Recently, Pooja Entertainment purchased virtual land in the metaverse and named it "Poojaverse"1, to announce the release of "Bade Miyan Chote Miyan", i.e., the first Hindi film to be released in the metaverse2. This unprecedented move is an indication of how film producers are tapping into and utilizing new and evolving mediums and markets, to maximize the viewership of their content.
Simply put, the metaverse is the "digital twin" of the physical world, where people can create their avatars, place them in a virtual space, and manipulate them with VR (Virtual Reality), AR (Augmented Reality), AI (Artificial Intelligence) tools, to effectively live a virtual life3. To understand copyright issues within the metaverse, it is important to note the following:
- Open metaverse: Platforms where users can create new features such as buildings, marketplaces, etc. E.g., Decentraland.
- Closed metaverse: Platforms , where users cannot create any additional elements, and only one company, is in charge of managing all the aspects therein. E.g., the video game Fortnite.
Since the metaverse is by itself a computer program/software, it enjoys copyright protection under the Indian Copyright Act, 1957 (Act). However, there is uncertainty around the creations in the metaverse. In a closed metaverse, the ownership of the platform and all its elements are owned by the owner of the platform. The real challenge is to ascertain who owns the copyright in works created on/in an open metaverse - whether the platform owners or the real-world user creating such works through the avatar (or otherwise), would be the owner of such works.
Under the Act, unless there is any contract to the contrary, including any terms of usage of the platform, the author of the works would be the owner of the copyright of such works. Accordingly, the natural person creating the work could be construed as the author of the work, and hence, its owner. Further, logically, it is in the interest of the open metaverse platform owners that the user is the owner/ controller of the copyright of the works they create therein, permitting such platform owners to take an intermediary status and be absolved of liability for infringement.
In a related complication, in the metaverse, the boundaries with respect to content exploitation where multiple rights of several persons, each being exploited simultaneously, are blurred. For instance, in a metaverse concert, for music, there could be a public performance license required, as well as a reproduction license, since the same is streamed in the real world, albeit virtually. Hence, it is difficult to identify the rights to be granted for exploitation of content in the metaverse given the overlap of rights and use. If a third party shares, within the metaverse any works generated outside the metaverse - i.e., from the real world, without the relevant permissions from the copyright holder, such exploitation would amount to copyright infringement. One such instance of infringement was the case where luxury brand Hermès sued an artist for making and selling knockoffs, in the metaverse through NFTs4.
However, the position changes for works created within the metaverse wherein the identity of the copyright owner and the infringer is typically unknown, making it extremely difficult for the copyright owners to identify and pursue the individuals involved in the infringement of their copyrighted works (whether for action against infringement or regularization). Further, if the copyright owner files an infringement suit where he resides, the relief granted would not be completely effective as the order could be restricted by territorial boundaries. Thus, there is a need for global level legislation/guidelines to regulate such matters. Further, given the boundaryless nature of the metaverse, it will also be difficult to determine whether any use of content (without permissions) in the metaverse would amount to fair use. Owing to the vastness and co-existence of multiple metaverses, the 'real' tests of fair use may lose their effect5.
It can be concluded that the real challenges in relation to copyright in the metaverse are identifying the owner of the copyright of the content in the metaverse, ascertaining the manner and extent of infringement, identity of the infringer, and the even bigger challenge is establishing the appropriate forum where such infringement can be heard and the appropriate remedy to be granted to the owner of the copyright. It is crucial to take urgent steps to modify the existing legal mechanism to facilitate the protection of copyright in the evolving metaverse.
Footnotes
4 https://news.artnet.com/art-world/hermes-metabirkins-2063954
5 The test laid down in K. Murari v. Muppala Ranganayakamma [(1987) 2 APLJ 62 (SN)] to determine fair use is: (i) purpose and character of work, (ii) nature of work, (iii) portion used in relation to work, and (iv) effect on market value.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
