From Photocopying to Object-copying in the Classroom: 3d Printing and the Need for Educational Fair Use in Patent Law

CitationVol. 36 No. 3
Publication year2020

From Photocopying to Object-Copying in the Classroom: 3D Printing and the Need for Educational Fair Use in Patent Law

Alessandra T. Palazzolo

Georgia State University College of Law, apalazzolo1@student.gsu.edu

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FROM PHOTOCOPYING TO OBJECT-COPYING IN THE CLASSROOM: 3D PRINTING AND THE NEED FOR EDUCATIONAL FAIR USE IN PATENT LAW


Alessandra T. Palazzolo*


Introduction

Globalization impacts the American workforce by creating jobs in the technical sector while stunting the growth of jobs in other sectors.1 In response to these workforce changes, education is shifting from a traditional model, which focuses on the humanities, to a model focusing on STEM education, which emphasizes science, technology, engineering, and mathematics.2 In 1976, Congress

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passed the Copyright Act, which included a fair use exception for educational purposes.3 The educational exception focused on the technology of the time—the photocopier—to offer protections to teachers photocopying poems, stories, and other written works for their students.4 With the focus of education changing to STEM subjects, the protections offered to teachers must also be extended to methods of STEM instruction, including additive manufacturing—commonly referred to as 3D printing. Although there are currently open platforms available where educators can access open-computer-aided design (CAD) files for unpatented objects, the "digitization of things" will likely drive these platforms to become restricted—forcing teachers, particularly those in higher education, to resort to printing patented objects as demonstratives for educational purposes.5 Educators concerned about patent infringement claims may stop using 3D printers in their classroom. Thus, the Legislature must consider methods to protect educators—as they did in 1974 for educators using photocopiers—who want to 3D print patented objects in STEM education.6

From children's toys to firearms, to human tissue and aircrafts, 3D printing is almost limitless in its production possibilities.7 Although

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manufacturers are slow to adopt large-scale additive manufacturing, forecasters predict that additive manufacturing will revolutionize the manufacturing industry as the technology becomes cheaper and more accessible.8 Fueled by 3D printing's widespread coverage in the popular press, there is broad public awareness of advancements in additive manufacturing technology, further stimulating interest and innovation. For instance, in 2013, the additive manufacturing global market was valued at $2.3 billion.9 This figure is expected to jump to $8.6 billion by 2020.10 In addition to industrial manufacturing, additive manufacturing's next hypothesized frontier is the consumer's home.11

Rapid changes in additive manufacturing will lead to the digitization of things.12 As Professors Deven Desai and Gerard N. Magliocca explain:

[W]hen the costs drop and a wide range of businesses and people can use the power of digitization—business and legal realities shift dramatically. Disruption is not only a

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business or private matter; the underlying legal system is disrupted as well. 3D (or additive) printing brings the promise and challenge of digitization to tangible goods. Many copyright and trademark-based industries have faced digitization, but patent-based industries have not. Advances in 3D printing technology are launching an Industrial Counter-Revolution, and the laws governing the way things are made will need to make peace with the reality of digitized objects and on-demand fabrication.13

Thus, additive manufacturing could be the catalyst that ignites a mass shift in patent law, including carving out a fair use defense in patent law similar to the defense in copyright law.14

A unique aspect of the growth of additive manufacturing is its role in the Maker Movement, and inversely, the Maker Movement's role in the development of consumer additive manufacturing technology.15 Many members of the Maker Movement share additive manufacturing files and use open-source digital platforms.16 Because

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of the Maker Movement's open-source sharing, 3D printing is a collaborative technology people can use to build off of one another's innovations.17 3D printing's open-sharing culture is bound to change once additive manufacturing becomes more prominent.

This Note is broken into three parts. Part I includes background information about additive manufacturing, the Maker Movement and its importance in the promotion of STEM education, and the history of copyright and patent law. Part II analyzes the development of fair use in copyright law, potential reasons that patent law has no statutory fair use defense, and one exception in patent law that is essentially fair use—the Hatch-Waxman Act, a codified version of the experimental use exception for the pharmaceutical industry.18 Finally, Part III offers three distinct solutions aimed at protecting educators who use 3D printing in their curriculum.

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I. Background

First, this background section gives a historical perspective on the development of the fair use exception in copyright law. Then, it delves into the way that additive manufacturing works. Finally, it discusses the Maker Movement generally and focuses on its effect in schools.

A. Historical Origin of Copyright and Patent Law

"Copyright and patent law are sister bodies of jurisprudence," which the founding fathers "placed hand-in-hand" together in the Intellectual Property Clause of the Constitution.19 The origins of copyright and patent law were further intertwined in 1790 when Congress enacted their first respective acts together.20 In 1841, Justice Story explained in Folsom v. Marsh that copyright and patent law had similar legal considerations by noting, "Patents and copyrights approach, nearer than any other class of cases belonging to forensic discussions, to what may be called the metaphysics of the law, where the distinctions are, or at least may be, very [subtle] and refined, and, sometimes, almost evanescent."21 Because of their close

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relationship, several patent law doctrines, including misuse, contributory infringement, licensee estoppel, and first sale have been adopted by copyright law.22

Historically, there were certain common law doctrines in patent law that were similar to copyright's fair use doctrine, including the common law research exemption, the experimental use defense, the experimental use exemption, and the experimental purpose doctrine.23 However, there is no statutory fair use doctrine for patent law, and moreover, courts have not recently given judicial recognition to the common law fair use doctrines in patent law.24

B. Additive Manufacturing

Since additive manufacturing first emerged in the 1980s, the technology experienced rapid innovation.25 Now, there are approximately 300 different 3D printers available on the market, ranging from $300 hobbyist printers to HP's recently announced Metal Jet printer, which has the capability to print at industrial volumes and at automotive-grade quality.26 Additive manufacturing systems turn CAD files into three-dimensional objects by adding feedstock material, such as plastic, metal, or mineral materials, layer by layer until the desired shape is formed.27 Two main application levels comprise 3D printing: (1) rapid prototyping, making prototypes and models, and (2) rapid manufacturing, making final parts and products.28

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Although the use of additive manufacturing offers certain advantages, including "simplification of product innovation, price premiums achieved through customization," and easily reconfigured components, the majority of manufacturers have been slow adopters of 3D printing technology.29 Additive manufacturing comprises less than 2% of the manufacturing market.30 Slow-adoption of additive manufacturing is due in part to the high price of 3D printing when compared to the lower cost of traditional manufacturing.31 However, industry commentators argue that the "threshold" has been crossed and that factories will soon begin adopting additive manufacturing on a grander scale.32 This expected growth in adoption rates is largely due to a new generation of high-end machines from HP and Carbon.33

C. Maker Movement Bringing 3D Printing into Education

The Maker Movement's community, which focuses on a person's ability to create things—or be a "maker"—is comprised of individuals from all backgrounds, such as "tech enthusiasts, engineers, educators, amateurs[,] and students of all ages."34 Makers create all sorts of functional devices, including technological gadgets, home goods, and custom-engraved jewelry.35 The origins of the

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Maker Movement stem from Dale Dougherty's launching of Make magazine in 2005.36 Make magazine's opening column, written by Dougherty, explained, "More than mere consumers of technology, we are makers, adapting technology to our needs and integrating it into our lives. Some of us are born makers and others, like me, become makers almost without realizing it."37 Chris Anderson has further noted the following about the Maker Movement:

The real revolution here is not in the creation of the technology, but the democratization of the technology. It's when you basically give it to a huge expanded group of people who come up with new applications, and you harness the ideas and the creativity and the energy of everybody. That's what really makes a revolution. . . . What we're seeing here with the third industrial revolution is the combination of the two [technology and

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manufacturing]. It's the computer meets manufacturing, and it's at everybody's desktop.38

Because of the rising interest in developing STEM education in schools, many schools and collegiate institutions nationwide and worldwide have adopted aspects of the Maker Movement into their curriculum.39 Moreover, makerspaces are now built in libraries and museums.40 In 2016, there were...

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