By Adeoye Moronkola

ABSTRACT

The versatility of technology and scientific methodology is evident in the implementation and utilization of technological application in various spheres of human endeavors with the legal profession being no exception. In the bid to optimally exploit the transformative capacity of modern technology, companies such as Google, Microsoft and Meta ( formerly known as Facebook) have taken to the development of a virtually-enabled three dimensional society known as the “Metaverse”.

The quickened acceleration of E-commerce which gave rise to various forms of decentralized and blockchain technology is unprecedented and fast becoming the conventional mode of facilitating commercial intercourse and executing financial transactions. Commendably, the use of blockchain technology as, in recent times, transcended beyond financial usance as it spreads its fluttering wings to accommodate the authentication of ownership rights of various artworks and other forms of intellectual properties. The susceptibility of art and creative works to counterfeiting and unauthorized duplication necessitated the tokenization of certificates of ownership quoted on an irrefutable public ledger powered by blockchain technology.

As a qualitative analysis, this paper elegantly articulates the systematic evolution of the promising virtual society and the socio-economic benefits which is expected to accompany the full integration of virtual reality in our immediate society. This paper seeks to illuminate and assess the possible inclusion of this ground-breaking technology in the legal space and its prospective contribution to jurisprudential evolution as it pertains to intellectual property and ownership rights. The available opportunities and the respective challenges militating against the participation of Intellectual property lawyers in this digital economy is the central focus and the primary purpose of this exposition.

INTRODUCTION

Etymologically, the word “Metaverse” can be broken into two words; Meta which is a Greek prefix meaning ”beyond”, and Verse, meaning “ the universe”. The word “ Metaverse” can thus be interpreted to mean beyond the universe. The Metaverse is a virtually immersive simulation of reality which utilizes Artificial intelligence (AI), Virtual Reality (VR), and Augmented Reality (AR) technology and devices, such as; AR glasses, VR headset and haptics to help create a three-dimensional experience of social interaction. While the concept of virtual reality seems unrelated to the legal profession, it is worthy to note that this concept received implied judicial recognition in E.S.S. Entertainment 200, Inc. v. Rock Star, Videos Inc. where the United States Court of Appeal held that the defendant’s inclusion of a logo similar to that of the plaintiff’s strip club in its Grand theft Auto Video Game did not constitute an infringement of the plaintiff’s trademark. Since the defendant did not use the exact logo or any architectural feature peculiar to the strip club, the inclusion of the logo in its game was merely to improve the verisimilitude and the immersive experience of players. The court also declared that being an artistic design, it had artistic relevance and was thus an exercise of free speech provided for in the first amendment. A federal district court in New York applied the same principle in AM

General v. Activision Blizzard when it decided that the inclusion of the Humvee (a military

truck produced by the plaintiff) in the defendant’s call of duty game was not an infringement on the plaintiff’s trademark but a mere depiction of reality and an artistic work also protected under the first amendment. While notions of the Metaverse emerged from the game industry, the existence of a virtual universe is being made possible as giant Tech corporations invest heavily in this futuristic space.

With interoperability being a major feature of the Metaverse, several companies such as Sandbox, Decentraland, NVIDIA and Fortnite have commenced the development of their respective Metaverse user-interface. Commercial activities in the Metaverse gained popularity after a virtual land opposite Snoop dogg’s estate in Sandbox sold for $450k in Etherium. The Sandbox is an upcoming virtual reality game which allows participants to monetize their plots of land either by sales or by lease in form of NFT assets.

Non Fungible Tokens (NFTs) on the other hand are speculative cryptographic assets quoted on a public ledger (blockchain) with distinguishing metadata and identification codes which can be sold and traded. NFTs are digital representations of collectibles and non collectibles such as paintings , music, sport cards , concert tickets, real estate, etc. Digital collectibles gained popularity after Sina Estavi made the headlines by purchasing the NFT version of the first ever tweet made by Jack Dorsey for $2.9million. Contrary to public expectation, an NFT file only contains the certificate of ownership, metadata, fingerprints and smart contract (if any) associated with the underlying asset. The sale of an NFT does not pass the copyright of the underlying asset to the buyer. Thus, a buyer can only sell the NFT but cannot reproduce,

replicate, adapt or perform the artwork as the seller (except as otherwise stated) retains the authorship rights even after a purchase has been made.

As NFT allow for self-sovereign identification (SSID), it is only reasonable that NFTs would be the major form of digital identification and ownership authentication in the Metaverse.

It is expected that the conduct of commercial transaction would consequently give rise to legal relation as brands and business owners who wish to extend their business activities into the Metaverse would require the services of IP lawyers to protect their intellectual properties, prevent infringement, facilitate enforcement of intellectual property rights and protect them against unfair competition. The indispensability of IP lawyers in the development of the Metaverse is undebatable and their services are quintessential to the maintenance of order and tranquility in the Metaverse.

PROSPECTS FOR IP LAWYERS IN THE DIGITALIZED WORLD

A publication made by Statista in February 2021 fixes the valuation of the metaverse and NFT at US$117billion and US$40billion respectively. In a bid to exploit this virtual economy whilst setting the pace for law firms around the world, Grungo Colarulo, a personal injury practice in

New Jersey announced its presence in Decentraland in December, 2021. According to Richard Grungo (the managing partner), this decision is primarily aimed at strengthening its global competitive advantage against other law firms. There are endless opportunities for IP lawyers in the digital economy most of which are yet unknown, and some of which would be discussed in subsequent paragraphs.

The digital economy which is an embodiment of exclusive latent possibilities is capable of creating numerous job opportunities for IP lawyers in the society. With the development of mixed-reality, new stratas of human endeavor are gradually being unveiled. The gradual pervasion of technology and digital capitalism has necessitated the drafting and enforcement of software licence, confidential information, assignment and franchise agreements. IP lawyers are required to ensure that software users do not misappropriate the usage and application of these software. With the engendering of innovative technologies, there is an increase in demand for patent-analyst who are required to evaluate the products’ usage(s) and specifications while ensuring its compliance with statutory regulations. A rise in digital capitalism would be characterized by an increase in IP litigation, trademark registration, patent auditing and valuation.

The adoption of innovative technologies in the legal profession will further encourage remote legal practice around the world. With the adaptation of interfacing technologies such as the Metaverse, IP lawyers would be able to conveniently render virtual legal services across significant distances which eases client accessibility. With the application of augmented reality, the conduct of virtual hearing, depositions and negotiation would undoubtedly be the new practice in the legal profession . The Metaverse would also strengthen attorney-client privilege with increased anonymity as clients can adorn themselves with avatars having no semblance to their physical forms and characteristics. Clients who seek counsel and redress on sensitive issues like domestic violence, work-place harassment and discrimination, can anonymously consult law firms in the Metaverse before revealing their identities or deciding to commit to such relationships.

Furthermore, an increased application of Artificial Intelligence would facilitate the digital drafting, maintenance and conclusion of copyright and licensing agreements. AI based contract management software would assist the automation and standardization of IP licensing agreements while conducting proper risk assessment of the terms and warranties specified therein. Also, royalties can now be fixed and enforced digitally as NFTs can be encoded in smart contracts which automates the payment of royalties.

NFT also serves as a more reliable means of storing, authenticating and verifying legal documents. IP lawyers can utilize NFT platforms such as OpenSea, Rarible and MythMarket in minting NFTs out of legal documents. The tokenization of deeds, wills, assignments and other legal documents would help protect them against forgery, unauthorized duplication and alterations. The authenticity associated with NFTs would also help reduce the transference of defective titles of both tangible and intellectual properties.

CHALLENGES MILITATING AGAINST IP LAWYERS IN THE DIGITALIZED

WORLD

The major challenge which impedes the legal exploitation of the digital world is the lack of digital skills which are necessary to expedite the optimization of digital resources. This lack of technical know-how can be attributed to the sluggish adoption of technological innovations in the legal profession. It’s quite disheartening that most lawyers especially those in third world countries, are not conversant with software and applications such as squeal tools which facilitates the tracking and detection of IP infringement in the cyberspace. This makes discussions on the full exploitation of the digital world by IP lawyers sound more fictitious than realistic.

In addition, the rampage of cybercrimes and data breaches also discourages the usage and optimization of digital platforms in the legal industry. IBM in 2013 observed that the daily data generation is fixed at 2.5 exabyte which is equivalent to 1 billion gigabyte. The rate of data collection is believed to have risen significantly since 2013. With the development of the Metaverse and NFTs, data collection would rise exponentially as virtual reality technologies such as VR headsets and haptics would increase the generation and collection of user data, such as; facial expressions, physical and emotional reactions, biometric data, preferences and even brainwaves. The collection, maintenance and protection of these large volume of data and their security against data breaches is indeed a big challenge for IP lawyers who wish to explore the digital world. Unfortunately, most law firms do not have the required technical infrastructures to house and protect these data subjects. The protection of data is undeniably a great responsibility as data breaches may cause reputational and financial damage which may endanger clients’ confidence and create unprecedented legal complication.

The difficulty in detecting, tracking and enforcing IP infringement in the cyberspace begs the question of practicality, feasibility and applicability of IP laws in the digital world. As seen in Nike v. Stockx LLC, a case pending before the Federal High Court of New York, the incomprehensiveness and the lack of a clear-cut distinction between IP infringements and fair use in the digital space also limits the enforcement of various intellectual property rights in the digital space.

In addendum to the forgoing, various regional legislation and practices can also hinder the full exploitation and optimization of the digital world by IP lawyers. The current CBN ban of cryptocurrency in Nigeria has stiffened digital-jurisprudential evolution as most digital activities are highly reliant on blockchain technology and decentralized financing. This ban has made inaccessible the exclusive legal possibilities which are associated with blockchain technology and cryptocurrencies.

CONCLUSION

With increased commercialization and socialization in the digital world, the need to protect intellectual properties and creative works from unfair competition and possible infringement is necessary to maintain the eminence and integrity of the Legal profession. While the possibilities of the digital world are intriguing and emotionally stimulating, the requirement of legal considerations such as effective legislations and judicial pronouncements cannot be overaccentuated as the law is saddled with the responsibility of expediting the regulation and enforcement of intellectual property rights of individuals. Intellectual property lawyers are indeed the custodians of orderliness and reposefulness in the digital society.