COPYRIGHT LAW AND VIRTUAL REALITY: EMERGING LEGAL ISSUES
Adarsh Pandey & Shraddha Dubey,
BBA LLB, 8th Semester, Bharati Vidyapeeth New Law College,Pune
DOI - https://doi.org/10.5281/zenodo.11180264
ABSTRACT
Virtual reality (VR) technologies offer users immersive, three-dimensional environments, but they also present legal challenges. Copyright laws for virtual worlds and their creators are a concern. Virtual reality (VR) is a popular technology that allows users to interact with computer-generated environments in a realistic and interactive manner. It has gained popularity in various industries, including gaming, healthcare, education, architecture, tourism, and training. VR offers unique opportunities to enhance experiences, improve learning outcomes, and simulate real-world scenarios in a controlled environment, making it a valuable tool in various fields. This article explores the potential application of copyright law to VR technologies, focusing on what might be protected by copyright, potential infringement challenges, and how enforcement of these copyrights might affect users and developers. VR has revolutionized expression for authors and creators, but it also presents legal and ethical issues. This article further mentions about the aim and objective of the study and with this, what can be the methodology used in dealing with the topic.
KEYWORDS
Challenges, Copyright infringement, Enforcement of IPRs, Virtual reality
I. INTRODUCTION
Virtual reality (VR) technologies enable users to experience a three-dimensional, multi-sensory environment, mimicking reality through computer-generated simulations. These illusions are achieved through dual-functioning headsets that display 3D images and block out the "real world" while tracking the user's head movements. The available systems range from high-end systems like Oculus Rift to cheaper cardboard headsets designed for smartphones. As VR technologies advance, legal issues regarding copyright policies for these novel technologies can arise. Users have a unique role in creating virtual worlds, but they are generally not held liable for infringement.
Questions arise regarding what can be protected via copyrights. Both developers and users have an interest in securing copyrights for their creations, and both groups may face claims of infringement if they do not act carefully. Additionally, both groups must deal with enforcement of existing copyrights.
VR came into existence in the 1950s with the invention of the first VR Head-Mounted Display (HMD) in 1968. The term "virtual reality" was popularized in the 1980s by Jaron Lanier, and by the early 1990s, mass production of VR systems began. With such a vast innovation in technology, there arise legal challenges concerning retaining company secrets during the development process and protecting intellectual property rights in the virtual world.
II. RESEARCH QUESTIONS
The Research questions of the following topics are:
1. What is Virtual reality technologies in the present world and what can be the challenges attached with it?
2. How are Virtual reality and Copyright related and how can we secure Copyright Law?
3. What can be the issues involved in copyright law and virtual reality?
4. Is there any precedents or judicial pronouncement on such issues?
III. AIM AND OBJECTIVE
The convergence of copyright law and virtual reality is causing a range of legal issues, impacting creators, consumers, and businesses. The research includes understanding the impact of virtual reality on copyright law, assessing the legal protection for virtual reality content, and analyzing licensing and use of copyrighted content in virtual reality environments. It also explores the global dimension of copyright law and virtual reality, considering jurisdictional challenges and international harmonization efforts. The emerging legal framework for virtual reality is being explored, with potential policy recommendations and legislative initiatives. The impact of copyright law on innovation and access to knowledge is also being evaluated. The intersection of copyright law, virtual reality content, and consumer rights is also being explored.
IV. RESEARCH METHODOLOGY
This study is the combination of methods for interpreting the relevant information addressing present situation of virtual realities technologies around the world and also existing legal remedy © for controlling its several consequences. In this research, the analytical method is given priorities. Some information are collected from primary sources such as government websites, national laws and policies. Some of the information was extracted from secondary sources such as books, journals, magazines, newspapers, websites etc.
V. UNDERSTANDING VIRTUAL REALITY
A. What is Virtual Reality?
Virtual reality (VR) is a computer-generated environment that simulates a user's physical presence, allowing them to interact with a 3D virtual world. The goal is to create a sense of immersion and presence, making users feel physically present in a digital environment. VR relies on specialized hardware and software, with users wearing headsets that track head movements and display a stereoscopic view of the virtual environment, creating the illusion of depth.
B. Types of Virtual Reality
Virtual reality (VR) is a technology that offers immersive experiences through various devices.
· Tethered VR systems, such as the Oculus Rift and HTC Vive, require a high-powered computer or gaming console to deliver the experience.
• Oculus Quest and other standalone VR systems are self-contained devices with integrated processors, screens, and tracking capabilities.
• Mobile VR tracks head movements using the device's sensors and uses smartphones put into VR headsets. The smartphone's display serves as the VR screen. These devices provide a more immersive experience and are more widely available and reasonably priced.
• Augmented reality (AR) gadgets superimpose virtual items or data over the user's actual field of vision, such as Microsoft Holo Lens and Magic Leap.
C. Current Situation of VR Technology
The technology of virtual reality (VR) has several uses across different sectors. It is utilised in virtual collaboration, architecture, design, gaming, entertainment, education, healthcare, tourism, rehabilitation, and defence. VR gaming transports users into virtual worlds and offers immersive experiences. Virtual reality (VR) is being used in education for training exercises, simulations, and virtual field trips in fields including engineering, aviation, and medicine. Virtual reality (VR) is used in healthcare for physical rehabilitation, surgical simulators, phobia treatment, and pain management. Architecture helps with design assessments and spatial planning by producing virtual walkthroughs and visualisations of structures and places. In real time, virtual collaboration enables remote meetings and projects. Virtual tours of historical sites, museums, and tourist attractions are provided by tourism. VR is used in rehabilitation for motor skill training, cognitive rehabilitation, and physical treatment. Defence and military applications
D. Virtual Reality and Challenges
The development of virtual material is a common component of VR experiences, which brings up concerns about intellectual property and copyright. Finding out about the illegal duplication and distribution of intellectual content, as well as the ownership rights and legal standing of virtual properties and assets in virtual worlds or social VR platforms, can be difficult.
Data collection, processing, and storage in virtual environments raise privacy problems since they potentially reveal sensitive personal information. Users must give their informed consent in order to ensure that data practices are transparent. Clear policies on managing and safeguarding this data are required because biometric data collecting and user tracking also give rise to privacy concerns.
Ethical considerations, psychological effects, and physical damage give rise to liability and safety difficulties. Setting safety guidelines and determining who is responsible for accidents received during virtual reality encounters are crucial. Virtual reality encounters have the potential to cause intense feelings and psychological impacts in users, which raises concerns regarding the accountability of platform providers and content producers.
Age limitations, content control, and handling abuse and harassment are some ethical issues. Misuse of virtual environments can result in harassment, cyberbullying, and the production of objectionable or dangerous content. VR experiences involving representations of actual cultures, historical events, or holy sites give rise to concerns about cultural sensitivity; therefore, respectful and truthful renderings are necessary to prevent misrepresentation or offence.
Collaboration between legal experts, tech developers, legislators, and industry stakeholders is required to address these legal issues with virtual reality. Safeguarding users' rights, privacy, and safety while promoting responsible VR technology use will need the development of clear norms, legislation, and ethical standards.
VI. COPYRIGHTS SECURITIZATION
It is anticipated that creators and consumers would look for copyright protection for their virtual works as well as software and original content associated with VR programmes. Courts will apply these protections based on concepts found in video games and computer programmes.
A. Copyrights for Developers
1. Software – Literal and Nonliteral Elem
For computer software, copyright protection goes beyond the literal, human-readable instructions found in source and object codes. The structure, flow, and organisation of the programme depend heavily on nonliteral components including the user interface, screen displays, and menu structures. The idea-expression distinction is used by courts to evaluate infringement. The majority of these courts have held that, in cases where there is original expression of ideas, protection should be extended to nonliteral aspects; nevertheless, concepts that form the basis of a programme alone are not protected.
The abstract-filtration-comparison test, first adopted by the Second Circuit Court of Appeals in Computer Assocs. Int'l, Inc. v. Altai, Inc., has been applied by various courts to determine which nonliteral elements can be protected. This test involves breaking down the allegedly infringed program into its constituent structural parts, isolating each level of abstraction, filtering out nonprotectable elements, and comparing the protectable elements with the structure of the allegedly infringing program to determine which elements are substantially similar to warrant a finding of infringement.
However, virtual reality (VR) technologies involve a greater degree of user interaction than past entertainment technologies, which may pose challenges in applying these tests. Developers of VR platforms often create only the virtual world's skeleton, encouraging players to create new material. Co-authorship may provide a means to deal with this novel element, as copyright protection for co-authorship of audiovisual display in video games has not been precluded in the past.
2. Copyrights for Computer Programs & VR Application
Williams Electronics, Inc. was the first to address copyrighted computer programs in videogames, as previous courts only considered visual works. The defendant argued that player participation withdraws the game's audiovisual work from copyright eligibility due to no set performance, making the player a co-author of the screen. The court rejected this argument, finding that copyright protection exists due to a repetitive sequence of sights and sounds, and constant display aspects. The court also found that the original audiovisual features of the DEFENDER game meet the "fixed" requirement for obtaining a copyright despite the transient nature of images. This importance of fixation for video game audiovisual protection should not be overlooked in the context of virtual reality technologies, as repetition may be a crucial factor in determining whether copyright protections extend to virtual worlds.
B. Copyright for Users
VR users can seek copyright protection for their creations, including avatars and artistic works, as they act as "co-authors." However, securing these protections may be limited due to high collaboration between users and developers. The originality of a user's avatar and other virtual artistic works depends on the tools provided by the developer's code. If a developer's code provides limited tools, freedom to create may be limited, and copyright protection may be unlikely. However, protection is not impossible, and copyright should attach where originality and fixation are satisfied.
VII. ISSUES WITH RESPECT TO VIOLATION AND INFRINGEMENT
A. Infringement by Users
1. General- Virtual reality platforms offer users significant creative power, allowing them to infringe on protected works through their creations. For instance, transforming a real-world copyrighted object into a virtual world would likely be considered infringement. This infringement involves reproduction of the copyrighted work, preparation of a derivative work, and distribution of the copyrighted work to the public. Three exclusive rights granted to copyright holders are involved. Additionally, a charge for contributory infringement could be brought. A virtual representation of the copyrighted work would be considered a derivative work, as it is simply reproduced into a virtual world. A derivative work must exist on its own, fixed, and transferable from the original work, having a separate 'form.' A virtual representation of a real-world object would be a derivative work under these definitions.
2. Defense- Infringing on copyrighted content can be defended through fair use and parody. Parody requires expressing a critical commentary on the original composition. Fair use can also be brought for derivative work, requiring an examination of the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the work as a whole, and the effect of the use upon the potential market or value of the copyrighted work.
The purpose and character of the use may favor the allegedly infringing user if it is non-commercial or non-profitable. To justify the use as fair use, the alleged infringer could argue that the use was designed to benefit the VR community by creating a productive use. The court could also argue that the use was transformative, altering the original work with new expression, meaning, or message.
The nature of the copyrighted work can weigh in favor of either party depending on what exactly is copied. If the copyrighted object is creative, a finding of fair use would be less likely. The amount and substantiality of the portion used in relation to the work as a whole may be challenging for a user reproducing an entire copyrighted work in virtual form. The last consideration is how it will affect the market or value, which would probably benefit the original copyright holder.
VIII. INTELLECTUAL PROPERTY AND COPYRIGHT
In order to safeguard their works and intellectual property rights, producers of virtual reality material need to take into account a number of aspects. These include filing their works with the appropriate authorities, guaranteeing uniqueness and inventiveness, protecting trade secrets and confidentiality, and handling situations involving copyright infringement. Copyright infringement can result from the unauthorised distribution and replication of VR experiences, therefore producers need to be on the lookout for and aggressively defend their intellectual property.
VR experiences require fair use and transformative works since they may include copyrighted material in a transformative way. Careful consideration of elements including purpose, type, amount, and market impact is necessary to determine if such usage qualifies as fair use or comes under other copyright exceptions.
By working together, developers, designers, and content creators may better define usage rights and copyright ownership in contracts and agreements. Content licencing, platform limitations and policies, and Digital Rights Management (DRM) tools are some of the licencing and distribution concerns that VR content makers must deal with.
Cross-border virtual reality encounters give rise to international concerns about international copyright rules and territorial rights. In order to distribute their VR content globally, creators need be aware of international copyright conventions and take suitable licencing procedures into account.
In conclusion, copyright and intellectual property concerns will continue to be important factors for industry players and content producers as virtual reality develops. By keeping up with copyright regulations, putting appropriate safeguards in place, and entering into licencing agreements, we can make sure that creators' rights are protected and that the virtual reality ecosystem is thriving with morally and legally compliant behaviour.
IX. ETHICAL CONSIDERATIONS AND CONTENT REGULATION
VR content producers need to think ethically when they create their work. These concerns include representation and stereotypes, sensationalism and exploitation, user agency and consent, moderation of content, age restrictions, parental controls, and striking a balance between the right amount of freedom of expression and responsible content regulation.
It is best to steer clear of preconceptions and representation in order to promote diversity and inclusivity. It is important to take into account sensationalism and exploitation since they can inflict needless pain or suffering. It is essential that users give their agreement, and producers should be transparent about the nature of the experience and any possible negative effects on their emotions or bodies.
Mechanisms for content control should be put in place to stop the spread of objectionable or dangerous virtual reality content. Giving consumers the ability to report and offer comments on unsuitable or damaging VR experiences might aid in locating and addressing content that can go against moral guidelines. Parental controls and age limitations help guarantee that content is suitable for particular age groups, empowering parents and guardians to make wise choices.
In the VR world, it is crucial to strike a balance between responsible content management and the right to free speech. When choosing what to watch, consumers can make more informed decisions by taking into account content rating systems, which take into account things like violence, explicit content, and possible psychological effects. While industry self-regulation initiatives can promote responsible practices and address ethical concerns, governments and regulatory organisations can set up frameworks to handle responsible content development and dissemination.
Encouraging public discourse and education about responsible consumption of VR material can facilitate a deeper comprehension of ethical considerations and augment the knowledge base of users. A framework that encourages ethical and responsible behaviours in the creation and consumption of VR content can be established with the assistance of stakeholders like as platforms, users, regulatory agencies, and content providers working together.
X. ENFORCEMENT
The protection of copyrights from infringement is a joint effort of VR creators and actual copyright holders. While VR creators generally contribute to avoid being held liable for infringement by users, copyright holders may contribute to enforcement to defend their own interests in sole ownership of their work. Enforcement by copyright holders will be challenging due to the collaborative nature of virtual reality platforms and the large number of contributors, making litigation costly. Additionally, if a video game is composed of many unprotectable elements, it is unlikely that its producer will succeed in suing a competitor for infringement and obtaining an injunction. For instance, in Rodesh v. Disctronics, Inc., the court examined only the expressive, protectable elements of a horse racing video game, finding no reasonable factfinder could find substantial similarity of expression. Independent elements, such as hoof beats, crowds, and commentators, cannot be said to make the works substantially similar, as the scenes a faire elements account for the expressive similarity of the rival disks.
XI. JUDICIAL PRONOUNCEMENTS
In Evans v. Linden Research Inc., the plaintiff sued Linden Research for improperly confiscating in-game currency and goods. The court ruled in favor of Linden Research, stating that the terms of service agreement gave the company broad discretion to regulate and control the virtual world, including the ability to terminate or modify user accounts and virtual property.
The Shreya Singhal v. Union of India case, involving the Indian Supreme Court, ruled that Section 66A of the Information Technology Act, which criminalized offensive or annoying messages online, was unconstitutional and violated the fundamental right to freedom of speech and expression. This ruling has implications for virtual reality platforms and content, ensuring users' right to express themselves in virtual environments.
The Indian Supreme Court's Sabu Mathew George v. Union of India case emphasized the responsibility of intermediaries like social media platforms to prevent the dissemination of offensive content and comply with the Information Technology (Intermediary Guidelines) Rules, 2011. Although not directly related to virtual reality, the case highlights the need for platform providers to monitor and regulate content within their virtual reality environments.
In ZeniMax Media, Inc. v. Oculus VR, LLC ,in 2017, ZeniMax sued Oculus VR for copyright infringement and misappropriation of trade secrets, alleging that Oculus used ZeniMax's intellectual property in the development of its VR headset, the Oculus Rift. The court ruled in favor of ZeniMax and awarded a $500 million settlement.
The case law of Kumar Int'l v. Russ Berrie & Co. established that originality is the foundation of copyrightability. In Midway Mfg. Co. v. Bandai-Am., Inc., video games are considered audiovisual works, including VR content. In Incredible Technologies, Inc. v. Virtual Technologies, Inc., the maker of Golden Tee sued its competitor for copyright infringement in the video display of the game. The court ruled that parts of the game display were incidental to the standard golf game and therefore not subject to copyright protection, while the other representations were sufficiently different.
XII. WAY FORWARD
The application of copyright law to emerging virtual reality technologies presents uncertainties regarding the limits of copyright, including what can and cannot be protected by copyright, what can be reproduced in the virtual world without infringing on existing copyrights, and how copyright enforcement will play out. This presents implications for both VR developers and users. Although case law provides guidance, the distinctive features of modern technologies make it difficult to apply previous decisions.
With the development of virtual reality (VR) technology, a number of legal issues have emerged, such as those pertaining to intellectual property and copyright, privacy issues in virtual spaces, liability and safety concerns in VR encounters, ethical concerns in content creation, and the requirement for suitable regulation. Legal professionals play a crucial role in navigating these legal complexities. To keep up with the field's rapid developments, they must continually adapt their knowledge and expertise, stay informed about the VR landscape as it evolves, and comprehend the legal implications and challenges it poses.
Immersion technologies and the law have bright futures, but they also present difficulties. Legal frameworks and regulations need to change to reflect the special legal considerations that virtual reality (VR) presents as it develops and becomes increasingly incorporated into different businesses. To ensure the ethical and responsible use of VR while safeguarding users' rights and interests, this calls for continual cooperation between legal experts, technology specialists, legislators, and industry players.
Users and owners are still protected by intellectual property rules, therefore VR companies must utilize this technology carefully and ethically as it gathers ever-larger amounts of user data. The current use of VR may give rise to intellectual property disputes between parties attempting to determine how the virtual and real worlds vary, necessitating the creation of laws specifically governing the virtual world's intellectual property.
REFERENCES
Articles
· LAUREN E. BEAUSOLEIL. (n.d.). COPYRIGHT ISSUES AND IMPLICATIONS OF EMERGING VIRTUAL REALITY TECHNOLOGIES. Boston College Intellectual Property and Technology Forum . Retrieved March 27, 2024, from https://lira.bc.edu/files/pdf?fileid=aa49b0ef-8a0f-4c0b-8f6d-fe1bf60faed7#:~:text=CONCLUSION%20Application%20of%20copyright%20law,on%20existing%20copyrights%2C%20and%20how.
· Emerging Legal Issues in Virtual Reality: Exploring the Intersection of Law and Immersive Technology. (2023, July 2). LawCrossing.com. https://www.lawcrossing.com/article/900054621/Emerging-Legal-Issues-in-Virtual-Reality-Exploring-the-Intersection-of-Law-and-Immersive-Technology/ .
· Legal, P. (2023, June 11). NAVIGATING LEGAL CHALLENGES IN THE AGE OF VIRTUAL REALITY - Prime Legal. Prime Legal. https://primelegal.in/2023/06/11/navigating-legal-challenges-in-the-age-of-virtual-reality
· Shairwal, S. (2021, June 1). Virtual reality and Intellectual Property Rights. Lexology. https://www.lexology.com/library/detail.aspx?g=edd6d2ea-8038-47b2-9c64-4b1c2e827a7c
· A. (2023, August 2). Legal Implications of Virtual and Augmented Reality Technologies: Exploring Intellectual Property and Liability Issues. Knowledge Steez. https://knowledgesteez.com/2023/07/legal-implications-of-virtual-and-augmented-reality-technologies-exploring-intellectual-property-and-liability-issues/
· Alexis Dunne. (2019, May). Copyrighting Experiences: How Copyright Law Applies to Virtual Reality Programs. The Journal of Business, Entrepreneurship & the Law . Retrieved March 27, 2024, from https://core.ac.uk/download/pdf/232019765.pdf
Cases
· Evans v. Linden Research Inc., 2007 WL 459517
· Shreya Singhal v. Union of India, (2015) 5 SCC 1
· Sabu Mathew George v. Union of India, (2018) 10 SCC 753
· ZeniMax Media, Inc. v. Oculus VR, 657 F.2d 1059, 1061 (9th Cir. 1981).
· Midway Mfg. Co. v. Bandai-Am., Inc, 139 (D.N.J. 1982)
· Incredible Technologies, Inc. v. Virtual Technologies, Inc, 400 F.3d 1007, 1009 (7th Cir. 2005).
· Rodesh v. Disctronics, Inc., No. 91-55694, 1993 U.S. App. LEXIS 26255, at *2 (9th Cir. Sep. 30, 1993).
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