Navigating the New World of Extended Reality
Published: January 6, 2021
Wai Yeng Chan Taylor Vinters Via Singapore Brands and Innovation Committee—Content Subcommittee
Margaret Jaklitsch Discovery, Inc. New York, New York, USA Brands and Innovation Committee—Content Subcommittee
Anna Kim NBCUniversal Media, LLC New York, New York, USA Brands and Innovation Committee—Content Subcommittee
Virtual reality (VR), augmented reality (AR), and mixed reality (MR) are some of the most exciting areas in technology today. These forms of extended reality have considerations for intellectual property (IP) rights, but in many cases, existing practices should be applicable—for now.
VR typically immerses viewers into a new reality via a VR headset while AR involves layering digital content on the real world, which provides a hands-on experience viewed through a tablet or smart phone. MR combines real and virtual worlds viewed through goggles or a headset. Extended or cross reality (XR) may refer to these forms. Recognized as one of the pillars of the Fourth Industrial Revolution (or Industry 4.0), XR combines the use of hardware and software to transform the way current generations interact across the physical and digital realms.
Industries are increasingly looking to XR, and IP issues such as infringement, protection, and right of publicity remain as pertinent in the XR world as in the real world.
Background and Uses
While VR may appear to be a relatively recent advance in technology, the term VR can simply be taken to mean an alternative existence and thus encompasses machines dating back to the 1960s. One of the earliest VR machines, the Sensorama, was essentially a single person theatre booth equipped with fans, odor emitters, and a motional chair to engage a user’s multiple senses when viewing the onscreen display.
The modern concept of VR involves creating a fully rendered digital environment to replace the user’s real-world environment and is responsive to user interaction via body and motion tracking. A device frequently associated with VR is the VR headset, which is used to fully immerse the user in a digital visual and audio landscape. One of the early leaders in the VR headset space is Oculus, a startup founded in 2012 and acquired two years later by Facebook, Inc., for US $2.3 billion in cash and stock.
Much like the virtual worlds that are now open for exploration, the IP issues to consider in this relatively new space often consist of many layers and dimensions.
AR overlays digitally created content into the user’s real-world environment. As opposed to VR, where virtual information completely replaces the user’s perception of reality, AR enhances natural environments or situations and offers perceptually enriched experiences. Because AR technology does not completely interfere with real-world interaction, AR applications can be developed to operate on readily available hardware such as the mobile phone.
Popular examples of AR applications range from the Pokémon Go mobile game, which relies on the phone GPS to locate, capture, battle, and train virtual creatures, to filters available on the Snapchat multimedia messaging app and Apple’s Animoji messaging feature. Due to the ease of adoption of AR, the number of AR users across the world has exploded in recent years. It is predicted that there will be about 1.96 billion mobile AR users this year and 2.4 billion users by 2023, according to Statista.
Advances in technology now allow digital elements in AR to seamlessly interact with the user’s real-world environment in real time. This advanced form of AR is typically known as MR. MR has many practical applications as it allows a user to manipulate digital elements and achieve results from such interactions. Businesses are experimenting with MR to improve areas in communications, training, and problem solving.
Many industries are currently using XR technology to take advantage of the more interactive experience it facilitates. The gaming and entertainment industries, for instance, have already seen success providing viewers with new experiences through these new technologies.
Museums around the world are also using XR technology in various ways. In 2019, the Louvre museum in Paris, France, used VR technology to provide visitors with the opportunity to experience the famous Mona Lisa painting in detail, from the background landscape to the different angles of her smile. In 2018, the Brooklyn Museum in New York, New York, USA, introduced an AR app for its David Bowie exhibit, which allowed viewers to personalize their experience and examine the singer’s costumes anywhere and anytime in 3D.
In the education sector, teachers are utilizing AR and VR to heighten the learning experience, especially for students who learn more effectively in a visual way. For example, students might use a VR headset to “visit” the Colosseum in Rome, Italy, virtually walking through the arches from the gladiator’s perspective or having a spectator’s view of the arena.
In the medical field, medical students and doctors now use AR and VR as tools for training and collaboration without disturbing patients, to practice surgical techniques, and to help them visually explain conditions to their patients.
The National Aeronautics and Space Administration (NASA) also uses AR and VR in preparation of exploration and scientific discovery. For example, NASA recently tapped these technologies to investigate the speed and direction of 4 million stars. The agency currently has an app which simulates a space launch from the perspective of the cockpit and VR content which allows viewers to walk on and explore Mars.
The military uses AR, VR, and MR during training exercises. Simulations using XR technology are intended to help prepare soldiers to face dangerous situations ranging from overseas combat to domestic violence scenarios. MR is also utilized to display critical data on the wearer’s screen and can provide heightened awareness of the conditions in real time.
[I]n a situation involving the unauthorized use of a trademark in a virtual world, the brand owner would still need to consider the details of the unauthorized use.
In addition, the fashion industry has adopted AR and VR as an innovative and interactive way to promote their brands. Some stores encourage shoppers to download an app, which enables them to point their smartphone at a podium or store window and immediately see models wearing the clothing. For online shopping, AR provides consumers the opportunity to virtually “try on” anything from watches to clothing to footwear and visualize how the products will look on them. Fashion companies are also using AR to layer animation or 3D graphics onto clothing, which consumers can access via their smartphones.
As more industries look to XR to create opportunities for innovation and enhanced experiences for consumers, IP considerations remain pertinent for various stakeholders. Much like the virtual worlds that are now open for exploration, the IP issues to consider in this relatively new space often consist of many layers and dimensions, most of which IP practitioners are already accustomed to managing in the real world.
Some of the common relevant IP considerations include:
- Infringement of third-party IP rights in the XR world;
- Protection of new IP created for XR content and technology; and
- Right of publicity issues.
For example, companies that own brands and content in the real world may need to adapt enforcement strategies to address trademark and copyright infringements more appropriately in the XR world. Similarly, users as well as owners of XR technologies may also find themselves in need of legal guidance if their activities in the virtual world infringe third-party IP or teeter on the edge of fair use. Such proprietors may also need to evaluate patent infringement risk as well as protectable rights more carefully in their own products, especially as technologies in the space are fast developing.
Some individuals may also find themselves more seriously pondering how to control uses of their name, likeness, or other recognizable elements of their persona in the XR world. Combined with artificial intelligence technology, XR technology is now also being used to create “deep fake” digital replicas of individuals, for instance, and presenting right of publicity concerns.
Companies enforcing against unauthorized uses of their IP in the virtual world may face additional challenges; for example, a brand owner might need to demonstrate that an alleged infringer used its mark “in commerce.” Many of the same considerations relied upon in the real world would be applicable in the XR world. For example, to address unauthorized use of a trademark in the virtual world, a brand owner would still need to consider the details of the unauthorized use, including, who the responsible parties are, how consumers are likely to view the use, whether the brand owner has sufficient rights to enforce (for instance, by territory or goods and services), the tools or platforms that are available for enforcement, and potential defenses.
In summary, although entering the world of XR may present a variety of IP questions, it seems that many of the answers can still be found in the existing roadmaps used by IP rights owners as well as developers, publishers, and users of XR technologies to navigate similar issues related to copyright, trademark, patent, and right of publicity in the real world. However, as new technologies continue to develop and change the way individuals and organizations interact through XR, IP laws and practices will likely need to adapt over time.
Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest.
© 2021 International Trademark Association
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