IP protection in the Metaverse: how to protect your rights
With increasing interest in the Metaverse and the professional, consumer retail and leisure opportunities it presents, intellectual property (IP) protection is more important than ever. In this article, we consider how enforcing IP protection compares in the virtual world.
There is currently no single, all-encompassing Metaverse where developers can build their virtual buildings. Instead, there are many separate virtual spaces – designed, hosted, curated and maintained by various platforms – that invite developers to build properties within their versions of the Metaverse. In amongst this are brands and business looking to create a Metaverse shopfront as well as products and services aiming to attract new customers in a virtual world.
Whilst IP rights are often territorially limited by design, difficulties arise in IP protection in the virtual world due to the fact that the host platform, designers, developers and end-users exist in different jurisdictions, with no statutory framework for policing infringement across territories in place.
Therefore, for businesses looking to invest in the digital realm, the first step in undertaking any Metaverse project is to carry out an audit of the registered and unregistered IP rights held (or required) to ensure that they offer sufficient protection and cover current (and future) digital and Metaverse use.
Copyright protects literary, dramatic, musical and artistic works which are original, are fixed in some way and qualify for protection.
In the UK copyright is an unregistered right exclusively held by the owner protecting original works as soon as they have been created. |
In the US and some other jurisdictions copyright also arises automatically but requires registration to enforce.
|If a business finds its copyright material is being used in the Metaverse without consent it should notify the platform immediately and should utilise any takedown procedures available. However, depending upon the location of a host server, takedown procedures and website blocking procedures may vary according to local laws.|
(1) Photographic images
|In the absence of a written agreement to the contrary the photographer maintains ownership and usage rights forever enabling them to use them on their website, marketing, sell them to a magazine or stock photo library.||The same analysis applies to photographic images used in the promotion of Metaverse investments in marketing materials.|
(2) Satellite images
|The copyright in satellite imagery belongs to the company that put the satellite in orbit and took the pictures so it is recommended to acquire licences for reproduction.||Again AI generated satellite imagery of Metaverse projects belongs to the person who created it and licenses should be sought for any reproduction.|
|Buildings themselves are generally regarded as artistic works. The architect and not the building owner is the owner of the copyright unless the architect assigns that copyright to the owner.|
Therefore the copyright in a building may be infringed by replicating the building as a whole, or constructing another building which incorporates the original artistic features protected by copyright.
It is important to note that “display” of architectural works is generally excluded from the rights granted to the owner of the copyright save for a narrow exception which covers physical 3-D reproductions. The seller of models of a building would need a licence from the copyright owner.
|The narrow exception does not cover 3-D reproductions. In this context, 3-D means a physical 3-D object and not a 2-D representation that is designed to appear 3-D. |
The Metaverse offers users a 3-D, lifelike experience and while untested the current consensus is that a depiction of a work on a computer, whether in conjunction with a CAD program or a virtual world, is not a 3-D copy. On-screen representations, even in virtual worlds, have so far generally been treated as 2-D displays, not 3-D copies.
That said, a court viewing the question of Metaverse renditions of real-life buildings in light of today’s advanced virtual technology might decide it differently.
4) Architectural plans and drawings
|The architect who draws the architectural plans is the ﬁrst owner of copyright in the plans and the building created from them, unless there is agreement to the contrary.|
The physical plans become the property of the client for whom the work is being done.
|Developers of Metaverse “architecture” may also have different rights under copyright law than developers of real-world architecture. A distinct architectural work in the Metaverse could be a graphical work (and the underlying code could also be protected as a copyrighted software work). Digital imitators of Metaverse architecture may actually face more constraints than digital imitators of real-world architecture.|
Registered trademark provide the owner with the exclusive right to prevent others from using the mark for the goods and services covered by the registration.
|Trade marks are valuable business assets which can last indefinitely and avoid the need for the owner to prove the elements of a “passing off” action. |
The name or nickname of a development or a building can be protected by a trademark registration e.g. the Gherkin, Empire State Building or Trump Tower(s).
Ensure trade mark registrations include virtual and Metaverse use and digital assets and services e, g, McDonalds has filed trademarks for virtual restaurants offering home delivery.
Most useful tool for brand protection. In the Metaverse identify registered trademarks as such and take swift action where there is infringement.
An exclusive right granted for an invention, product or process that provides in general a new way of doing something or a new technical solution to a problem.
|In principle, the patent owner has the exclusive right to prevent or stop others from commercially exploiting the patented invention. Patent protection means that the invention cannot be commercially made, used, distributed, imported or sold by others without the patent owner's consent.||While it is possible to obtain patent protection for soft-ware related innovation it can be difficult. Many courts consider software as an implementation of an abstract idea and incapable of patent protection where it does not relate to physical objects such as machinery or computer hardware, security, data handling or output. |
Claims typically involve comparison of the source code requiring disclosure and expert review while also enabling the infringer to rewrite the code to avoid liability.
IP rights on confidential information which may be sold or licensed
|Protect confidential technical and commercial information which is commercially valuable, gives the owner a competitive advantage and is treated as a secret. They can last indefinitely if kept out of the public domain. Examples include customer lists, marketing strategies, software, database rights, algorithms and formulas||As the Metaverse can apply “real world” features to a virtual environment the potential for highly valuable data collection in granular detail is unparalleled and therefore trade secrets protection may be able to assist where patent protection cannot.|
In principle, the owner of a registered industrial design or of a design patent has the right to prevent third parties from making, selling or importing articles bearing or embodying a design which is a copy, or substantially a copy, of the protected design, when such acts are undertaken for commercial purposes.
|User generated contents is the biggest risk for brands in the Metaverse with almost limitless opportunities for counterfeiting, passing off and copycats. Monitoring for IP infringement across the Metaverse will be a considerable challenge. Some commentators have suggested that operators of different Metaverse components should establish strategies for protecting users’ IP, in a similar way to how YouTube, Amazon and eBay work to protect rights holders from illicit activity on their platforms.
Most IP commentators recommend that brand owners register their key assets as “downloadable virtual goods” for use in virtual environments.
Licensing and advertising
|Businesses should review existing IP licenses to ensure whether these cover the use of that IP in the Metaverse. Future licenses should be drafted carefully to deal with the Metaverse and any use in digital assets such as NFTs.|
Advertising Standards Authority guidance on compliance with advertising rules in the Metaverse is awaited.
Our specialist tech, commercial and IP lawyers can help your business prepare for expansion in the Metaverse and ensure there is proper protection for your existing and future intellectual property rights.
Visit our Tech & Innovation webpage, to learn about our expertise advising on NFTs, Blockchain, Metaverse and Web3.