By Evangelia Manika, Associate, LL.B MSc.
Nowadays, the metaverse could be the new megatrend in many areas of people’s daily life, as it could offer a variety of benefits in the fields of communication, gaming, shared experiences, healthcare, education, intellectual property etc. However, many concerns can be raised about the legal aspects of the metaverse. Among these concerns are intellectual property issues.
First of all, intellectual property was designed as a tool to protect the rights of authors, and it applies fully to the metaverse. Virtual goods and services, such as avatars and virtual buildings, are protected by intellectual property laws. Monitoring and enforcing intellectual property rights in general has proven difficult, and the metaverse is likely to present similar difficulties. The metaverse is an IPR-intensive technology and since the extent of intellectual property protection in the metaverse is unclear, a number of intellectual property disputes have already arisen in the new NFT market. As a result, the creation of new categories of assets, such as the digital assets represented by NFTs, has raised novel intellectual property issues, including the scope of the NFT owner’s right to use the content.
In addition, the use and exploitation of previously licensed or acquired IP rights raises new issues in the metaverse, particularly for licensees, regarding the scope of rights they may have acquired under contracts that predate the metaverse. In this context, traditional methods of enforcing intellectual property rights will need to be reconsidered. The ability to create digital-only products in the metaverse, or to combine physical and digital products, creates new patenting opportunities. For example, Nike and RTFKT have patented their Nike Dunk shoes to allow them to be customised in the metaverse.
Legal issues also arise in the area of trademark registration, while many companies, such as Tommy Hilfiger, have filed trademark applications to enter the metaverse and embrace the world of NFTs. As a result, brand owners face uncertainty in IP law due to the significant barriers to successful counterfeit detection and enforcement that exist in the metaverse, such as the difficulty of identifying infringers. Avatars, virtual items, such as clothing and furniture may all contain IP-protected works. Creators and consumers of the metaverse have an obligation to respect the rights of rights holders to exclusive exploitation of their intellectual property rights within the metaverse.
Moreover, there is a number of intellectual property issues associated with artificial intelligence that can acquire data from copyrighted or trademarked works and reproduce it in an algorithmically automated manner in the metaverse without compensating the authors. In this context, technologies, such as blockchain could be integrated into AI systems, making it possible to identify which copyrighted, trademarked or patented content has been used by AI. Non-transparent AI can be a major concern, as it often acts as a ‘black box’, processing data that may be protected by copyright, patent or trademark, and creating a new IP work that has no reference to IP rights.
As the existing legal concerns regarding IP in the metaverse are crucial to the proper protection of IP rights, it remains to be seen how – and if – the existing legal framework is prepared to address the significant issues raised by the existence and creation of IP rights in the metaverse.
