Dr. Shin Hyeoncheol, Specially Appointed Associate Professor, Intellectual Property and Legal Practice Center (IPrism)

"The arrival of the era of the Metaverse and the protection of intellectual property rights"

The era of the "metaverse" has arrived. The metaverse is a term that describes a three-dimensional virtual space created on the internet. Metaverse users create and operate artificial intelligence (AI) equipped avatars through which they engage in the economic activities of production, distribution, and consumption, as well as cultural activities just like in the real world. These activities may include the production and sales of virtual items such as outfits and costumes or participation in performances.

The arrival of the metaverse raises questions about whether intellectual property rights as they apply in the real world can be carried over to this new virtual space. I argue for the necessity of the interpretation of law and legal reforms based on the particular circumstances of the metaverse. There are various issues, but I will describe trademark right, copyright, and publicity right among intellectual property rights below.

1. The problem of trademark right infringement
First of all, one typical criminal technique is to use the popularity of existing famous brands to increase profits in the metaverse by attaching the registered trademark of a brand to a virtual item one has created and distributing it. A requirement for the recognition of trademark infringement is the use of (i.e. the selling of, etc.) the same or similar goods as the registered trademark and those goods that were specified when the same or similar trademark was registered (Trademark Law, articles 25 & 37). However, in the case of virtual items, it is debatable whether these are the same or similar goods as real-world goods such as clothing and shoes. In fact, some brands, such as Gucci and Puma, have already applied for trademark registration with the metaverse in mind where avatars use such things as clothing, etc. In this way, these companies aim to establish their brands in the virtual world.

2. The problem of copyright infringement
Next, metaverse users are able to reproduce applied arts of, for example, furniture or buildings. In this process, virtual objects such as furniture are digital images, which means that their utility as furniture is denied. Therefore, their copyrightability (i.e. the nature as subject matters for protection by Copyright Law) as “applied arts” is denied as well. Also, even if “architectural works” are reproduced, they are not “architectural works" of Copyright Law because they are not real-world architecture where an emphasis is put on artistry, but rather “artistic works” or “computer programs”. Put differently, the copyrightability changes. In such cases, the sub-divided copyrights (shibunken) and the conditions in which this infringement occurs differ. This leaves plenty of room to examine whether law interpretation of copyright infringement in the real world can be applied as it is in the metaverse.

Moreover, the interpretation of current law, which supposes the "human being" as the subject to which to attribute a copyright, has its limits when it comes to attributing the copyright of creative work by an AI-equipped avatar. Here, it would be desirable to construct legislation to regulate the unauthorized use of AI creations.

3. The problem of publicity right infringement
Finally, metaverse users are able to use an avatar resembling a celebrity to provide services. For example, users might use an avatar that looks like a celebrity for commercial purposes in order to get paid well. Even though such actions raise questions about the liability for infringement of the right of publicity[1], no applicable provision exists. It may be necessary to examine law enactment to strengthen the predictability of law application and legal stability.

Also, since avatars do not require the recognition of personal rights, it is unlikely that the right of publicity will be asserted for avatars[2]. Here it will be necessary to think about legislation against unauthorized actions that benefit from the audience pull of famous avatars.

The metaverse has meant a Renaissance of the creation of intellectual property. With advancements in technology and the realization of a metaverse like those found in science fiction movies, the protection of intellectual property is likely to undergo enormous changes as well. This makes it necessary to examine how intellectual property is protected so that the vigorous creation and use of intellectual property leads to the development of culture and industry.

[1] Supreme Court decision of February 2, 2012, Minshu, Vol. 66, No. 2, p. 89 (Pink Lady Case).
[2] Supreme Court decision of February 12, 2004, Minshu, Vol. 58, No. 2, p. 311 (Gallop Racer Case).

Edit: Kim Mawer, Christopher Bubb