DLA Piper panel say metaverse and AI-driven technologies create legal challenges for intellectual property protection

According to the view of a panel of experts during a discussion organised by the law firm DLA Piper to celebrate World Intellectual Property Day (26 April), the development of the metaverse and artificial intelligence (AI) will change regulations on the protection of intellectual property. Due to legal risks, the gaming industry is cautious about supporting software based on AI-based technologies, while at the same time, game developers are showing how the relationship between users and producers in the digital market may evolve in the future.

The European Union is currently working on dozens of draft laws on the digital market. In the area of copyright law, two fundamental concepts are clashing: the European one, which pays special attention to the protection of user and consumer rights, and the American one, which strongly protects property rights and limits the amount of regulation, which is seen as an inhibitor of innovation.

“Virtual reality and AI have brought issues that have not previously existed in the traditional copyright law model. Lawyers dealing with modern technologies face one of the biggest legislative challenges,” says Ewa Kurowska-Tober, head of the IPT practice at DLA Piper in Warsaw, who co-leads the Global Data Protection, Privacy and Cybersecurity Team. “We need a law that protects on the one hand the individual, who is weaker in the clash with technology, and on the other hand supports innovative business, which is using cutting-edge technology on an increasing scale.”

Experts associated with the creative industry emphasise that new virtual and augmented reality production tools and systems are changing the process of creating work and will therefore force changes in the approach to intellectual property.

“In thinking about content creation in the metaverse and in virtual worlds, one of the key changes is that users are becoming co-creators, which requires new rules for IP management,” says Ana Brzezińska, curator of Tribeca Festival’s immersive section.

Augmented reality technologies are being built and prepared for mass user access by major technology companies like Meta. In the vast majority of platforms, under current rules, the user is required to transfer copyright to the platform.

The gaming industry, on the other hand, has a different approach to the user. Experts underline that users' creativity is accepted within a certain framework. Game producers not only accept it, but also facilitate the creation of modifications to their creations by providing users with the right tools. The benefit is related to the extension of the life of the product and an additional form of promotion created from below by the users themselves.

“We adhere to the principle that users' own creativity is so valuable that it should be supported and appreciated,” says Kinga Palińska, senior legal counsel at CD Projekt, which is the largest game developer in Poland. “This applies to mods, that is, modifications to the game proper that introduce new content, as well as all kinds of graphics, illustrations, musical pieces and others. As long as they are not used commercially, not only do we not have a problem with them, but we are happy to share them ourselves, for example on our social media, of course labelling the creators accordingly.”

In addition to user relations, the gaming industry has also been testing artificial intelligence-based technologies for years. However, due to the uncertainty over the protection of intellectual property rights, it remains cautious. Specialists point out two problems in particular: the sources on which the AI model was trained, and the right to the work produced with AI-based software. Some manufacturers used works to train algorithms to which they did not have rights, which has sparked protests and is currently under discussion.

“Proposals are being made that informed consent for such use is necessary, or that the creator has the right to a so-called opt-out, meaning a stipulation that his work cannot be used to create products based on artificial intelligence,” says Ewa Kurowska-Tober. “Some software producers, understanding the legal, and consequently, business constraints, on their own initiative only use the resources to which they have purchased the right to use. However, not all companies guarantee this kind of transparency.”

The use of AI-based software to generate code or graphics can allow significant reductions in production time and reduce the cost of producing games. Thus, programmers are enthusiastically embracing the new solutions, but lawyers are taking a cautious approach. According to the current legal order, no copyright or patent protection is granted to works or inventions if they are created by a machine rather than a human. This approach may change, however, which would put works created with AI-based software in question. Most AI solutions on the market today, therefore, offer no guarantee that works created with their help will be safe from the point of view of intellectual or industrial property rights, and thus profitable.