Augmenting reality—defining IP rights

01.11.2016

This article was first published on Lexis®PSL IP & IT, September 2016
IP & IT analysis: As part of our augmented reality (AR) series, Richard Pinckney, Partner and Katey Popova, trainee at Bristows, consider the intellectual property (IP) issues surrounding this developing technology and identify some concerns which may be of interest to rights holders and developers.
What is the background to this debate?
AR has been around for many years, although it has only recently entered the mainstream with the introduction of apps such as Pokémon GO and head mounted products such as Google Glass and Microsoft HoloLens. Until now, the interaction of AR and IP rights has received relatively little consideration.
What kinds of issues does AR pose to regulators and developers in relation to patents?
In addition to hardware, AR will invariably be implemented in computer software. Excluded subject matter is therefore likely to be a significant issue for developers. The key question is whether any AR development for which protection is sought is a computer program or presentation of information ‘as such’.
In both cases, the AR development must provide a technical contribution to the state of the art. AR developments are more likely to be patentable if they:
o have a real world technical effect beyond software and outside the hardware
o make the hardware operate in a new way, or
o make the hardware run more efficiently
The mere processing of data is unlikely to be patentable.
As always, would be patentees will need to carefully balance the requirement to disclose the development for which protection is sought clearly and completely enough for it to be performed by the person skilled in the art, with the desire to withhold source code or other would be confidential information. Developers should, in certain situations, consider whether keeping the critical aspects of the development confidential (and not seeking patent protection) might perhaps be a better route to avoid competitors obtaining an advantage.
Are there any issues surrounding AR and trade marks?
Trade mark owners are unlikely to be able to bring infringement proceedings in relation to marks which are used in the types of AR apps currently available such as Pokémon GO. This is largely due to the fact that these types of apps would not be considered to use registered marks ‘in the course of trade’ because the sign is not used in the context of commercial activity with a view to economic advantage. Where an AR app uses trade marks to suggest an economic link with another entity or uses a mark in a way that disallows consumers to distinguish the proper origin of goods or services, developers should be aware that this may constitute trade mark infringement.
The concept of ‘in the course of trade’ has been addressed in the multitude of cases relating to the Google AdWord functionality. Interestingly, it is possible to draw certain comparisons with the potential uses of AR. It could be envisaged that AR apps may offer similar advertising functions to those offered by the Google AdWord functionality, where advertising is triggered by the recognition of a particular brand or trade name—which also happens to be a registered trade mark—while the user is using the AR technology. In which case, the reasoning in the AdWords line of cases might also be relevant to this hypothetical use of AR. An AR app developer or owner in our example would arguably be an information service provider and would not infringe the trade marks. However, where an AR app developer or owner is asked to stop such use and it does not do so promptly, it may be liable for infringement. The ‘in app’ advertisers on the other hand may, in some cases, infringe the trade marks through their use of those marks.
Are there any issues surrounding AR and copyright?
As a potential reaction to the lack of trade mark protection, where there is no use ‘in the course of trade’, rights owners may be able to bring copyright infringement proceedings where they can show copyright subsistence in the brand logo.
Again this might not be without difficulties. Some AR technology uses head mounted hardware or mobile phones and temporarily overlays information over the reality seen by the user. The digital rendition of the reality, or the information overlaying the reality, may involve the presentation or digital storage of logos or other types of copyright works. This may not amount to unlawful copying if it makes a temporary copy which is transient or incidental and is therefore a permitted act. This exclusion was specifically introduced to enable browsing or caching of material by internet service providers and it is not beyond the realms of possibility that it could apply to AR technology in certain circumstances. However, if use of such copyright works is not temporary because, for example, copies of logos or works are stored more permanently or are communicated to third-parties, this may amount to unlawful copying.
There is also an exception which relates to artistic works, such as sculptures and buildings, which are on public display, which could be made use of by AR developers. It could be used where AR developers wish to attract the public to a particular area as part of their offering.
However, similar to the position with trade marks where any of the prohibited acts, such as copying or communication to public, are performed, the rights holders could have a cause to bring infringement proceedings in the normal way.
Can specific locations or properties claim to have virtual location rights and what can they do about the use of their locations without consent?
There are currently no specific location rights in relation to AR and no ‘virtual location rights’. The recourse that property owners have where they do not wish for their property or location to be used or promoted through an AR app (such as Pokémon GO) is either to appeal to the public as a whole, to report it to the developer or to seek redress for trespassing.
Recently churches, hospitals and memorial locations such as Washington DC’s Holocaust Museum have made public appeals for individuals not to play Pokémon GO on their premises. Further, app developers and owners of apps or AR technology where locations are likely to be important, for instance, for attracting the public or the placing of advertising, should have reporting systems. Such systems should allow users or location and property owners to report misuse or merely unwanted use of or attention to their location or property. Such systems should incorporate processes in which AR technology developers or owners respond and resolve such reports.
This area of ‘virtual locations’ and use is perhaps the one most open to future development within the legal context. Comparison can be drawn to the introduction of air traffic and the right to use airspace.
How do you envisage IP law developing to keep pace with the new developments made possible by AR?
It is difficult to predict the development of AR and its interaction with IP rights. It is therefore difficult to predict in what ways IP laws need to change, if at all. While specific developments in IP law have, historically, on occasion been introduced to address a specific change in a particular area of technology or the introduction of a new area of technology, by and large the key principles governing the various IP rights are equally applicable to new technology as they are to old technology. The same should be true of AR.
Existing areas of IP law will come into focus with the advent and mainstream commercialisation of AR. These may include the presentation of information as excluded patentable subject matter and the use of trade marks to generate adverts or direct economic activity. Virtual location rights is a possible new area of law.
The use of AR is likely to generate a significant amount of data which will be held by developers who will need to ensure that the keeping and processing of the data complies with data protection regulations and fair use of private or personal information.
It is possible that when AR truly becomes an everyday occurrence for consumers, there may be a need for AR developers to include some form of recognition technology, or means by which copyright owners can object, which would prevent the unlawful copying of copyright works, for example by blocking copying or communication of the works.

Richard Pinckney

Author