Hello everyone! I’ve been interested in how IP law applies to virtual reality technology and decided look more into its use in museums and the legal issues that may arise.
Professor Festinger, I would like to submit this post as my LAW 422 final paper. Thank you.
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VIRTUAL REALITY IN MUSEUMS AND INTELLECTUAL PROPERTY LAW
Museums embraced digital tools to create various immersive experiences for users. In particular, virtual reality (“VR”) technologies are widely used to expand the scope and nature of exhibitions. But do the real-world intellectual property (“IP”) rights also protect rightsholders in the virtual world? What should galleries and museums keep in mind when implementing projects that engage users in immersive experiences?
I. How Museums Create Immersive Experiences
VR is “computer-generated simulation of a three-dimensional image or environment that can be interacted with in a seemingly real or physical way by using special electronic equipment”.[1] VR technologies can be used to not only conduct a virtual tour of a museum, but it can also immerse the user in a completely new environment that does not exist in the current world. In 2020, the Louvre launched the Mona Lisa: Beyond the Glass project as part of the Leonardo da Vinci exhibition.[2] This immersive VR experience took users back in time to a historic moment to “meet the real woman da Vinci painted” and was also available on smartphone via a mobile application.[3] In 2021, Victoria and Albert Museum in London opened Curious Alice, which explored “the origins, adaptations and reinventions of the Lewis Carroll classic”.[4]
II. Legal Issues
Trademarks
A trademark is a sign or a combination thereof used to distinguish the goods or services of one creator from another, as stated in section 2 of the Trademarks Act.[5] Liabilities may arise if a logo of a well-known real-world company shows up in the virtual world. If this confuses the users into thinking that either the well-known real-world company created the museum’s VR program or even endorsed it, this could be considered a trademarks infringement.[6] Museums must be cautious about what signs show up in the VR program, the extent to which users interact with that sign, and how users might perceive the interaction.
Copyright
Copyright infringement continues to be a key issue in employing VR technologies. Disputes over who owns the copyright to the VR software is an issue that may arise from VR technologies. In ZeniMax v. Oculus,[7] Oculus was found guilty of infringing ZeniMax’s copyright in developing the Oculus Rift VR headset. Oculus was also found liable for trademarks infringement with respect to certain ZeniMax code and logos.[8] However, this issue may not apply to many museums since they generally outsource the VR equipment.
Then, with respect to the content of the VR exhibition, does copyright in the real world also subsist within the virtual world? For example, if the VR program takes a user inside a painting or transports the user to a whole new place, this may engage copyright issues in the architecture or other art works that show up in the virtual world. Section 5(1) of the Copyright Act[9] states that copyright subsists in any original literary, dramatic, musical, and artistic work. An artistic work includes paintings, drawings, maps, charts, plans, photographs, engravings, sculptures, works of artistic craftsmanship, architectural works, and compilations of artistic works.[10] Therefore, an artist who created an artistic work such as a painting undoubtedly owns the copyright to that work.
Further, section 3(1) of the Copyright Act provides that the copyright owner has the sole right to produce or reproduce the work.[11] Would showing an artistic painting in the VR world constitute reproduction of the original work? The court in Théberge v. Galerie d’Art du Petit Champlain inc held that reproduction requires an increase in the number of copies.[12] However, the current law is not clear on whether a “copy” of a work only applies to physical copies, or whether a virtual copy is also considered to be a material copy in the context of reproduction. To complicate the matter further, the law does not address the problem of users taking pictures or screenshots of works shown in VR. Individuals may be found liable to copyright infringement if they distribute screenshots of a work, and the museum may also be found liable for not having sufficient security measures to prevent this distribution.
As such, if museums were to incorporate artistic works in their VR exhibitions, they must obtain all appropriate licences or assignments under section 13(4) of the Copyright Act.[13] As well, museums must obtain the necessary rights to the VR application if it is developed by an outside vendor.[14] If music is used, the artistic institutions must ensure that their VR exhibition does not infringe upon any third-party rights.[15] Since the VR technology allows using works from other countries, it can transcend national boundaries. Therefore, it is important for the institutions to consider IP laws from various jurisdictions and take steps to avoid copyright infringement.
If museums cannot avoid copyright infringement, they may argue protection under fair dealing. Fair dealing for the purpose of education, criticism, or review do not infringe copyright.[16] Showing and explaining artistic works to the public may potentially fit under these categories of fair dealing, but it is unclear whether fair dealing can provide sufficient protection for the museum regarding its immersive VR exhibits.
III. Conclusion
With the technological advancement, VR technologies blur the line between the real world and the virtual environment, and they further complicate IP issues. Moreover, the combination of emerging technologies such as augmented reality, artificial intelligence, and the metaverse add to the complexity. More IP issues arise if the VR program used at a museum allows users to create items within the virtual world – in that case, who owns the copyright to the virtual world creations?
Art galleries and museums must consider the implications of these emerging technologies and their impact on advancing the artistic and cultural goals. It is essential to examine their interplay with IP law. The current IP law does not completely address the complex issues introduced by the new technologies. As such, galleries and museums must continuously analyze and adopt a rights management system[17] that can not only help protect their own rights but also acknowledges the rights of the original rightsholders.
[1] See “Copyright Considerations as Art Galleries and Museums Move Online in the Wake of COVID-19” (8 December 2020), online: New York State Bar Association <https://nysba.org/copyright-considerations-as-art-galleries-and-museums-move-online-in-the-wake-of-covid-19/>.
[2] See “The Mona Lisa in virtual reality in your own home” (23 February 2021), online: Louvre <https://www.louvre.fr/en/what-s-on/life-at-the-museum/the-mona-lisa-in-virtual-reality-in-your-own-home>.
[3] Ibid.
[4] See “Virtual Reality is a big trend in museums, but what are the best examples of museums using VR?” (31 July 2021), online: Museum Next <https://www.museumnext.com/article/how-museums-are-using-virtual-reality/>.
[5] Trademarks Act, RSC 1985, c T-13.
[6] See “Augmented & Virtual Reality: Navigating the Emerging Legal Terrain” (15 September 2021), online: Segev LLP <https://segev.ca/augmented-virtual-reality-navigating-the-emerging-legal-terrain/>.
[7] Zenimax Media Inc. v. Oculus VR, LLC, Civil Action No. 3:14-CV-1849-K, 2018 U.S. Dist. LEXIS 107420 (N.D. Tex. June 27, 2018).
[8] See “Oculus, execs liable for $500 million in ZeniMax VR trial” (1 February 2017), online: Ars Technica <https://arstechnica.com/gaming/2017/02/oculus-execs-liable-for-500-million-in-zenimax-vr-trial/>.
[9] Copyright Act, RSC 1985, c C-42.
[10] Ibid, s 2.
[11] Supra note 9.
[12] Théberge v Galerie d’Art du Petit Champlain inc, 2002 SCC 34 at para 42.
[13] Supra note 9.
[14] Supra note 1.
[15] Ibid.
[16] Supra note 9, ss 29-29.1.
[17] Supra note 1.
Communications Law