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Intellectual Property in the Context of Today’s Virtual World

by Bruno Lopes Holfinger

March 01, 2008

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According to projections presented at the most recent ItechLaw, held in India in February of 2008, man will be totally immersed in a virtual environment by the beginning of the third decade of the 21st century. And he will probably be living a virtual existence altogether between 2040 and 2050, as assertion of Raymond Kurzweil, the man that Bill Gates considers the ultimate authority on virtual reality and artificial intelligence. However, these futuristic transformations, already in the embryonic stages, may arrive sooner than expected.

Today, Brazil’s ranking in terms of participation in social blogs like Orkut and MySpace is among the world’s most active, second only to the United States. Moreover, it is responsible for around 10 % of the users of 3D virtual communities, like Second Life and Kaneva. In these, the users, or "residents," have social, economic and cultural networks and may interact in 3D, create avatars and build homes and businesses in completely virtual environments. In 2007, Brazil became the first country to have its own independently run portal to Second Life, whose open source platform was developed by Linden Research, Inc.

Although they are classified as games, these virtual world simulators are not exactly that: they include commercial, social and government activities, which raise legal issues concerning conduct and jurisdiction, for example, in which courts are disputes that arise in the virtual world to be settled? Just like two and three-dimensional forms and sounds and images, everything in the virtual world is subject to protection as intellectual property. As the textures, geographies, avatars, constructions and objects are created and exported to the virtual platform, using software tools made available by Internet Service Providers (ISPs), violation of patents, industrial designs, trademarks and copyrights has become commonplace in the virtual world.

The question is whether the real-world owner of a content patent (for an object or software invention) has intellectual property rights for the same objects in the virtual world, thereby enjoying all the benefits and exclusive rights that this protection affords him in the real world, and vice-versa.

There is an interesting twist in relation to patents: Imagine that someone sees something new in the virtual world and decides to patent it in the real world; what could he actually patent from the virtual world? A strict interpretation of Brazilian legislature says nothing, considering the fact that material contained in these platforms consists of codes and algorithms. However, the object of this algorithm may be patented, provided that patentability requirements are met. Additionally, concerning software patents, an inventor that developed a certain algorithm for an object to be exported to the virtual world has, often unknowingly, violated patents both for methods for executing the steps that produce a new technical effect (real world violation) and for exploiting an object protected by a patent or an industrial design in a 3D environment simulator (virtual world violation).

The interesting thing is that patent violations are treated differently in the real and virtual worlds. For example, Second Life’s terms of use state that content creators using the ISP service clearly have rights to patent protection for that object in the real world. However, a disclaimer says that by accepting the platform’s terms of use, this same patent owner grants the ISP and all other users non-exclusive, non-remunerated, irrevocable royalty-free license to exploit the object created within the service, that is to say, in the virtual world. The qualifying phrase "within the service" therefore does not exclude real world violation.

In summary, we don’t yet know just where the virtual world will lead, but we can affirm that virtual environments are now reality. As such, this paradigm will continue to develop and become increasingly more accessible, realistic and indistinguishable from the real world, including its intellectual property issues.

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Bruno Lopes Holfinger

Advogado, Agente da Propriedade Industrial , Engenheiro de Telecomunicações

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