We live in a world where augmented reality (AR) and virtual reality (VR) have slowly but steadily become a part of our daily lives. These are no longer fascinating technologies of the future, they are now a part of the present. These advancements have permeated various industries, with products like Apple’s Vision Pro, Snapchat lenses, healthcare AR/VR products etc. gaining popularity.
AR & VR
AR usually involves an overlay of fictional elements in the present surroundings of the user, while VR transports the user to a completely new reality. Within the Indian context, AR technology is commonly used in HTC Vive, Oculus Rift, Google Cardboard, whereas Google Lense, the game Pokemon Go, Snapchat lenses, Sony’s PlayStation VR are amongst the many examples of usage of VR tecnology.
These technologies have been incorporated across various sectors like education, healthcare, security, and retail. A couple of years ago, Meta Founder and CEO announced the expansion of his company’s collaboration with Central Board of Secondary Education’s to train 10 lakh teachers and more than one crore students in virtual and augmented reality over a three year period.
Significance Of IP, Copyright & Patent Laws In AR/VR
Let us explore the significance of IP law in the Indian AR and VR landscape, examining the challenges and considerations involved in safeguarding innovation.
In the context of AR and VR, IP protection is vital to encourage innovation, foster creativity, and provide incentives for developers and content creators. These technologies present unique challenges with regard to intellectual property. Copyright infringement is a significant concern, particularly when it comes to virtual content creation and distribution. Additionally, trademark protection plays a crucial role in establishing brand recognition and preventing consumer confusion. Lastly, safeguarding trade secrets is essential to protect proprietary algorithms, code, and technologies in this competitive landscape.
AR/VR technologies are usually based on a source code, this ‘source code’ or ‘computer programs’ qualifies as a literary work under the ambit of the act and thus once the technology is created its underlying code can be protected under the Indian Copyright Act, 1957. The use of AR devices introduces new possibilities for manipulating our surroundings, potentially leading to the superimposition of data over protected content. This raises concerns about potential copyright violations. Museums, for example, have embraced AR technology by providing visitors with augmented reality goggles that enhance their experience with additional information about sculptures and paintings.
However, the incorporation of copyrighted material in such AR experiences may infringe upon the rights of copyright owners.
The applicability of the “fair dealing” provision in Section 52 of the Copyright Act in these scenarios is a matter of debate. While reproduction and alterations are protected by copyrights, the use of AR to augment protected content may not fall under the fair dealing provision. This legal ambiguity needs further clarification to ensure proper protection for copyright holders and guide the implementation of AR technologies in compliance with copyright laws.
In the United States, the concept of transformative use has been well-established in copyright law. However, in India, the Supreme Court has ruled that if a previously published work is presented or treated differently, it can be regarded as a new work. This perspective adds complexity to determining the copyright implications of using AR to alter or present copyrighted material differently.
In relation to the AR/VR the software, graphics, audiovisual content, and artistic expressions are elements which can be protected under the copyright regime of India. In order to qualify for copyright protection in India, it is essential that the works which seek to be protected qualify the doctrine of ‘Modicum of Creativity’ as laid down by the supreme court in Eastern Book Company v. D.B. Modak. To establish copyright, the creativity standard applied is not that something must be novel or non-obvious, but some amount of creativity in the work to claim a copyright is required.
Section 2(d)(vi) of the Copyright Act enumerates that the author is always the person who causes the work to be created, thus, in the context of AR/VR technologies determining the owner will vary from technology to technology based on their peculiar circumstantial arrangement. Copyright infringement would occur when there is ‘substantial similarity’ between two works, the two works must be compared from a holistic perspective.
Now moving on to the applicability of Indian Patent laws to AR/VR. The Indian Patent Act, 1970 requires patents to be novel, non-obvious, and beneficial. The 2002 modification to the same excluded “computer programmes” from innovations, but Section 3(k) of the Patent Act created an exception for computer programs in technical application to industry and computer programs in combination with hardware as patentable inventions. There have been growing patent applications in the AR/VR sector lately. For example, Nimo Planet, an Indian startup, filed a patent for their smart glasses which they have been creating since 2020 which are quite like the Vision Pro.
Trademarks in AR/VR help in protecting and distinguishing brands, logos and product names related to these technologies. The Trademark Act, 1997 governs trademark registration and protection in India. With the advent of these technologies, it has become imperative for other established businesses and enterprises to protect and register their trademark to prevent the unauthorized use of these marks within the virtual realities of these technologies.
Most of these technologies are characterized by various aspects of IP within each program, thus making it very perplexing and complex for a common man to navigate the trenches of the pre-requisites and due diligence required to adequately register all subsets of the technology under different heads of IP. Further these technologies generate and modify content based on coded algorithms and thus, there is lacuna regarding who gets the credit/ ownership for these newly added creations and modifications.
As AR/VR technologies continue to redefine human interaction with the real world, it is crucial to establish robust legislative frameworks at both national and international levels. IP protection is vital to foster innovation and creativity in this field while safeguarding the rights of creators and consumers. Collaboration between governments and international organizations like the World Intellectual Property Organization and the VR/AR Association can contribute to formulating effective protection mechanisms.
Spreading awareness about the nuances and developments in AR/VR technologies will further ensure their sustenance and responsible use in society. These technologies are intrusive from the perspective of data privacy, as they utilize real world objects, data inputs from the user and collect data automatically as it has access to a person’s surroundings and other private information, in the absence of a robust data privacy bill, it becomes very important to formulate regulations and guidelines which will adequately control and regulate the penetration of these technologies within the consumer’s everyday life. Lastly, owing to the nature of the digital asset, it transcends geographical boundaries and thus, it is essential to harmonize IP protection across jurisdiction to protect the innovators and creators along with the consumers.
Contributors – Parinika Krishnan