Some thoughts for the Policy Landscape on IP

By Prof Berhanu Abegaz, The African Academy of Sciences(AAS) and Hailemichael Teshome Demissie, PhD, ACTS.

Additive manufacturing, popularly known by the colloquial ‘3D printing’, is a process of making three dimensional solid objects from a digital file by laying down successive layers of material until the entire object is created.

Ranging from bionic ears to hand guns, from car parts to prosthetics, from printed houses to printed drones, there is now an inexhaustible list of artefacts that are now 3D printed. 3D Printing is becoming increasingly popular around the globe and is expanding at an incredibly fast rate. Although it is still to take off fully in Africa, the continent needs to be prepared for the policy and legal implications that it might create. Some of the uses of the technology will re-introduce previous regulatory conundrums that dominated the debate on the international IP regimes. Africa was subjected to the harsh consequences of the international IP regime and emerged out of it as a victim rather than a beneficiary.

The IP issues surrounding 3D printing are likely to put Africa in a similar situation unless a fresh approach to IP policies and laws is negotiated with regard to 3D Printing. The technology is poised to bring about changes to the IP regimes and Africa needs to keep abreast of these changes to avoid a repeat of the dispute over lifesaving drugs that led to millions of deaths.

 

3D Printing Riding Roughshod over IP laws

The Ishango bone is a bone tool, ca 20,000 years old, with complex markings on it, and widely acknowledged as a testament to the pre-historic literacy and practice of arithmetic in central Africa. It was discovered in 1960 by Jean de Heinzelin de Braucourt in the Belgian Congo and kept at The Royal Belgian Institute of Natural Sciences in Brussels. Based on an official request by the Belgium-based International Organization of Chemical Sciences for Development (IOCD), on behalf of the African Academy of Sciences (AAS), the museum was willing to give a 3D scan of the bone to a group which provided an enlarged 3D replica of the bone. The replica of the bone obtained with help from other partners was unveiled in a colorful ceremony in Nairobi and is on permanent exhibition at AAS Headquarters in Nairobi.

Unfortunately, this kind of cooperation is not always achieved and some will pursue some unusual tactics to achieve what could have been achieved through cooperation. This is what happened with the Neues Museum in Berlin. In February of this year, the three and a half thousand-year-old bust of Queen Nefertiti, ‘one of the world’s most celebrated ancient treasures, was secretly scanned from the heavily guarded Neues Museum in Berlin.

Two German artists who posed as ordinary visitors used 3D scanners to produce the exact replica of the bust which was then 3D printed and subsequently displayed in Cairo. It is reported that the Neues Museum was unwilling to provide free access to this Egyptian art and so the motive of the two ‘thieves’, or ‘guerilla artists’ as The Times described them, was to shame the German Museum for its continued possession of the bust that was taken from Egypt in 1912. The replica they produced using 3D printing was described as ‘a breathtakingly precise copy’. The artists have vowed to make their file freely available for anyone anywhere in the world to 3D print a copy.

This anecdote demonstrates the power of 3D Printing to run roughshod over the IP systems that are in place at the moment. Like the Queen’s bust any other physical object can be scanned and its precise replica can be 3D printed. Where does that leave IP protection? If a physically protected object can be snapped away in the presence of watchmen and in the glare of security cameras, what would become of less stringently protected items? 3D printing of artefacts and sharing of the files with the rest of the world has become easier and file sharing and hosting websites such as Thingiverse and Shapeways are proliferating.Existing IP regimes are not adequate to deal with the impacts of 3D Printing and a new round of the IP policy debate is in order.

Where does that leave IP protection? If a physically protected object can be snapped away in the presence of watchmen and in the glare of security cameras, what would become of less stringently protected items?

3D printing as such presents an opportunity to revisit the undesirable effects of the existing IP regime that negatively impacted Africa in particular. It is still fresh in our memories that millions of HIV/ AIDS patients died because they were denied access to lifesaving anti-retroviral drugs – denial of access that the international IP regime sanctioned. There were 2.4 million deaths and 3.5 new infections in Africa in 2002 alone. Many more millions of deaths and infections took place in the years that followed. Bowing to internal and foreign political pressures, the US abandoned its push for pharmaceutical patent protection through the WTO. It was, however, too late for millions of Africans.

Like the bust of Queen Nefretiti, Africa’s genetic resources were plundered with impunity and the IP regimes did not help prevent this. Nor did the regimes help in rectifying this act of plunder after the fact. During the negotiations of the Nagoya Protocol on Access and Benefit Sharing of genetic resources, it was clear that the genetic resources that were taken from Africa will not be recognised as African  resources.

The retroactive application of the Protocol tabled by the resource rich developing countries was rejected by the developed countries The genetic resources remain the property of those who appropriated them through biopiracy. Overall, it is hardly possible to find any positive assessment of the impact of the international IP regime on Africa’s development.

While this is no place to review the pros and cons of IP protection, it suffices to say that no one is under any illusion that existing IP regimes are ideal. While IP laws were designed to incentivise innovators and reward them with a monopoly right for their inventions, the laws have not always been applied towards the fulfilment of this objective. Incumbent interests are claiming their IP rights to maintain their market share and to block rising innovators.

3D Printing will eventually replace existing methods of manufacturing material artefacts disrupting existing industries. It is natural that incumbent industries will react in every way they can and IP rights are the first thing they will be invoking.

The IP regimes are in need of serious overhauling and 3D Printing is certainly to speed up this process. It is not difficult to imagine that the development of 3D Printing technology is currently driven not only by the R&D sections of companies, university and research institutes, but also the hobbyists and hacktivists tinkering with existing technology in their back yard garages, hackerspaces, fab labs and public libraries and museums. Companies developing the technology want to protect their achievements and exploit the monopoly they can muster using existing IP laws. This might slow the spread of the technology and the improvements that may result from the widespread sharing of the technology. The applications that may benefit Africa might be delayed as a result. With 3D Printing, Africa has a real opportunity to leapfrog cumbersome and polluting industrialisation stages that the developed countries passed through.

The scientific community especially in Africa, needs to ensure that IP laws will not be a hindrance to the accelerated development of the technology.

Major patents on 3D printing expired in the last few years and this has led to the recent remarkable advance of the technology. Africa is urged to make use of this opportunity to tap into the benefits of the technology before proprietary enclosures are built around it. Developers of technology have come up with their own methods of enforcing IP protection. One of the scary applications of this technology is the 3D-printing of guns and fire-arms.

But, this is being tackled with an application that can preveent the printing of a gun - like the copy protected CD with inbuilt mechanisms that prevent sharing of music and data. A Danish company, “Create it REAL”, has developed a software to detect and prevent the printing of guns.

Like the bust of Queen Nefretiti, Africa’s genetic resources were plundered with impunity and the IP regimes did not help prevent this. Nor did the regimes help in rectifying this act of plunder after the fact.

The software recognises the patterns and stages of printing guns and halts the printing process. The same technology could be used to prevent the sharing of beneficial applications of 3D Printing. As sharing becomes more mainstream, the motivations to create robust enclosures become even stronger and the means to guard them more sophisticated. Africa may be excluded from utilising the technology by the various exclusionary techniques that will be developed for the purpose of creating a monopoly and the extraction of rents. The negotiations Africa will be having on the IP issues of 3D Printing should extend beyond changes in the legal and policy instruments into the very code that will be integrated into the technology to make it inaccessible to wider users.

 

African countries NEED to start debating the IP issues of 3D printing paying attention to the following recommendations

- African governments need to prepare for negotiations with the developed world about the use of 3D Printing.

Sooner or later, African countries might need to talk about the IP regulations governing it at WIPO and WTO levels. Developing countries have lost negotiations in the past because they don’t have the capacity and expertise. This is the time to gain and develop the skills and knowledge to strengthen their position while the technology is still in its early stages.

- Africa needs to draw lessons from the IP debacle over anti-retroviral drugs.

Africa should heed the lessons from the disastrous application of IP laws that led to millions of deaths and build internal capacity to avert any similar eventuality. Countries should also draw lessons on how to strengthen their negotiating position and to govern the use of 3D printing internally.

- African countries need to be strengthening and creating dynamic IP laws.

To ensure that IP laws achieve their intended purposes of spurring innovation and development, African countries need to adopt laws that are responsive to global developments in the technology.

- Scientists will need to be proactive in talking to governments about this issue

Governments will need expertise from scientists and science organisations such as the AAS and ACTS to govern 3D printing. Scientists provide the evidence to inform policies to create the optimal environment for the beneficial advancement of the technology.

 

Further reading

Charter, David, 2016, ‘Busted: artists who stole Nefretiti’, The Times, February 25, 2016

Weinberg, Michael, 2010, it would be Awesome if they don’t Screw It Up: 3D Printing, Intellectual Property and the Fight over the Next Great disruptive Technology, available at https://www.publicknowledge.org/files/docs/3DPrintingPaperPublicKnowledge.pdf

Santoso S. M., Horne B. D., & Wicker S. B., 2013, ‘Destroying by Creating: Exploring the Creative Destruction of 3D Printing through Intellectual Property’, Available at https://www.truststc.org/education/reu/13/Papers/HorneB_Paper.pdf

Shaffer, Gregory, 2004, ‘Recognizing Public Goods in WTO Dispute Settlement: Who Participates? Who Decides? The Case of TRIPS and Pharmaceutical Patent Protection’, Journal of Economic Law, 7:2, 459-482 Bagley, Margo, 2013, The Nagoya Protocol and Synthetic Biology Research: A Look at the Potential Impacts, Wilson Centre