by Katarina Klaric, Principal, Stephens Lawyers & Consultants
Australia’s legal framework for the protection of intellectual property comprises of copyright, trade marks, designs, patents, trade secrets and confidential information laws. There is no registration system for obtaining copyright and trade secrets/confidential information protection or requirement to include copyright notices with the name of copyright owner and date of first publication or trade secret/confidential information notices. However, such notices are recommended, as they evidence proprietary rights claims in relation to the works and can assist in establishing ownership of the works and the intellectual property rights. Australia has registration systems for the protection of trade marks, designs and patentable inventions. Complex rules exist for determining the ownership of intellectual property rights. Authors and creators of content protected by copyright laws are also provided moral rights, which cannot be assigned or waived.
To identify the relevant intellectual property laws applicable for the protection of a metaverse platform, you need to ascertain all:
- Elements that comprise the metaverse platform;
- Content generated within the metaverse, and
how these are created or generated and by whom.
Protection of virtual objects, buildings, avatars and other content
The metaverse as virtual world is created and operated using computer programs, algorithms and/or AI. The specific computer programs, software and apps (including object and source code) used to create, implement and operate the metaverse would be protected as a literary work under the Australian Copyright Act 1968 [i]. Source code may be protected as trade secrets/confidential information if it is not in the public domain. AI technology comprising of computer programs may be protected under copyright or patent laws, if there is human authorship. AI generated content may be protected under Australia’s copyright laws if there is human authorship and sufficient originality in the content. Computer programs, algorithms and AI that are used by users to design and generate avatars, buildings and other virtual objects and other content would also be protected as a copyright work.
Other elements of the metaverse world, that may be protected by copyright include:
- literary works (such as storylines, scripts, lyrics and themes comprising the world)
- artistic works (such as avatars, building and object designs, graphical interfaces, drawings, artwork, paintings, photographs, cartoons, character designs, architectural plans and drawings and rendered models of buildings)
- musical works
- sound recordings
- cinematograph films comprising of moving visual images and soundtracks including films, animations and animated computer games.
Some metaverse platforms allow users to create avatars, digital objects and other content. The ownership and use of such content is generally determined by end user licence agreements/terms and conditions of service of the metaverse platform owner. Most of these agreements provide that the metaverse platform’s owner owns all content generated on the metaverse including the associated intellectual property rights and the user has a licence for its use subject to specified limitations and restrictions.
Compliance with Competition and Consumer Protection Laws
There are no specific laws and regulations applicable to the metaverse that aim to promote standardisation and access to fair and non-discriminatory licences, however the operation of the metaverse is subject to compliance with Australia’s competition and consumer protections laws.
The terms and conditions of metaverse user/licence agreements must comply with Australia’s competition and consumer laws, which prohibit anti-competitive and restrictive trade practices and unfair contract terms.
Infringement of IP rights in the metaverse
Copyright Infringement can occur on the metaverse where a user of the metaverse takes material or objects created in the real world and protected by copyright and reproduces or shares this material on the metaverse without the permission or authorisation of the copyright owner. Infringement can also occur where a third party, without permission or authorisation of the copyright owner or rights holder reproduces or shares original content or objects that have been created within the metaverse.
Copyright owners can take court enforcement action for infringement seeking injunctive relief and damages for loss and damage suffered[ii]. Courts can also make orders for the disabling or blocking of access to digital platforms or websites containing infringing content[iii].
Metaverse platform owners will not be liable for infringing activities of users of the platform unless the owners have authorised the infringing activities or have failed to respond to a request for the removal of infringing content within a reasonable time of receiving the request.[iv] Subject to specified conditions being met, Australia’s copyright laws allow the reproduction of computer programs for making of interoperable systems, without infringing the copyright in the computer program by making a reproduction or adaptation of the work[v].
Collective rights management organisations and management of IP rights on the metaverse.
Australia has copyright collecting societies and licensing agencies which are involved in the management, administration and licensing of copyright material on behalf of their members and the distribution of licence fees collected[vi]. Metaverse owners or users seeking to use third party copyright material may be able to obtain licences through these organisations. The metaverse copyright content owners may also utilise the services of these organisations for the licensing of their copyright material in Australia.
Proposal for reforms to Copyright Laws – AI generated works
In December 2023, the Australian Government established a copyright and artificial intelligence (AI) reference group to have ongoing engagement and consultation with stakeholders across sectors including – creative arts, media, film, education, research and technology to enable the Government to respond to existing and future challenges to copyright from AI. The Government has recognised that AI has given rise to a number of copyright issues including –
- the use of copyright material to train AI models and whether this should be permissible and if so, the licensing models required to compensate rights holders;
- the mining of websites for text, image and data and whether this should be permissible and if so, how are rights holders to be protected and compensated;
- the transparency, disclosure and attribution where content has been created by the use of AI generative tools or where existing copyright material has been used to train AI models;
- the use of AI to create imitations of existing copyright works;
- whether AI-generated works should be given copyright protection?[vii]
Disclaimer: This article is not intended to replace obtaining legal advice
© Stephens Lawyers & Consultants, 25052024/ 01042025; Authored by Katarina Klaric, Stephens Lawyers & Consultants
For Further Information contact:
Katarina Klaric
Principal
Stephens Lawyers & Consultants
Melbourne Head Office
Suite 205, 546 Collins Street, Melbourne VIC 3000
Phone: (03) 8636 9100 Fax: (03) 8636 9199
Sydney Office
Level 29, Chifley Tower, 2 Chifley Square, Sydney, N.S.W. 2000
Phone: (02) 9238 8028
Email: [email protected]
Website: www.stephens.com.au
All Correspondence to:
PO Box 16010 Collins Street West Melbourne VIC 8007
To register for newsletter updates and to send your comments and feedback, please email [email protected]
[i] Copyright Act 1968(Cth), s10 (1) defines ‘literary work’ as including “(a) a table or compilation expressed in words, figures or symbols, and (b) a computer program or compilation of computer programs”.
[ii] Copyright Act 1968 (Cth) s115.
[iii] Ibid, s115A; Roadshow Films Pty Ltd v. Telstra Corporation Limited [2022] FCA 1468.
[iv] Copyright Act 1968 (Cth) s36(1); s36(1)A – includes the matters to be taken into account in determining whether or not a person has authorised the infringing conduct. Real Estate Tool Box Pty Ltd & Ors v. Campaigntrack Pty Ltd [2023] HCA 38
[v] Copyright Act 1968 (Cth) s47D.
[vi] There 8 different organisations involved in rights management and licencing. The most relevant to the metaverse include APRA AMCOS- an alliance between the Australasian Performing Right Association (APRA) and the Australasian Mechanical Copyright Owners’ Society (AMCOS) and the Copyright Agency.
[vii] Media Release – Attorney General. The Hon Mark Dreyfus KC MP,5 December 2023. https://ministers.ag.gov.au/media-centre/copyright-and-ai-reference-group-be-established-05-12-2023; Australian Government. Attorney-General’s Department – Issue Summary Paper- Artificial Intelligence (AI) and Copyright.