Law Lessons: Real World Legal Issues In An Augmented Gaming World

Augmented Reality (AR) uses technology to overlay real world, physical environments with virtual components.  Initially dismissed as ‘gimmicky’, AR technology is quickly gaining mass appeal.

Due to the success of AR technologies and applications such as Pokémon Go, the AR market is set to become a $150 billion (£120bn) industry by 2020. However, as with all new technology, there are both incredible business opportunities and potential legal risks. Let us consider AR in gaming.

The legal grey areas

While what is happening on screen may not be an honest reflection of what is happening in reality, the setting of an AR game could be entirely real.

For this reason, AR applications need to know the location of their players. But how much data can these games legally collect from users?

For example, the Pokémon Go app initially requested full access to its players’ Google accounts. This meant that the company could access the contents of players’ Gmail, Google Docs, Google Drive, and Google Calendar accounts.

In addition to having access to a player’s camera and GPS data, which raises significant questions about user privacy, if a simple gaming app can present such serious security issues, more advanced AR applications could prove even more concerning. It will be particularly difficult to address these security issues in markets such as the financial services sector or healthcare, where AR has huge potential.

You shall not trespass

AR games often use public areas and spaces as gameplay locations.  If a player were to screenshot – and save to their phone – themselves playing the game, users could be unlawfully reproducing surrounding works of architecture. Is this allowed?

In the United States there is a Freedom of Panorama exception to copyright law. This means that most buildings or sculptures located in public spaces can be freely photographed or videoed.

However, Freedom of Panorama is not universal. For example, taking a photograph in front of Mimmo Paladino’s ‘Untitled’ horse sculpture in Italy would be infringing copyright as Italy has no Freedom of Panorama exception. Players are also unlikely to keep photos to themselves and there is further potential for infringement with image sharing on social media sites.

The criminal issues

In addition to the threat of IP infringement, there are concerns around AR facilitating criminal activity.  When an individual immersed in an AR game steps foot on another person’s land, they are trespassing; but is the player liable for prosecution?

There is an argument that AR designers should be jointly liable for any trespass (and resulting damage) as it was the AR ‘experience’ that led users to the private property.  This consideration suggests AR game developers need to focus on locating in-game content on public land. Although this too could raise questions of responsibility for player behaviour if a public space is littered with rubbish or a public mural is vandalised.

Who owns the IP?

IP is also a legal grey area. In an AR game, is significant use of third-party trademarks permissible? What are the implications of using protected artworks or copyrights in the game?

AR games are new to the legal landscape and it could take years before courts develop a standardised response to any of these legal issues. However, particular care should be taken in respect to trademarks, including logos, being used in AR views. Improper attempts to capitalise on these trademarks – by product placement or advertising – could result in significant liability.

The future of IP

Innovation in 2016 was been dominated by AR, with 87 patents applications filed in the US in July alone. For AR architects there is an opportunity to introduce complex technologies into consumer products.

However, standards have not yet been set as to how AR should be policed and whether technology can be liable for human action.  What is certain is that AR will demand more attention from policy makers, courts and regulators in the future.

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