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We are excited to announce a new whitepaper, 3D Scanning: A World Without Copyright*. As the name suggests, the paper examines how 3D scanning intersects with copyright law. We are big fans of 3D scanning here at Shapeways, and so we thought it was important to start a discussion around how copyright might impact all of the scans that are coming into the world.
It may come as a surprise, but in many cases 3D scans will not be protected by copyright. That does not mean that scans are not important, but it does mean that people making and distributing scans should understand what rights they do – and do not – have in those scans.
Why aren’t the scans protected by copyright? One of the key requirements for copyright in the United States is originality. Even if it takes a large amount of skill to create a scan, if making the scan does not involve originality it is simply not eligible for copyright protection.
The vast majority of scans fall squarely in that category. By definition, most 3D scans attempt to create a perfect digital replica of the model being scanned. Injecting “original” content that deviates from the object being scanned into that digital file would undermine the purpose of the scan.
Again, lacking originality does not mean lacking skill. Making accurate 3D scans can be hard work, and there is a real difference between someone who knows what they are doing and an amateur. But without room for creative interpretation, the resulting scan is not eligible for copyright protection.
Even without copyright, people making scans still have the ability to profit from and control their scans. Today many professional scanners charge for scanning services, and someone in possession of a scan file can charge someone else for access. This system seems to work; the ranks of professional scanners is swelling as 3D scanners become cheaper, better, and easier to use. These types of professional arrangements are strong because they are built on contracts which do not require copyright in order to be legally enforceable.
A lack of copyright on scan files will also make it easier for designers to access and build upon digitized works. It means that the person who scans a 2,000 year old Roman sculpture does not suddenly pull part of that sculpture out of the public domain. Once the sculpture is digitized anyone is free to print their own copies to have at home or in classrooms, increasing access to our collective digital heritage. Furthermore, those scans can be freely remixed into new interpretations of classic works. These scans can form the building blocks of all sorts of new creativity – new creativity that might itself be protected by copyright.
It is also important to recognize that just because most 3D scans are beyond the scope of copyright does not mean that all 3D scans will be. Scans that do intentionally inject original, creative elements such as Geoffrey Mann’s Shine and Sophie Kahn’s portraits are likely to be eligible for copyright protection. And, of course, 3D scanning is relatively new and the law around it could evolve right along with the technology.
Obviously we are going to keep our eye on this area of law and will do our best to update you as developments occur. If you are intrigued, I would encourage you to check out the new whitepaper here. For a more EU-centered take on 3D scanning and copyright (especially in the context of access to cultural heritage), try this paper by Professor Thomas Margoni. And, since our whitepaper is primarily written for a non-legal audience, if you are looking for a law review article that addresses many of these same issues keep your eyes peeled for an article by Paul Banwatt and Laura Robinson of Matter and Form in a forthcoming edition of the Intellectual Property Journal.
Yes it is a serious concern because trade infringement can be rife and some of protracted litigation may continue.
I assume because of the goodwill and reputation for one`s company should be patent protected if it is done for commercial purposes but if it is done at home the should be problem with fermenting.Though copying someone`s idea or product can be a serious problem since copyright laws are applicable.
I would like to ask a question.
I am a N-scale (1/160)model railroad maker. Can I buy a model from the usual model makers like Faller, Heljan, Kibri in 1/87 scale. Then build it. Would it then be a problem with the copyrigts, to 3D scan it, and have it 3d printed in a smaller scale, in my case N-scale?
If it is legal, what would the cost be, if You are going to make it? Aproximately?
Kind regards
Hans Christensen
Hi Hans. As William’s comment suggests, the answer to your question largely depends on if the models you are scanning are themselves protected by copyright. Unfortunately, that’s not a question I’m in the position to answer for you. If you have specific copyright questions about a specific model, the best way to get it answered is to find a lawyer who can be your lawyer.
I appreciate all the work and effort that went into this whitepaper, and the followup posting, but, for your average users I think you’ve worked mightily to avoid stating the situation in the most obvious terms.
3D scanning of existing objects is highly analogous to photocopying printed works. There are interesting differences, but, for the lay user of 3D scanning and printing technology, starting from that reasonably well-understood groundwork is a good foundation. Just like photocopying a copyrighted book, doesn’t give you a new copyright in the copy you’ve produced, scanning a 3D object doesn’t give you a new copyright in the scan.
Probably more importantly, just like photocopying a copyrighted book doesn’t produce a public-domain copy that is free of the original copyright, scanning a 3D object does not create a 3D mesh that is free of the original copyright.
3D scanning of someone else’s copyrighted work, is (almost always going to be) creation of a derivative work, and the components of that derivative work that are not _original_ to the derivative work, _will_still_be_protected_by_and_legally_belong_to_the_original_copyright_holder.
The point, and importance of making this clear, is that your whitepaper and blog spend a lot of time up front saying “scans aren’t copyrighted”, before getting to mentioning derivative works and the complications inherent in them.
This is a bad idea. Your readers need to know, up front, that scanning, i.e., a Disney figurine, does not, in any way, shape, or form, imply that the 3D mesh that they created of “the mouse” is copyright-free. The person who scans it will not (or is very unlikely to) have a new copyright interest in the scan, but, Disney will most certainly retain, and vigorously pursue their rights, if that scan is used/distributed/etc, outside of a fair-use context.
Hi William. That’s a point well taken. The paper primarily focuses on the relatively narrow question of protection of the scan file itself. However, there are obviously other elements at play in the file.
The paper does include a discussion about photocopying (there is even a picture of someone using a copy machine) as it is an apt analogy. I believe (hope?) that the first part of the “Additional Considerations” section (“The Object Being Scanned May Still Be Protected By Copyright”) also addresses your larger concern.
That being said, those qualifications are missing from this announcement post. Sometimes when I’m summarizing the weeds I don’t make it all the way out again. I’m glad that your comments on this post flag the issue for readers.
Greetings Michael,
I must apologize if my initial post came across as perhaps too brusque. I was in a rush to get a clarification into the comments, before too many people who didn’t read the article in depth, came away from the posting with the wrong impression.
Shapeways is a particularly visible, and reasonably influential voice in the consumer 3D printing market, and it’s really important that users that wander across this topic, understand that the copyright interest in a scan, is not really “without copyright”, but rather is controlled by the copyright interest in the object that was originally scanned. The last thing the 3D printing community needs is a bunch of people trying to distribute scans of copyrighted objects, and pointing to Shapeways as saying “see, it’s ok!”.
Best,
Will
Absolutely no need to apologize! I like to agree that we are visible, which gives us a heightened obligation to be as clear as possible when we try to talk about things like this. I meant it when I said that it was a point well taken and that I was glad that the post has your clarification appended to it. While I aspire to it, I certainly don’t think that I’ll get explanations and messaging right the first time so it is important to hear when I get it wrong.