At the cusp of the new year, we have almost passed these past two years locked away from the real world and have spent a significant time in the digital space. Schools, offices, court hearings, shopping, social ‘hang-outs’, are now all majorlyoperating through the internet, if not entirely. Speaking strictly of the persons and entities who have had the option and ability to run their lives, digitally, in a pandemic, is eerily reminiscent of a time in early 2000s when chat rooms, multi-player video games played a major role in our lives. Tech companies have taken note of this, and we are now presented with a rebranded, virtual living experience, the “metaverse”.
Metaverse may lead to concerns around data privacy and protection, security andprotection of other third-party rights, including intellectual property rights, and health . On the surface, and with a basic understanding of the ‘metaverse’, these concerns seem legitimate. So here is looking at the ‘Next Big Thing’ a little closely.
What is ‘Metaverse’?
If you do remember ever possessing or having been in the vicinity of a Tamagotchi, then you have already experienced the blurring lines between the digital world and the real world, or virtual reality . Metaverse, is nothing, but a parallel to the physical world that we live in. It is a decentralized virtual world. Online communities have long existed, and people who ever logged into AOL instant messengers, online chat rooms, or played World of Warcraft, or Fortnite, or Roblox are already interacting in some version of this “Next Big Thing”. This enables the participants to create their own virtual avatars, participate in activities, and hang out in virtual spaces, much like how they interact in the “offline” world.
Virtual Reality and Augmented Reality
Virtual reality (VR) signifies computer generated set-up of familiar surroundings which allows the users to undergo the immersive experience, by the use of VR headsets, helmets, and the likes. It is a completely virtual experience, as opposed to augmented reality (AR),which isan interactive experience which uses a real-world setting, allowing the users to enhance their experience, and may be accessed via a smartphone as well. For instance, an empty room can appear to be filled with objects, characters, when looked through a lens, which is supported by AR. Remember the game ‘PokemonGo’, where using the PokemonGo application on your phone, you could catch Pokemonhanging around your room? You could catch the Pokemon outside your house, on roads, parks, cafes, etc., but pointing the camera in different directions, and locating Pokemon in these locations, using augmented reality.
In all seriousness, it has the scope of improving the experience of working and studying from home. It provides a platform for a people to meet, virtually, in a more immersive manner, without having the constraints of sitting before a screen.
Privacy and Data Protection
With Metaverse becoming a reality, several entities are willing to catch this bus. In doing so, entities like Meta (erstwhile Facebook) are willing to rollout devices (hardware) and software alike, to be used for the purposes of people participating in this ecosystem. This in turn is going to allow the entities to place an absurd number of devices acting as sensors, and consuming high volumes of personal data
for enabling services.The heart of the problem is the lack of regulation, or the lack of adequate and uniform regulation, in any case. Till such regulatory gaps are filled to govern the types of data that can be collected and how they can be used, users will need to be mindful and remember that the data provided on the metaverse is not limited to data that is input by the usersor that is compiled from activities on the social networks. It can also be biometric data – the way that the user moves,the user’s facial gestures, body language, etc.Companies and advertising agencies use this type of user data to deliver targeted ads. It is in this way, social media shapes everything – what we buy, what content we consume, what we believe, how we think. The biggest companies have adopted an ad-supported model for their platform offerings. It is data that enables companies to make profits by selling effective ads, but consequently, influence several aspects of our lives, without our knowledge.
Content Control and Monitoring
‘Trolling’, harassment, hate, and cybercrime and cyber bulling on one hand, and ‘deepfakes’, synthetic media, and fake news on the other hand, these words have come to define a major part of internet experiences of most people. Once again, lack of adequate and uniform regulation, and in this case, combined, ironically, with a lack of adequate technological measures to counter these ills, make the metaverse not seem very user friendly, literally. Imagine walking the streets of Paris, while another user is hurling abuses at you or where the streets of Paris are covered with your private information. From what seemed to be a leisurely walk, in your private world, you move on to being subject to abuses, may be caused by a stalker, or a hacker who chanced upon you.
There exists technology today, that that brings to life prominent personalities from history (not literally), make them give speeches that look very real and authentic, but are in fact, computer generated. This is known as deepfakes. Regular users of the internet are probably familiar with the comparatively harmless versions of the same technology – know what you would look like 30 years from now, 30 kgs heavier, with longer hair, etc. These computer-generated images look very realistic and can fool anyone. There are myriad ways in which, this technology, in the wrong hands could have disastrous consequences, especially in the real-time metaverse interactions.
The legal framework is usually slow to catch-up to technological development.It is in 2021 that the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, in India made it an obligation on social media platforms having more than 5 million registered users in India to employ technology-based measures such as automated tools and other mechanisms to proactively identify and remove information that depict rape, child sexual abuse or conduct, whether explicit or implicit. It is a limited, and probably insufficient, obligation, placed on a limited class of entities, and similar obligations should necessarily be placed on all types of misinformation, and on a broader category of entities, but it is a step in the right direction.
While the law makers navigate the line between freedom of speech and expression and stifling of unwarranted content, it is entirely upto these companies toapply an ethics-based model to address and removecontent that is insulting and hateful, or false and inaccurate from their platforms. The algorithms being controlled by the companies need to necessarily, be built to effectively counter the evils of hate speech and misinformation.
This socialisation aspect may be the most appealing, especially in times when internet personalities are hugely important, there are other likely uses of metaverse. For example, e-commerce platforms https://www.scientificamerican.com/article/a-nixon-deepfake-a-moon-disaster-speech-and-an-information-ecosystem-at-risk1/, https://medium.com/@CathyHackl/now-is-the-time-to-talk-about-ethics-and-privacy-in-the-metaverse-f7bcd68f0a88 Rule 4(4) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
will have the ability to compete with physical stores on all the aspects which were previously points of differences between online shops and brick and mortar shops. Businesses can provide their consumers tutorials / demonstrations and trials of products, virtual stores can be constructed such that instead of scrolling on a page, a buyer can walk through its virtual counterpart, and so on, with endless opportunities for innovation.
Essentially, the metaverse provides newer channels for advertising, newer mediums for providing goods and services, both old and new, newer methods of exploiting exiting and known entertainment and technology, in seemingly limitless real estate. There is a lot of money to be made – and spent – in the metaverse, as evidenced by the progression to this next big thing. First came blockchain technology, a secure database to store information, used widely to store cryptocurrency assets. Then came the ‘non-fungible tokens’ (NFTs), which, in simple words, is digital art with attached value, like an antique painting of Monet, fluctuating each day. With the currency and assets taken care of, now comes metaverse, where a user can own a digital space, wherein to display this art, and spend this currency.
The metaverse is, in itself, comprised of large proprietary spaces of programmes and software, owned and controlled by the developers. There are also smaller portions of intellectual property embedded into such spaces. In recent developments, brands like Nike and Gucci have invested in creating products for the digital world, selling them for an actual monetary value. In fact, Nike has constructed a whole store within Roblox. Soon, users will be able to wear all their favourite clothes in the metaverse programme, and also digital clothes over their regular clothes in the physical world, visible only through augmented reality glasses. A website called ‘DressX’ is already selling digital clothes, in an augmented reality delivery.
It all boils down to how these brands, i.e., the creators and owners of intellectual property structure the licensing deal with metaverse programme(s). Similar to, say, a music licensing deal, if an artist has licensed his song for streaming only on Spotify, but a pirated version or a user generate cover or other version recording pops up on YouTube or on Apple Music, the recourse is within the latter, for redressal and take downs. Such mechanisms will necessarily have to be part of all metaverse applications, to prevent infringement and unauthorised uses. In short, fakes and dupes will likely be as much a problem in the metaverse as they are in the real world. Fingerprinting and blockchain technology, however, will certainly have the ability of countering infringement in the metaverse more effectively, than the physical world. Embedding information such as history of creation, ownership, and tokenising a digital asset as an NFT, will likely be the answer to protect IP in the metaverse.
There is also the intellectual property which the users will generate on the metaverse programmes. Such as the layout of their house, an item of clothing designed by them, etc. The users, naturally, would seek to monetise and protect these as their IP. However, considering the creations of a user on the metaverse programme will not be entirely theirs, in that the medium (i.e., the underlying code and programming) in which their designs will be created, is vested with the developer. In this scenario, where will the demarcation lie, and in what proportion will rights, title, and interest be shared between the users and the owners of the medium?
End Note: While this article has discussed the metaverse from two limited angles, the metaverse will likely impact many other areas as well, such as the environment, a user’s health and psychology, etc.,
and more generally speaking, technological developments – such as the artificial intelligence and mainstream robotics, which could, at this rate, be the next ‘next big thing’.
Social media in its present form is known to have caused depression, eating disorders, and other psychological issues related to self-esteem. There is no real way to ‘clean-up’ these platforms of these issues, other than by users being more conscious about their activities on such platforms, or by regulations imposing age based, or other restrictions on such platforms. Naturally, the metaverse will be no different, in fact, it has the potential of being addictive and add to such problems, as predicted by scientists and psychologists, add to a wave of psychoses and schizotypy (think The Matrix). Most of us have seen enough and more science fiction movies and shows (Ready Player One, certain episodes of Black Mirror) to know exactly what not to do and ensure that we do not end up living in a simulated dystopia. Let’s not let that preparation go to waste.
The healthcare industryalso, in all likelihood,stands to gain the most from the metaverse. The healthcare sector can explore virtual care, remote patient care and monitoring, data-driven care, etc.
The long and short of it is that the metaverse is here to stay, and with that reality, it is entirely up to us, the human-kind collectively, to make the best, most ethical, user friendly, and environment friendly use of it.
Urjitah Srikanth, Senior Associate
Urjitah is a Senior Associate at TMT Law Practice. She graduated in 2018, and enrolled with the Bar Council of Maharashtra and Goa. Since her graduation, she has worked with boutique IP law firms, servicing media and trademark (prosecution) clients, and has also worked in-house for a music label and publisher. She has had the opportunity to work with production houses, talent managers, OTT and audio streaming platforms, artists – actors, singers, performers, songwriters (authors and composers), writers, etc., and music labels and publishers. Her expertise lies in deal structuring and contract drafting and negotiating, specifically pertaining to the media industry, having dealt with transactions involving content creation and exploitation across various modes, media, and formats, brand deals for content creation and distribution, endorsements, services agreements, and marketing agreements. Urjitah caters to the requirements of clients in the media and entertainment sector, by providing advisory and consultancy services in all aspects of clients’ businesses, with a keen focus on intellectual property (copyright and trademarks).