With the advent of technology, the digital space has progressed to the extent of creating a virtual reality commonly referred to as the ‘Metaverse’. In simple terms, Metaverse refers to a technologically-driven digital environment which provides a platform for people to socialise or work, as needed. It uses an amalgamation of various technologies such as virtual reality, augmented reality, blockchain technology, etc. Considering the fast pace growth of the industry, it is essential to understand the legal implications of the same with reference to Intellectual Property.
Intellectual Property in the Metaverse
The introduction of Metaverse provides a wide ambit of opportunities for development of creative works within the digital sphere as well as physical equipment outside of it. This indicates an obvious inclusion of trademarks such as sound marks, logos, etc. in the process of brand development of the physical equipment such as virtual reality devices, etc. But the process of development of the equipment as well as the software technology itself further attracts the practicalities of Patents and Copyrights, respectively. This clearly connotes a potential for various IP issues concerning licensing, authorisation, territoriality, etc. in the virtual space as they exist in the physical world. Therefore, there exists a need for an organised IP regime which will be customised to the virtual reality of Metaverse.
IP infringement in Metaverse
Due to the numerous complexities involved in navigating through the Metaverse, there are regular instances of IP infringements, like sale of fake artwork under the guise of copyrighted works, patent infringement in production of the hardware associated with Metaverse, misappropriation of trade secrets as well as passing off a competitor’s trademark across the virtual space. Further, the content shared and created by the users in the Metaverse, due to its easy accessibility, is susceptible to copyright infringement.
Many brands are already protecting their trademarks by well-executed marketing and branding strategies to create a sense of brand loyalty within the Metaverse.. Examples of Trademark registration within the Metaverse include registration of “Nikeland” by Nike America to identify “virtual reality and interactive game services provided online from a global computer network and through various wireless networks and electronic devices,” among others as well as registration of logos of luxury brand by Gucci and Prada to trademark “downloadable virtual goods and virtual clothing used in the virtual worlds.”
The paramount issue here is regarding the identity of the infringers which is hidden behind layers of technology and disguised interactions. This requires proactive actions by designated authorities to keep screening through the interactions across Metaverse and identify cases of online copyright or trademark infringement.
How to protect IP in Metaverse
There exists a pressing need to strategize a way to protect IP in the Metaverse. This has been emphatically established by multiple scholars and researchers who engage in the field. But due to the novelty of the field, there are no assured methods to grant complete protection to the intellectual property in the Metaverse.
While considering the case of copyright infringement of both, software used to create the Metaverse as well as the content available on the platform, regulatory mechanisms to assist in identifying instances of online copyright Infringement. To achieve this, virtual investigations may be conducted with the help of human resource as well as Artificial Intelligence (AI) systems and automated programs which would be coded to identify and report the instances of infringements across the Metaverse. The AI technology has developed extensively and is now used for everything, from cybersecurity to network orchestration or even customer service. The same technology can be engaged to target individual instances of IP Violations. An AI algorithm can be configured to search for unauthorized use of video, images, or other digital assets. Following this, a legal notice may be sent to the appropriate parties demanding the assets be taken down. The same AI can be used to determine what sort of monetization the infringer of the property has engaged in, so the content creator can be informed and empowered to take action or be compensated.
The issue of infringement of Trade secrets along with patented technologies or coded software, etc. can further be resolved by engaging a digital contract backed by blockchain technology with non-disclosure as well as license limiting clauses.
This is just another instance where an issue presented due to the development of a technology may be resolved by developing another technology. While the blockchain technology is currently entirely intermingled with the world of cryptocurrencies, in truth, it may also be used in conjunction with smart contracts. Smart contracts allow for digital assets to be exchanged and tracked. They make sure that there is never a question about the ownership of digital assets. The blockchain and smart contracts are essential technologies in terms of protecting intellectual property. The fundamental characteristics of blockchain technology are well suited for the protection of intellectual property. Since it is a distributed system, it requires the consent of both parties in order to be changed. Additionally, hacking the blockchain is very difficult.
Another method of protecting one’s IP in the Metaverse is from an individualistic perspective. In a situation where virtual goods or services offered by a company exist beyond a single metaverse platform, the NFT (Non-Fungible Tokens ) technology can be used. This is a technology that embeds the information regarding any good or service with the content, so that users know what they're getting and what they're responsible for. The attached information includes information about the product, such as what it is, where it came from, and who owns it. This notice lets customers know about the approved and unauthorized uses of the product. This information is attached to the product throughout its digital life cycle, even when it moves from one platform to another. Thus, providing an effective and efficient way of protecting IP in the Metaverse.
With the rebranding of Facebook as META, the proliferation of the Metaverse has been more rapid and extensive than any other technological developments. This has created a need for the content creators and owners of IP in the Metaverse to be prepared beforehand for a range of potential challenges when it comes to protecting their work. These challenges will have a large impact on media companies and the future of content creation broadly. But this also presents itself as an opportunity for IP law to continue to evolve in conformation with the introduction of new technologies.
Andrew D. Kasnevich, IP in the Metaverse: An Overview for Retailers in a New Landscape, The National Law Review, Vol. XII, No. 146, March 16, 2022, https://www.natlawreview.com/article/ip-metaverse-overview-retailers-new-landscape
Edward Hanapole, The Metaverse of Intellectual Property, Journey to AI Blog, April 25, 2022https://www.ibm.com/blogs/journey-to-ai/2022/04/the-metaverse-of-intellectual-property/
Shawaiz Nisar, India: IP Protection In The Metaverse, Khurana & Khurana, March 21, 2022, https://www.mondaq.com/india/trademark/1173882/ip-protection-in-the-metaverse
Akiv Jhirad, Mark Biernacki, Branding in the metaverse – protecting and enforcing IP rights, Smart & Bigger, March 21, 2022, https://www.lexology.com/commentary/intellectual-property/international/smart-biggar/branding-in-the-metaverse-protecting-and-enforcing-ip-rights