Slowly but surely, technologies which change the way we encounter the world around us are filtering into our lives. Many of the first commercial uses of virtual reality have been in games and the launch of the Oculus Rift technology in 2012 marked a turning point, when the consumer potential for high-end virtual reality technologies began to come to fruition. Since then, the adoption of virtual reality, augmented reality and mixed reality (often described collectively as extended reality or XR technologies) into games scenarios has continued at pace, and excitement at what may be the dawn of a new form of mass entertainment has been given a further boost by the release of Apple’s ARKit.
In relative terms though, XR technologies are still new and some of the intellectual property issues they may trigger are yet to be resolved. Reaching an understanding of those issues is becoming more urgent as the XR technologies extend into other fields such as autonomous vehicles, e-commerce and even medical procedures.
Items bearing a brand, recognisably shaped cars, even weapons, and well-known places, have appeared in games for years. As a result, there have been many cases of rights-owners complaining about allusions to their IP. Less successfully, well-known personalities have also claimed that game characters have been based on them and infringe some form of personality right. Once ‘reality’ of some form is possible within a game environment, whether virtually or through a virtual environment being overlaid onto a real environment, these cases will surely increase. Do the current IP laws have the flexibility to evolve with these technologies or are changes called for? There are useful analogies from the ways laws have developed in other areas of IP liability.
Even places have rights
IP protection of places, and buildings in particular, is a growing trend. Should places have rights? The EU law-makers continue to debate whether built structures which are open to the public should have rights attached to them, the so-called ‘freedom of panorama’. At the time of writing, an attempt to add limits around taking images of the built environment to the current package of EU copyright reforms appears to have failed, but game developers need to remain careful around such rights. In the UK, for example, well known public works, such as the giant Angel of the North statue outside Newcastle, are the subject of registered shape trade marks, and protection of iconic structures in this way is a growing trend.
Does featuring a branded item, a famous place or a well-known person in a game really amount to a potentially infringing use of an IP right or is it simply a reference which should not attract a legal consequence? And does the analysis change if it is the player who is making this happen rather than the game developer?
Platform liability and XR?
Applying a context-based approach to whether or not the appearance of a protected item in an AR environment causes confusion should help reduce the scope for infringement which the game developer has no control over. However, where the developer takes any steps to encourage the involvement of the item in such a context, and could arguably be trying to take advantage of the brand attached to the item, could the analysis be different? Two further useful legal concepts then come into play, around confusion and authorisation.
If the player does not think that the rights-owner has endorsed that use of its IP, damage is much less likely to result. A helpful analogy is the debate around the liability of search engines for the use of trade marks in search terms. The EU Court of Justice devised a test of whether the use enabled an ‘average internet user’ to determine whether the goods or services originated from the trade mark owner or another party. Infringement will occur only where no such determination can be made.
The other concept, authorisation, relates to whether the platform or developer is liable even though it is the player who is placing the IP-protected item into the game, because the platform has somehow authorised or encouraged the payer to do this. These concepts were explored in the early days of peer to peer technologies and much depends upon the messaging given by the platform.
New forms of IP rights for ‘feel’
Finally, is there a need for some new forms of rights to ensure that the investment in particular environments, whether real or virtual, is better protected? This is not just an issue for games; the overall experience of walking into a particular store, airline or hotel chain differs by brand, and huge sums are invested into that differentiation. Many games now use haptic technologies and rely on the use of players’ sense of touch. Current forms of IP protection are ill-suited to protect those investments or any sort of immersive experience, other than sound. The protection of smells as trade marks is still in its infancy some 20 years after their introduction, and the overall impression of a place is still regarded as too indefinable and subjective to be the subject of serious legal rights. Apple has had a go, with its well-known attempt to trade mark its store layout, but that only protects a particular look.
The time is ripe to extend the boundaries of IP protection to cover immersive experiences. The difficulty has been how to define a ‘feel’ sensation and a good way of doing so has not yet been found. However, with the EU’s recent reforms to its trade mark laws to move away from requiring a ‘graphical representation’ of a trade mark and towards an open-minded approach to ways of describing the ‘clear and precise subject matter of the protection’, an important step toward ‘feel rights’ has been taken.
Mark Owen is a Partner at Taylor Wessing LLP
