Augmented Reality and Copyright Infringement:
Updated: Nov 11, 2018
Could augmented reality applications be culpable?
Augmented reality technology has been expanding rapidly with its prominence most notably in gaming, healthcare, advertising and education. Its development has fueled the various commercial applications which can expose, incorporate or otherwise replicate works, as well as create works protected by copyright. This paper takes a holistic approach to assessing the potential for augmented reality applications to create works and infringe upon pre-existing works of authors and owners protected by UK copyright with insight to cases and statute from the United States concerning this technology.
The UK has the largest national creative sector in Europe, with investment every year at £20bn in creating intangible assets protected by copyright.We equally see huge economic value in advanced technologies, with the worldwide market estimate for artificial intelligence solutions to be worth more than £30bn by 2024. However, as these new technologies become available to consumers, lawyers naturally begin to start asking who owns what?[And, what protections are available?
To start with a point of clarification, many take to confuse augmented reality (AR) with virtual reality (VR) this is understandable as both have a ‘virtual’ element to them. Augmented reality is a technology which allows a user to superimpose a virtual object into a real-world environment; whereas virtual reality allows a user to enter a completely new and immersive virtual environment. Each brings their own legal issues and conflicts particularly in intellectual property, however, this paper shall focus on the more accessible augmented reality technology.
Augmented reality has, until recently, gone unnoticed by the digital world with developers focusing on the amassed applications of artificial intelligence and blockchain. It was not until Niantic, the creators of Pokémon Go, launched their app in July 2016[with huge success that the technology warranted attention. Pokémon Go was reported to have been downloaded 100 million times in its first month garnishing earnings of $10m per day[and triggering a dash by other technology goliaths like Apple to invest in the technology.[But, whilst technology giants are developing applications for their users; intellectual property law is somewhat left behind. A familiar assertion when it comes to the relationship between legislative instruments and technological developments.[Technology is also moving at such a pace that we are beginning to consider philosophical and legal questions concerning the rights of machines in intellectual works.
As the applications and consumer market for augmented reality begins to expand, there are multiple potential legal issues which could arise from its use.]These legal issues include copyright protected works, which could unknowingly or intentionally be incorporated into the augmented experience potentially infringing upon the rights of authors and owners. We see this highlighted as a potential problem in the United States as well.
UK Copyright Law
The main body of copyright law in the United Kingdom comes from the Copyright, Designs and Patents Act 1988 (CDPA) with various complementing EU directives and international treaties. Copyright, under English law, can subsist in a variety of creative works including, inter alia, literary, dramatic and musical works,[artistic works,]sound recordings and films[and broadcasts.
Copyright does not require registration, and, in theory, copyright has no onerous prerequisites to afford the rights legislation provides. As long as the author’s work is a work which copyright can subsist and the author at the material time is a British citizen, there is a qualification for copyright.[The Berne Convention also affords authors and creators of certain works to copyright protection in the jurisdiction of its 186 contracting nations.
There is one prevailing necessity to the enforceability of copyright law in the UK, shown in the above framework and that is the need to identify the author of the work which copyright is sought. To determine if an individual has the rights to enforce copyright you need to be the author of such works or the assignee of the rights of the author. An author is a person who creates the copyrightable work.[Note the use of ‘person’ in this subsection. Dependant on the form of work copyright is sought, an author shall be determined by the person who principally made the arrangements for the creation of the work(s).[This also applies to certain works which have been computer generated, in this context, the Copyright, Designs and Patents Act provides that “the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.”
The preceding quote provides the starting point for the consideration of authorship and subsequently ownership of works which arise out of augmented reality technology. When asking the question who owns the work(s) from using augmented reality technology, the legal balance of proportioning the necessary actions the parties have taken in the creation of the works is a pivotal point. If this legislation is to go unchanged in the future, it would be a sensible assertion to envisage future litigation.
We now need to consider the framework around infringement of copyright, as this paper will also turn to consider third-parties and the foreseen possibility to sue for infringement upon determining the owner of works arising from the use of augmented reality applications.
In copyright law there are two forms which infringement comes, these are primary infringement and secondary infringement. Primary infringement occurs when a protected work is used “by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright.”]It is also relevant to highlight the Act provides that:
“the doing of an act restricted by the copyright in a work are to the doing of it a) in relation to the work as a whole or any substantial part of it, and b) either directly or indirectly; and it is immaterial whether any intervening acts themselves infringe copyright.”
Secondary infringement of copyright occurs where a person facilitates primary infringing activities or is dealing in infringing copies of work.[Examples of secondary infringement include the importation, otherwise than for his private and domestic use, of an article which is and which he knows to be an infringing copy of work;[or where a person, “…without a licence, makes, imports (into the UK), possesses in the course of a business, or sells or lets for hire, or offers or exposes for sale or hire, an article specifically designed or adapted for making copies of that work, knowing[….]it is to be used to make infringing copies.”
Infringement of copyright can be seen to cover owners of works quite well, save for the application of any relevant permitted acts.[However, there is one further consideration to be made before expansion on the potential for augmented reality to cause infringement. This is moral rights, an element of copyright law utterly forgotten in the wake of new technologies, but crucially important in the context of augmented reality. Moral rights are afforded to the author or director of the copyright protected work(s) and include the
· Right to be identified as author or director;
· Right to object to derogatory treatment of the work;
· Right not to be falsely attributed to him as an author;
· Right to privacy of certain photographs and films.
The most relevant moral right in the realm of augmented reality would be the right to object to derogatory treatment of the work. Consider a well-regarded and influential artist with a piece of art that represents and/or inspires a particular movement hung in a gallery for the public to marvel. The capability of an individual to simply take one’s phone out and superimpose an indecorous image in direct offence to this artist and his work could be considered a derogatory treatment under the Act.]As such, the commonplace contractual waiver[of the ability to enforce moral rights may also be treated with greater hostility when assigning or licencing use of copyright works in the future.
United States Copyright Law
The United States (US) has a well-known culture concerning litigation and as such provides some of the first cases involving augmented reality technology. The US also has a different threshold in its federal system to accommodate the partial use of copyright works through the defence of “fair-use”[opposed to the United Kingdom’s ‘fair-dealing’ provisions. The main legislative instrument for copyright law in the US is the Copyright Act 1976 providing the basic legal framework.
Fair-use is the equivalent to the UK fair-dealing exceptions; however, the wording and judicial interpretation differentiate the two. The fair-use defence in the US is reliant on four key factors:
· Purpose and character of the use;
· Nature of the copyrighted work;
· Amount and substantiality of what has been taken from the copyrighted work;
· Effect of the use upon the potential market for the copyrighted work.
This test does not seek to expressly discriminate between commercial and private or academic use of copyrighted works like that of the equivalent UK provisions, taking a more ‘open’ approach to fair-use.
One of the few cases involving augmented reality in the US is Sherwood 48 Associates v Sony Corp[where film producers from Sony had digitally removed advertisements from buildings in Times Square and replaced them with other advertisements. The court ruled that there was no infringement as the producers were protected under the first amendment of the constitution. However, had the producers distorted the advertisements in a different context the case and ruling could have been very different. This is because distortion, mutilation, or modification of copyright works is in the US under the Visual Artists Rights Act 1990 preserving such acts to the exclusive capability of the author of any protected works.
There has also been a case against the Pokémon Go app creator Niantic in the US for failing to facilitate an event for 20,000 of its app users adequately; the company recently settled this class-action for over $1.5 million.[Although this was not directly linked to intellectual property rights; it demonstrates the Modern-legal issues which can arise from successful augmented reality applications and the immediate market for other applications.
Identifying Copyrightable Works
Before determining whether a work arising from an augmented reality application is owned by the application provider or user, we must first consider current statute and case law as to whether a work created by using augmented reality tools is copyrightable. The three main creations from using an augmented reality application are (1) data, (2) photographs, and (3) videos.
The English legal system has what is known as a ‘close list’ approach to subsistence in copyrightable works. This means that the works which can come within the realm of copyright have to be within an expressly defined list provided by the CDPA. This exhaustive approach was also adopted by the United States which also provides an exhaustive list of works which copyright can subsist,[contrasted with France, for example, who have opted for an ‘open list’ approach to consider any ‘works of the mind’ to be copyrightable.
Firstly, considering the data arising from using an application, this could be considered a ‘work’ under the CDPA as it could qualify under section 3A as a ‘Database’ if the application provider was to collect the independent data and arrange it systematically and it individually accessible by electronic means.[This data could be treated in accordance with the CDPA meaning of a database, and we can see this framework applied to data in recent cases.[However, this would have to be considered in combination with the Database Directive which excludes the protection of computer programs used in the making or operation of databases accessible by electronic means.[This is despite the wider scope which the CDPA illustrates with respect to the statute distinguishing the difference between ‘databases’ and ‘tables or compilations other than databases’.[In light of the directive and the unknown arrangement and differing content of the data, it is unlikely that data arising from an augmented reality application would amount to a work which copyright can subsist particularly on an individual user basis.
We must then move on to a creation which is more likely to be considered a work under the CDPA, that being photographs. Augmented reality applications predominantly allow users to superimpose virtual features and capture these features in a real-world environment.
Section 4 of the CDPA provides:
a) A graphic work, photograph, sculpture or collage, irrespective of artistic quality,
b) A work of architecture a building or model for a building, or
c) A work of artistic craftsmanship
Photographs can be considered as an ‘artistic work’ encompassed within the Act. The section further defines photographs as meaning “a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film.” It is clear that the Act provides a wide scope for what it considers a photograph to be, and it also alludes to a photographs contents with regard to the ‘artistic quality’ being immaterial to any determination of artistic work.[The Copyright Term Directive under EU law also permits the protection for ‘other photographs’ affording both potential types of photographs with protection.
Considering the above, a photograph generated from an augmented reality application would most certainly be a work which copyright can subsist, however, with any copyrightable work we must then move to consider the originality of such work. The question of originality would concern whether the Walter v Lane(traditional test) or Infopaq](EU test) applies. The determination as to whether the traditional test of originality is a higher threshold than the EU test of author’s own intellectual creation has been largely circumvented by courts by identifying works as satisfying both tests.
To expand on the context of originality in copyright, the word originality does not mean that the work must be the expression of original or inventive thought or the originality of ideas, but the product of labour, skill and judgement or intellectual creation with respect to the expression of thought.[The topic of originality has also been further explored with regard to photographs of three-dimensional objects, finding that the “positioning of the object, the angle at which it is taken, the lighting and the focus…could all be matters of aesthetic or even commercial judgement”.[Applying the position of originality to our hypothetical photograph produced through an augmented reality application would likely satisfy the originality requirement and subject to qualification,]such a photograph would most likely warrant copyright protection, particularly considering the abovementioned provision of the Copyright Term Directive.
Now we can consider photographs arising from augmented reality applications as potentially being protected by copyright; we can then turn to the third and final product – video – multiple applications now allow users to record, store and distribute video which includes superimposed augmented features. Section 5B of the CDPA provides for the protection of ‘films’ considered to be “a recording on any medium from which a moving image may by any means be produced”. There is a requirement for literary, dramatic and musical works, which film is subject to, for the work to be recorded in writing or otherwise,]a film would have to be recorded in order for copyright to subsist. In assessing this broad definition of film, it would again most likely satisfy the CDPA requirements and should there be the prerequisite labour, skill and judgement it would also pass the necessity of originality.
As there are two potential works which are most likely to be protected by copyright law, the next pragmatic step is to identify the author as this will lead to the identification of the owner of the work(s). This is the subject matter which could cultivate future contention with the consideration of augmented features. Where we have a work which is created using an augmented reality tool and those tools are fundamental to the users’ ability to create the works, as well as providing the main virtual feature(s) of the work, who is said to be the author in such circumstances? To answer this question, we must follow separate approaches of the statute and common law with respect to photographs and film.
To be an author of a photograph you need to contribute creativity and this creativity has to be contributed towards the expression of the work rather than the idea or structure of the work. Even where a small amount of creativity has been established that contributor can be considered an author.[When considering the relevant contributions to the creativity, we should consider those who instigated the necessary activities rather than each separate part of composing the work.[This is an incredibly important approach with respect to works created using augmented reality tools. The user of an augmented reality application is to select an appropriate environment and positioning, as well as the relevant objects and virtual features he wishes to capture, utilising the applications camera functionality, he then photographs his creation on his device. Although in most instances this may well be little work and little creativity we know that this is sufficient to be considered an author of a work.
To be considered an author of a film, you need to be the producer and the principal director. A producer is defined as the person by whom the arrangements necessary for making the film are undertaken. The inclusion of a principal director as a co-author in arises from EU law.[For the purposes of this paper, there is little likely contention around who is to be the producer of the augmented reality film. If a user has taken upon himself to utilise an augmented reality application to produce a film, identifying the environment, selecting the features and conducting the filming he shall be the producer and therefore owner of the work. However, as the forthcoming will highlight, attention to impose terms and conditions could cause conflict over the ownership of the incorporated augmented features or objects themselves.
Considering the identified works above, we now know that photographs and videos are most likely to be considered copyright protected works under the CDPA. However, unknown to most users is the ability for the application providers to maintain copyright ownership of the augmented features utilised in those works potentially creating a co-ownership relationship. This is most probably of insignificance to most users who utilise these applications for leisure and do not see to profit, sell or exhibit their works for remuneration. However, for those that do, this sparks a new focus and attention to copyright protection and the limits of utilising these applications in the execution of their creative positions.
We must also consider pre-existing works which are protected by copyright and the potential for them to be incorporated, exposed, replicated or otherwise utilised in augmented reality applications. Augmented objects which are provided by application providers can be considered artistic works in which copyright can subsist, and some augmented reality application providers have already sought to maintain ownership or rights over these works in the event users create a work using them under ‘AR Terms and Conditions.’]There is arguably an imbalance of bargaining power or, at very least, the potential for confusion between augmented reality application providers and the users of those applications. If the providers have included the functionality to capture images and video within their applications, it is a reasonable presumption by users that the works they capture will be their own. However, the unknown tails within terms and conditions will most likely not provide negotiable leeway and in future seek to maintain a degree of control over the augmented or virtual elements.
There is also the potential for the works created using augmented reality applications to include other kinds of pre-existing copyright works; this could include anything from buildings and designs to paintings and sculptures. There are various provisions which account for such instances such as section 62 of the CDPA; this provides an exemption to infringement to graphic representations of buildings, sculptures, models for buildings and works of artistic craftsmanship. These artistic works must be permanently situated in a public place or open to the public. The section provides that “making a graphic work representing it, or making a photograph or film of it, or making a broadcast of a visual image of it,” including its distribution to the public, is not infringement.[This provision is critical if the UK is to maintain freedom of panorama; however, it should be considered that some other nations do not have such provisions and copyright approval may be necessary to include some buildings depending on the country you are in.
The above exemption only concerns graphic works which are created from permanently situated buildings in a public place or open to the public. The exemption does not provide dispensation for the reproduction of such buildings or other works which are not considered graphic works under the CDPA.[Augmented reality applications which allow users to make or create virtual three-dimensional reproductions of buildings protected by copyright would be liable to infringement without the inclusion of section 65 of the CDPA, which provides that reconstructing a building does not infringe the copyright in the building or any drawing or plans. This provision will be crucial to maintaining a broad scope of capabilities within augmented reality as to prevent infringement from augmenting a reconstruction of copyright-protected buildings, particularly enabling the expanse of augmented reality application to evolve in architectural design, planning and advertising.
There is also the exception of the incidental inclusion of copyright-protected works which could apply to photograph and film created through augmented reality applications.]This provision acts as a blanket exemption to infringement where works already protected by copyright may be included in the new work; this applies to artistic, sound recording, film and broadcast works, however, the inclusion must be incidental.
The final consideration is that of moral rights, which are more likely to be a future matter of contention between authors and owners or exhibitors. The moral rights of authors are also provided within the CDPA; however, we shall focus on the potential application of the moral right to object to derogatory treatment]which enables an author or director of a work to object to their work being subject to derogatory treatment. Treatment of a work under this provision can include the addition to, deletion, alteration or adaption of a work and this treatment can be considered derogatory if it amounts to distortion or mutilation to the work and otherwise prejudicial to the honour or reputation of the author or director.[The provision of the CDPA is somewhat narrower than that provided in the Berne Convention which includes ‘other derogatory action in relation to the work.’[This still does not provide contextualization, but obiter dictum from Harrison v Harrison]expresses a broad view of its potential application. The contextualization of treatment is important as the various potential treatments which works could be subject to from augmented reality technology are infinite and a broad perception of this definition will aid the future application of authors’ moral rights.
This provides a wider scope for potential infringement and augmented reality applications will certainly have the future capability to distort or mutilate works with relative ease convincingly. Reverting to the previously mentioned scenario of a well-regarded artist having a piece of artwork hung in a galley with his name embossed on a plaque just below, if a user was to take his phone out and superimpose an indecorous virtual object which caused the work to be distorted and caused direct offence to the substance of the artwork and the artist, it may well be considered a derogatory treatment. However, there are various considerations that could prevent such treatment being an infringement, with particular ambiguity surrounding the exception to computer-generated works due to the lack of judicial application and interpretation.
We have already seen cases which have sought to prevent derogatory treatment which concern superimposed features on works,[however, such cases have failed on the need to demonstrate prejudice to the author’s honour or reputation. This position was adopted from the highlighted approach by HH Judge Overend in Pasterfield v Denham and Another[where he said:
“To succeed in a claim for derogatory treatment of a work, an artist has to establish that the treatment accorded to the work and was either a distortion or a mutilation which prejudiced his or her honour or reputation as an artist. It was not sufficient that the author was aggrieved by what had occurred.”
This integrity right has largely been adopted in the Visual Artists Rights Act 1990 in the US, which provides almost identical wording,]however, a more fluid approach in France is seen for instance where the mere objection of changing the colour of the work by the author was sufficient to restrain the owners from doing so.
There is a range of exceptions to this integrity right provided within the CDPA, however, concerning the potential scenarios which can be envisaged between protected pre-existing works and augmented reality, we can determine that few exceptions would apply where an individual or private publication is made. This brings forth a significant liability with respect to the use of augmented reality on the part of the user and equally significant weight on the decision of the author to waiver their moral rights when licensing or exhibiting their work(s).
As various applications of augmented reality begin to become commercially accessible or otherwise available to the public, the potential for misapplying it to copyright-protected works is evident. and increasing realism of virtual objects or features present a particular problem within this domain, with the combination of little judicial elaboration or interpretation to the expanse of this integrity right. Users of augmented reality applications should apply this technological capability with caution and consider the potential perception and treatment of the superimposed virtual features could have on the selected environment if they wish to avoid potentially costly and lengthy infringement disputes.
Furthermore, authors should place greater weight on the importance of reserving their moral rights in relation to their works. As various technologies create more realistic virtual features and objects increasingly within these applications, which are now accessible at minimal cost and worldwide through simple applications found on smartphones, the potential for an infringement of this nature to occur is not that of if but when. The assertion of a greater weight to moral rights as unencumbered access to this technology and the ensuing indecorous objects likely to be available could prejudice an authors’ work, honour and reputation. Hostility to a written waiver is prominent and will likely be the norm in future legal advice provided to authors.
The growth in access and consumption of augmented reality applications is a feat in recognition of the advancements technology and innovation is making, the increasingly realistic graphics and implementation of artificial objects in mobile devices demonstrate the processing capabilities of the modern-day. However, as the volume of users grows over time, corporations will likely turn to explore the capability to incorporate augmented advertisements into these applications seeking to generate new revenue streams from their development. We will most likely see this occur in the US first and, due to the litigious culture, we will likely see US law applied before that in the UK. As the statutory position and approach are similar in copyright law between both states, the US should be observed for guidance on applying its copyright law to cases concerning augmented reality and infringement.
It should be concluded that although the provisions governing copyright infringement are, prima facie, comprehensive the scope for instances of conflict can be easily envisaged. The allure of advertising and revenue by corporations should not overcloud an authors’ exclusive rights, and commercial developers should ensure that they are aware of the potential to infringe upon pre-existing works.