Posted: August 25th, 2019
From author Michael Crichton’s forward-thinking novel Disclosure to popular films such as Iron Man, Minority Report, and Star Trek – science fiction has been predicting our future adventures in virtual and augmented reality for decades. Technology has advanced to make virtual and augmented realities believable and obtainable. Both virtual and augmented realities are likely to make a significant impact in the coming decade. The question is how will intellectual property law catch up?
It is unclear whether regulations for intellectual property created in VR, or dependent upon VR, will need to be newly created. It is also unclear whether regulations governing “real world” intellectual property will be simply transposed into the context of virtual reality. The law has adapted to many technological changes over the years – when music started moving from CDs to digital, the Digital Millennium Copyright Act came to action; when broadband internet became more commonplace, the FCC was given additional authority. There is no doubt that IP law will have to change to accommodate VR in some way or another, but it is hard to imagine how IP law will be applied in a virtual world.
Patenting VR technology is challenging under the current law. Patents for VR are often very similar. It is and will continue to be, hard to decipher what is a unique creation in VR and what is an extension of an already existing and evolving VR technology. Furthermore, VR environments are often viewed as abstract concepts because VR is not bound by many of the classical limitations of our reality. Subsequently, this leads to patent litigation over whether or not a concept or idea is patent-eligible or rather “drawn” to a patent-ineligible abstract idea. Alice Corp. v. CLS Bank International is an apt example of an infringement case concerning the patentability of an “abstract idea”: a computerized trading platform. In Alice, the United States Supreme Court held that abstract ideas are not patentable. This is a troublesome ruling for many as VR by its very nature challenges the classic ideas of what is, and what is not abstract, as most of VR is, inherently, functioning in a realm that is both abstract and non-abstract.
In many scenarios, the virtual reality would be accessed by people from their personally-owned devices, and private companies would own the VR network infrastructure and software. The question is: who owns the IP created on these private networks? An imaginable scenario exists where an engineer designs something for a third party on a privately-owned corporate network using computer-aided design (CAD) in a VR environment. While most people would think the IP rights for designs built in a VR would follow contemporary practices for IP built through a normal CAD program or technology existing in the real world, with VR, it may not be that simple. The growth of VR networks will likely be coupled with a new layer of contractual agreements between network owners and network users (such as the beforementioned engineers).
The ownership of certain creative rights (i.e., trademarks) as drafted in contracts for real-world applications could be under heavy scrutiny when applied to creative works originating in the VR environment. For instance, say famous Company A licensed the use of its logo to Company B to make jackets. Does Company B have the right to use Company A’s logo on a virtual version of one of their jackets in VR? Contracts that license the use of IP in a real-world environment may not be transferable to the use of that IP in VR. Conversely, contracts specifically tailored to license the use of IP in VR may not cover, or include, the rights necessary for the use of that IP in the real world.
Ultimately, virtual reality is a blank slate. Currently, there are more questions than there are answers as to how current law will be applied to IP licensing for virtual and augmented realities. Much of the law moving forward will have to be developed anew or adapted from its non-virtual counterpart.
Aaron Johnston is a rising second-year law student at Wake Forest University School of Law. He holds a Bachelor of Science and Master of Science in Biomedical Engineering from the University of Florida and has been involved in two startup companies. Upon graduation, he intends to practice Intellectual Property law.