Rethinking intellectual property rights and commons-based peer production in times of crisis: The case of COVID-19 and 3D printed medical devices

Abstract

At the peak of the coronavirus disease 2019 (COVID-19) pandemic, in March 2020, the Hospital of Chiari (Brescia) was in a state of emergency. The stock of valves needed to operate ventilators was dwindling and the manufacturer was unable to supply them at short notice. Massimo Temporelli, founder of Fablab Milano and one of the 3D printing pioneers in Italy, with the help of the local press, called makers to the rescue. Cristian Fracassi, a young engineer from Brescia, and his colleague Alessandro Romaioli, who works in the world of 3D printing, rose to the challenge. The original manufacturer of the valves was not very cooperative and withheld the design data and blueprints relying on European Union (EU) medical manufacturing regulations. Temporelli, Romaioli and Fracassi were not discouraged and quickly began the process of reverse engineering. The plastic part was re-measured, drawn as a 3D model and finally printed in less than a day with a material cost of less than 1 euro per piece (Fig. 1). Of course, the replica was not certified, but tests were successful, and the devices were subsequently used on more than 10 patients in Italy. Two weeks later, amidst an increasingly serious situation worldwide, in which many supply chains were disrupted, several other maker collectives followed the example of Brescia and supplied hospitals in many parts of the world with spare parts for life support technology. While, under normal circumstances, they would have to fear copyright and patent lawsuits or regulatory intervention, their help is now welcome. Dana Mahr is a senior researcher and lecturer at the University of Geneva where her research focuses on how users, customers and patients make sense of biomedical knowledge. Sascha Dickel is an assistant professor at Johannes Gutenberg University, Mainz, where he explores, inter alia, technologies of future-making and novel modes of public participation in science. This article explores how, in the case of a global crisis, localized co-productive approaches to solve crisis-induced shortages challenge existing understandings of intellectual property rights. It focuses on how the maker community (private individuals with access to 3D printing equipment) engaged in the production of medical devices during the SARS-CoV-2 (the novel coronavirus) crisis of 2020 and how international policymakers and industries reacted to their engagement. Tweet by Paola Pisano showing 3D printed valves for emergency ventilators during the COVID-19 crisis in 2020. This article traces how, in the case of a global crisis, localized co-productive approaches to solve crisis-induced shortages are gaining increased acceptance and question the structural patterns and mechanisms of late capitalism. In the first section, we disentangle the relationships between the three main practical and symbolic contexts of 3D printing in the early 21st century (maker culture, prototyping and industrial contexts). We devote the second section to reflecting upon 3D printing against the backdrop of a social theoretical understanding of intellectual property (IP) rights. Against this backdrop, we explore, in the third section, how the current global crisis could change our understanding of IP and production methods. Since 1974, when the chemist and author David Edward Hugh Jones coined the concept of additive manufacturing (AM) in his New Scientist column Ariadne,1 the process of AM has not only become a practical reality but also morphed into a cultural icon of 21st-century maker culture, a tool for prototyping in industrial practice. ‘3D printing’ is a colloquial term for additive manufacturing. Today, a large variety of additive manufacturing technologies exist. They share the common feature of using digital data to create three-dimensional objects layer by layer. Guided by computer-controlled devices, the physical material is joined or solidified. Additive manufacturing technologies make it possible to create diverse objects of very different shapes with the same technological infrastructure. During the last decades, additive manufacturing has slowly been integrated into industrial engineering: ‘[w]hen Additive Manufacturing began to be used in the 1990s, it was initially employed for prototyping (primarily in the automotive industry) and subsequently to make casting moulds and tools. Today, it is also used to make end products including small parts, small batches and one-off items for the jewelry or medical and dental technology industries’.2 While many AM technologies used in industrial contexts are very expensive and out of reach for private users, the term ‘3 D printing’ evokes the image of an inexpensive machine (just like ‘2 D printing’) that allows individuals to turn into potential manufacturers. Thus, the narrative of democratizing production through 3D printing has shaped the public discourse on this technology. Adrian Bowyer, founder of the open-source development project RepRap (Replicating Rapid-Prototyper), positions digital fabrication technologies (like 3D printers) as an innovation that might put the means of production back into the hands of ‘the people’. According to Bowyer, these technologies might ‘allow people to manufacture for themselves many of the things they want, including the machine that does the manufacturing. It is the first technology that we can have that will simultaneously make people more wealthy whilst reducing the need for industrial production’. As such, 3D printing might evolve into a technology that challenges the regime of centralized capitalist production systems whose ownership is restricted to a limited number of people and organizations. ‘[P]eople of modest means […] will be able to make themselves a new flute, a new digital camera, or just a new comb by downloading the designs for them from the Web. Some of the designs will be sold; some will be available free. Industrial production may [only] be needed for the raw materials in considerable quantities.’3 The technology journalist and entrepreneur Chris Anderson also views 3D printers as drivers of a ‘next industrial revolution’ in which the role of large-scale factories as traditional sites of innovation and production is eventually replaced by an economy of ‘makers,’ who collaboratively generate new product ideas that can be materialized anywhere.4 Economic theorist and political activist Jeremy Rifkin picked up on this idea of a new industrial revolution linking it to a decentralized green economy. He suggests that AM may not only be a more sustainable mode of production that reduces waste, but also one that may reduce emissions if truly used as a decentralized manufacturing technology that would diminish the need for the global shipping of goods: ‘[i]f we were to put all the disparate pieces of the 3 D printing culture together what we begin to see is a powerful new narrative arising that could change the way civilization is organizing the twenty-first century.’5 From the perspective of MIT professor Neil Gershenfeld, 3D printers are merely a prototype for advanced digital fabricators. According to Gershenfeld, anyone with access to such a digital fabricator should be able ‘to make almost anything’.6 In contrast to the typical high-tech visions of modernity, imaginaries of 3D printing do not focus on large-scale technological systems created and used by a distinct techno-scientific elite. Instead, all members of society are portrayed as potential co-creators of a new mode of production in which accessible and affordable devices democratize and decentralize manufacturing. Tinkering, understood as DIY production, has historically been closely associated with a US identity. Some associate it with countercultural movements since the 1970s ‘as a self-sustaining sensibility that could overcome a reliance on the mainstream consumerist society’, while others historicize it and frame it as a genuine part of the frontier spirit that ‘made America great’.7 No matter what political narrative it is associated with, tinkering evokes images of creativity, independence and ingenuity. Its patron saints are, among others, Steve Jobs and Bill Gates. It also evokes an updated version of the American dream: the tinkering geek in his [sic] garage that changes the world or at the very least becomes founder and CEO of a multi-billion-dollar enterprise in Silicon Valley. And very much like the cultural imaginary of its counterpart, tinkering is attracting a wide variety of individuals and associations. Anyone who has an idea and explores it by technical means can be described as a tinker. The ‘maker’ is a contemporary re-imagining of the tinker and also encapsulates the notion of being part of a 21st-century social movement. Adam Savage, the host of the TV Show ‘Mythbusters’, described ‘making’ at the 2012 Bay Area Maker Faire in the following way: We are seeing a generational shift back to Making. (…) It would be (…) really great to build your own things, rather than the things that pop culture feeds (us). I have built and participated in the building of things from scratch: Robots, theatre sets, furniture, and props, but the love of the objects themselves, this child‘s [sic] like desire for the impossible toy seen in a movie, or seen in my head. Wanting to make it, make it something that I have and something I have held. (…) That want of those things, and teaching myself how to make. Things in order to have them is the engine of everything I have achieved in my whole life up till now. It does not matter what you make, and it does not matter why. The importance is that you are making something.8 On another occasion he stated: ‘Humans do two things that make us unique from all other animals; we use tools and we tell stories. And when you make something, you’re doing both at once.’9 For Savage, this much is clear: to make things by ourselves is both a purpose in itself and an essential marker of the human existence. I make, therefore, I am. Conversely, a complete reliance on industrial mass production might be understood as something contrary to our nature. Such a reliance not only casts mass-production in a bad light but also constructs a social difference between those who ‘make’ and those who don’t. Makers are framed as sovereign actors and not as passive consumers. This distinction is extremely important for the self-perception and identity of the maker scene. Since 2009, when the startup MakerBot introduced its first affordable open-source model ‘Cupcake’, 3D printers have become an integral part of the identity of those who identify as tinkers or makers. No Makerspace, Hackerspace or FabLab (some of the collaborative places in which modern-day tinkers gather and share their interests) seems to be complete without the ability to 3D print. Smartphone cases, camera gear, tabletop figurines, frames for glasses and superhero masks: all these and far more can be designed and created by using CAD software and desktop 3D printers that can be found in online platforms. Platforms like MakerBot’s ‘Thingiverse’ are actively inviting users to share their own designs with a larger community of other makers. At present, there are over 1.6 million 3D printing blueprints shared on the platform.10 The cultural imagery associated with 3D printing is even more impressive. For some, it fosters ‘creative literacy’,11 opens a new perspective on ‘global sustainability’12, or leads to more ‘intellectual freedom’13. For others, it seems to endanger lives or even ruin whole industries.14 However separate these images may seem, they are united by the fact that they attribute a transformative power to 3D printing. It seems that 3D printing has outgrown the actual technology: its possibilities and limitations and have become a ‘boundary object’ for all those who imagine a technologically induced change in our working and living conditions. The sociological concept of boundary object was introduced by Susan Leigh Star and James R. Griesemer (1989). It refers to objects that are used and interpreted in different ways by different communities and acquire different meanings in different social worlds. 3D printers, both as tools and words, are perfect examples of boundary objects. It does not matter whether the images associated with 3 D printers have a utopian or dystopian character, or whether they are formulated from the left or the right ends of the ideological spectrum. The discursive power of 3D printing transcends such differences. Like the specimens, maps and field notes in Star’s and Griesemer’s article on the collaboration of amateurs and professionals in building the collections of Berkeley’s Museum of Vertebrate Zoology, the new printing technology as a ‘boundary object’ seems to be both ‘plastic enough to adapt to local needs and the constraints of the several parties employing them, [and] robust enough to maintain a common identity across sites’.15 It yields imaginary and concrete power as a novel technology that inhabits several social worlds and connects them, even if the actors in these worlds interpret and use 3D printers quite differently. Such a communicative function can be observed in both the symbolic and actual use of 3D printing during the present COVID-19 pandemic. Both the AM industry and members of the maker community have been among the first responders to global shortages in crucial medical equipment during the 2020 COVID-19 crisis. The maker community began its response with immediate actions like a viral #NoTouchChallenge to design and produce ‘portable, 3 D printable, multi-purpose no touch tools’16 or the #DigitalSolidarityChallenge to produce spare parts for emergency ventilators. Meanwhile, industrial actors and lobby groups like the European Association of the Machine Tool Industries and related Manufacturing Technologies (CECIMO) had to first find a way to address and solve an immanent dilemma: first, how to balance the societal urge for a fast response with the protection of IP rights; secondly, how to deal with the public scrutiny and criticism that followed the industry’s reaction to the actions of the Fablab Milano, which cumulated into requests by the European Commission (on 20 March 2020) to loosen copyright during the crisis. The immediate answer given by Filip Geerts, director general of CECIMO, was the following: I believe that the additive manufacturing sector could provide immediate solutions to sustain the effort of hospital workers in the middle of this emergency. However, it is in the best interest of all to clarify the regulatory issues in order to move forward quickly and in a way that is not going to delay immediate actions.17 Consequently, on 30 March 2020, a for policymakers to clarify the between 3D printing as a industrial actors and public This the following to requests to parts, a of essential and provide the for printing to those who the and that would AM response to the of equipment by to use of essential and without the of patent closely with the to the for of essential 3D and of essential 3D the the AM sector in the of the essential chains that should its during the a and access to the of new essential medical and protection by access to in response to the coronavirus As the crisis was during late March 2020 and the public with to copyright as the on the of while simultaneously to the of industrial of this was to industrial actors as for the production of medical parts, to loosen the regulatory for new and to While that from European 3 D printing industry to hospitals and by the use of their the European maker community was with to its access to and Makers were their ability to help if the would such given that such a for might their cost more lives than their decentralized to hospitals during the even more was in the of by the of Its working called for medical devices with additive technologies to be and In the of the pandemic, this can be understood as a on the of medical devices in crisis of the of and makers to help their local emergency the US of and large maker the 2020 to clarify the role of makers in to the global crisis. While the US and not the maker community to it the public that ‘3D printed for might not provide the same of protection as traditional This to a public and private 3D printed medical While some makers as of first response and others framed them as example of the perspective is the MIT researcher who that of the with 3 D printing for is the sense of that we can quickly equipment) to address and that there are of issues with of 3 D printed parts with to their use in a including material with in At the other end of the the technology from on that not only the of the maker and tinker community during the SARS-CoV-2 crisis, but that makers and all over the world to their to help their local hospitals by spare parts for equipment and also that would even help parts as a human in would have ‘the support of a IP (Fig. of by 3D printing and IP during the crisis of 2020. 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