TY - JOUR AU1 - Wang, Jia AB - The author Dr Jia Wang is an Assistant Professor of IP Law at Durham Law School, Durham, UK. Abstract Three-dimensional (3D) printing technologies and platforms are becoming more prominent, faster and more ubiquitous, and they have significantly challenged the modular IP system. Currently, an unclear interface between different types of IP rights has led to the overprotection of design files. Moreover, despite the significant growth of designs in China, the current debate on cumulative design protection is more focused on UK and European law. This article investigates the current interface between copyright and design rights for 3D printing design files. To fill the gap in the literature, a comparative approach is taken to compare the laws between Europe, at the European Union and national levels, and China. This article views the road ahead for developing the IP legal system from three aspects: the identification of disclosure, the criteria to establish copyright originality and design novelty and the limitations and exceptions for the use of designs. In terms of practical significance, this article helps designers better understand the legal landscape when dealing with designs that are easily transmitted and traded across borders. It provides law and policymakers with a more robust understanding of the nuanced ways that IP rights operate in industrial contexts. 1. Introduction The impact of three-dimensional (3D) printing on business models based on copyright and design rights has been widely acknowledged. Although 3D printing has existed for more than 30 years, 3D technologies and platforms are becoming more prominent, faster and more ubiquitous. 3D printing technologies and a digitalized platform economy, where design, remixing and production are highly integrated, have brought significant challenges to the modular IP system.1 To encourage innovation, reduce informational costs and maintain a delicate balance between under-protection and overprotection of disruptive technologies, a well-functioning interface between copyright and design rights protection for 3D printing is much needed. This article aims to explore how to build an interface within the IP system that is capable of channelling an appropriate level of copyright and design rights protection for designs used for 3D printing. Furthermore, it aims to develop a model for understanding the mechanism of interfaces and recalibrate a balance between consumers, designers and producers. The current discussion of cumulative IP protection for designs is focused on UK and European law, with some comparative perspectives involving Chinese law.2 China is a key player in technological innovation and has been keen on adopting national policies and making laws for innovation and sustainability.3 According to the World Intellectual Property Organization statistics for March 2021, design applications from China were up 22.7 per cent from 2019. It can be expected that after China joins the Hague System, the number of international design applications will further increase. To fill the gap in the literature, a comparative approach is taken to compare the laws between Europe, at the European Union (EU) and national levels, and China. Since China’s legal system shares features with a civil law system, a comparison between European and Chinese law helps assess how the jurisdictions develop laws and regulatory strategies for 3D printing technologies. More importantly, a comparative study helps designers better understand the legal landscape when dealing with designs that are easily transmitted and traded across borders. Other jurisdictions, mainly the USA and the UK, are occasionally referenced to complement the comparative study with a common law perspective, given cross-border transactions. In addition to the geographical emphasis on Europe and the UK, the current discussion on the designs used for 3D printing has been largely based on doctrinal legal analysis. This article extends the focus to consider IP is as a modular system comprising copyright, patent, trade mark, design and other elements. A module is commonly defined as a unit sharing multiple interfaces with which to interact, integrate and combine, but the term interface is referred to in very few studies of modularity.4 As the concept of a general system, modularity has broad implications for legal systems. A study on the interface between different IP rights for 3D printing designs will contribute to the existing research with a novel perspective. The interface between subsystems is essential, as it distributes information about the scope, strength and limitations of entitlements.5 Consequently, rightsholders can utilize the information to strategize the route for IP protection. For example, if the rightsholder can only choose one type of IP right for protection, the question would be whether the design should be submitted for registration, seek copyright protection, rely on shorter and weaker protection for unregistered design or even simply be given away in exchange for fast dissemination with a quick reap of profit.6 Alternatively, if cumulative protection is permissible, the rightsholder could be motivated to seek cumulative protection that is potentially stronger and broader than the IP law intended. The findings mentioned earlier could provide law and policymakers with a more robust understanding of the nuanced ways that IP rights operate in real-world industrial contexts. User communities can deploy computer-aided design (CAD) software to create and share designs online, which significantly increases the rate and scope of innovation and harnesses diverse prosocial motivations.7 The social benefits of common-based creation and production should not be neglected in the making of the law. Caution must be exercised before attempting wholesale modifications to IP rights, given their varied (and opposing) effects on industry structures across time and the value chain. With the enactment of EU Directive 2019/18 in Europe and the latest amendment of the Anti-Monopoly Law9 in China, it is time to scrutinize the effect of cumulative protection for 3D printing design documents and re-evaluate the interface between copyright and design rights. A clarification of two major differences in design law between the EU and China is needed before a full-scale comparative study. First, China has no separate statutory act for designs. Rather, designs are protected under patent law10 with the term ‘design patent’.11 For simplicity, the term ‘design’ is to be used throughout this article when referring to designs, regardless of terminological differences. Second, the EU provides protection for both registered and unregistered designs at the EU and national levels. In China, only registered designs are protected. The article proceeds as follows. Section 2 introduces the basic underlying mechanisms of 3D printing and identifies the challenges 3D printing brings to copyright and design systems. Section 3 scrutinizes the existing interface between the two systems and discusses legal issues between 2D images, 3D images and physical objects. Section 4 examines the issues of the disclosure of designs on digital platforms, the assessment of copyright originality and design novelty and 3D printing-related exceptions to design rights. Section 5 provides recommendations for further developing the interface between copyright and design rights. Section 6 provides concluding remarks. 2. Why is 3D printing (still) in focus? 2.1 How it works Since its advent in the late 1970s,12 3D printing has revolutionized and continued to impact the manufacturing industry and beyond. From its initial uses in prototyping and tooling,13 3D printing has gained vast traction in the commercial manufacturing industry. Through the wide availability of low-cost personal printers, the technology has also culminated in and impacted the production of end-consumer products (a personal 3D printing market) characterized by many user innovations.14 ‘Not only is 3D printing becoming faster and producing larger products, but scientists are coming up with innovative ways to print and are creating stronger materials, sometimes mixing multiple materials in the same product.’15 In addition, 3D printing technologies have been widely used in health care, medicine, construction, industrial design, automobiles, aviation, aerospace, militia, fashion, footwear, jewellery, glasses and food.16 Moreover, CAD files are disseminated on influential platforms, such as 123D, Thingiverse and GrabCad, and are easily available even for laypersons. With the increasing accessibility of household printers, 3D printing remains cutting-edge and even more dynamic. Three consecutive steps have to be followed in an ordinary 3D printing process: the creation of a virtual 3D model; the deconstruction of this model into a series of slices (‘slicing’), which are sent to a 3D printer through a computer code, and the final print, which involves a layer-by-layer deposition of suitable materials. Two major categories of design software are available for 3D printing. The first category, called ‘solid modelling’, is used by engineers and industrial designers. It offers users a ready-made library of standard physical shapes that can be cut, stretched and combined with a few clicks of the mouse. From there, users can tweak and adapt these basic building blocks of pre-set shapes into a unique design. The second major type of design software is called ‘surface modelling’. This software started with cartoon animators and, more recently, video games and graphics companies. It works well in cases where a cartoon character or imaginary world cannot be adequately captured by retrofitting an out-of-box library of basic shapes. Scanning for modelling helps capture the geometry of objects for which no design file exists and for capturing the shape of synthetic objects when the original CAD file is unavailable or never existed, such as archaeological objects and broken parts. Scan data form a bridge that will span the gulf between the analogue physical world and the binary digital world.17 2.2 Challenge of limited choice Designers’ freedom of choice has been gradually reduced with widespread 3D printing. If more users and companies start producing and distributing their versions of CAD files and such files form prior art, many market sectors will be thoroughly soaked. If a specific sector is saturated, it inevitably entails compromises because minor differences in product appearance might be enough to lead to a different overall impression on the part of the informed user. Therefore, the appearance of a contested design might be very similar to that of an earlier design and, nonetheless, lead to a different overall impression. Similarly, for industrial copyright, the choices of angle, shape, line and colour are limited. Thus, originality as required by copyright is more difficult to establish. Copyright and design law have responded differently to the challenge of limited choice, particularly in highly developed or saturated sectors. For copyright, functionality is not protectable. In EU copyright law, the existence of the merger doctrine can be implied, even though the only express provision excluding ideas from protection is in the Software Directive.18 Such exclusion has been emphasized in software disputes, for instance, in the SAS case,19 which says ‘to accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolise ideas’, and the Bezpecnostni Softwarova case,20 which says ‘when the expression of those components is dictated by their technical function, the criterion of originality is not met since the different methods of implementing an idea are so limited that the idea and the expression become indissociable’. Margoni has argued that, although in the EU, the idea–expression dichotomy is only specified in terms of particular sectors, such as databases and computer programs, it can be implied in all other directives too.21 The technical function exclusion has been clarified in DOCERAM, in which it was held that considerations relating to visual aspects should not have played a role in the designer’s choice.22 Furthermore, Cofemel23 indicates that copyright protection ‘automatically’ arises upon the fulfilment of the originality requirement. This case renders the stringent legal requirements that some Member States used to limit cumulation incompatible with the EU law. In Brompton,24 the Court of Justice of the European Union (CJEU) was of the opinion that a product’s shape is protectable as long as it is original, regardless of its technical function.25 In China, a High People’s Court held that furniture design could be protected by copyright because the design embodied a high level of aesthetic value.26 Scholars have expressed similar views that it is unnecessary to require the aesthetic value to be physically separable from functionality.27 Conceptual separability can be sufficient to grant copyright protection. However, if aesthetic and functional features cannot be separated conceptually, copyright cannot be granted to a design.28 As copyright law responds to the challenge of limited design choices by limiting protection only to the non-functional aspects of the design, design law’s response is to lower the threshold of novelty and recognize partial novelty. In the past, the protection of design was limited to a product as a whole. Consequently, partially innovative designs were easily imitated by simply piecing together and substitution. The CJEU confirmed that an unregistered Community design under Regulation 6/2002 might vest in a partial design (which the CJEU defines as ‘a section of the “whole” that is the product’).29 The Chinese Patent Law30 was amended in 2020 to grant protection for the novelty found in a part of a design.31 The protection of design patents was limited to ‘a product in the whole’ under the previous law. It provided the general principle of protection for design patents as ‘observing the whole and making a comprehensive judgment’, which meant that the judgment on a design patent was subject to its comparison with the others in the whole. The industry broadly welcomes the new approach of protection for partial novelty.32 With the challenge of limited choices for design, for copyright embodied in a design, the merger doctrine restricts the finding of copyright if the artistic features in a work cannot be separated from the technical features of the design. Establishing novelty in a whole design is increasingly difficult. Apart from the legal responses observed earlier, the IP law system needs to respond to the challenge with a well-designed interface between different IP sectors. 3. Current interface between copyright and design rights 3.1 Interface between IP rights for cumulative protection There is often an overlap between copyright and design rights protection for designs with certain (even minor) aesthetic elements. An interface between copyright and design rights that demarcates the boundary between the two forms of protection can be utilized by rightsholders to determine the route to pursue IP protection. Cumulation generally comes in three forms: absolute cumulation, whereby a design is protected by copyright from inception regardless of the protection it may receive under design laws; non-cumulation, whereby copyright works do not qualify for protection through designs, and partial cumulation, whereby a design can benefit from both copyright and design protection simultaneously, as long as it satisfies the copyright originality requirement.33 At the international level, Articles 2(7) and 7(4) of the Berne Convention permit cumulation and give states much latitude to determine the scope of cumulation.34 Article 7(4) indicates that applied arts can be protected as artistic works, which hints that they differ from the ‘literary and artistic works’ prescribed in Article 2(1). Moreover, the period of protection for applied arts is ‘at least’ 25 years, which is shorter than the regular term of protection for other copyright works. The Agreement on Trade-Related Aspects of Intellectual Property Rights also allows discretion for members to decide on the route for protection.35 At the regional level, both the EU Design Directive (Article 17) and Regulation (Article 96(2)) stipulate that a design can be protected by both design and copyright law, provided that the protection requirements are fulfilled for both rights.36 With the latitude given by international and regional legislation, a review of judicial decisions helps understand how the overlapping issue has been dealt with. In the EU, Cook37 has pointed out that design protection using copyright is at risk due to the interaction between legislative changes harmonizing the term of protection for copyright works, the Infopaq38 decision on the threshold of originality for copyright protection and the Flos39 decision regarding the consequences in the practice of the requirement in EU design legislation.40 The Cassina decision confirmed that the registered designs which have entered the public domain are not excluded from protection by the law of copyright.41 The case law has shown that partial cumulation is permissible, and the threshold for the protection of industrial copyright has been eased by removing the requirement of aesthetic value in a design. In China, since there is no separate statutory act for designs, courts have different opinions about the cumulation of protection. In a 3D model case,42 Intel Lego obtained a design in China. Since the design rights expired, it sued for copyright infringement of its design. The Beijing High People’s Court upheld the copyright claim, indicating that a party should not be prevented from enjoying cumulative protection as long as copyright and design rights are duly established. The court upheld ‘partial cumulation’. However, in another case,43 the claimant had obtained a design for its packaging. It failed to renew the design and, consequently, lost its rights. It sued for copyright infringement in the packaging design. The court held initially that the claimant could enjoy copyright protection. Nevertheless, since the claimant had chosen to register for design protection, copyright protection was no longer available. Here, the court shifted from an approach of ‘partial cumulation’ to ‘non-cumulation’. Chinese commentators have argued that choosing one route of IP protection should not exclude other IP protections from coexisting in the same piece of design.44 When a party raises concurrent claims for copyright and design rights, the court may decide which protection to provide or request the party to choose one from its concurrent IP claims.45 In a 2015 case, a court recognized rights cumulation and granted both protections.46 An analysis of these cases demonstrates that rightsholders have been strongly motivated to seek cumulative protection by extending their exclusive control of a design with a copyright claim, in addition to the existing design right or after the expiry of the design right. In other words, copyright exists much longer than design rights and does not require registration. This may cause a worrying trend if different sectors of IP law continue to allow such ambiguity regarding design in a platform economy with resultant cumulative protection broader than the legislators intended. Hence, a delicate balance between exclusive IP protection and a healthy competitive market could be tipped over in favour of strong IP protection. 3.2 Interface between 2D designs and 3D objects The 3D printing technology blurs the line between the physical and immaterial worlds. An increasing number of undertakings might decide to make their CAD files available online during their business. Digital platforms might be an ordinary means of distributing 3D printing templates for protected designs. In this way, businesses would no longer need to mass-produce or distribute their products. Consequently, a question arises as to whether digital files can be protected by design rights when there is no follow-up production of physical objects. As suggested by the European Commission, confining the scope of design protection to be used on material products is overly restrictive, given the current technological change brought about by 3D printing. Scholars have suggested an amendment of Articles 12(1) EU Designs Directive and 19(1) EU Designs Regulation by including a provision inspired by Section 226(1)(b) Copyright, Designs and Patents Act 1988 (CDPA 1988). Section 226(1) of the CDPA 198847 states that ‘the owner of a design has the exclusive right to reproduce the design for commercial purposes […] by making a design document recording the design for the purposes of enabling such Articles to be made’. In the UK, a ‘design document’ is defined in Section 51(3) CDPA as ‘any record of a design, whether in the form of a drawing, a written description, a photograph, data stored in a computer or otherwise’. The scope of this provision is wide enough to include CAD files as design documents.48 Furthermore, EU design law could fashion an additional provision similar to Section 226(3) CDPA 1988, specifying that it is a primary infringement of a design right to do or ‘authorize’ another to do without the design right owner’s permission anything which is the exclusive right of the design right owner. Elam has suggested including the wording ‘making or distributing design documents’ as a type of ‘use’, which currently covers the making, offering, putting on the market, importing, exporting or using a product in which the design is incorporated or to which it is applied, stocking such a product.49 In China, a legislative attempt to draw an interface between a 2D design and a 3D object can be found in the 2020 Amendment of the Copyright Law. Article 10 defines reproduction as reproducing 2D and 3D works such as choreography, construction, models and sculptural works. Courts have followed this approach.50 The Patent Law contains no explicit provision on this issue. When dealing with scenarios in which a 2D image is converted into a 3D object or a 3D object is scanned into a 2D image, the Supreme People’s Court clarified in a 2004 guidance51 that the rightsholder of artistic works displayed outdoors could reasonably reuse their works. The provision does not specifically mandate that the reuse should be non-commercial. In a 2005 case,52 an intermediary court held that the legitimate purpose for the reuse should be educational, non-commercial and not-for-profit. For 3D printing designs, scholars have proposed a two-step test, providing that merely viewing a file on a computer is fair dealing while proceeding to print or production is no longer fair.53 Simultaneously, it is compulsory to acknowledge the CAD file as the source.54 Scholars also commented that with China’s ‘industry 4.0 policy’ that aims to promote design utilizing virtual reality/augmented reality technologies and digital platforms, the IP system needs to accommodate the designs that are put into production.55 The requirement that a design can only be protected if it can be mass-produced should be removed.56 In summary, the current interface between copyright and design rights for designs is ambiguous and has led to overlapping protection that is broader than the lawmakers intended. A further challenge from the digital world is that a CAD file can be used without follow-up for massive production, as would usually happen in the industrial world. Therefore, the IP legal system needs to clarify the scope of protection for designs used in various forms between 2D images and 3D objects. 4. The road ahead IP law encourages the disclosure of information in exchange for a period of protection57 and aims to maintain a dynamic balance between IP protection and an open and competitive market. This section aims to discuss the aspects that the current legal system needs the most to tackle the ambiguity of the interface between the IP sectors. Three issues are discussed below within the context of platform-based 3D printing. First, how can a disclosure of the art be identified? Second, how can the originality and the novelty of the design be assessed? Third, do the current exceptions to the use of designs fit the purpose of a 3D printing environment? A better understanding of the three issues will help draw a clearer interface between the IP sectors. 4.1 What activities constitute ‘disclosure’? Designers can share their designs on digital platforms in many ways. In Europe, Article 6(1) of the Community Design Regulation (CDR) does not indicate any limitation as to where an event of disclosure must take place for a design to be considered as having been made available to the public. Therefore, in general, a design can be disclosed anywhere in the world, including on the Internet. The Regulation indicates that uploading a CAD file onto a digital platform, including e-commerce platforms, online databases, apps, social media and file-sharing, is sufficient for ‘disclosing’ the design.58 It was endorsed by decisions made by the European Union Intellectual Property Office.59 The publication of a CAD file on an EU website can trigger unregistered design rights (UDR) protection from the date of the first online exposure.60 However, it is questionable whether uploading a CAD file onto a website hosted outside the EU (such as Thingiverse) activates protection. It is argued that if the website is easily accessible by European users, with a view on the retrievability of Internet publication, UDR protection is triggered at the moment of uploading.61 In China, uploading design images to the Internet can amount to disclosure, subject to relevant evidence.62 Furthermore, a judiciary interpretation63 issued by the People’s Supreme Court laid down the rules regarding the effect of electronic evidence. The major type of evidence of design is an image or a picture. Platforms having a large user base are considered reliable, as the data cannot be modified or deleted without proper authorization. Courts are more likely to endorse the authenticity of data held by certain types of platforms. The first type is large-scale e-commerce platforms, including Taobao,64 a platform run by Alibaba, and Jingdong,65 which sells fast fashion items. The second type is social media platforms, such as Weibo66 (China-based micro-blog), Xiao Hong Shu (‘Little Red Book’, an inspiring lifestyle platform with user-generated content)67 and WeChat Official Accounts Platform.68 Designs of cosmetics and jewellery can be mainly found on those platforms. The third type is video content-based platforms, such as TikTok,69 Tencent Videos70 and Bilibili.71 Creative user-generated products can be found there. The sources of design images can be found in advertisements, products manuals and testing and grading reports of products. The data of the initial uploading and every subsequent modification are recorded by the operational system irreversibly. Therefore, the Patent Office (Beijing Branch), China National IP Administration, has indicated that the time of initial uploading can be regarded as the time of publication.72 The significance of the identification of disclosure lies not only in the determination of the starting time of protection but also in the assessment of originality or novelty in the case of an infringement claim. Disclosure (publication) is not compulsory for the grant of copyright but is necessary for the grant of design protection either by making it known in the interested circles available to the public (unregistered design right)73 or through simple registration (registered design). In a copyright infringement claim, the more widely a work is accessible, the heavier the onus is on the defendant to prove that there is no copying (even subconsciously).74 Therefore, the publication of a design can activate UDR protection and enhance copyright protection. Lastly, the accessibility of digital platforms may influence the effectiveness of an assessment. Given the different commercial models and licensing schemes adopted by platforms, access to a design could be subject to conditions like a username and password and a fee payable to download or livestream the designs. The conditions of accessibility should not affect the design’s status as being publicized as long as an indefinite group of users can access the design at a reasonable rate. In summary, disclosure can be made by publishing, making a design available to the public or registering a design with a state registrar. To encourage common-based innovation, it is beneficial to incentivize designers to disclose their designs in exchange for IP protection in a digital environment by recognizing the uploading and sharing of designs on digital platforms. For 3D printing, publishing a file on a digital platform is equivalent to a publication that makes a design accessible to the public. The date of publication is the date when the design is uploaded and usually becomes accessible simultaneously.75 4.2 Assessment of originality or novelty The outcome of an assessment largely depends on the appraiser’s knowledge level. The appraiser can be an expert in a profession or a user or consumer who is less well versed in the product and industry practice. An ‘informed user’ differs from an ‘average consumer’.76 A higher level of expertise of the appraiser will result in a higher threshold for protection.77 This is because an expert can notice fewer significant details that would go unnoticed by an average consumer. In the industrial age, consumers are distinct from designers or manufacturers. In contrast, users of 3D printing technologies may be knowledgeable about specific methods and techniques of production. In this new ecosystem, the user, designer and consumer conflate to a greater extent. Hence, adopting an ‘informed user’ approach will help identify truly valuable designs.78 To be protectable, a product design in the form of a CAD file should produce an overall impression on the informed user that differs from the impression produced by all previous designs. Therefore, such a design will only pass the individual character test if it differs from (i) any CAD file for a product that has been previously uploaded onto a 3D printing platform and (ii) any product that has already been marketed. The contention further complicates the situation in which the informed user of an item represented as a CAD file might need to be distinguished from the informed user of the corresponding physical product. The former should be the user of a 3D printing platform who wants to print the item, rather than the person who purchases the product in a retail shop. Despite the current restraints of 3D printing, there is no doubt that 3D printers will become ubiquitous household devices in the future. Therefore, an informed user should be a person who knows how to download and customize the design document in a CAD file, as well as print the design out. Such an informed user has a higher level of knowledge in designing and printing than a consumer who simply purchases products. Apart from the appraiser’s knowledge level, the threshold for copyright originality matters in the assessment. The drawings of 3D design as potentially applied art, unlike other copyright works, are in nature less of a personal expression and more of an industrial application. In Europe, the German level of creativity doctrine—Schöpfungshöhe—according to which a higher threshold of originality is required for works of applied art where rules of functional considerations highly constrain creative choice, the resulting ‘work’ is unlikely to be original. The court reiterated this point in SAS Institute v World Programming.79 Italy traditionally applied the so-called principle of ‘separability’ (‘scindibilità’), offering copyright only to artistic work that had been industrially applied only where ‘their artistic value is separable from the industrial nature of the product with which they are associated’. In China, the Copyright Law80 has no explicit rule on applied art. A Beijing high court published a guidance in 2018 that endorsed the separability test and recognized the concept of a ‘useful article’ in which the aesthetic values can be separated from functional values, physically or conceptually.81 However, the guidance is not yet a binding law. In practice, the courts tend to protect an article as an artistic work with copyright protection if aesthetic features can be established independently,82 even at a minimal level.83 In other words, China has implicitly adopted an ‘originality plus aesthetic values’ approach regarding industrial copyright. Although many European countries traditionally adopted an originality-plus approach for industrial copyright, as shown in Section 3.1, the legislature and judiciary of the EU were to eliminate the aesthetic requirement and harmonize the copyright law with an originality test equally applicable to all types of work. China favoured an originality-plus approach. However, it could face pressure to alter its law under the harmonization of copyright law in the EU. In a 3D printing environment, in view of the flexibility allowed by the international copyright law,84 it could be counter-productive to adopt a one-size-fits-all approach for ‘classical copyright works’85 and industrial copyright without distinction. This is because the rationale for protecting different genres of work is very different. The rationale for protecting ‘classical copyright works’ is multifaceted—a romantic vision of the author’s personhood, economic incentives and just reward for intellectual creation, as well as for cultural prosperity for the public good of the society.86 In contrast, the reason for protecting industry copyright is more straightforward in its commercial value. Therefore, aesthetic value forms the core of industry copyright. Again, whether the drawings of a design carry sufficient aesthetic value can be judged by an informed user who is knowledgeable about artworks and designs.87 In summary, an initial assessment of originality or novelty depends on various factors. The most decisive factor is the appraiser’s knowledge and skills in the art. To balance IP protection and the competitiveness of the market while extending protection by recognizing the disclosure of design on the Internet,88 it is time to level up the threshold of originality/novelty by adopting an ‘informed user’ approach to 3D printing designs. 4.3 Exceptions for the use of a design Absolute limiting doctrines, including the scope of protection and duration, inherently define copyright and design rights. In contrast, correlative limiting devices, such as exceptions, are external to these rights.89 To maximize the benefit of commons-based peer production sustained by its capacity to harness diverse prosocial motivations, it is necessary to scrutinize the correlative limiting devices to copyright and design rights that adjust the level of societal access to IP-intensive products.90 Two exceptions are mostly relevant to 3D printing: the exception for private and non-commercial use of a design that could be widely evoked by users of CAD files with household 3D printers91 and the exception for the design of automobile spare parts. The exception for private and non-commercial use may exempt an unauthorized 3D printing of a design from the liability of an IP infringement. The exception ‘must allow and ensure the development and operation of new technologies and must safeguard a fair balance between the rights and interests of rightsholders and of users of protected works who wish to avail themselves of those technologies’.92 This exception is applicable only when usage is both private and non-commercial.93 Regarding the first step, the term ‘private’ includes acts such as copying by an individual in their home for personal use. If the object created by the private individual is sold (or even offered for sale) or used for commercial purposes (eg by rental or public lending), the use of the product cannot be justified under this exception.94 The private and non-commercial use exception allows household 3D printing of any design-protected object. In Europe, the Commission conducted a legal study95 that inter alia assessed the issue of 3D printing. Among the different options, the study recommended that consideration be given to the possibility of restricting the scope of the exception for private and non-commercial use of designs. A follow-up study suggested that home 3D printing would fall into the private and non-commercial use exception within the meaning of Article 20(1)(a) of the Design Regulation and Article 13(1)(a) of the Design Directive.96 In China, there is no specific provision for exceptions to designs. The Copyright Law may shed some light on this, with its fair dealing provisions, which provide ‘to sketch, take photos or video recordings of artistic works displayed in a public space’.97 By employing the phrase ‘sketching and taking a photo or video recording’, it is indicated that the word ‘use’ means copying a file rather than creating a physical object. This exception is subject to a Berne-style three-step test, requiring the use to neither conflict with the normal exploitation of the work nor unfairly prejudice the legitimate interests of the rightsholder. If this approach is taken by the law of designs, it could be implied that private and non-commercial copying of the design file is exempted from liability. In Europe and China, the problem of the exception for private and non-commercial use is that it became too broad in a 3D printing environment. Private use does not necessarily correlate to the non-commercial nature of the use as the production is democratized with ubiquitous 3D printers. The decentralized design and assembly line could make the production commercial, even on a small scale. Therefore, the two-stage analysis of ‘private’ and ‘non-commercial’ no longer fits the purpose. The exception can be narrowed down to exempt the non-commercial use of 3D printing designs without enquiring whether it is private or not. The second relevant exception is the so-called ‘must-fit’ exception. In Europe, Articles 8(1) and (2) CDR state that a Community design shall not subsist in features of the product’s appearance, which are solely dictated by its technical function. In a way, such exclusion emulates the idea and expression dichotomy in copyright law. In the 1991 Green Paper on the Legal Protection of Industrial Design,98 the European Commission made it clear that if the designer had a choice among various forms to arrive at the technical effect, the features in question could be protected. This, in turn, means that features of the appearance of a product, represented as a CAD file, will not be granted protection if they are indispensable only for achieving a specific technical result. Europe Economics presented ‘The Economic Review of Industrial Design in Europe’, suggesting that a full liberalization, meaning a complete elimination of design protection for spare parts within the EU, would be the best outcome. In China, the Patent Law contains no such exceptions. Copyright law, peripherally relevant, provides that merely producing a functional design for implementation through different media and materials is not copyright infringement.99 Commentators suggested that with ubiquitous 3D printers, consumers and manufacturers should be allowed to produce their spare parts for repair, as it is environmentally friendly and pro-competition.100 Hence, a de facto repair clause might become inevitable anyway. As it is impossible to enforce design law against all infringers in the 3D printing landscape, full liberalization has to occur. Copyright law may include an exception similar to the design exception for spare parts and provides that it is not an infringement to copy a design document to produce essential spare parts.101 5. Recommendations The interactions among various actors in the IP system are non-linear, uncertain and unpredictable. Clarifying the relationship between copyright and design rights for 3D printing and developing an interface will encourage the creativity of entrepreneurs and lead users in producing and protecting knowledge and innovation assets. The scope of protection needs to be redefined. With the innovation of design software that empowers individual designs to scan physical objects and design freely in 2D and 3D formats, it is no longer necessary to associate design protection with subsequent massive production. Therefore, designs can be protected as such in a virtual format.102 This will provide robust protection for creative individuals with diverse motivations and promote fragmented market entry by startups. Apart from the copyright and registration-based design protection, in Europe, unregistered Community design protects designs against direct copying for 3 years.103 This provides reasonable protection, compared to a longer copyright term of up to 70 years after the creator’s death. In China, introducing a similar unregistered design regime has been recommended by scholars and practitioners.104 The level of IP protection also needs recalibration. A lax IP regime could lead to overprotection, while a restrictive regime could lead to under-protection. Given the flexibility granted by international copyright law, copyright can coexist with design rights. A robust registration-based design system and a relatively high threshold of copyright protection will help sustain the growth of creative industries. On the one hand, the originality-plus approach will encourage smaller players to enter the market without worrying much about copyright infringement. The original investment in design is relatively low compared to downstream marketing and production. A narrow and long copyright regime warrants protection for truly commercially valuable designs and can be proclaimed after the expiry of design rights. On the other hand, due to the challenge of limited choice, partial novelty can qualify for granting design protection. This is happening with the Hague System,105 and the trend will continue. To afford a short period of protection for designs (eg fast fashion), aiming at short-term and quick reap of profit without registration is a reasonable choice. Unregistered design protection only prohibits direct copying,106 so the downstream market of derivative designs remains open to competitors. A decisive factor in granting protection is the appraiser’s knowledge for the relevant assessment of originality or novelty. An ‘informed user’-led assessment is more suitable than an average consumer’s approach. With the merging of various traditionally distinct groups among consumers, designers and producers in a 3D printing environment, a user is better versed in techniques and skills in designing and printing across sectors of the supply chain from designing to manufacturing. An ‘informed user’ of the copyright elements in a design is a person knowledgeable in designing and artwork, while an ‘informed user’ of the design elements is a person knowledgeable in designing and printing or production. An ‘informed user’ approach helps avoid rightsholders leveraging on copyright protection, which does not require examination and registration, and bypassing the registration-based design rights protection, which requires a degree of novelty. As 3D designing and printing occur mostly on digital platforms, encouraging design disclosure will help foster a community of creative commons. Designs can be disclosed in various ways, such as uploading a CAD file to a specialized platform like Thingiverse or publicizing, selling or offering to sell any object embodying a design on platforms for e-commerce, social media and user-generated content. As long as the platform is accessible by an indefinite group of people and the data are retrievable and reliable, the uploading activity should be recognized as a disclosure. Designs disclosed on digital platforms can be part of the prior art. Designers will be encouraged to disclose designs as disclosure strengthens both copyright and design rights protection. Finally, the interface between exceptions to copyright and design rights needs to be adjusted to suit the needs of household-based 3D printing. The scope of the two-staged ‘private non-commercial use’ exception needs to be narrowed down.107 With the increasing availability of 3D printers, it is neither necessary nor possible to distinguish between the private and non-private uses of designs. A more appropriate way is to restrict the unauthorized and unpaid commercial use of the design straight away without any distinction between private and non-private use. Moreover, an interface of exceptions for spare parts and replacements needs to be built. The copyright law may include an exception similar to the design exception for spare parts and provides that it is not an infringement to copy a design document to produce essential spare parts. 6. Conclusion IP, as a complex adaptive system, is highly modular and flexible in adapting to disruptive technologies and new ecosystems. An interface has been established to deal with the cumulative protection between copyright and design rights. However, the scope and strength of protection for designs vary among jurisdictions. The spectrum of overlapping IP rights spans from full cumulative protection (IP rights coexist) to zero cumulative protection (IP rights are exclusionary to each other). Despite the differences among jurisdictions, both Europe and China are moving towards a partial cumulation that recognizes conditional cumulative protection. Regarding the scope of protection, design protection needs to be extended to behaviours such as making or distributing copies of design documents, including the codes, without requiring a subsequent massive production of that design. Moreover, providing European-style protection for unregistered designs against direct copying within a short period (eg 3 years) is recommended for China. Regarding the level of protection, it is found that both copyright and design laws have lowered the bar for protection. For copyright, the requirement of aesthetic value has been removed from copyright protection for applied art, and its protection period has been equalized with other genres of works. For design rights, the partial novelty of a design could be sufficient to justify the granting of design protection. A lowered protection threshold would lead to broader and stronger protection than the lawmakers intended. An unclear interface between copyright and design rights has caused rent-seeking-like behaviours where rightsholders utilize cumulative copyright and design rights to reinforce the control of their designs. Therefore, an interface should demarcate the boundary between copyright and design rights by levelling up the threshold of copyright protection for industrial copyright while maintaining the lowered bar for design protection by recognizing partial novelty in a design. This solution is possible with the flexibility given by international copyright law, the legal tradition of European countries and China and the challenge of limited choice in the design industry. By adjusting the threshold of copyright and design rights for 3D printing designs, designers will be prompted to register their designs. Registered designs provide robust protection for designers and legal certainty to third parties. To carry out an appropriate design assessment, an ‘informed user’ approach is recommended. Openness and interoperability are keys to success in innovation in a platform environment with creative commons and peer production. To encourage the disclosure of designs, uploading CAD files and other forms of design to digital platforms should be legally recognized as ‘disclosure’ if the platforms are reasonably accessible by relevant groups of users and the data on the operational system of the platform are retrievable and irreversible. Exceptions for the use of designs also need a revamp. The exception should focus solely on the purpose of the use and no longer distinguish private from non-private use. Moreover, an interface between copyright and design rights that allows the liberalization of the use of design documents for repair and replacement is much needed. The principal aim of this article was descriptive and conceptual rather than prescriptive, and such a proposal would need further elaboration. With a well-defined and carefully calibrated interface between copyright and design rights, the IP legal system will better facilitate innovation with disruptive technologies, such as 3D printing, in a platform environment. Footnotes 1 For example, see ‘Three-dimensional printing: intellectual property rights and civil liability—European Parliament resolution of 3 July 2018 on three-dimensional printing, a challenge in the fields of intellectual property rights and civil liability’ (2017/2007(INI)) OJ 2020/C 118/02. 2 For example, D Stone, European Union Design Law: A Practitioners’ Guide (OUP 2016); V Elam, ‘CAD Files and European Design Law’ (2016) 7 JIPITEC 146; D Mendis 2019, ‘Fit for Purpose? 3D Printing and the Implications for Design Law: Opportunities and Challenges’ CIPPM/Jean Monnet Working Papers No 03-2019 accessed 21 July 2022; I Fhima, ‘Functionality, Cumulation and Lessons from Trade Mark Law’ (2020) 15 JIPLP 301. 3 Xiheng Jiang, ‘How China Is Implementing the 2030 Agenda for Sustainable Development’ accessed 20 October 2022. 4 C Suematsu and M Makabenta-Ikeda, ‘Interface from Transaction Cost Approach’ Kyoto University Economics Working Paper No 84, 2, 2006 accessed 20 October 2022. 5 For example, for copyright, an external limitation can be the idea/expression dichotomy and an abstract idea is not protectable. An internal limitation can be fair dealing that permits certain uses of copyrighted works without authorization. 6 The theory of Piracy Paradox points out that a dynamic relies upon a ‘first mover advantage’ during which a designer enjoys a de facto period of exclusivity between the release of a design and its subsequent appropriation and diffusion among the masses. Within this period, the design originator may profit from the sale of its design, until he or she is ready to move on and satisfy the new demand arising from its diminished desirability. K Raustiala and CJ Sprigman, ‘The Piracy Paradox: Innovation and Intellectual Property in Fashion Design’ (2006) 92 Va L Rev 1687. 7 Y Benkler, ‘Intellectual Property and the Organization of Information Production’ (2002) 22 IRLE 81. 8 EU Directive 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market. 9 PRC Anti-Monopoly Law, enacted in 2007 and amended in 2022. 10 PRC Patent Law, adopted in 1984, amended in 1992, 2000, 2008 and 2020. 11 See www.gov.uk/guidance/ip-in-china#patents accessed 21 July 2022. 12 S Bechfold, ‘3D Printing, Intellectual Property and Innovation Policy’ (2016) 47 IIC 517. 13 P Dinev, ‘Revisiting the Copyright Status of 3D Printing Design Files’ (2020) 42 EIPR 94, 95. 14 Bechfold (n 12) 521. 15 M Zastrow, ‘The New 3D Printing’ (2020) 578 Nature 20 accessed 20 October 2022. 16 Bechfold (n 12) 517. 17 H Lipson and M Kurman, Fabricated: The New World of 3D Printing (JWS 2013) 96. For more information on design software for 3D Printing, see G Van Overwalle and R Leys, ‘3D Printing and Patent Law: A Disruptive Technology Disrupting Patent Law’ (2017) 48 IIC 504. 18 Directive 2009/24/EC (Recital 11 and art 1(2)). 19 C-406/10, EU:C:2012:259. 20 C-393/109, EU:C:2010:816. 21 T Margoni, ‘The Harmonisation of EU Copyright Law: The Originality Standard’ in M Perry (ed), Global Governance of Intellectual Property in the 21st Century (Springer 2016) 85. 22 C-395/16, ECLI:EU:C:2018:172. 23 Judgement in Cofemel Sociedade de Vestuario SA v G Star Raw, C-683/17, EU:C:2019:721. 24 Judgement in SI and Brompton Bicycle Ltd v Chedech/Get2Get, C-833/18, ECLI:EU:C:2020:461. 25 para 38. Also see para 26, the Court then draws the conclusion that ‘a subject matter satisfying the condition of originality may be eligible for copyright protection, even if its realisation has been dictated by technical considerations, provided that its being so dictated has not prevented the author from reflecting his personality in that subject matter, as an expression of free and creative choices’. 26 Qianjia Shiji Furniture Ltd v Yitang Furniture Ltd (2019) Chuan Zhi Min Zhong No 176, 2021. 27 X Feng and J Fu, ‘Applied Art as a Genre of Copyright Work’ (2018) 2 Chinese Journal of Law 136 149–152. 28 ibid. 29 Preliminary ruling in C-123/20 Ferrari. 30 PRC Patent Law, enacted in 1984 and amended in 1992, 2000, 2008 and 2020. 31 art 2 provides: ‘Designs mean, with respect to a product in whole or in part, new designs of the shape, pattern, or their combination, or the combination of the colour with shape and pattern, which are rich in aesthetic appeal and are fit for industrial application.’ 32 F Xu, ‘A Closer Look at the Changes to China’s Design Patent System’, 2021 accessed 20 October 2022. 33 JC de Canas, ‘Cumulation of Protection by Means of Industrial Designs and Copyright: Thanks to the Winds of Change from Strasbourg in the Cofemel Case, Spain Begins to “Catch the Breeze”’ (2022) 44 EIPR 360. 34 art 7(4) provides: ‘It shall be a matter for legislation in the countries of the Union to determine the term of protection of photographic works and that of works of applied art in so far as they are protected as artistic works; however, this term shall last at least until the end of a period of twenty-five years from the making of such a work.’ 35 Agreement on Trade Related Aspects of Intellectual Property Rights, 1995, arts 25 and 26. 36 See Recital 8 of the Directive and Recital 32 of the Regulation. 37 T Cook, ‘The Cumulative Protection of Designs in the EU and the Role in Such Protection of Copyright’ (2013) 18 JIPR 83. 38 Judgement in Infopaq International A/S v Danske Dagblades Forening, C-5/08, ECLI:EU:C:2009:465. 39 Judgement in Flos Semarao Casa e Famiglia, C-168/09, ECLI:EU:C:2011:29—in this case, the CJEU indicated that, although art 17 gives states the latitude to decide the extent and conditions of copyright protection, no freedom is allowed in relation to the 70-year post-mortem duration of copyright protection. This means EU states cannot enjoy the flexibility to limit the duration of protection that the Berne Convention allows. 40 Recital 8 (this establishes copyright and design cumulation) and art 17 of Directive 98/71 on the Legal Protection of Designs (this obliges members to apply cumulation). 41 C-198/10, ECLI:EU:C:2011:570. 42 Beijing No 1 Intermediary People’s Court (1999) Yi Zhong Zhi Chu Zi 132; affirmed by Beijing Higher People’s Court (2002) Gao Min Zhong Zi 279. 43 Shen Zhen Intermediary People’s Court (2004) Shen Zhong Fa Min San Chu Zi 67; affirmed by Guangdong Provincial High People’s Court (2005) Yue Gao Fa Min San Zhong Zi 236. 44 Z Ling, ‘Expired Design Patent still under Copyright Protection’ (2010) 4 People’s Judicature (Case) 86. 45 (2007) Gan Min San Zhong Zi 19. 46 (2015) Zhong Yi Fa Zhi Min Chu 173. 47 Copyright, Designs and Patents Act 1988. 48 It should however be borne in mind that in the UK jurisdiction, under s 51(1) CDPA 1988, copyright in a design document (ie in the CAD file) will not be infringed by making a 3D article from it, where the design is for anything other than an artistic work or a typeface. Hence, if a CAD file embodies a utilitarian design (eg the design of automotive spare parts), printing the object will not result in copyright liability. In this respect, the UK model would not be a good model to replicate for the EU. 49 Elam (n 2). 50 (2002) Er Zhong Min Chu Zi 804; (2007) Hu Yi Zhong Min Wu Zhi Chu Zi 361. 51 art 18 of ‘Interpretation of the legal issues applicable to the trial of copyright civil disputes’, issued by the Supreme People’s Court in 2002 and amended in 2020. 52 (2005) Tong Zhong Min San Chu Zi 0079. 53 Z Ma and Q Chen, ‘Copy and Fair Use in 3D Printing’ (2015) 17 JSUFE 97, doi:10.16538/j.cnki.jsufe.2015.03.006. 54 ibid. 55 S Diao, ‘The Challenges of Virtual Reality to Design Patent System and the Response in China’ (2020) Electronic Intellectual Property 7, 23. 56 M Hsu and R Chen, ‘Analysis of the Determination of Graphic Images Design Patent Infringement – Focus on the Differences Between European Union Type and Indirect Infringement’ (2018) 230 J Intellect Prop Rights 32 accessed 21 July 2022. 57 P Lee, ‘Reconceptualizing the Role of Intellectual Property Rights in Shaping Industry Structure’ (2019) 72 V L Rev 1197. 58 Articles 5 and 6, Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs. Also see Elam (n 2). 59 It was held that a design submitted to eBay’s web pages for display and sale was a disclosure. The decision pointed out that ‘Information disclosed on the Internet or in online databases is considered to be publicly available as of the date the information was posted.’ See the decision of the Invalidity Division of 10/07/2014, (formerly) Office for Harmonization in the Internal Market (OHIM) (Trade Marks and Designs), file number CD 9282, Community design 002272690-0002. 60 See accessed 21 July 2022. 61 Elam (n 2). 62 (2018) Yue Min Zhong No 496. 63 Decision of Amending Rules regarding Evidence for Civil Claims by the People’s Supreme Court, issued in 2019 and became effective in 2020. A Judiciary Interpretation issued by the People’s Supreme Court could be a binding law, subject to conditions. See C Wang, ‘Study on the Effect of Judiciary Interpretations Issued by the People’s Supreme Court’ (2016) 28(1) PULJ 263–79. 64 See accessed 21 July 2022. 65 See accessed 21 July 2022. 66 See accessed 21 July 2022. 67 See accessed 21 July 2022. 68 See accessed 21 July 2022. 69 See accessed 21 July 2022. 70 See accessed 21 July 2022. 71 See accessed 21 July 2022. 72 X Tian, ‘Searching and Application of Internet-Based Evidence of Designs’ (China IP 2022) accessed 6 June 2022. 73 The Board of Appeal’s decision in Crocs, Inc. v Holey Soles Holdings Ltd shed some light on whether the publication of a CAD file on an online platform would amount to disclosure to the public. In OHIM Invalidity Division, Mariusz Adamski Adams Group v Abakus Direct Ltd, the holder had disclosed its design on eBay prior to the Registered Community Design’ filing information disclosed on the Internet or in online databases forms part of the prior art and is publicly available as of the date the information was posted. 74 For example, Mitchell v BBC [2011] EWPCC 42. 75 European Union Intellectual Property Network, Common Communication—Criteria for Assessing Disclosure of Designs on the Internet, 2020. accessed 20 October 2022. 76 Lord Justice Jacob pointed out that the informed user is not the same sort of person as the ‘person skilled in the art’ of patent law, see Procter & Gamble Co v Reckitt Benckiser (UK), Ltd [2007] EWCA Civ 936, per Jacob LJ, 16. According to the CJEU, the ‘informed user’ must be understood as ‘lying somewhere between that of the average consumer, applicable in trade mark matters, who need not have any specific knowledge and who, as a rule, makes no direct comparison between the trade marks in conflict, and the sectoral expert, who is an expert with detailed technical expertise’, see General Court Judgment of 9 September 2008, Case T-10/08, Kwang Yang Motor v OHMI, ECLI:EU:T:2011:446, para 33. 77 It was held that an informed user should be understood as someone ‘lying somewhere between that of the average consumer who need not have any specific knowledge and who, as a rule, makes no direct comparison between the trade marks at issue, and the sectoral expert, who is an expert with detailed technical expertise’. See EU Judgement in Argo Development and Manufacturing Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), T-41/14, ECLI:EU:T:2015:53, para 5. 78 Case T-526/13 [2015] H&M Hennes & Mairitz BV v OHIM – Yves Saint Laurent (handbags) EU:T:2015:614, 32–34. 79 C-406/10, ECLI:EU:C:2012:259, para 68. [AG44] (AG Bot). 80 PRC Copyright Law, enacted in 1990 and amended in 2001, 2010 and 2020. 81 Guidance of Copyright Infringement Case, issued by Beijing High People’s Court, 2018. See art 2.6. 82 See the Hennessy case (2017) Yue 73 Min Chu Zi 3414 and (2019) Yue Min Zhong 1665; the Zoomer case (2018) Zui Gao Fa Min Shen 4397. 83 Beijing No 1 Intermediary Court held that the aesthetic value in a design differed from that found in artworks and artistic works. Aesthetic value in a design can be established if a designer has chosen among various possible patterns and made that choice or the combination of choices obvious in the design. See (2005) Yi Zhong Xing Chu No 442. 84 See Section 3.1. 85 For example, literal, musical and artistic works. 86 W Fisher, ‘Theories of Intellectual Property’ in S Munzer (ed), New Essays in the Legal and Political Theory of Property (CUP 2001). 87 In Merlet v Mothercare (1986) RPC 115, Walton J concluded that in the first instance the question is whether the artistic craftsmen intended to create a work of art, if the intention was present and the creator had not ‘manifestly failed’ in this regard, then the work was a work of art; in Vermaat v Boncrest (2001) FST (5) 49, a different test was adopted, requiring not merely intention but actual evidence of creativity, in the sense of being produced by someone with creative ability and having aesthetic appeal. In Guild v Eskandar (2001) FSR (38) 645, the court considered whether the garment can fairly be regarded as satisfying the aesthetic emotions of a substantial section of the public. 88 See Section 3.1. 89 S Balganesh, ‘Foreseeability and Copyright Incentives’ (2009) 122 Harv L Rev 1569. 90 T Rayna, L Striukova and J Darlington, ‘Co-creation and User Innovation: The Role of Online 3D Printing Platforms’ (2015) 37 JET-M 90. As 3D printing technologies provide possibilities for users to start producing goods at home, many of them could be expected to become ‘prosumers’. 91 Thus, were 3D printers to be commonly available in private households this could depend on the interpretation of the significance to design holders as it could erode the basis of their exclusive right. Dumortier, ‘Legal review on industrial design protection in Europe—Under the contract with the Directorate General, Internal Market, Industry, Entrepreneurship and SMEs’ (MARKT2014/083/D) 129. 92 Judgement of Public Relations Consultants Association Ltd v Newspaper Licensing Agency Ltd and Others, C-360/13, EU:C:2014:1195, para 24. 93 art 13 (1) of EU Designs Directive 98/71/EC. See J Schovsbo and A Nordberg, ‘EU Design Law and 3D Printing: Finding the Right Balance in a New Ecosystem’ University of Copenhagen Faculty of Law Legal Studies Research Paper Series No 2017-30, 13. accessed 20 October 2022. 94 Stone advocates a rather expansive reading of the commercial requirement and suggests that wearing an infringing tie to a client meeting or taking an infringing vase to the workplace would disqualify the use for being covered by the exception. See D Stone, European Union Design Law: A Practitioners’ Guide (OUP 2016) ch 18. 95 European Commission, Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs, Legal review on industrial design protection in Europe: Final Report, Publications Office, 2016 accessed 20 October 2022. 96 European Commission, Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs, D Mendis and others, The Intellectual Property implications of the development of industrial 3D printing, Publications Office (2020). accessed 20 October 2022. 97 art 24(10). 98 Green Paper on the Legal Protection of Industrial Design. Working document of the services of the Commission. III/F/5131/91-EN, June 1991. 99 H Jiao, ‘Trans-Medium Copying and the Construction of the Right of Reproduction’ (2014) 4 Science of Law 119. See also (2002) Er Zhong Min Chu Zi 8042; Hu Er Zhong Zi Min Wu Zhi Chu Zi 240. 100 HK Chan and others, ‘The Impact of 3D Printing Technology on the Supply Chain: Manufacturing and Legal Perspectives’ (2018) 205 International Journal of Production Economics 156–62. 101 Feng and Fu (n 27) 166–69. 102 Elam (n 2) 152. 103 See accessed 21 July 2022. 104 Mingde Li, ‘On the Reform of the Design Law in China’ (2022) 3 Intellectual Property 16. 105 The Hague System for the International Registration of Industrial Designs. See more details at accessed 21 July 2022. 106 See accessed 21 July 2022. 107 E Derclaye, The Copyright/Design Interface Past, Present and Future (CUP 2018) 421–58. Author notes * Email: jia.wang2@durham.ac.uk. This paper has been presented at the SCOTLIN Early Career Scholars Symposium 2022 and the COMIPinDigiMarkts2022. I am grateful for the comments and feedback from the panellists and discussants. Thanks to Pearl Cheng, Gift D. Makanje and Maya Oral for their research assistance. All errors remain mine. © The Author(s) 2022. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/pages/standard-publication-reuse-rights) © The Author(s) 2022. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com TI - Reconceptualizing the interface of copyright and design rights for 3D printing JF - Journal of Intellectual Property Law & Practice DO - 10.1093/jiplp/jpac102 DA - 2022-11-30 UR - https://www.deepdyve.com/lp/oxford-university-press/reconceptualizing-the-interface-of-copyright-and-design-rights-for-3d-NpFffulx99 SP - 1011 EP - 1022 VL - 17 IS - 12 DP - DeepDyve ER -