by the Creative Commons organization in the 2001/2002 timeframe.  These licenses cover works protected by copyright law, but are generally not recommended for use with software.  CCL’s are frequently used with photos and papers.  The organization is currently working on the 4.0 release of these licenses.  The photo sharing and tagging site Flickr, as an example, incorporates CCL license types into its service.  For more generalized background on the CCL types, see: http://creativecommons.org/licenses/ andhttp://en.wikipedia.org/wiki/Creative_Commons_licenses.

The challenge with the above is that these IP schemes are not broad enough to cover the range of potential IP rights associated with 3D models and objects which have been created, captured, modified and made.  Past approaches have been focused on creative, as opposed to functional, works.  Use cases in the 3D printing ecosystem stretch the limitations of these prior initiatives – requiring that new solutions be developed.

This blog was originally published on March 12th, 2012.

The Tale of Two Spoons and Copyright Law

Let’s take two spoons. One spoon is a simple, yet elegant, functional, well, spoon.  It does spoon like things very well.  The other spoon is well, also a spoon, but it has patterned and ornate handle.  Can either 3D object be protected by copyright?

Copyright Law

Copyright protection in the United States is built around the U.S. Copyright Act and common law interpreting those statutes – but all stemming from the “grant” given to the Federal government found in Article 1, Section 8 of the United States Constitution which states:

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. 

A lot has changed since the Founding Fathers penned these words, and the scope of protection of what is protectable by copyright have expanded as well (well beyond a “writing”).

Copyright protection can be extended to “works of authorship” that are:

  • Original – The standard here is very low, but labor and effort is not a substitute for originality.

  • Not utilitarian – Copyright does not protect parts of a work that are purely mechanical or functional.

  • Fixed in a tangible medium – Copyright protection does not attach to a work that someone has been thinking about but which has not yet been physically represented.

  • The “idea-expression dichotomy” – The expression of an idea (or procedure, process, system, discovery, etc.) but not the idea itself is protectable by copyright.  As result, if two people were to independently create a work, without access to the other, neither is infringing.

By statute a copyright holder has certain “exclusive” rights, namely the ability to reproduce, distribute, perform, display, license and create derivative works (e.g. adaptations) based on the original work.  A copyright is infringed when someone violates one or more of the exclusive rights granted to a copyright holder unless they a defense to infringement (such as “fair use” – limited in scope to non-commercial activities like criticism, use in education, etc.).

As I mentioned above, over time, the scope and duration of copyright protection has constantly expanded.  Some of those changes may certainly be characterized as legitimately driven by the need for the law to keep up with the changing pace of technology.  I’m not so sure about many other changes however.  Two hundred years ago, copyright protection was for a maximum of fourteen years, today copyright protection can extend to the life of the author plus seventy years (works made for hire are ninety-five years from first publication!).

What is protectable by copyright has also morphed – from traditional writings (e.g. books, papers, plays, etc.)  to software, and other creative works like sculptures, photographs, drawings, and in some cases even graphic designs, and buildings.

The exact scope of what is protected under copyright varies from country to country –with slight variations in scope – but many of those have been minimized over the past years because of various harmonization conventions (e.g. the Berne Convention).

Back to our Spoons

Remember our two spoons.  Both are perfectly good, functional spoons.

It would seem that because a spoon is the essence of something functional or utilitarian – it would not be protectable by copyright.

Unfortunately, however, the analysis is not that simple – because “useful” objects can have both copyrightable and uncopyrightable features.  As Fact Sheet Number 103 published by the United States Copyright explains (see: http://www.copyright.gov/fls/fl103.html):

A “useful article” is an object that has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. Examples are clothing; automobile bodies; furniture; machinery, including household appliances; dinnerware; and lighting fixtures. An article that is part of a useful article, such as an ornamental wheel cover on a vehicle, can itself be a useful article.

Copyright does not protect the mechanical or utilitarian aspects of such works of craftsmanship. Copyright may, however, protect any pictorial, graphic, or sculptural authorship that can be identified separately from the utilitarian aspects of an object. Thus a useful article can have both copyrightable and uncopyrightable features. For example, a carving on the back of a chair or a floral relief design on silver flatware can be protected by copyright, but the design of the chair or the flatware itself cannot, even though it may be aesthetically pleasing.

Copyright in a work that portrays a useful article extends only to the artistic expression of the author of the pictorial, graphic, or sculptural work. It does not extend to the design of the article that is portrayed. For example, a drawing or photograph of an automobile or a dress design can be copyrighted, but that does not give the artist or photographer the exclusive right to make automobiles or dresses of the same design.

Uh oh.  So, it turns out that at least some aspects of one of the spoons might be copyrightable.

Why does this matter?  Because if you were to create a digital copy of the patterned spoon (e.g. capturing via a laser scanner, using photogrammetry, etc.) and then print it on a 3D printer as part of the Capture/Modify/Make ecosystem – you might be unwittingly committing copyright infringement.

In my next blog post I will walk you through additional examples of where and to what copyright protection might apply.

The following are useful sources of information to gain a deeper understanding of Copyright law in the United States:

This blog was originally published on February 20th, 2012.