Two jurists in the United Kingdom flagged the need for enhanced privacy protections in the additive manufacturing space. The scholars, professors Annika Jones and James G. H. Griffin, released an article in the European Journal of Law and Technology that examines international law’s regulation of 3D printing. Their work uses interviews with representatives from Chinese 3D printing companies. The authors’ focus on international law, however, belies their examination of Chinese companies because the international norms to which they refer are largely European- and American-based. The article focuses, moreover, on digital and physical watermarks—a branch of intellectual property law that is better regulated in more general terms.
The article raises a host of important questions that 3D printing companies need to resolve as additive manufacturing becomes more mainstream. Privacy protections are one branch of regulation that printers need to address. Intellectual property and copyright protection are a second, sometimes competing, branch that merits protection.
Establishing a balance between privacy protections and intellectual property concerns requires government and industry dialogue, which the authors point up. The authors’ focus on international regulation rightly acknowledges AM’s global significance. Their proposals lean heavily in favor of the consumer, with a focus on state infringement of consumer privacy:
(i) that recognition of the potential for digital watermarks to invade privacy is recognized in relevant treaties on copyright law and under the international human rights law framework; (ii) that a code of conduct is established that promotes privacy through self regulation of watermarking and 3D printing, and (iii) that a regulatory body is established to provide guidance and oversight.
These proposals go beyond 3D printing to address wider intellectual property issues in international law. They generally relate to the ongoing discussion regarding big data, with much of the emphasis placed on FAANG (Facebook, Apple, Amazon, Netflix and Google) companies capable of monetizing wide swaths of electronic data via artificial intelligence applications. Governments are, of course, also implicated, for they fall directly under international law.
The authors’ main concern is 3D printing watermarking, where a physical imprint is left on an object. Watermarking is, of course, a far older concept used by papermakers to show provenance. The authors problematize watermarking as a novel way to track printed objects:
These are technologies that enable the tracing of products that users ‘want’ to be traced. However, it is also necessary to consider technologies that are used to trace content that people do not want to have traced. These are the technologies used by States for surveillance purposes and technologies used by computer coders to be able to break into computer systems.
This focus on tracking watermarked data assumes economies of scale. Governments and large data centers can trace watermarks through large data sets. The authors flag this potential in their piece while noting up digital rights management law. Digital rights manage software watermarks in a copyright setting; 3D printing may use digital rights management to control the copyright of CAD files. Printing, however, moves beyond this kind of fingerprinting technology when a watermark appears on a printed object.
A broader issue in this vein is that companies specialize in watermarking and securing 3D printed objects and files using proprietary technology. Watermark3D, for example, markets technology that allows manufacturers to secure their STL electronic designs and their manufacturer objects using watermarks. The company provides a free service for up to ten electronic files a day, or 50 a month.
Identify3D goes a step further. The company provides a custom electronic file format and a cloud service. Users can track their data while also building a shared pool of AM watermarks. The larger the pool, the better AM intellectual property can be protected.
These services are self-contained digital repositories that grow, much like web indexing tools like Google’s search feature, as users open their property to the services. There is, to be sure, nothing inherently wrong with this model. Digitally tracing objects through proprietary cloud systems creates efficiency as Industry 4.0 gets underway. These services’ efficiency is also their legal threat: data about watermarks contains its own value that, if sold, improperly stored or transferred in a merger, can create monopolistic data clusters, like Google.
Such data clusters can lead to concerns about privacy protection. The authors perceive danger in the widespread use of watermarks because watermarks become a data point that allows passive tracking. A fundamental legal and human rights rule is that users be able to consent to data collection. Consent is a difficult concept in data collection and privacy relating to printed objects because collecting a large enough dataset relies on indirect data collection. Collection begins with the manufacturer, but must continue to the end-user for legal protection to matter or become necessary. If end-users are not directly affected, their privacy rights are not necessarily impacted. The authors acknowledge this difficulty, but it is one that escapes efficient legal regulation in an international regime that relies on personal rights:
a digital watermark can be used to construct data about the use of an object, but a user may not have consented to (or even been aware of) the watermark. Information is not collated directly from the user as such, but from the object. The object data can then be stored and observed subsequently, in the same way as a Google search is carried out in relation to websites. This makes the legal regulation of data protection problematic.
Regulating privacy is a competitive issue that, as the authors propose, requires international and company-specific regulation. The Chinese companies interviewed for this study recognized their ability to track end-user data or competitors’ ability to do the same. Such recognition evokes the competitive forces that push and pull companies away from and toward tracking objects. Consumers generally do not want to see their activities tracked; companies realize greater efficiencies when tracking objects. Self-regulation in this context is difficult to achieve. The value proposition for companies does not necessarily exist and will depend on each company’s socio-political circumstances.
Establishing an international regulatory authority for 3D printing privacy protections and the like similarly risks uneven application. Enforcing and recommending international solutions requires state and industry stakeholders’ buy-in across jurisdictions—a notoriously difficult solution, especially when sharp geopolitical divisions are re-forming between permanent members of the United Nations’ Security Council, especially on issues of internet regulation, IP piracy and the digital economy.
The three proposed solutions—recognition of digital watermarks as a privacy issue in international instruments; companies’ self-regulation; and creating a regulatory body—are, in this author’s opinion, difficult of application. They remain, however, meritorious contributions to a budding inter-jurisdictional debate. Lawyers, lawmakers, and industry experts will need to examine these issues in much more depth, with a focus (again, in this author’s opinion) on national regulation capable of binding corporations through national enforcement mechanisms.
This article is part of a series on law and additive manufacturing. If you or your company has experience with this or other legal issues, please tell us about your experience by emailing [email protected]
*October 15, 2020: This article has been modified since it was originally posted to remove mention of LEO Lane’s services after the company noted that its services were being misrepresented.