Image by Philip Ezze ()Ěý

Emily Xiang is an IPilogue Writer, President of the Intellectual Property Society of Osgoode, and a 2L JD candidate at Osgoode Hall Law School.

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What is Bioprinting?

is an innovative technology that uses cells, organic materials, and biological molecules to create complex models and structures. Its is forming organic tissue constructs with a high degree of repeatability, flexibility, and accuracy. Since its first breakthrough in the health and pharmaceutical industries in the 2010s, the application of 3D bioprinting has grown to include , , , , and . In 2021, the global 3D bioprinting market was valued at and is expected to grow from there.

3D Bioprinting in the Cosmetics Industry

The use of bioprinted tissue by cosmetics companies has seen tremendous growth in recent years. In Europe, following the which banned animal testing for cosmetic purposes, cosmetics companies have had to seek alternative methods of ethical testing on varying skin types that would also produce accurate results. ĚýMoral advantages are not the only kind of benefit that bioprinting technologies can offer. Since human skin is multilayered and comprised of various cell types, 3D bioprinting presents the unique ability to deposit cells in meticulous arrangements that closely resemble actual human skin, resulting in and faster, cheaper, and more effective testing procedures. Since 3D bioprinting entered the marketplace, global cosmetic leaders such as and have invested significantly into the R&D of bioprinting technologies, with a view to revolutionize the practice of dermatology in the future.

3D Bioprinting & Canadian Patent Law

From an intellectual property law perspective, could 3D bioprinted material be patented? While the scope of patentable subject matter in Canadian patent law is generally considered Ěýquite broad, products and techniques related to bioprinting between the living and the non-living, which could complicate matters. In , the Court held that “higher life forms,” such as genetically modified plants or animals, were not patentable but affirmed the patentability of the genetically modified genes in question. Since the decision, the Canadian Patent Office has more clearly delineated the distinction between higher and lower life forms in the , which defines lower life forms as unicellular and higher life forms as being multicellular. In Chapter 17.02.02 of the MOPOP, the Patent Office states that “[a]rtificial organ-like or tissue-like structures that are distinct from true tissues and organs and that have been generated by human intervention through the combination of various cellular and/or inert components may be considered, on a case-by-case basis, to be manufactures or compositions of matter with the scope of section 2 of the Patent Act.”

While some ambiguity remains regarding the patentability of bioprinted materials, there has been some success in patenting associated with bioprinting. Despite these patents, however, bioprinting technology can still be said to be distinct from, for example, more cutting-edge , for which the core of the technology can be patented and can thereby lead to intellectual property disputes. In contrast, the core elements of bioprinting derive from that are already free from patent protection, providing innovators working with bioprinting technology some more leeway to appropriate the existing methodologies in the field.

Conclusion

While cosmetics companies constitute some of the more recent actors to leverage the new technology, bioprinting has gained in the industry in recent years, with interest no longer being restricted to academic circles but also gaining traction in the marketplace. As the research and development of 3D bioprinting continues to evolve, the need for the law to take a more explicit stance on the subject matter will become increasingly apparent.

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Beep! Beep! Beep! The sound of your alarm marks the start to your day. As you resist the urge to snooze, it is likely you are about to effortlessly unlock your phone with the help of facial recognition technology. Whether you prefer to meditate or perhaps kickstart the morning with a workout, your favourite playlist is at your fingertips.

In a digitally dominant era, consumers rarely hesitate to use their faces as keys to unlock the online world. The use of interactive face filters on social media platforms complements this integration of face detecting technology into our daily lives. When capturing a photo, users on apps such as Snapchat or Instagram may select from a variety of face filters– Adding a pair of bunny ears or retro sunglasses to your picture sounds harmless, right? What if that filter features a makeup artist’s work? With tech becoming ever more sophisticated, users can now opt to express themselves with filters that seamlessly blend vibrant eyeshadow or sparkly lipstick designs (among many others!) to their face.

Flashing back to 2016, only a year after Snapchat first launched its filters (more commonly referred to then as “”), the app introduced a design closely resembling, if not an exact replica of the look by artist . At the time, Mykie While you may debate whether the filter deviated from Mykie’s design so as to count as a new work (lacking a degree of substantial reproduction) – we must first question, are makeup designs captured by copyright protection? Spoiler alert, it depends.

Let’s dive into the copyright landscape to further explore this subject.

According to of the Copyright Act, copyrights subsist in artistic works such as photographs or paintings. But, as stated inĚý, in order to receive copyright protection, a work must be “original,” i.e., the result of the exercise of skill and judgment, “in a manner that is not so trivial that it could be characterized as a purely mechanical exercise.”[1] And only expression, not an idea, is protectable. ĚýOsgoode’s own Professor Carys Craig notes, Your everyday cat-eye look might not attract copyright protection, but how about when the design is closer to that of stage makeup? This area of law has yet to be extensively litigated in Canada, however our international counterparts have grappled with the intersection of facial makeup and copyrights with varying degrees of fixation required.

It is crucial to flag that copyrights extend to the expression of an idea, having a “more or less permanent form.”[2] In Merchandising Corporation of America Inc v Harpbond Ltd, a 1983 UK case, makeup was found to be outside the scope of copyright protection, as one commentator put it, the makeup on musician Adam Ant’s face, “.”

The Compendium of U.S. Copyright Office Practices notes, “”[3] Unlike tattoos (which have their own set of copyright obstacles), makeup when met with water, vanishes. However, the ephemeral nature of a work does not bar copyright protection. For example, a sand sculpture that is then washed away by tides or a wedding cake later eaten by guests is within the ambit of copyrightable subject matter. [4]

The face – as an alternative medium – must not serve as an impediment to an artist’s access to protection. Social media platforms ought to think twice between reproducing a makeup artist’s work without consent. Whether your canvas of choice is paper or skin, copyright protection prioritizes the originality of the art, as the work moves out of the common stock of ideas and into the pool of intricate facial illustrations. Consider the skill required to perfect the detail and imagery in Natascha Pedersen’s As a painter using acrylics, a makeup artist is similarly armed with a brush full of beautiful colourful powders.

[1] at para 16.

[2] Canadian Admiral Corp v Rediffusion Inc., [1954] 20 C.P.R. 75, para 28.

[3] at p 3.

[4] ĚýIslestarr Holdings Ltd v Aldi Stores Ltd [2019] EWHC 1473 (Ch) at para 48.

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