Is it possible to act as an agent for someone when 3d printing?

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cannonking
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Is it possible to act as an agent for someone when 3d printing?

Post by cannonking »

So here's the deal. A sector that I'm interested in has seen a massive rise in the sale of 3d files for printing from various artists/companies/manufacturers. They don't sell a physical product, what they sell is a license for the purchaser to print domestically for themselves using the provided files.

So the process is that you buy the 3d files from the company, and in so doing agree to the standard user contract not to share the files or resell them, or to make prints or casts of the items to sell commercially. You then get the files, download them, and print them at home. That's the usual process.

However, many people are interested in getting physical copies of these items but don't own a printer. And not all sellers of 3d files have any option (through a partner or licensed vendor, or otherwise) for distributing physical prints. It's 3d file or nothing, so you need to own a 3d printer if you want the item. Yet the other day, I saw a business who was privately printing a file for a customer (no company involvement or sanction). Which I wasn't aware was legally possible. This has got me thinking. Is it possible, in this sort of scenario, to act as an agent for a third party whilst not being liable to legal action? I.e., is it possible for someone to contract me to purchase a file for them, and then print it for them, without breaching the law?

So to make an example. Company A sells files for a 3d printed cube. The license is subject to the usual terms as described roughly above. Customer Z tells Company B that they would like to pay Company B to purchase a single license on their behalf from Company A, and then utilise it solely on their behalf, to print them the item. Company B does not resell the files at any point after this. If another customer asked, Company B would purchase another single use license on the behalf of that customer. Company B is, in effect, simply acting as the intermediary between Customer Z and Company A.

Company B is not selling the files commercially. Technically speaking, they are not selling prints of those files commercially either as those files were never theirs. The 3d files and license with all associated IP protection were purchased on behalf of, are fully owned by, and privately stored entirely for use according to the direction of a single customer. Company B never makes any argument as to owning those files. They are simply acting as an agent of Customer Z in storing and deploying those files under the direction of Customer Z. Much like how a customer could contract Company B to store their box of DVD's in a warehouse and move them around at the customer's direction, or a print shop might take a piece of IP protected artwork and blow it up for a customer, or a file storage company might let a customer store and then edit IP protected property on their server. Company B is just the customer's agent in facilitating the customer using the customer's own property.

Is this legal at all? Or is there any variation or tweaks that could be made to make it legal? Apologies if it doesn't make much sense (my legal queries are usually better researched than this), I'm just not sure where agents fit into standard IP law. So I'm just trying to decide if it would be worth talking to a lawyer, or if it's a dead end to begin with.
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AndyJ
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Re: Is it possible to act as an agent for someone when 3d printing?

Post by AndyJ »

Hi cannonking,

It's an interesting question. Issues around intellectual property rights and 3D printing have been discussed quite a lot in academic circles and the Government's Intellectual Property Office commissioned a study on the topic five years ago, but so far I don't think the courts have really had to grapple with the unique nuances of cases involving 3D printing. My understanding is that, at present, most experts feel that the current law is adequate to cover scenarios such as the one you describe.

I am not at all sure that copyright will always be involved in the example you cite. Although software (ie computer programs) and design plans (eg architect's drawings) are protectable with copyright, the separate IP area of Design Right is the more appropriate legal protection for the files and products they generate in this instance. So let's briefly look at those two rights before moving on to the other main area of law which I think is involved, that of agency.

Copyright. Looking at the 3D printing aspect, what company B is involved in is very similar to a small scale printer's or photocopy bureau, and we know from case law that they can be held liable for copyright infringement if they are negligent in failing to check if the customer has the necessary copyright permission to have a copy of something made by the printer or copyshop. Usually the circumstances will make it obvious. For instance if a customer brings in a single photograph featuring a wedding scene, and there is a professional photographer's copyright notice on the back, the copyshop should refuse to make a print without seeing some written permission. Alternatively if someone brings in a photograph of granny sitting in chair on her 80th birthday, chances are that the customer is either the copyright owner or has the tacit permission of the copyright owner to have a copy made. So in your example Company B knows from the outset that there are specific restrictions on how the file can be used, and so long as they are sure (because they acquired the file and will also delete it after making the single copy) that they are complying with the licence, they will not be liable for copyright infringement.

Design Right
. In most cases I would be surprised if any of these designs will have been registered, so we are concerned with unregistered design right (UDR). This is similar to copyright in that it comes into existence automatically when the design is recorded in some way, provided that the design is original*, and it protects the shape or configuration of the article concerned. It lasts for 15 years from date the design document or file was made or 10 years from the date the article first was made (legally) available to the public, whichever is the shorter. So in the case of a 3D file, the 10 year period will apply in most cases. In the last 5 years of the period of protection a compulsory licence to make copies can allow a third aprty to make copies subject to paying any agreed royalty to the UDR owner. Just as with copyright, a third party (Company B) can be liable for UDR infringement if they hold or use in the course of business an article or design document which they know or have reason to believe is an infringing article. However unlike copyright, there is a partial defence of innocent infringement where the alleged infringer did not know and had no reason to believe that UDR subsisted, in which case any damages (in the case of secondary infringement) would be limited to a reasonable royalty. Since Company B in your example would be fully aware of the existence of UDR, making more copies than was permitted by Company A's licence would therefore be UDR infringement. However making a single copy for customer C would be OK, unless the written terms of the licence specifically said something like "for the personal use of the licensee only" etc. That would then hinge on who was the legal licensee, Company B who purchased the file or Customer C who authorised the purchase and for whom the 3D print was made (see below). In any event if Company A was aggrieved by what was going on, they could only sue for copyright infringement or UDR infringement, but not both (see section 236 CDPA).

Contract law and the doctrine of Agency. In your example where Company B obtains the 3D file on behalf of the Customer, Company B is contracturally bound by the terms of sale, rather than Customer C, because B is a party to the sale, but see below about where 'agency' applies. This means that, presuming that the terms in the sale of the file were not unfair and B was not made aware of them at the time of purchase, B cannot make a defence that they were unaware that copyright and or UDR existed, and they would be liable as a primary infringer for anything done outside of the licence offered by Company A. If customer C buys the file themselves and brings it to B, then B is likely to be seen as a secondary infringer working on the authorisation of C, but still with a duty to satisfy themselves as to the copyright and or UDR status of the file they are asked to print. Companies get less of the benefit of doubt in such cases than may be available to a private person whose knowledge of the business practice in a particular sector may be limited. As for the relationship betwen Company B and Customer C in these examples, this will be governed by something known as agency doctrine. This is a complicated area and somewhat outside the scope of this forum so I will only provide a brief summary here. If Custumer C approaches B to obtain and then print the 3D file, B is acting as an agent of C who is known as the principal. Although the relationship of agency would only exist with regard to the specific activities around the purchase and subsequent printing of the 3D file, both agent and principal are jointly liable for any wrongdoing by the other in that context. They also share the same responsibilities, for instance over any licence terms. This position is much riskier for Company B than if they are merely acting as a provider of services, much like a photocopy shop dealing with customer who brings in a photo of granny on her 80th birthday.

As you actually thinking about this as a business venture, I think it would be sensible to discuss the subject in more depth with a commercial solicitor and get some terms and condtions drawn up governing your legal relationship with your customers covering situations where you obtain the file on behalf of your customer. If you do start a business like this, also consider approaching the issue from the opposite direction by becoming an agent of the producers of these files (the Company As). To do this you would select the designs you felt were likely to be popular and then negotiate a commercial production licence with Company A so that you could print off copies for multiple customers.

* For example if someone makes an 3D scan of an article and then creates a CAD or object file with the intention of 3D printing a copy the article, the CAD file will not be an original design document and so UDR will not apply to it, even if the scanning of the original article was done by, or with the permission of, the UDR owner. In that scenario, only the original design document will attract the UDR and the date that that document was made will be the key date for determining the length of UDR protection.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
cannonking
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Re: Is it possible to act as an agent for someone when 3d printing?

Post by cannonking »

It sounds to me as if it what you are saying is that it possible for both Company B and Customer Z to jointly be responsible for the purchase of license, but if company A disliked the concept and thought it breached the license terms, they could attempt a suit of both parties. Certainly not a position to start a company on, and clearly those I have seen at it are undertaking the activity more on the 'nobody will probably find out or care enough' basis rather than any solid legal one.

Thank you for your input. I have one more query, but I'll set it up as a separate thread so as not to conmingle the two (they're quite separate).
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AndyJ
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Re: Is it possible to act as an agent for someone when 3d printing?

Post by AndyJ »

Hi ck,

First of all, apologies for introducing a new character to the scenario, Custumer C, when you had called him or her Customer Z. I'm sure you knew who I was referring to!

And yes if an agency situation is said to be in place between B and Z which expressly authorises B to purchase the file on Z's behalf, then they would be jointly liable for any wrongdoing in respect of, say, deceiving A about the purpose of the purchase, or in relation to the terms of the licence which accompanied the sale. However I didn't mean to imply that because they might be acting as principal and agent, this alone gave Company A any different legal rights either to object to the sale itself, or to the subsequent 3D printing, provided that was in accordance with the licence.

And lastly, yes I'm sure there are a few people out there doing this without any regard for the licensing terms, just as there are people who copy music CDs or movies on DVDs or record download streams etc for their mates or a wider (paying) public.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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