SCL Meeting Report: ‘AR Wars’ – Augmented Reality, Technology and the Law

May 1, 2013

The seminar was chaired by Dan Reavill, a partner in the Commercial, IP and Technology team at Travers Smith. The two key speakers were Dr Roger Clarke, project manager for augmented reality technologies at The Technology Partnership, and Peter Lee, a solicitor at Taylor Vinters LLP. The Technology Partnership has recently developed the next generation of ‘smart glasses’ utilising augmented reality technology and it is hoped that these will rival the likes of Google Glass.

Roger opened the seminar by explaining what augmented reality is. In short, augmented reality has been described as: ‘a live, direct or indirect, view of a physical, real-world environment whose elements are augmented by computer generated sensory input such as sound, video, graphics or GPS data’. Whilst this technology is already used in many ‘apps’ on smartphone devices, smart glasses work as a hands free version of this technology with a smartphone display and communications system that accesses data from your smartphone and the Internet and projects this data over the user’s immediate environment.  Roger’s discussion included an analysis of the necessary elements to facilitate this technology, including: the hardware (eg glasses), a camera (to assess the immediate environment), a GPS system and some form of input to instruct the program (eg speech). He also stressed the importance of combining all of these elements in a product which is aesthetically pleasing and user friendly, as this is what will ensure the commercial success of the product. Roger is of the opinion that this is where many existing augmented reality products fall down.

Peter then focussed on the legal issues that may arise from the use of augmented reality technology. As with any new medium, there will be unintended consequences flowing from this technology and we will have the difficult task of trying to apply existing laws to new circumstances. Given the predictions of how quickly smart glasses and other augmented reality products will be adopted in the UK over the next few years, technology lawyers should consider these issues sooner rather than later.

–          Privacy: disputes relating to privacy can be expected as the public becomes accustomed to the use of augmented reality technology in society. For example, smart glasses will act as ubiquitous video recorders and social media software used with smart glasses will rely on facial recognition to identify individuals. Further, augmented reality technology allows for the convergence of data. Many personal records about individuals exist on the internet (eg tax data, public salary information), whilst these may already be public, augmented reality technology will allow users to view all information about a person in one place. This will feel much more intrusive.

–          Personal injury: it is likely in the future that the use of augmented reality technology will result in injury to individual users (as they concentrate less on their immediate physical environment and more on the display of data generated by the products). Such individuals may well try to blame the technology itself and seek compensation. The issue will be who is liable for such injuries.

–          Deceptive and misleading marketing: in 2011 a consumer watchdog group brought legal action against Pepsico and Frito-Lay in the USA in response to marketing using augmented technology. Pepsico and Frito-Lay had used augmented reality to promote Doritos and the watchdog group stated that this type of marketing deceptively manipulated teenagers into consuming junk food. A complaint was filed with the FTC in the USA. It is expected that further disputes will follow.

–          Trademark disputes: it is likely that disputes will arise between parties concerning the ways in which trade marks are used as part of augmented reality.

–          Publicity rights: ie the right of an individual to control the commercial exploitation of their identity. Augmented reality has already been used to re-create celebrities such as Freddie Mercury. The concern here is that individuals will have little control over the use of their image by third parties using augmented reality technology.

Further, it will be interesting to see how owners of the data and content used as part of the augmented reality technology, and the technology itself, will exploit this proprietary information/technology.

Ashley Avery is an Associate at Travers Smith LLP: