Reed Smith Guide to the Metaverse

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We already understand that the known universe of the Internet has fractured existing models of exploiting intellectual property rights, challenging owners and users of protected content in the areas of authorization, monetization, and enforcement – notably where user-generated content is concerned. At least, however, those debates have as their starting point relatively solid concepts of, for example, copyright works and rights ownership conferring economic and moral rights (even if copyright law continues to struggle with the application of restricted copyright acts to the Internet world – viz the travails of the European courts on the subject of communication to the public).

The metaverse, conversely, will challenge these principles and ask questions such as whether its information landscape and virtual creations qualify for legal protection and ownership at all; where content built on underlying layers of third-party information falls within existing notions of modified or derivative works; and how exceptions to copyright protection such as quotation or private copying may be applied. Just as Philip K. Dick asked us whether androids dream of electric sheep, in the metaverse, we may be asked to consider whether the machine that asks us whether electric sheep dream of androids is an entity capable of parody.

Interoperability

Interoperability is defined as the ability for computer software to communicate with one another for the effective exchange and process of information. The purpose of interoperability is to make it so that different systems are able to “talk” and “understand” the information they pass to one another. Although valuable in any field, interoperability is especially relevant for the metaverse, where no single software will be used to build it.

Today, interoperability is a concept that is limiting the rights of computer program rights holders, which are protected by copyright. In effect, their authorization is not required where copyright-relevant acts pertaining to the code are indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs, provided that certain conditions are met (legitimate access to the software, necessary acts only, etc.).

In the metaverse, this concept is likely to come increasingly to the fore, and it will be interesting to see how developers adapt to the new demands of making systems interoperable.

Copyrights

Copyrights and their use in the metaverse

Copyright protection in the United States extends to “original works of authorship fixed in any tangible medium of expression.” Many works used in the metaverse are copyrightable, including software, pictorial and graphical works, and sound recordings used within metaverse.

Issues for owners and users of copyrighted works in the metaverse

For copyright owners, the metaverse presents several potential benefits. For example, developers can leverage first-mover presence in a particular aspect of the metaverse to obtain royalties for the use of copyrighted software from late adaptors who are playing catch-up within a particular space.

The Digital Millennium Copyright Act (DMCA) provides an additional layer of protection for copyright owners. The DMCA prohibits the circumvention of measures controlling access to copyrighted works and prohibits the removal and alteration of copyright management information. The DMCA’s remedies for such violations serve as additional protection for metaverse content that is encrypted or otherwise protected against access by potential infringers.

The metaverse also creates risks for copyright owners. For example, policing the metaverse for piracy of copyrighted works can be challenging. Additionally, if the use of the copyrighted work is de minimis, the copyright owner may have difficulty proving infringement. Also, content creators face unique risks. For example, if they are relying on existing licenses in underlying works to create digital content for the metaverse, they must ensure that those existing licenses cover the use of the copyrighted work within the metaverse.

Key takeaways
  • The internet fractured intellectual property rights, challenging owners and users of protected content in the areas of authorization and monetization
  • Much of the information landscape and virtual creations on the metaverse might not qualify for legal protection and ownership
  • Interoperability is especially relevant for the metaverse, where no single software will be used to build it
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