Abstract
In recent years, 3D printing has become widespread due to the popularisation of new technologies and the diffusion of a culture based on access to and reuse of knowledge. This blend can be called Open Design. Many Open Design supporters argue that 3D printing technology can be seen as the cornerstone of a third industrial revolution. In this light, it is relevant to ask whether modern open designers can benefit from copyright protection and can successfully rely on open licences. In this chapter, Margoni focuses especially on Creative Commons (CC) licences. He provides an overview of the relevant EU copyright law provisions, and on some recent case law of the European Court of Justice. By examining the most relevant aspects of CC licences, including their applicability to products of design, Margoni can investigate whether a proper legal framework for Open Design exists. He concludes that design rights are not included in the current CC licences. However, thanks to a specific tool offered by CC, called CC-Plus, it is possible to “enhance” a CC licence in order to include design rights and possibly to create a legal framework for the development of Open Design projects under the name of CC-PlusDesign.
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Notes
- 1.
- 2.
Well-known examples are ‘Free Libre Open Source Software’ (FLOSS) and ‘Open Content/Access’. These examples, under a legal point of view, are based on legal documents such as the GNU General Public Picence (GPL), or Creative Commons licences.
- 3.
On Wikipedia, open design is described as the development of physical products, machines and systems through the use of publicly shared design information. Open design involves the making of both free and open-source software (FOSS) as well as open-source hardware. The process is generally facilitated by the Internet and often performed without monetary compensation. Goals and principles are comparable to those of the FOSS movement, but are directed to the development of physical products rather than software. A definition of open design has been developed in 2000 on http://www.opendesign.org, although the project seems not under development any longer. Currently the most active initiative in the open design field seems to be the open design project hosted by the Open Knowledge Foundation, which states “We aim to use existing definitions for inspiration in this process, including the first Open Design definition drafted in 2000, the Open Design Manifesto, the Open Design page on Wikipedia and the Open Hardware definition”, see http://design.okfn.org/current-projects/. See Van Abel et al. 2011; Perry 2003.
- 4.
- 5.
From a legal point of view a better categorization could be represented by the concept of limited liability that has favoured the first industrial revolution at least as much as technological inventions. The second industrial revolution similarly witnessed the development of the basic concepts of labour law and eventually consumer protection law. It could be argued that for the third industrial revolution design rights, copyright, and the ability to share and participate in the technological process are among the legal driving factors. An interesting article in this regard appeared in a 1926 issue of The Economist, suggesting that “the nameless inventor of [limited liability] might earn a place of honour with Watt, Stephenson and other pioneers of the industrial revolution”, see The Economist 1999.
- 6.
Margoni 2013.
- 7.
See Weinberg 2010.
- 8.
See e.g. Article 2(1) Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886 (Paris text).
- 9.
Article 3 CDR—definitions: “For the purposes of this Regulation: (a) ‘design’ means the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation; (b) ‘product’ means any industrial or handicraft item, including inter alia parts intended to be assembled into a complex product, packaging, get-up, graphic symbols and typographic typefaces, but excluding computer programs”.
- 10.
See recital 32 and Article 96(2) of Council Regulation (EC) nº 6/2002 of 12 December 2001 on Community Designs [CDR]. See also Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs [Design Directive, DD]. For an explanation of the reasons see Explanatory Memorandum to the Regulation, COM(93) 342 final-COD 463 Brussels, 3 December 1993, and in particular: “The smooth functioning of the internal market for products embodying design is going to be fully achieved only if the Community Design system is supplemented by harmonized national rules of copyright law relating to the protection of design. This is, however, a formidable task which needs intense preparation, further comparative studies and contacts with national authorities and interested academic circles. If the introduction of the Community Design should be subordinated to the achievement of such a harmonization, the urgent need of giving to design industry an efficient tool for the internal market could not be satisfied within a reasonably short period. It is, however, important that the Member States be aware of the Commission’s intention to proceed in the direction indicated: acceptance of the principle of ‘cumulation’ of protection, as defined in this paragraph would constitute their first contribution in this direction. It should also be stressed that it would be difficult to require Member States which traditionally attach the utmost importance to protection of design by copyright, like France or the Benelux States, to accept the ‘market oriented approach’ of this Regulation, if they were not sufficiently satisfied that harmonized rules of copyright law will be laid down at Community level in order to protect the creativity aspect of the activity of design. Accepting the principle of ‘cumulation’ should not, however, prevent the Member States who already apply such a principle under restrictive conditions (Germany, Spain, Portugal, Denmark, Ireland) from continuing to do so. For the time being, the extent and the conditions of protection, including the level of originality required, would continue to be autonomously determined by each Member State. The introduction in the Regulation of the principle of ‘cumulation’ would, on the contrary, have an immediate impact for Italy, where the principle of ‘cumulation’ is excluded by the existing legislation”.
- 11.
Ibid.
- 12.
An example of perfect cumulation is traditionally represented by France where on the basis of the theory of unity of art every work of the mind is protected regardless of the form of expression, merit or purpose. As Goldstein and Hugenholtz observe however, if the design is strictly functional copyright protection might be denied; see Goldstein & Hugenholtz 2013, pp. 214–216.
- 13.
This is the approach that Italy has chosen after the DD, which mandated the abandonment of the previous approach based on principle of ‘scindibilità’. The current Italian Copyright Act requires “artistic value” in order to offer protection to products of industrial design and applied art. The precise meaning of artistic value is however not clear. See Franzosi 2009, pp. 71–82, Montanari 2010, pp. 7–25. Another example of partial cumulation has been until recently Germany; see Goldstein and Hugenholtz 2013, p. 215.
- 14.
There are other basis for EU legislative intervention in the Treaties, such as Articles 53 (freedom of establishment), 167 (common cultural heritage), and 169 (consumer protection); nonetheless Article 114 remains the single principal source of powers used to regulate copyright. See Van Eechoud et al. 2009, Sect. 1.2.2.
- 15.
The Green Paper on Copyright and the Challenge of Technology—Copyright Issues requiring immediate action, COM(88) 172, June 1988. Other interventions in the field of intellectual property can be seen in Directive 89/104/EEC on the approximation of trade mark laws (now replaced by Directive 2008/95/EC), and Directive 87/54/EEC on the legal protection of topographies. Recently, Article 118 was introduced by the Treaty of Lisbon of 2007 empowering the EU to create European intellectual property rights. It must be noted, however, that Article 118 has enabled the creation of “uniform” intellectual property rights as opposed to “harmonising” the laws of Member States (MS). Accordingly, Article 118 constitutes the legal basis for the creation of a unitary title, indicatively through a EU Regulation, which is directly applicable in all MS.
- 16.
This can be observed in different documents of the EC. In the 1988 Green Paper, for example, it can be read that the “Commission concluded that a directive on the legal protection of computer programs is a necessary step for the completion of the internal market” and that “the creation of a European information services market, currently divided by juridical and linguistic barriers, is of prime importance”; See Green Paper 1988, Sect. 5.4.1 and 6.2.1. See in general Ramalho 2014.
- 17.
See Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.
- 18.
See Article 1 InfoSoc.
- 19.
See Article 2 InfoSoc.
- 20.
See Article 3 InfoSoc.
- 21.
See Article 4 InfoSoc.
- 22.
Article 5(1) reads: “Temporary acts of reproduction referred to in Article 2, which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable: (a) a transmission in a network between third parties by an intermediary, or (b) a lawful use of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Article 2”.
- 23.
- 24.
Article 9 reads “This Directive shall be without prejudice to provisions concerning in particular patent rights, trademarks, design rights, utility models, topographies of semi-conductor products, type faces, conditional access, access to cable of broadcasting services, protection of national treasures, legal deposit requirements, laws on restrictive practices and unfair competition, trade secrets, security, confidentiality, data protection and privacy, access to public documents, the law of contract”. See also Recital 60.
- 25.
See the Berne Convention for the protection of literary and artistic works of September 9th, 1886, as amended.
- 26.
See the World Intellectual Property Organization (WIPO) Copyright Treaty adopted in Geneva on 20 December 1996.
- 27.
See Agreements on Trade-Related aspects of Intellectual Property rights (TRIPs), WTO Agreement, Annex 1C, adopted in Marrakesh, 15 April 1994.
- 28.
Article 2 WCT identifies itself as a Special Agreement within the meaning of Article 20 BC, and specifically indicates that contracting parties are bound by Articles 1–21 BC. A similar provision is found in Article 9 TRIPs.
- 29.
See Article 2(1) BC.
- 30.
See Article 2(3) BC.
- 31.
See Article 2(7) BC.
- 32.
See Explanatory Memorandum; see also Case C-28/04 Tod’s SpA and Tod’s France SARL v Heyraud SA establishing that “Article 12 EC, which lays down the general principle of non discrimination on grounds of nationality, must be interpreted as meaning that the right of an author to claim in a Member State the copyright protection afforded by the law of that State may not be subject to a distinguishing criterion based on the country of origin of the work”.
- 33.
The reference is to a general and horizontal definition of “works”. Specific directives defines vertically subject matter such as software and databases.
- 34.
Translations and adaptations are present in the Software and the Database directives.
- 35.
The Court of Justice of the European Union has expanded the originality requirement of “intellectual creation of its author” beyond the field of software, photographs and databases, where it was confined by the relevant Directives. It can be said that nowadays the originality requirement in EU copyright law is the author’s own intellectual creation; See, inter alia, Case C-5/08, Infopaq International A/S v Danske Dagblades Forening, of 16 July 2009; Bently 2012; Griffiths 2013; Margoni 2014.
- 36.
- 37.
See Case C-419/13, of 22 January 2015 Art & Allposters International BV v Stichting Pictoright, (Allposters); See Margoni 2014, p 23.
- 38.
See above footnotes 8 and 9.
- 39.
See for example the facts of the Donner case, Case C 5/11, 21 June 2012.
- 40.
See Case C-168/09 Flos v Semeraro.
- 41.
Ibid., 34.
- 42.
- 43.
See Margoni 2013.
- 44.
- 45.
However this interpretation would contrast with the plain meaning of the Design Regulation, especially Article 96(2) which reads “A design protected by a Community design shall also be eligible for protection under the law of copyright of Member States as from the date on which the design was created or fixed in any form. The extent to which, and the conditions under which, such a protection is conferred, including the level of originality required, shall be determined by each Member State”. This provision, in fact, seems to apply to both Community Registered and Unregistered Designs and therefore MS should be free to determine the level of originality for Community Unregistered Designs. Since the protection of UCD is automatic upon creation this situation is in apparent logical contradiction with the statement of the ECJ at para 34 of Flos.
- 46.
See German Supreme Court (BGH) decision of 13 November 2013, n. I ZR 143/12 (Geburtstagszug).
- 47.
As it is known case C-158/86 (Warner) led to the Rental and Lending Right Directive of 1992, case C-341/87 (EMI Electorla) led to the Term Directive of 1993 and case C-62/79 (Coditel) led to the Satellite and Cable Directive of 1993.
- 48.
See Bently 2012.
- 49.
See generally Bently and Sherman 2014.
- 50.
- 51.
A good starting point is http://www.creativecommons.org. The top level domain name can be changed to the desired country code in order to find specific localised information.
- 52.
Jasserand 2011.
- 53.
The requirement of the compensation be private has been removed from version 4.
- 54.
In this article we use CCPL BY-SA unported as a reference model for version 3.0 unless otherwise noted.
- 55.
Section 3 last paragraph, last sentence CCPL3.0 BY-SA reads: “Subject to Section 8(f), all rights not expressly granted by Licensor are hereby reserved”.
- 56.
Currently, the definition of ‘Share’ reads: “…to provide material to the public by any means or process that requires permission under the Licensed Rights, such as reproduction, public display, public performance, distribution, dissemination, communication, or importation, and to make material available to the public including in ways that members of the public may access the material from a place and at a time individually chosen by them”.
- 57.
The Rome International Convention for the Protection of Performers, Producer of Phonograms, and Broadcasting Organizations, done at Rome on October 26, 1961, which is commonly regarded as the first international source for neighbouring rights protection. Likewise, see WIPO Performances and Phonograms Treaty (WPPT) adopted in Geneva on December 20, 1996.
- 58.
For a detailed analysis of design rights and CC licences see Margoni 2013.
- 59.
“CC licenses do not directly affect rights other than copyright, such as the trademark or patent rights or the publicity and privacy rights of third parties; however, our licenses do not expressly reserve those rights and as between licensor and the public implied licenses may exist. These and other rights may require clearance (i.e., permission) in order to use the work as you would like” available at http://wiki.creativecommons.org/FAQ
- 60.
Again, we will not consider here aspects such as bona fide obligations, estoppel, or other legal defences, actions or doctrines preventing to dispose of a right contra factum proprium. Such aspects are not covered by the type of analysis here conducted and will certainly represent a suitable resort in some situations. The objective of this study, however, is to find a possible synthesis on the substantive legal level, which will offer a solution in the generality of situations.
- 61.
See Section 4 Limitations and Disclaimers: “No trademark or patent rights held by Affirmer are waived, abandoned, surrendered, licensed or otherwise affected by this document”.
- 62.
Also in this case we are not looking into the area of bona fide, estoppel, and acts contra factum proprium.
- 63.
We intentionally avoid to precisely define Open Design. There are a number of Open Design definitions that partially catch the complexities of the phenomenon, while the debate is still ongoing attempting to reach a more generalised and bottom-up definition able to represent all the singularities involved; see footnote 4 above.
- 64.
See in this regard, for example, the operations of FabLabs, see footnote 4 above.
- 65.
Copyleft, under a purely legal perspective, refers to the condition that allows the creation and further distribution of derivatives under the obligation to use the same—or some time an equivalent—licence. Given this definition, clauses such as the Share Alike (SA) of CC are a copyleft clause.
- 66.
See Article 99 Italian Copyright Act; Fabiani 2007.
- 67.
See Margoni 2014.
- 68.
See, however, Article 99 of Italian Copyright Act cited.
- 69.
See Section 2 CCPL 3.0 unported. Similarly, CCPL 4.0 Section 1.
- 70.
As established by Section 1(c) CCPL 3.0 BY-SA: ‘Creative Commons Compatible License’ means a license that is listed at http://creativecommons.org/compatiblelicenses that has been approved by Creative Commons as being essentially equivalent to this License, including, at a minimum, because that license: (i) contains terms that have the same purpose, meaning and effect as the License Elements of this License; and (ii) explicitly permits the relicensing of adaptations of works made available under that license under this License or a Creative Commons jurisdiction license with the same License Elements as this License.
- 71.
As already pointed out the present analysis focuses on copyright law protection, and does not consider other forms of protection on the basis of which authorisation may be needed.
- 72.
See Case C 5/08 Infopaq International [2009] (Infopaq); Case C 393/09 Bezpečnostní softwarová asociace [2010] (BSA); Joined Cases C 403/08 and C 429/08 Football Association Premier League and Others [2011] (FAPL); Case C 145/10 Painer [2011] (Painer); and Case C 604/10 Football Dataco v Yahoo [2012] (Football Dataco v Yahoo); Case C-168/09 Flos v Semeraro [2011] (Flos) and Case C 406/10 SAS Institute v World Programming [2012] (SAS).
- 73.
The file format created by the software used for computer-aided design; see http://en.wikipedia.org/wiki/Computer-aided_design.
- 74.
Such as STL file format, see http://en.wikipedia.org/wiki/STL_(file_format).
- 75.
See Section 3 last sentence CCPL-BY-SA version 3, and almost equivalent wording on version 4, read: “The above rights may be exercised in all media and formats whether now known or hereafter devised. The above rights include the right to make such modifications as are technically necessary to exercise the rights in other media and formats” (emphasis added). Therefore, as long as the passage from the digital to the physical format does not amount to a derivative work, but is only a technical modification, also the ND provision is in line with the 3D printing of a work.
- 76.
Therefore, no part of the licence can be interpreted as limiting any exception or limitation to copyright.
- 77.
See the Infopaq decision where the ECJ clarifies that the infringement test should be focused on whether the author's intellectual creation has been reproduced.
- 78.
See the ECJ in the Allposters case, see footnote 37 above; See Margoni 2014.
- 79.
See Margoni 2014 and sources cited therein.
- 80.
Margoni 2013.
- 81.
“It is NOT a new or different license or any license at all, but a facilitation of more Permissions beyond ANY standard CC licenses. Worth emphasizing is that CC+ (and use of that mark) requires that the work be licensed under a standard CC license that provides a baseline set of permissions that have not been modified or customized. The plus (+) signifies that all of those same permissions are granted, plus more!”, see http://wiki.creativecommons.org/CCPlus.
- 82.
See Margoni 2013.
- 83.
See Articles 2 n. 4 and 5 of Italian Copyright Act.
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Margoni, T. (2016). CC-PlusDesign.eu—Or How to Apply Creative Commons Licences to 3D Printed Products in the Light of the Most Recent Developments of the European Court of Justice Case Law. In: van den Berg, B., van der Hof, S., Kosta, E. (eds) 3D Printing. Information Technology and Law Series, vol 26. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-096-1_3
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