COPYRIGHT IN THE METAVERSE The real challenges in relation to copyright in the metaverse are pertaining to identifying the owner of copyright for creations created within the metaverse, ascertaining infringement of copyright, identity of the infringer, and the even bigger challenge is the appropriate forum wherein such infringement can be adjudged, and appropriate remedy that can be granted...
COPYRIGHT IN THE METAVERSE
The real challenges in relation to copyright in the metaverse are pertaining to identifying the owner of copyright for creations created within the metaverse, ascertaining infringement of copyright, identity of the infringer, and the even bigger challenge is the appropriate forum wherein such infringement can be adjudged, and appropriate remedy that can be granted to the owner of copyright.
In this GenZ age, new platforms and enhanced mediums are constantly being introduced and movie producers and studios are all hurtling towards these new platforms and mediums to help further monetize their movies and other proprietary assets. Recently, Pooja Entertainment purchased a virtual land in the metaverse and named it "Poojaverse"1, and then announced the release of "Bade Miyan Chote Miyan" in the "Poojaverse" i.e., the first Hindi film to be released in the metaverse2. This unprecedented move has been applauded by many and is an indication of how film producers and studios are tapping into and utilizing these new and ever-evolving mediums and markets, in this case, the metaverse, for their films to, amongst other things, maximize the viewership of their content.
Another instance of proprietary content being released on themetaverse is when the trailer for superstar Prabhas' film "Radhe Shyam"was released on the metaverse. As per various reports3, the servers nearly crashed as approximately2 lakh people rushed to the metaverse platform to watch the trailer within 3 minutes of the trailer launch. This incident speaks volumes of how the metaverse will be an important tool that will be wielded by various movie producers and studios in the future. Even, the popular OTT platform - Netflix – has joined the metaverse race by launching a replica of a maze found in its recent film starring Ryan Gosling - "The Gray Man". One can win digital wearables featured in the movie upon completing the maze as quickly as possible through one's knowledge about the film4. This can be seen as a strategic marketing move to promote the film.
Since the metaverse is by itself a computer program/software, it enjoys copyright protection under the Indian Copyright Act, 1957 (Act).
The Metaverse:
The metaverse is a decentralized virtual reality world composed of online, shared, and persistent digital spaces in which people (are supposed to) socialize, play, and work. It is a space created on the internet that uses 3-D/ virtual environments and involves integration between virtual and physical spaces. In simple terms, it is the "digital twin" of the physical world, where people can create their avatars or characters(that represent them), place such avatars in a virtual space, manipulate them with hardware like VR (Virtual Reality), AR (Augmented Reality), AI (Artificial Intelligence) tools, to effectively live a life in this space that includes consuming a variety of art forms and visual entertainment, including cinema5. With the advancement of technology, the metaverse will keep evolving to provide a more (and more) immersive and "real" infotainment experience, allowing users to consumeand possibly even create and/or produce videos, attend live(metaverse) events, etc. through their avatars/ characters, as one normally would have expected and witnessed in relation to the creation, production and distribution of a movie (in the real world, as we understand it), thereby lifting the normal movie experience to another level.
This ability of the metaverse to allow users to create content or share such content in the metaverse could result in the creation of content that is original and capable of being protected by copyright laws and therefore, on the flip side, is susceptible to misuse and infringement. A basic example of copyright protection in relation to the metaverse is the copyright protection that can arise for the computer programs that power/ run the metaverse – i.e., as for computer programs in general, but also for the computer programs used to create works in the metaverse, showcasing that there is an urgent need for the existing laws of copyright to be evaluated and their applicability to the metaverse needs to be ascertained.
Forms of Metaverse:
To understand and establish concepts of copyright of works created within the metaverse, it is important to understand the two kinds of metaverse platforms
1. Open metaverse: Open metaverses, are platforms where users can create new features. In this sense, the company which is in charge of developing themetaverse will create a base platform and then integrate software to allow users to produce new elements.6 For instance – Decentraland is an open metaverse that is flourishing as it allows its users to create their own digital world, by purchasing land plots, and visiting or interacting with other avatars7 thereby making it more appealable.
2. Closed metaverse: Closed metaverses are platforms in which users cannot create any additional element. Only one company is in charge of managing all the aspects related to the metaverse platform, namely handling all the economic activity among users or the data generated by them. For instance, platforms like Fortnite, and Minecraft are examples of closed metaverse platforms.
Ownership of copyright within the metaverse:
As briefly mentioned above, the metaverse allows users to have the creative liberty to choose their avatars and, in some cases, also interact with the platform in a manner that leads to the creation of user-generated content. Thus, various types of copyrightable works get created every second, either by a single user, multiple users, the platform and the user, AI, or AI and user creating interesting ownership and exploitation issues.
The starting point is to identify the owner of the copyright in the metaverse, and the user-generated content created therein (such as the avatars).Since the metaverse is by itself a computer program/software, it enjoys copyright protection under the Indian Copyright Act, 1957 (Act). The entire ecosystem of the metaverse is created based on the software, making it easier to pinpoint the author and the owner of the computer program/ software, and hence, loosely speaking the "ecosystem" of the metaverse. However, for the works created in this "ecosystem" of the metaverse, such as marketplaces, buildings, and avatars generated by the users on/ in the metaverse, a lot is left to be explored and ascertained.
In a closed metaverse, theplatform and all its elements are owned by the owner of the metaverse platform. For instance, all elements of the gaming platform including the avatars created for playing the game Fortnite are owned by the owner of the platform i.e., Epic Games. The real challenge is to ascertain who owns the copyright in works created on/in open metaverse platforms where users can create works such as buildings, marketplaces, etc. – whether the metaverse platform owners would be the owner of such works or whether the real-world user creating such works through his/her avatar. One possible way of ascertaining ownership of copyright in the content created on/in the metaverse platform could be through the terms and conditions of the metaverse platform.
For instance, Decentraland, through its terms of use and content policy, recognizes that the user would be the owner of the content he/she/ submits or makes available on the metaverse platform – Decentraland. The terms of use and content policy of Decentraland further clearly demarcate the ownership of elements of the metaverse platform - Decentraland wherein the website hosting the platform, the tools available on the website, the open source code of the platform, and such other elements of the metaverse platform identified in the terms and conditions are owned by the owners of the metaverse platform i.e., Decentraland Foundation while the users are the owners of content created on/in the Decentraland, thereby resolving the confusion revolving around ownership to a certain extent8.
In the absence of the instances listed under Section 17 of the Act and any express terms and conditions between the user and the platform (as seen in the case of Decentraland), the author of any works created would also be the owner of the copyrights of such works. Accordingly, the naturalperson creating the work, whether through the avatar or otherwise, could be construed as the author of the work, and would thus, own the copyright of the work. Logically speaking, this legal position of the user being the author and owner of the user-generated content is in the interest of the open metaverse platform and its owners allowing the aforesaid to take shelter under their intermediary status. Taking the status of an intermediary platform would allow the platform and its owners to avoid and potentially divert any and all claims of infringements received by the metaverse platform and its owners to the users, at the sole cost and risk of the owners. However, for the purpose of these discussions, it is important to take note that authorship/ ownership in works created using AI is more complicated, as discussed below.
Registration of copyright& AI:
Another way of ascertaining the ownership of copyrights is to place reliance on the registration and formal processes in relation to the same. However, the registration process of the copyrights requires a natural person to claim its authorship and since user-created content in the metaverse could be done by artificial intelligence, the current framework is not equipped to protect the copyright of works created completely by artificial intelligence. The key issue here seems to be whether the "work" is genuinely the product of human authorship, with the computer serving as merely an assisting tool, or whether the literary, artistic, or musical parts of the work were actually conceived of and carried out solely by a machine, rather than a man.
Recently, the Indian Copyright Office recognized 'RAGHAV Artificial Intelligence Painting App' as a co-author for a painting. The status granted to the RAGHAV (the artificial intelligence) is still of a co-author and not the author which leaves room for a human being to be the author and only sheds light on works created with the aid of artificial intelligence. However, after granting RAGHAV co-ownership, the Indian Copyright Office sent a notice of withdrawal to Mr. Ankit Sahni, one of the owners of the copyright in the painting, asking him to inform the Copyright Office about the legal status of RAGHAV. Through this notice, the Copyright Office invited Mr. Sahni's attention to Sections 2(d)(iii) and Section 2(d)(vi) of the Act. Section 2(d)(iii) sets out that the term 'author' in relation to an artistic work means an artist, and Section 2(d)(vi) states that in relation to any literary, dramatic, musical, or artistic work, which is computer-generated, the person who causes an artistic work to be created shall be its author.
The reliance on the abovementioned sections by the Copyright Office draws one's attention to the inclination to interpret the term "person" to only mean a natural person i.e., not any AI, creating uncertainty around ownership in the works created in the metaverse by the user and the AI, or only the AI. The greatest challenge in the Act would be to bridge the gap of what status an AI entity can hold in relation to works, given that if an AI entity is allotted the status of an author and a third party infringes the copyright, or AI infringes the copyright of a third party, then AI cannot be held responsible or hold someone responsible. The reason for the same is that AI status is only attributable to humans by virtue of their human nature; and unlike in a corporate structure, AI does not have a controlling human medium that could be subject to sanctions9. The incapability of AI to sue or be sued negates the rationale of copyright protection to safeguard original work from unauthorized uses. A work that cannot be sued for infringement will have the same effect as being in the public domain so granting such work the status of an author serves no purpose, leaving this issue to be urgently addressed.
The exploitation of content in metaverse:
Copyright is a bundle of rights, and depending on who the owner of the works is, the exploitation rights of such works can be ascertained i.e., from whom to take the relevant permissions/ licenses, etc. However, there are certain constraints in applying the 'real world' principles and methods of licensing to the metaverse. Few of which are
1. Identity of the 'real user': The first challenge would be to identify the person who in the real world is the owner of such work. Due to the metaverse being based on blockchain technology, the identity of the real person is not known to everyone.
2. Process: There needs to be a process within the metaverse platform wherein one digital avatar can approach another user's avatar for licensing purposes.
3. Negotiation and bargaining power: In the real world, while granting licenses, several terms and conditions are negotiated between licensor and licensee, and the entire process of negotiation is based on the power play and influence of one party over the other party. Applying the same principle and logic to the metaverse would be difficult without such interface between the parties, and potentially, the lack of mechanism (or mode of communication between the avatars) to enter into such elaborate negotiations. Further, certain crucial commercial terms (such as the fee/ fee structure) are negotiated between parties bearing in mind the manner and extent of usage of the works, which needs to be facilitated in advance. It remains to be seen how such a mechanism can be worked out to allow such verbose and loop communication between the parties.
4. Rights granted: In the real world depending on the licensee's use, the specific rights of copyright are licensed. However, the metaverse is like opening a pandora's box of content exploitation wherein the boundaries between rights are blurred and multiple rights are exploited at the same time. For instance, in the real world, there are specific kinds of licenses such as public performance licenses, synchronization licenses, streaming licenses, etc. In the metaverse, in a meta - music performance, there could be a public performance license as well as a streaming license since the same is streamed in the real world on the internet. Hence, the identification of licenses needed is difficult to ascertain in the metaverse given the overlap of rights and use.
The real issues and their solutions would be deliberated once the demand for such usage increases (i.e., usage of original works created in the metaverse) starts arising.
Infringement of copyright material:
The concept of copyright infringement has taken a whole new dimension with the introduction of metaverse as a medium of exploitation. It is clear that if a third party introduces works generated outside the metaverse – i.e., from the real world, like a painting or picture, and shares them in the metaverse without the authorization/ relevant permissions or licenses from the copyright holder or without benefiting from a copyright exception, the same would amount to copyright infringement. There have been instances where brands have sued artists and/or platforms for using copyright protected articles such as shoes/bags in the form of NFTs (non-fungible tokens) and selling them on metaverse platforms. One such instance was the case where French luxury brand Hermèssued an artist – Mason Rothschild for making knock-off handbags—in the metaverse through NFTs11. In the case of Eros v Simon12, six content owners including Eros, in the metaverse game Second Life sued Thomas Simon, also known as Rase Kenzo, for infringing their copyrights in various online goods. The case eventually was settled wherein the content owners received compensation for the infringement and Mr. Thomas Simon agreed to cease using content owners' copyright protected goods without any permission/license.
However, the position changes for works created within the metaverse wherein it is hard to ascertain who the copyright owner of the works is and who the infringing party is. As mentioned above, themetaverse platform allows mass distribution of copyrighted works by making it extremely difficult for the copyright owners to identify and bring those actions against the number of the individuals, who are involved in the infringement of their copyrighted works. In simple terms, finding the source of infringement is like finding a needle in a hay stack. Hence, identifying copyright infringement in the metaverse is in itself a huge task given the multiple platforms and elements involved and even after ascertaining the infringer, the real questions and challenges remain –how to hold the infringing parties/ infringers accountable given that the metaverse has no territorial restrictions? Which court would have the jurisdiction to hear the matter since the place of infringement is unidentifiable? Further, incase the copyright owner files a copyright infringement suit in the place where he/she/it resides/registered, the relief granted would not be completely effective as the order would be restricted by territorial boundaries. Thus, there is a need for global level legislation/guidelines to regulate such matters.
The challenge of detecting infringement and enforcement of copyrights continues to remain the major obstacle in the path of exercising and protecting copyrights in the metaverse given the co-existence of multiple metaverse platforms and mass distribution of content in the metaverse
Determining fair use and fair dealing in Metaverse:
Moving on to address one last issue faced in the metaverse; whether the principle of fair use and fair dealing is applicable in the metaverse and if yes, then how? The four-factor test laid down by the Andhra Pradesh High Court in K. Murari v. Muppala Ranganayakamma13 to determine fair use is as follows:(i) purpose and character of work, (ii) nature of work, (iii) portion used in relation to copyright-protected work, and (iv) effect on the market value. This test loses its context and effect when applied in the metaverse due to the multiplicity and vastness of the metaverse as more particularly elaborated below:
1. Since multiple users can access the content at the same time in the metaverse, the purpose and character of the infringed work are of no relevance to take the defence of fair use in the metaverse. It would be a situation similar to the 'real' world situation wherein reels and short videos containing infringed content of merely ten seconds go viral within minutes of its upload on social media websites causing opportunity loss to the owner of the copyright.
2. Given the vastness of the metaverse and the existence of multiple metaverses with multiple users/avatars, the criterion of infringed work serving public good would be difficult to ascertain as there are no natural persons, but only AI-created digital avatars present in the metaverse whose requirements/ needs cannot be identified clearly thereby making it difficult to ascertain that infringed work is for the public good and hence exempt it from the liability of infringement.
3. The metaverse is always changing in more ways than one, it may be challenging to estimate the percentage of use of a work in some situations and its effect across the metaverse.
4. The extent of the effect on the market value of an infringement to term it as fair use is difficult to quantify in the real world, let alone the digital world. The features of metaverse such as it being boundaryless and having multiple users accessing materials every second makes the application of such traditional fair use tests almost impossible.
Exemplifying the above is the ruling in the case of Google v. Oracle America, where even copying roughly 11,000 lines of software code was considered "fair use" and not copyright infringement. The said case dealt with patent and copyright of Java software owned by Oracle. Google had used the Java software code to operate its android phone. The Court ruled that copying of the JAVA API naming convention by Google was limited and hence, amounted to fair use.
The challenge of detecting infringement and enforcement of copyright continues to remain the major obstacle in the path of exercising and protecting copyrights in the metaverse given the co-existence of multiple metaverse platforms and mass distribution of content in the metaverse. The transnational and cross-border character of the metaverse will continue to create concerns about the applicable law, jurisdiction, and appropriate authorities, particularly if the action is taken against a user of the metaverse who is hiding behind an avatar rather than the metaverse provider in which case there would arise a situation of conflict of laws in 'real world' for application and enforcement of copyright in the metaverse.
Conclusion:
It can be safely concluded from the above analysis that there exist multiple issues pertaining to the enforcement of copyrights in the metaverse. The real challenges in relation to copyright in the metaverse are pertaining to identifying the owner of the copyright for creations created within the metaverse, ascertaining infringement of copyright, the identity of the infringer, and the even bigger challenge is the appropriate forum wherein such infringement can be adjudged, and appropriate remedy that can be granted to the owner of the copyright. The rapid growth of this technology makes it crucial to take urgent steps to plug the loopholes in the existing legal mechanism to facilitate the protection of copyrights in the evolving metaverse. Further, considering that the metaverse is boundaryless, there is a need on a global level to have some sort of common ground to govern or regulate the aforementioned issues pertaining to the metaverse.
Disclaimer – The views expressed in this article are the personal views of the authors and are purely informative in nature.
Krishi is an Associate at TMT Law Practice. She has completed B.B.A LL.B. (Hons.) from University of Mumbai Law Academy in August 2021. She has garnered experience by working in media department of law firms and a production house. She has worked on several transactions pertaining to content creation and exploitation and worked on various kinds of agreements including artist management agreements, services agreements, brand solutions agreements, influencer agreements, and other agreements and documents relevant to the media industry.
By: - Anushree Yewale
Anushree Yewale has over 8 years of work experience in the media and entertainment sector. Prior to joining TMT Law Practice, Anushree has worked with a boutique intellectual property rights law firm. She has provided end-to-end support to numerous production houses, broadcasting companies, talent management agencies, and independent artists, provided transactional and advisory related services for content creation and content exploitation across various modes, media. and formats, structured, negotiated and implemented complex transactions involving S&P compliance for scripts, development and production of audio-visual content, distribution, and acquisition of audio-visual content, merchandising deals, film licensing and assignment deals, and other ancillary transactions, negotiated sponsorship and endorsement contracts including celebrity licensing, cleared advertising for use in online and off-line media, and handled product placement and media productions.