Is it legal to 3D scan anything and how are 'shapes' protected?

Question

I'm surprised there are almost no questions on this site about 3D scanning and its legal implications on patents, copyrights, whatever laws or regulation apply on it.

As of 2023, 3D printing is accessibly and perhaps mainstream already, and I expect the same to happen with 3D scanning technologies within a few years. Some 3D scanners (such as models from Creality and Revopoint) already are within a for mainstream affordable price range of 300-400 USD. Even some (AI-backed) photogrammetry apps such as Kiri Engine and technologies such as NeRF are quite good in 3D scanning, with a regular smartphone camera.

With specific platforms such as thingiverse.com, printables.com and grabcad.com, it's easy for people all over the world (read: many different jurisdictions) to share 3D models, of physical objects that they've scanned, often anonymously. Besides those platforms, there are an endless amount of ways one could share a file.

Some closely related questions about this:

• Is it legal to make a scan of anything? It's perhaps most similar to taking a 2D photo of anything, but with much more data.
• Is it legal to print such 3D scans for personal and commercial use? Partially answered here: https://law.stackexchange.com/a/62325/5396.
• Is it the nationality of the scanner or publisher, that determines the jurisdiction that applies, or the nation of file origin (uploaders IP address) that applies? Or perhaps the country that hosts such file sharing platform? Since anyone can use a VPN from anywhere, is that copyright or patent system ever gonna be waterproof?
• Is there any international law or regulation (copyright, patent law et cetera) that applies globally to this subject?

Side-note: In my opinion it is all a matter of access to information. Prior to press printing one should have been extremely privileged and capable to access high quality written information. After press printing became affordable, information in written form became more easily accessible. Same to photography and film, one could firstly only rely on drawings, then photos of it, videos of it, now even full 360 virtual reality (VR) experiences of it. Then we got cheaper and cheaper technology to easily share that information (internet) and use it (smartphones). Such as whole books. How are high info-density files such as 3D mesh models, point clouds of shapes any different from information in the form of art, music, text, photographs, video?

Answer 1

Regarding patents - other than the special case of U.S. design patents, they protect the way things work, not their exact shape. If you make an infringing device it doesn’t matter how you made it, you are infringing.

Design patents do cover the “ornamental” aspects of a manufactured item. Shape and texture are included. Again, how you made it is not relevant other than using scanning of the original item would make it hard to argue it isn’t the same shape.

Intent is not relevant in patent law other than in determining if there is “willful” infringement which would triple the penalty in the U.S.

Separately there is a special-case law in the U.S. for the shape of boats. The Vessel Hull Design Protection Act, Title 17, Chapter 13 of the United States Code provides for protection for original designs of vessel hulls. It only applies to the hull shape of actually produced and sold boats and its protection goes away if the shape is issued a design patent.

Answer 2

Copyright

If the thing being scanned is a literary or artistic work protected by copyright, it is illegal to make a copy of it. The scan data itself is probably a copy, any reproduction made from that scan certainly is.

The definition of literary or artistic works is quite broad - examples from the Copyright Act of australia:

"artistic work" means:

(a) a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not;

(b) a building or a model of a building, whether the building or model is of artistic quality or not; or (c) a work of artistic craftsmanship whether or not mentioned in paragraph (a) or (b);

but does not include a circuit layout within the meaning of the Circuit Layouts Act 1989.

"literary work" includes:

(a) a table, or compilation, expressed in words, figures or symbols; and

(b) a computer program or compilation of computer programs.

Right now, I have in front of me a can of Pepsi. Now, a blank can is not an artistic work, however, this one, with the Pepsi logo and colours is. It would be illegal to scan this can but legal to scan a blank aluminium can.