Ricci Dipshan, Legaltech News
From copyright licensing to fair use
considerations and patent trolls, intellectual property technology may run into
future legal challenges.
While recently launched virtual and augmented reality platforms like Oculus
Rift or Pokémon Go are feats of modern innovation and engineering, these
technologies are themselves not wholly unconnected to the world they seek to
transform or supplement. And like every nascent and quickly developing
technology, neither are they free of laws governing intellectual property (IP).
With so much yet unknown about their future, virtual and augmented reality
platforms may yet run into complex legal dilemmas involving IP rights and
ownership. Here are three ways in which these issues may manifest in the years
to come.
1. Copyright Infringement and Licensing
The issue of copyright in the virtual and augmented reality space concerns
not only how providers protect their own technology, but more importantly how
their software developers use other copyrighted IP In their games and content.
Christian Mammen, partner at Hogan Lovells, explained that a simple way to
think about these IP challenges is through Pokémon Go, arguably the most famous
augmented reality game on the market.
He noted the game's ability to layer Pokémon characters on top of live
images of the real world brings up the broader question of, "If you're
going to do that with any particular preexisting character or image, have you
created or secured the licensing rights to those?"
While this question is less of a concern with corporate-built games, it may
be an issue if the technology takes off to the point where any amateur software
developer can easily create similar augmented reality applications.
As an example, Mammen points to a game that layers the "famous picture
of Albert Einstein where you see his white hair sticking up in all different
directions," onto the live world. With such a picture, the "question
then becomes, is it fair use for that augmented reality game, or does the
creator of that game need to obtain some type of rights from the owner of that
photograph?" he asked.
And the issue of fair use goes beyond whether or not such an application
was offered for free or for profit. Attorneys need to account for many other
factors including "whether it's a transformational use in some fashion or
an educated use," Mammen added.
Perhaps even more complex, however, are IP rights in "fully
immersive" virtual reality games "that maybe build off of existing
images and existing copyrights, [where] any attempt to enforce that as a
copyright might stretch some of the traditional notions of copyright," he
said.
Whatever the situation though, Mammen sees the issues of fair use in the
virtual and augmented reality space running into ambiguous territory, similar
to that in the well-known case of Lenz v. Universal Music Corp. , which
concerned whether a 20-second song by Prince imposed on a clip of a 13 month
old dancing constituted copyright infringement.
2. Infringement Notification
Under the precedent set down in Lenz, copyright holders have to account for
fair use before sending a takedown notice to a potential infringer.
Yet, even if such fair use consideration is made and unrealized, how such a
takedown notice will work in the virtual and augmented reality space,
especially if such technologies and content becomes as widespread as YouTube
Videos and the like, is not yet entirely clear.
There are, however, some similarities between virtual and augmented reality
and other media formats. While Mammen noted that there "is such a wide
range of possibilities" for notifications, he also pointed out that some
virtual reality platforms consist of a three-dimensional film real-world
environments, and are therefore "analogous to film making."
As such, such content might be governed by the infrastructure put in place
by the Digital Millennium Copyright Act (DMCA) "that involves various
techniques for policing and serving takedown notices and trying to keep some
reasonable limit on the massive volume on user generated content that's posted
on platforms."
But while Mammen believes it is possible the virtual and augmented reality
space will have similar notification procedures that "may even be the same
ones [as the DMCA]," he cautioned "it may [also] evolve into slightly
different that is more suited to the needs of the industry."
3. Future Patent Wars
Though virtual and augmented reality technologies have been around for a
while, it is due to only recent advancements that they have become a force in
the marketplace. In some regards then, the technology is only beginning to come
into fruition.
Such a flourishing space is entirely not unlike the development of recent
internet technologies that, while fueled by rapid innovation early on, were
also the subject to exploitation by patent trolls looking to profit from new
creations.
"What we saw, broadly speaking, over the last five years, was that a
lot of the patents that were the basis for patent monetization entities or
patent troll assertions were patents issued early in the internet age that were
very broadly worded and had language that potentially covered a whole lot of
technology space," Mammen said.
In the immediate future, however, Mammen sees "the owners of the
fundamental inventions and the fundamental patents" in the virtual and
augmented reality space "holding on pretty tightly to those." But the
situation may change in the near future as the industry matures, he added, as
"there may be increasing number of patents and a variety of patents that
may for various reasons find their way onto the secondary market. And once that
starts happening, that's when we may see some activity from patent monetization
entities."
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