3D printing and product liability: who is liable?

29.10.2018

According to product liability law in the European Union, producers of products are subject to strict liability if products are defective and this leads to violations of certain legal interests (life, body, health, privately used objects). Persons other than producers are only liable under additional conditions.

“Producer” is therefore a key term in product liability law. If products are manufactured using 3D printing, the roles existing in the conventional value chain (supplier-producer-dealer-user) may change. Wholesalers and retailers may not be part of it, but other players may be added, such as the creator of the CAD file that contains the individual commands for controlling the 3D printer, and the person printing out the end product (a private or commercial user or an additional service provider).

Product liability law – this applies to Germany, but equally to all other EU Member States – is based on the conventional value chain, however, and contains provisions which, unmodified, do not take account of these changed roles. For reasons of correctly offering incentives (those who are able to prevent or minimize risks should be given incentives to do so, within economic reason), but also for considerations of fairness, a broad interpretation of the term “producer” is therefore advisable. On the other hand, it seems appropriate to limit the liability of the persons so included to areas that they are controlling. This leads to the following propositions:
  1. The creator of a master copy that is scanned with a 3D scanner and of which master copy the final product is later printed, is not a producer of said final product.
  2. The creator of the CAD file is the producer of the final product that is printed out later, which is justified in particular by the fact that the CAD file contains the commands controlling the printing process, which the printer processes on its “as is” basis. This creator’s liability is limited, however, to errors in the CAD file that later affect the final product.
  3. The person printing the product is also a producer. This person is liable both for errors resulting from a faulty CAD file and for those occurring due to errors during the printing process itself.
  4. If the person wanting to print out the product uses an external service provider for this purpose, he will remain the producer, provided that he supplies the file to the service provider, and will be liable for the errors in the final product, irrespective of whether such errors were already included in the CAD file or not.
  5. The service provider operating the printer is also a producer; this service provider is not liable, however, for errors in the CAD file received that affect the final product.
More details on this topic, including how these propositions are derived dogmatically, can be found in our essay: Korte/Istrefi, 3D-Druck und Produkthaftung [3D printing and product liability; in German language], Der Betrieb 2018, pp. 2482-2486.