the Metaverse> ▪ Does reproducing real-world objects in the metaverse infringe intellectual property rights? (Copyright, trademark, design right …) ▪ Is anything created in the metaverse protected by intellectual property rights? (Copyright, trademark, design right …) ▪ “MetaBirkins” NFTs Case
objects in the metaverse> ▪ Reproduction of the townscape: “Virtual Stockholm” ▪ Reproduction of brand items such as IKEA furniture, Nike shoes and Birkin hand bags ▪ Copyrightable? (Copyrightability of practical goods) ▪ Copyright protection exemption? ▪ Trademark classification? ▪ Protection under the Unfair Competition Prevention Act
protection of virtual 3D objects created in the metaverse> ▪ Copyrightable? Reproduction of the townscape: “Virtual Stockholm” ▪ Reproduction of brand items such as IKEA furniture, Nike shoes and Birkin hand bags ▪ Copyrightable? ▪ Trademark registration?
▪ Under the name MetaBirkins, Rothschild’s company exhibited 100 different handbags with a fur-covered “ and silhouette reminiscent of the Birkin, Hermès' signature handbag in the real world. ▪ On 14 January 2022, Hermes filed a lawsuit in the State of New York, seeking an injunction and damages for the sale of these handbags on the basis that the exhibition and sale of these handbags infringed the company's Birkin trademark rights in respect of the word trademark "BIRKIN" and the three- dimensional design (trade dress).
▪ In response, Rothschild moved to dismiss the action. On that basis, it argued that Metabirkins was virtual art, asserting a defence of Fair Use under the First Amendment to the US Constitution, and that it could be compared to Andy Warhol's painting of a Campbell's Soup can. ▪ In June 2023, Jury found NFT art of Hermes bags violated trademark rights and Judge said the permanent injunction was justified because Rothschild's continued marketing of the NFTs would likely confuse consumers and irreparably harm Hermes.
The Ministry of Internal Affairs and Communication released the report focusing on legal issues related to avatar, establishing a digital twin world, data acquisition, interoperability of metaverse services, and UX & UI. ▪ Digital twin world: intellectual property issues, privacy issues, misuse of 3D data, e.g. investigation of crime escape routes, and handling of qualifications and other matters relating to acts in virtual space.
2023: The Cabinet Office of Japan released the report focusing on legal issues related to contents in the metaverse. ▪ The topics include intellectual property, avatar’s portrait rights, avatar’s performance rights, and attack against avatar, troubles among avatars and jurisdiction issues.
Prevention Act> ▪ May 2023: Mimicry of a product violates the Unfair Competition Prevention Act. However, it is not clear whether mimicry in the metaverse is subject to the regulations. ▪ The government amended the Act to cover mimicry in the metaverse May 2023.
learning paradise ? - Japan> ▪ A 2018 amendment to Japanese copyright law stipulates that copyright is limited as a source for AI to learn from, meaning it can be used freely without the permission of the rights holder. ▪ Copyright holder organisations believe that this provision, which restricts their rights, is a threat to them after the emergence of generative AI. ▪ Copyright holder organisations are calling on the Japanese government to amend the Copyright Act to limit the extent to which rights are restricted.
legally protected?＞ ▪ Relationship between the inside person and the avatar ▪ Invasion of privacy of the avatar ▪ Defamation of the avatar ▪ Impersonation of the avatar ▪ Unauthorised use of the avatar's 'likeness’ ▪ Unauthorised taking photo of the avatar's 'likeness'.
inside person and the avatar＞ ▪ Typology of correspondence between the person (inside) and the avatar: ▪ One person wears one avatar (single, continuous) ▪ One person wears several avatars simultaneously ▪ Multiple persons wear one avatar (simultaneous, alternating)Revealing real information about the "inside man“. ,,c
of the avatar＞ ▪ Revealing real information about the "inside man“. ▪ Does collecting information regoards the avatar itself constitute an invasion of privacy?
extensive range of TMT matters, including telecom regulations, computers, software development, e-commerce, platform service, domain name disputes, and digital forensics. His experience also includes legal advice in several fields of intellectual property and licensing, including traditional copyright, digital copyright, trademark, open source, cross-border licensing and biochemicals. He has also assisted many start-up clients with general corporate advice. E-mail: [email protected] Tel: 81-3-6775-1086 Education The University of Tokyo (LL.B., 1998) Graduate study, Columbia University School of Law (LL.M., 2008) Associated with Arnold & Porter LLP, September 2008 - June 2009 Professional and Academic Associations Chair, Disputes and Rights Sub-Committee Member, Task force on Drafting New AI Guidelines, for the Ministry of Economy, Trade and Industry (METI), Government of Japan Member, Public-Private Partnership Council on Addressing New Legal Issues Concerning Content in the Metaverse, Cabinet Office, Government of Japan Member, Expert Study Committee on the Rules of AI Governance and Management of the Study, for the Ministry of Economy, Trade and Industry (METI), Government of Japan Member, Working Group on the Creation of a Safe and Secure Environment for the Use of Smartphones in the Smartphone Era, for the Ministry of Internal Affairs and Communications, Government of Japan Member, Working Group on Omotenashi Platform to Promote Consumption by Foreign Tourists, for METI, Government of Japan Member, Working Group to Promote the Dissemination of IoT (Internet of Things) Data, for METI, Government of Japan Co-founder, IAPP (International Association of Privacy Professionals) Knowledge Net Tokyo Editor, International Association for the Protection of Intellectual Property of Japan Takashi Nakazaki Special Counsel Thank you for your attention!
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