The Realms of Law in Extended Reality
It was the summer of 2016, when millions of people across the world experienced one of the most wholesome months of their lives. People were rambling in and around the city looking for an animated character which only they could see on their devices. This outburst of the Pokemon Go mania was how the world witnessed the impact of extended reality. Digital technology continually evolves in a variety of mediums. Innovation increases one’s ability to express ideas and facts through new technological facets. In the realm of extended reality, this has taken on different forms by combining the physical and digital worlds and provides users with a never seen before experience.
What is Extended Reality?
Extended Reality is nothing but a blanket term which covers all virtual and real environments generated by computer technology. The term Extended Reality refers to both “Augmented Reality” and “Virtual Reality”. Augmented Reality (AR) allows digital content to be layered over the real world. Using special glasses or, more commonly, for now, a smartphone, AR users can see the real world as it exists, but the twist is digital images are superimposed in our surroundings to bring virtual and physical worlds together. The idea behind AR is to provide the user with an experience of the real world which is increasingly overlaid with information and images—sometimes related to what we physically see, sometimes not.[i] Beyond AR, there is virtual reality (VR). While AR adds visible digital content to a person’s perception of the real world, VR replaces the real world altogether. Using goggles and speakers, VR places people inside a virtual environment, letting them move around in it and interact with it as if it were the real world.[ii]
The introduction of this extended reality is a testament to the fact that the spheres of technology have passed the conventional means of life. The ever-growing human wants are in line with the advent of AR and VR. Corporations see AR as an attractive opportunity to commercialise it as the implementation of such a technology is relatively easier. Whereas, the pace at which VR devices are being manufactured demonstrates with; provided business models can be developed to monetize a self-contained virtual world, VR also affords a compelling marketing tool and a revenue generator.
The Emergence of Extended Reality in India
The practice of multinational corporations applying for IP protection of VR and AR has begun in India. Google has recently obtained a patent in India for its technology to create virtual graffiti in a mobile virtual and AR system, something that would help users leave a message for them or their friends at a location in the future.[iii] Also, A Bengaluru-based start-up Preksh Innovations Pvt Ltd claims to have launched the world’s first patented AR solution for retail last year and filed two patents for the same. The technology solution provided by the startup can be rendered on AR gadgets to allow consumers to shop from stores while sitting at home.[iv]
Keeping in mind this rapid growth of AR and VR, it has to also be considered a relatively new technology. Its implementation needs to be panned out in a cogent manner to avoid legal mishaps taking place in the near future.
Legal Implications of Extended Reality
AR and VR as a concept open up numerous avenues as the need for physical presence at a certain place is eliminated. VR is not “real” in the way we normally use that term: It is cobbled together to produce artificial sounds and images that we observe. But it feels real in a way that is hard to understand until you have experienced it. The same may be true with AR if it can overlay vivid and realistic images of people and objects over the reality that we see. This gut feeling of realness can cast doubt on legal doctrines. It triggers some of the IP laws and to resolve such issues, the implementation of AR and VR requires licenses. This is because the party who owns the content has certain rights in the content, and the owner may not be the same party who offers either VR or AR services.
As long as the work created through the AR / VR technology is not a mere copy of what was already available and enough skill, labour and capital have been invested in the creation of the work, the work created in the AR/VR world could qualify for IP protection. There are 3 areas of IP law that creators of any AR or VR technology shall keep in mind, copyright, trademark and patents.
Copyright: A computer program is treated as a ‘literary work’ and is protected as such. Source and object code constitutes a computer program that is essential to the creation of an AR/VR software and therefore, such software will be protected by copyright laws under the Indian Copyright Act, 1957 once created.
Trademark: It is often seen that in AR or VR there are third party brands logos captured, this leads to claims of trademark infringement. As per the Indian Trade Marks Act, 1999, the test to see whether a trademark has been infringed is whether there is a likelihood of confusion for a consumer. The inclusion of any third-party product or logo could make the user associate that brand with the AR or VR landscape. Thus trademark law should give the owners of the trademarks the right to exploit their trademarks in the AR/VR world, in relation to the goods and services for which they have obtained such registration.
Patent: Ideally inventions that are not within the meaning of the Indian Patent Act are not patentable in India. AR/VR would fall under the category of “Computer Program” and according to the 2002 Amendment to the Patents Act, 1970 “computer program per se” is not patentable. However, Computer programs, in its technical application to industry and computer programs in combination with hardware are identified as patentable inventions. Therefore, prima facie, patent applications for AR/VR technology coupled with hardware features should qualify as patentable in India, subject to meeting other required criteria.
Enterprises that engage with AR/VR providers and platforms will need to carefully negotiate the ownership rights of any future, valuable intellectual property that may be created through the use of a third-party AR/VR provider. Such additional IP might include copyright in software, secret know-how and inventions which qualify for patent protection. While there is no doubt that VR and AR will continue to enhance enterprise and commerce in the coming years, companies on both sides of any contract for the use of these services must:
(a) Stipulate contractual confidentiality obligations and reserve title in pre-existing IP;
(b) Define ownership in the new IP;
(c) Engage inadequate due diligence to avoid infringement of third-party rights; and
(d) Consider future exploitation rights, exclusivity and territorial scope.[v]
The rise and increasing popularity of augmented and virtual reality technologies herald a new age of innovation, however, it invites a lot of legal complexities too. AR and VR creators need to be cautious before coming up with new technology. It is necessary to be tip toeing in and around IP law and Data Protection laws to avoid litigation costs in the future. Major brands and corporations are now entering the AR and VR market, they see it as an innovative step to engage with the consumers. This technology is also being used for various forms of marketing and engagement activities. These activities could lead to violations and infringements caused by the creators. With the creators complying with copyright, trademark and patent laws, they would be in a position to commercialize their inventions and provide a safe environment to their users.
[i] Beck Besecker, Diminished Reality Will Have as Much Power as AR for Retailers, VENTUREBEAT (Oct. 26, 2017),https://venturebeat.com/2017/10/26/diminishedreality-will-have-as-much-power-as-ar-for-retailers/ [https://perma.cc/GD5W-76Z2]
[ii] Mark A. Lemley & Eugene Volokh, Law, Virtual Reality and Augmented Reality, University of Pennsylvania Law Review, Vol. 166 No. 5, April 2018
[iii] Google Gets Patent In India for Technology on AR-based Virtual Graffiti, Kashish IPR, (Jan. 16,2020) https://www.kashishipr.com/blog/google-gets-patent-in-india-for-technology-on-ar-based-virtual-graffiti/
[iv] Vardaan, With 2 Patents, This Startup Is World’s First Augmented Reality-Based Solution Provider For Retail, Indian Web2, (May 4, 2016) https://www.indianweb2.com/2016/05/04/2-patents-name-startup-worlds-first-ar-based-solution-provider-retail/
[v] Sachin Premnath, Augmented and virtual reality: emerging legal implications of the “final platform”, Reed Smith, LLP, (2017) https://www.reedsmith.com/en/perspectives/2017/08/augmented-and-virtual-reality