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Legal Aspects of Augmented Reality Development

Submitted by on Tuesday, 7 September 20103 Comments

AP: What if a developer thinks “Yeah, but, the chances of me being caught are low, right?  And even if anyone does have objections they’ll only go after big companies who can afford to pay.”

Sean Kane:  Not necessarily, part of any serious intellectual property protection scheme is to monitor any and all potential infringements.  This can be done by the IP owner itself, its attorneys or contracted-out to third parties.  Given the sophisticated technology currently available, monitoring is not a difficult endeavour.  Moreover, IP holders sometimes have little latitude to ignore one infringement, and prosecute another.  An IP owner’s failure to take certain action can result in a loss of the right to seek relief against a future (and potentially larger) infringer.  This is a major component of good IP portfolio management.

Additionally, start-ups should be aware that companies may specifically target smaller developers for infringement claims, believing that they lack sufficient litigation budgets, as a means to quickly obtain favourable decisions which can potentially also be used against larger infringers.

Outside of IP, your question is also typical of the mindset developers everywhere often have toward regulatory issues their applications touch.  Regulatory counselling is a burgeoning area of our practice, because different governments are responding to the rise of virtual currencies, for example, in different ways.  Advance knowledge and compliance when it comes to these regulations is critical for both developers, and those who may acquire and integrate their technology later on.

AP: When I use my car’s GPS the first thing that comes up when the application loads is a disclaimer telling me not to use the application while driving.  If I am using the latest augmented reality mobile application while walking and have an accident, is there any potential liability for the developer?

Sean Kane:  As with anything today, there is always the potential that someone will bring an action for damages.  You can see warning labels on almost every consumer product available, some advising against quite ridiculous and unexpected uses of the product.  Many of these labels are meant to prevent product liability lawsuits.  Given that there are attorneys making their careers suing companies over damages allegedly resulting from product’s design flaws, potential liability goes with the territory of every product.

Developers would do well to ask “What is the likelihood of some damage or injury resulting from the use of my application?”  If the application cannot be feasibly redesigned to avoid potential damage, use of a disclaimer should be considered.

AP: Does augmented reality pose a greater liability over other mobile applications?  For example, I don’t need to be told not to e-mail while walking – so why would an augmented reality application be any different?  Or, does highly immersive AR, for example, provoke new questions?

Sean Kane:  It really depends on the nature of the augmented reality application.  If the application’s purpose is for it to be used while a person is moving around a city full of traffic and other hazards, then a developer may take on a higher degree of responsibility compared to an application meant to be used stationary at one’s home.

The inherent danger of the application’s use will vary by its purpose and design, and users do not always apply good judgment.  Driving and texting, for example, is seen as a growing road hazard despite a host of awareness campaigns and new laws.  Developers should always consider what alternative uses a person might put their application through that differs from its intended use.

AP: “Ambush marketing” made headlines around the recent World Cup games.  Several young ladies were thrown out of a game for advertising Bavaria beer.  A developer later created an augmented reality layer that put the ladies back in the stadium.  The layer disappeared very quickly, so one can only assume that FIFA and all its might demanded it be removed.  Who therefore owns the cyberspace around public venues and how is it realistically possible to enforce it?

Sean Kane:  This would really depend on the jurisdiction where the use occurred, as IP protections can differ greatly.  Since the augmented reality use you describe is built upon an image of the stadium, you initially must identify who holds the copyright in the stadium image used.  It may be FIFA or it may belong to a third party that shot the footage.  In the United States, for example, buildings themselves were not traditionally afforded copyright protections.  However, approximately 20 years ago the Copyright Act was amended to allow for protection of certain aspects of buildings under some circumstances.

Other building designs or elements have been filed as trademarks and protection may flow from such registration.  Just because an owner allows for the public to enter a facility does not mean that there is no protection available for the building.

With sporting venues, it may also come to a contractual issue.  In the U.S., for example, the fine print on some admission tickets essentially gives bearers a “license,” in effect, to attend and do certain things, but not others.  Technologies like AR could prompt changes in these ticket terms, because while teams and venues may not object to spectators taking still photographs, for example, that might not be the case with “broadcasting” real-time game shots via their mobiles, or otherwise incorporating the event into a product or service.

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