What you need to know about Copyright, Patents, Trademarks and Open Source!

As it turns out, copyright has a lot less power in the 3D printing space than I thought…
Intellectual property has many faces – if you don’t know about them, it’s trivial to infringe on someone else’s rights. Here are the most important things to know about Copyright, Trademarks, Patents and how Open Source fits in.

Picture this: Because you’ve got nothing better to do, you take a stroll around the interweb and you see this awesome design. You want to have it, too, so you get to work on reproducing it with your 3D printer or, for that matter, pretty much any other tool you can use to create stuff. Even the humble ctrl+C, ctrl+V applies here. But that’s where you run into it. Copyright. Patents. Trademark rights. Maybe you even though your material was open source. Well, let me explain.

So today i want to touch on those four topics: Copyrights for intellectual properties, Trademarks, Patents for inventions and, while we’re at it, how open-source works within that ecosystem. This isn’t going to be legal advice, and while a fair bit of what I’m about to show you is based on the US and European situation and should be similar in other parts of the world, there are still going to be differences from one country to the next. So let’s get into it!

First of all, these four topics of copyright, trademarks, patents and open-source are all pretty much separate issues and with the exception of the interplay of copyright and open source, none of these are inherently connected.

Copyright

Let’s start with copyright: And a lot of it is in the name already. It’s the exclusive right to copy an original work. That’s it. Well, not quite. Copyright applies to creative work in the widest sense, such as books and articles, pictures, videos, music, sculptures etc. And software, which is considered a literary work in the US. The scope of copyright is important to know, because purely functional designs do typically not fall within the scope of copyright and can only really be protected by a patent, just like ideas and processes, and mere discoveries and unoriginal work don’t get any acknowledgement as far as copyright goes, at all. So while, for example, I can claim copyright for my videos, the text and photos published alongside them, I can not claim a copyright for most of my 3D designs because they don’t fall under the definition of creative work, as they are mostly functional, but also run into another detail of copyright law: The threshold of originality. Essentially stating that, even when your work is of an artistic nature, it needs to pass a certain threshold of complexity or effort put into it to even be considered relevant for copyright at all. So while, say Loubie’s Dragon designs are, no doubt original works of art, to which copyright does apply, this simple, blocky throne design might not quite pass the threshold. Actually, neither do these companies’ logos, as they are not complex enough. They are still registered trademarks, though, which, we’ll touch on in a second.

No need to register

Contrary to popular belief, a creator does not need to register their work or add any sort of mark or text to their work to own the copyright on it. So basically, any image, video, music piece, design, etc. that falls into the criteria I just mentioned is essentially (c)opyright the creator, all rights reserved. And that means *you* can’t use it. Yes, you’re allowed to view it, but you can’t use it on your own website, post it to Facebook or use it on a business card, you can’t integrate it into your own work or even publish modified versions. And neither a disclaimer like “I don’t own the content shown here” nor attribution to the original author are magic bullets that suddenly make that ok.

Fair use

The US has a specialty there in the form of “fair use”, meaning you are allowed to use excerpts, for example from music tracks or movies, to discuss, criticize and parody the material as long as you add your own spin.

Now, the question is, how does this even apply to 3D printing? Well, there’s definitely a bit of discussion going on in that area, but my understanding is something like this: When you’ve got an original 3D design and simply print it, the resulting part is still a reproduction of that design and therefore covered under the author’s copy-rights. That is, considering you’re looking at the design that is encapsulated in, for example an stl file, and not just the bits and bytes of the file itself. But in either case, grabbing artsy designs, printing them and selling them for profit is probably not ok. And even just publishing designs based on other original content can infringe on their copyright, as for example the authors of a 3D-printable rocket design based on the TinTin comics and another designer who published a left shark got to know when their designs were removed from Thingiverse after a DMCA notice.

However, when it comes to something like design files and electronics schematics, the current legal understanding is that, while the actual drawing of e.g. a schematic is original work applicable to copyright, the actual function of the circuit is not. So while you can’t redistribute and reuse the actual drawing itself, you can still make copies of the circuit and use it for your own purposes since that’s the exclusively functional portion of it, which isn’t protected by copyright.

Creative Commons

And here’s where Creative Commons comes in. As a copyright owner, you have the choice of explicitly allowing others to use your work. For free. This doesn’t mean giving away the copyright, you’re just giving out usage rights. Creative Commons lets you decide how and for what purposes people and companies can use the content you release. The most drastic one would be the CC-0 license, or public domain, where you allow anyone to use that work in any way and for any purpose. Obviously, unless you’re super religious about sharing everything, signing away all rights might be too extreme, so Creative Commons does allow you to put some conditions in place that people should follow when they use your content. Those go from having to attribute the author where his or her content is used or requiring any new content that is created from the original one to be released under a compatible license, so if the original piece is Creative Commons Attribution Share Alike, the resulting work also needs to be licensed as Creative Commons Attribution Share alike. You could also add conditions like not allowing to modify the work or not allowing it to be used in commercial products. That last one is a bit critical, because education in particular isn’t clearly non-commercial, so often work with that license addendum doesn’t get used where it’s needed most. These terms can be combined to form the various Creative Commons licenses.

So to recap copyright: By default, the creator owns all rights to a creative work, so even when he or she shows or posts it publicly, it doesn’t mean you can, too. Unless, of course, he decides to specify a liberal license like Creative Commons that allows other people to use their work. Copyright does not apply to many 3D printable models, as they are either purely functional or don’t pass the threshold of originality.

Trademarks

But wait, there’s more! Let’s quickly touch on trademarks before we move on to patents. So unlike copyright, a trademark does usually need to be registered. Its purpose is to identify who made a product, which for example keeps Pepsi from making a product called “Coca Cola” or even from using similar sounding names or logos on their products. Keep in mind that trademarks and copyright are mostly independent of each other, for example, the copyright on many of the earlier Mickey Mouse shorts has expired, while the character design and name is still a trademark of The Walt Disney Company. And companies do need to enforce their trademark or it will be considered abandoned, so don’t be surprised when your flexible filament shoe design bearing those three stripes gets taken down or you even get some snailmail from a lawyer for publishing it in the first place.

Patents

Now, patents start where copyright leaves off, at least when it comes to functional designs. A registered patent will have a similar effect to copyright when it comes to principles of operation, processes and mechanical functions. The difference being, of course, a patent needs to be registered and paid for, which will give you a maximum of 20 years of protection of your invention. However, for those 20 years, the patent holder has the exclusive right to sell and import goods that use the technology covered by the patent. And in the same way way that copyrighted things can be licensed for others to use, so can a patent, but it’s usually not going to be free. Quite the opposite, actually. Patents are key factors when it comes to defending your company against patent claims – we’ve seen this in Apple vs Samsung regularly, where both parties know they are infringing each other’s patents and essentially just use the court case to figure out who should be paying whom how much money. They are also routinely used in judging how much a company is worth and can even serve as trading goods, which is where patent hoarders or patent trolls stem from. And that is because patents are hugely more powerful than copyright – they don’t only apply to an exact part a manufacturer makes, but also to any other implementations somebody else works out by using the same principles. So, say you owned a patent for the process of using a heated nozzle to melt plastic and then smearing that down in layers to make an object, in that case nobody else would be allowed to make an FDM 3D printer unless the patent holder – in that case, Stratasys – allowed it. And rest assured, for those 20 years from 1989 to 2009 Stratasys definitely made sure that sure that patent was used only where they approved. Which is also why the RepRap project got started right after the patent expired. The thing is, for a patent to be considered valid, it needs to be a considerable advancement of the state of the art and there can’t be any prior art, so you or your company actually have to be the ones inventing something new and, in theory, can’t just copy someone else’s prior work. And one spicy detail about patents is that, by design, they need to be public. Some companies actually don’t patent their developments to keep others from using them as a blueprint and evading the patent claims by modifying a few minor details.

But it looks like that “the rich get richer” system of patents is slowly getting a bit of a makeover. There have been some efforts to limit the power of patent trolls that only buy patents to sue others without actually making use of the patents for developing a product. Also, Tesla has declared that their patents will never be used to attack a competitor for using them, but only as defense when someone to sue them over patents they might be infringing on. Elon Musk has called their “open source” or “public domain”, which technically, are terms that only apply to copyright, but we get the idea.

Open Source

So let’s talk about open source in the context of trademarks, patents, and copyright. Because at its core, the “open source” term only means that you are opening up the source files of your finished product – for software, that is the source code that the program is compiled from and for hardware, the design files, drawings and such, are typically considered the “source”. For something to be considered “open source” as intended, those source files need to come with a liberal license that allows universal reuse. So for example a creative commons no-derivatives or Noncommercial license is often not considered a true open-source license because, even though the source files are public, you’re still severely limited when it comes to how you can use those files. In general, someone publishing something as open-source will make all files available that are needed to reproduce and modify it, and also allow that reproduction and modification to happen by attaching a liberal license. And the idea behind this is that instead of having to figure out the same things independently of each other, everyone can build on previous work and then also shares their work under a liberal license for other to use. This creates an ecosystem of open-source products that each have a much easier job getting to the finish line, and in turn give back to the community. But keep in mind that while something can be shared with, say, a Creative Commons or GPL license, patents and trademarks of third parties are completely independent of that and might still put some restriction on how you can them.

So while open-source software is pretty much figured out with the various GPL licenses, hardware is a bit of a different story. Putting 1 and 1 together, as functional hardware isn’t covered by copyright, it seems as though there wouldn’t be any restrictions on copying, say, 3D printer hardware or entire machines unless they are protected by patents. Which seems counterintuitive, but after the research I’ve done on these topics, it seems like that is exactly the case. I might have to update to my position on clone product for that.

So, let’s recap: Copyright applies to all creative work and grants the creator the exclusive right to share the work. Trademarks typically need to be registered and identify a specific product or company.

Patents protect inventions and unique functional designs, and while they are valuable assets to a company, they will also expire within a given time. And lastly, open source is the idea of deliberately sharing plans of a design for others to use for their own projects.

Now, obviously, if i did get something wrong, let me know in the comments below, this video isn’t legal advice, but a summary of the research i’ve done over the years. If you thought this video was helpful to you, give it a thumbs up, if not, let me know what i can improve. Also consider subscribing to the channel, and because Youtube only really shows you updates from the channel if you also check the bell, remember to also do that.

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And that’s it for today, thanks for watching, and I’ll see you in the next one.

Some models shown by Loubie

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This video is licensed as Creative Commons Attribution Share-alike thanks to my supporters on Patreon!