NICHOLAS J. DASIOS, ESQ.
BARRISTER AND SOLICITOR
· NOTARY PUBLIC
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This material is not intended to provide legal advice. Readers should not act upon information contained in this material without obtaining professional legal advice. This material may be considered advertising under the Rules of Professional Conduct of the Law Society of Upper Canada. VIRTUAL ENVIRONMENTS: PROTECTING VIRTUAL WORKS UNDER COPYRIGHT
ã 1995, Nicholas J. Dasios 1(June 1995) 9 I.P.J. 105-126 Copyright law has witnessed the birth and development of many new forms of expression over the course of its brief history. Virtual reality is a technology that provides artists, musicians, writers, business people and scientists with a medium of expression unlike anything the world has ever known. For the first time in history, human beings can shape and experience viable, dynamic and interactive environments unencumbered by the physical limitations of their existence. The paper examines the subject matter amenability of virtual works to copyright protection. After a brief look at the technology and some of its current applications, the author considers whether virtual works are the proper subject matter of copyright. Issues surrounding originality, fixation and characterization are considered with respect to the unique features of virtual works. The author concludes that while today’s virtual works can overcome current copyright hurdles with minor improvements to the legislation, copyright is by no means the definitive solution to their continued protection. As the technology develops and matures, a suis generis approach to the protection of virtual works might become more appropriate and necessary.
TABLE OF CONTENTS
This material is not intended to provide legal advice. Readers should not act upon information contained in this material without obtaining professional legal advice. This material may be considered advertising under the Rules of Professional Conduct of the Law Society of Upper Canada.
We are standing on the threshold of the next major computer-inspired revolution. A revolution as epic as the development of writing as a means of communicating ideas and of "expressing" reality. Philosophers, artists, writers, musicians and scientists have, from time immemorial, attempted to represent both our own physical "reality" and alternatives to it in their theorems, paintings, stories, songs and models. Virtual reality ("VR") applications3 will provide the engine that drives humanity's newest and most comprehensive attempt at "bringing forth...realities".
Revolutions tend to spawn new laws and new approaches to the law. The computer revolution is no exception. With the dawn of a digital age have come a host of challenges to traditional legal concepts and doctrines. Intellectual property law has traditionally been slow to adapt to such challenges. As a result, courts have often had to "stretch" existing protection regimes to cover the new and emerging forms of intellectual property based on computer technology. This stretch has often resulted in a muddying of the rationales underlying existing intellectual property law regimes.
Virtual environments4 ("VEs") pose significant problems for the existing intellectual property regimes in Canada, largely because of their many non-literal, interactive, multisensory-engaging and experience-producing features. Functionally, VEs comprise virtual user interfaces5 ("VUIs"), virtual works6, virtual objects and figures7, characters ("digidentities"8), scenes à faire, themes, plots, dialogue, sound, music, mood, setting, pace, and sequence. They raise some threshold questions: Do VEs and their components meet the criteria established for protectable subject matter under any current Canadian intellectual property law regime? If so, which regime is best suited to protecting them: copyright? patent? some combination of the two? some sui generis alternative?9 What about issues of authorship, ownership, and the scope of protection to be afforded to virtual environments, their components and their "inhabitants"?
This paper confines itself to examining whether virtual works within VEs are protectable subject-matter under Canada's existing copyright regime. Virtual works may be the VE components that most need copyright protection, but may also pose the greatest problems of accommodation under present law. This paper will not consider authorship, ownership and scope of protection questions raised by VEs and their components, although these issues will all prove to "stretch" our traditional conceptions of these notions and will pose vexing problems for existing copyright regimes. Nor will the paper discuss the protectability of virtual user interfaces, although VUIs are an essential element of all VEs and also pose some intriguing problems for copyright.10 Despite the extensions required, copyright seems the regime best suited to deal with the protection of the subject matter of virtual works in Canada, at least for the present.
A brief explanation of VR technology, its terms, and its applications is in order before we commence our legal analysis.
Virtual reality is the escapist's ultimate dream come true, but it is an escape built upon illusion. It is about computer graphics and retinal projections replacing Plato's "eye of the mind". It is about fooling oneself with sophisticated technology in order to believe one is in another reality, experiencing something that does not physically exist in the real world. It is about an infant technology, still finding its legs. What VR is not (and may never be) is a "Holodeck" à la Star Trek: The Next Generation.11 VR today is, however, a new way of interfacing and interacting with computers and the vast information they house, allowing one to represent ideas and concepts in ways not previously possible.
VR is based on a marriage of technologies that allows users to totally immerse themselves and to interact in a computer-generated three-dimensional virtual environment (sometimes referred to as "cyberspace").12 VR systems employ disparate technologies to facilitate user immersion into cyberspace. Three-dimensional stereoscopic goggles provide a view into cyberspace while special helmets containing fully three-dimensional sound systems convince the user's auditory sense of the validity of the virtual environment they are immeresed in. Magnetic positioning systems track the user while s/he moves around an empty room. Advanced graphic chips facilitate the creation and presentation of virtual worlds. Wired data gloves allow the user to reach out and interact with the VR environment. Fully-wired bodysuits facilitate greater interaction and more complete immersion into cyberspace. Treadmills are used in some VR systems to both track movement and gauge the speed at which the user is moving through cyberspace. Haptic and tactile sensors facilitate the user's sense of touch and feel in the virtual world. Finally, the central components of all VR-systems are high-powered computers that coordinate all the hardware and create, maintain and adapt the VE for the user through software.13
This technology represents a paradigm shift in human-computer interaction. For the first time in history, human beings can visualize, manipulate and interact with extremely complex data outside the physical limitations of their existence. For example, architects and their customers can walk through a VR model of a structure before anything is built, get a feel for its spaciousness, acoustics, evaluate natural and artificial lighting and make instantaneous changes - e.g., moving walls, windows or fireplaces - when something seems unsatisfactory.14 Another VE taking a person outside the realm of human experience is designed to simulate biochemical interactions of molecules. In manipulating virtual works that are three-dimensional models of various chemicals in an environment designed to simulate accurately the physical forces at work in our universe, scientists at the University of North Carolina are able to fit these molecules together, actually feeling resistance and attraction through their data gloves, to form completely new chemical compounds.15
Currently, VEs exist in the fields of architecture and design, entertainment, health and medicine, education, the sciences, and information control.16 Since virtual reality systems can control and manipulate the full complement of human visual, auditory and even kinesthetic sensations, almost any environment a developer can dream up can be simulated and populated by "works" till now unknown. The question is: can copyright law accommodate them?
Copyright law in Canada has come a long way since 1710 and Queen Anne's "Act for the Encouragement of Learning by Vesting Copies of Printed Books in the Authors". The Copyright Act, especially after the NAFTA,17 puts Canadian copyright law in a better position to deal with the protection of new "works" such as computer programs,18 multimedia applications,19 and even some primitive forms of VEs and virtual works.
However, even after the NAFTA, Canada's copyright law remains ill-equipped to deal with what the more sophisticated virtual works within VEs have to offer, particularly their non-literal, interactive, multisensory- engaging and experience-producing features. For example, in describing virtual works of art, Ken Pimental observes:
In the world's first VR museum exhibit at the Computer Museum in Boston, people can choose to "author" various types of virtual works, e.g., architectural structures, drawings, music, and musical sculptures. A designer of the exhibit, Patrice Gelband, explains how it works:
The copyright statute certainly does not provide for anything like this. As well, while literal elements of computer software have been protected as literary works, non-literal elements such as screen displays have not been dealt with specifically in the statute or Canadian caselaw22, whereas in the U.S. both the Copyright Office23 and courts have held screen displays to be separately protectable as audiovisual works.24 It has been suggested25 that virtual works could be protected as either audiovisual works or as motion pictures26 under U.S. copyright law. Canada currently has no "audiovisual works" or "motion picture" category in its copyright statute, although there is a "cinematograph" category that may serve to protect virtual works.27 The next section considers the issues surrounding the subject matter amenability of virtual works to copyright protection in Canada.
B. Are virtual works the proper subject matter of copyright?
The drafters of the U.K.'s and Canada's original and later copyright acts obviously never dreamed of protecting the non-literal, interactive, multisensory-engaging and experience-producing aspects of VEs like virtual works. Virtual works may nonetheless be protected under current Canadian copyright law if some hurdles are successfully overcome.
Subsection 5(1) of the Act lists the conditions that must be met for copyright to subsist in a work:
A virtual work must be original. Originality has come to mean that (a) the work must be the product of a minimal amount of skill, labour or talent, (b) the work's quality, value or purpose is generally not relevant, (c) the work need not be part of the fine arts, and (d) the medium of fixation is not usually relevant,28 although in the case of virtual works, this last issue is of paramount concern, as we shall see.
Most "original" virtual works undoubtedly require the use of enough skill, labour and talent to meet the low standards of the Canadian Act, under which even finger painting seems protectable. This would seem to imply that even virtual works primarily created from a storehouse of public domain objects, figures, and animations could qualify as original because of their new arrangement and presentation.
The "fixation" requirement is more problematic. Under section 2 of the Act:
The expression "whatever may be the form of its expression" has been interpreted to mean the work must be fixed in some concrete form, be capable of identification and have a more or less permanent endurance.29 Virtual works, by their very nature, while initially fixed in a concrete form (their source or object code form), do not remain that way once they are transferred into a computer's random access memory (RAM). At that point, the appearance of the virtual work at any given time is governed by three factors: (1) what the virtual work's creator initially set it up to look, sound and act like (2) the effect of the user's interaction with the work, and (3) the effect of any random elements implemented by the virtual work's creator. The virtual work is thus dynamic, and its appearance only as permanent as the variables controlling it remain constant.
The policy requiring fixation is based on the idea that copyright can only protect what is ascertainable. There may however be works that, despite a lack of fixation, warrant protection, as in spontaneous improvisation in music, drama, speeches or performance.30 Fixation should arguably play more of an evidentiary than a substantive role.31 This would allow the creative process to be protected because of its creativity and not merely because its result ended up fitting into some pre-ordained statutory form.32
Unfortunately for creators of virtual works, there have been few legislative or judicial indications that fixation requirements will be relaxed in Canada in the near future.
In the U.S., the copyrightability of computer games as audiovisual works was initially questioned on the basis that the display was not original to the author of the game, nor fixed, since the sequence displayed on the screen during the playing of the game was partly determined by the actions of the player. But these arguments have long since been rejected on the basis that there is enough originality and fixation in the choice of the appearance and sounds of the images and noises to be manipulated during play.33
In Canada, on the other hand, transitory images on television screens were held not to be amenable to copyright protection on their own,34 but amendments to the Act made in 1988 allow live telecasts to be protected if the telecast is simultaneously taped.35
The literal elements— the source and object codes— of virtual works would have copyright protection through fixation in a tangible medium. According to a recent U.S. task force on intellectual property rights:
It is still a live question in Canada whether works stored only in a computer's RAM, like some non-literal aspects of virtual works, will meet the Act's fixation requirement. In MAI Systems Corp. v. Peak Computer, Inc.,37 a U.S. court found that a copy of software created or fixed in RAM can be "perceived, reproduced or otherwise communicated" and so held that the loading of software into RAM creates a copy under the U.S. Copyright Act. The question was whether the software in RAM was "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration."
Taking their cue from government inaction on this matter, Canadian courts might well deny protection of virtual works stored only in a computer's RAM because of their interactive, unpredictable and arguably transitory nature.38 To satisfy the fixation requirements of Canadian law, some sort of command in the software being used to create the virtual work may need to be available to simultaneously record the work and user interaction in a machine-readable form "of more than transitory duration".
Other virtual works may have an even tougher time meeting the subject-matter criteria because VEs and virtual art works, by their very nature, are interactive and may have random elements and an unpredictability of a sort that copyright has been loathe to protect.39 For example, in FWS Joint Sports Claimants v. Canada (Copyright Board),40 Linden J.A. for the Federal Court of Appeal refused to extend copyright protection to team sports events because of their "total unpredictability", despite the high degree of planning in their execution.41 Would this apply to virtual works where their randomness of responses and outcomes depends upon the actions of the participant in conjunction with both pre-programmed and "random" variables?
For example, a virtual work may first be encountered in the form of an apple tree, its leaves rustling quietly in a light morning breeze. A sign next to the tree reads "Water me". Beside the sign sits a large bucket of sparkling water. The user, never one to pay attention to signs, nonchalantly reaches up and plucks an apple, and suddenly, with a bellow of outrage, the tree transforms into an anthropomorphic character, glares down at the user, and begins advancing menacingly towards him/her. Ostensibly the tree is out to exact some sort of punishment for the user's "crime". The user is uninterested in remaining to find out. The user begins to run and is chased all over the virtual world, where s/he tries everything to get away from the leafy pursuer. S/he dives into a river, only to find the pursuer has transformed into a speedboat and is gaining on him/her. After changing into a bird, the user takes to the sky, but the relentless pursuer follows in the form of an airplane. Finally, inspiration seizes the user and s/he transforms into a dragon, whereupon s/he turns and vanquishes the tormentor in summary fashion. The flaming mass that was originally an apple tree falls to the earth where it will eventually burn itself out and leave a pile of ashes.
In this example, the virtual work can be experienced in many ways, all of which hinge on the user's interaction with it. If the user had not taken the apple but instead had obeyed the sign, the tree might have assumed its anthropomorphic persona and told the user of adventure and a fabulous treasure to be found at some remote location of the virtual world. Given the convergence of a few other random factors (e.g., the time of day the tree was encountered, whether the sun was shining, whether the user presented a certain gift, etc.), the tree might also have offered the user a lift to the treasure area. The key to this example is that, while the artist has planned what will happen if certain criteria are met, the virtual work is never static or under the author's control once it has been engaged by the user. It is the user's interactive decisions along with the creator's pre-programmed variables that shape how one will experience the virtual work.
Would Linden J.A. bet on the outcome of this kind of "contest" or encounter? Is his test for copyrightable subject-matter – copyrightability is determined by asking whether the result of an event can be bet on: no copyright if the event is wagerable – sensible? If an artist or programmer brings together two elements that will interact to produce a third element – and they know and intend this – why should it matter that they cannot predict exactly what the third element will look like or be able to predict every possible form of expression that will arise?
Beyond the unpredictability problem, copyright laws the world over would face a crisis if artificial intelligence (AI) is ever truly developed and added to virtual works. Even in today’s primitive stages of AI development, a computer can be programmed to learn from its mistakes and react differently the next time one squares off against it. Consider the problems copyright would encounter in dealing with a sophisticated form of AI that was added to the virtual tree example mentioned above. Imagine that the AI added to the virtual work enabled it to transform itself into heretofore unknown shapes, objects, creatures and beings on the fly via its own "imagination". Copyright problems in protecting this kind of "creation" would be insurmountable absent a complete recasting of the concept of copyright. Instead of protecting only a single, static, and passive form of expression, copyright might have to protect the creative process the artist used in creating the multi-natured, active, and interactive work. But a multi-natured, active and interactive work sounds as if it should fall under patent or patent-like protection as seen in fields like plant breeding, biotechnology and biochemistry.
Does a virtual work fit under one of the enumerated categories currently afforded copyright protection? How would one characterize a work like the malevolent, at times anthropomorphic, shape-shifting, but potentially friendly and helpful tree above, or a musical sculpture of constantly changing colours and shapes? Are they literary works, artistic works, dramatic works, musical works, or sound recordings?
Virtual works would seem to be an amalgamation of all of copyright's enumerated categories. Generally, virtual works are comprised of two or more of the following elements: text (literary works), computer programs (literary works under the Act), music (musical works), sounds (sound recordings) still images (arguably photographs and artistic works) and moving images and animations (arguably cinematographs). As previously mentioned, unlike the U.S. Copyright Act, Canada does not have an "audiovisual work" category of protection, which would apply to multi-disciplinary expressions like virtual works that include visual images and sounds. Instead, the Canadian Act currently offers two possible approaches to the subject matter characterization of virtual works.
The first method entails the characterization of virtual works as cinematographs and sound recordings. In the U.S., the Copyright Act protects both the visual and audio elements of a motion picture as a unified work, and clearly identifies what can constitute a "motion picture", namely:
This category holds some promise in characterizing virtual works and virtual environments under copyright in the United States where "audiovisual works" are expressly recognized and protected. "Audiovisual works", as previously mentioned, are defined as:
This definition is quite useful in the characterization of virtual works as it describes, rather precisely, the nature of virtual works and the means of their expression. The Lehman Report notes that the key to the subcategory "motion pictures" is the conveyance of the impression of motion, and that such an impression is not required to qualify as an audiovisual work.44 It has been suggested that the motion picture category is better suited to protecting the subject matter of most virtual works and environments, where their main feature is the conveyance of the impression of motion.45
The Canadian Copyright Act, on the other hand, protects "cinematographs", which produce visual images, separate and apart from any accompanying sound recordings,46 and is particularly vague about what can qualify for protection under this category. This rather odd practice of seperately protecting the visual and sound elements of cinematographs in Canada has a historical basis, of course. When cinematograph protection was first introduced into the Act, it was done to accommodate the silent films of the day. Subsequent amendments to the Act have not seen the inclusion of sound recordings as constituent elements of a cinematograph. As well, legislators in Canada have failed to delineate the essential characteristics of cinematographic works, as have their U.S. counterparts with respect to motion pictures.47 The modern definition of cinematograph was changed in Canada as a result of the NAFTA Implementation Act and this change has great bearing on the category’s applicability to virtual works. Section 2 now reads:
Under this definition, the characterization of works "expressed by" any process analogous to cinematography would seem to focus more on the result of the expression, and less on the technical means chosen to "produce" such works (which was the focus of the old definition). The question is, are virtual works expressed by a process analogous to cinematography?
The answer, at this point, is unclear. While the new definition of cinematograph will probably be broad enough to apply to works stored in or on video recordings, its usefulness in the characterization of virtual works is questionable while "cinematography" and processes analogous to it remain undefined as to their essential features and characteristics. In its brodest possible interpretation, the cinematograph category could conceivably protect the visual elements produced by virtual works. This might apply to situations where, for example, images produced by a user’s interaction with virtual works within a VE are recorded in an acceptable "medium of expression", and are viewed sequentially (as one views cinematographs and videotapes today). Would this "recording" in a digital medium be any different from works expressed on film or videotape? One would think not.48 As to whether the cinematograph category would be useful in characterizing virtual works in their "unrecorded" form, the answer would seem to be no. In essence, the central problem in characterizing a virtual work as a cinematograph is that cinematographs protect a sequence of expressed images, while unrecorded virtual works are works with potential expressions. The expression of a virtual work depends upon the nature of the work involved and the interaction of a user (or users). That is, some virtual works are highly interactive in nature and their expression, as a result, can be infinitely varied. This makes the use of the cinematograph category impractical in the protection of anything but virtual works as expressed in digital recordings. The United States’ "audiovisual works" category is clearly superior in this respect, in that it protects "a series of related images... intended to be shown by the use of machines" without any implied reference to pre-existing, recorded images.
The other method of characterizing virtual works may be found in sections 2 and 2.1 of the Act:
2. In this Act, ...
(b) a work resulting from the selection or arrangement of data;
While the compilation approach to characterizing virtual works makes some sense in light of the multitude of subject matter elements they incorporate, and allows for a virtual work's protection, characterizing virtual works on this basis leaves a lot to be desired. What makes up the most substantial part of a virtual work? Is it the work's literary, musical, artistic, or dramatic elements? Virtual works might exist where the decision on what amounts to a "substantial part" would be totally arbitrary. This problem could easily be overcome by enacting an "audiovisual works" category similar to the U.S. model. In addition, an "audiovisual works" category would put an end to judicial forays into subject matter "twilight zones" when dealing with other "categorically-challenged" works as seen in multimedia software products and works in the kinetic visual arts.
Subsection 2.1(2) may prove of great importance to VE and virtual work creators if the compilation route is pursued in the protection of virtual works, as it allows them to keep control of all their copyrightable subject-matter, even upon its incorporation into other works. Without the subsection, other VE and virtual work creators might be able to take portions of the new compilation and argue the taking was a fair dealing or the taking of an insubstantial part of the whole of the new compilation. Instead, the analysis would focus on whether the taking was fair from a specific category of subject matter alone, e.g., the music or artwork from which the taking occurred.
It is interesting to note that the U.S. Copyright Act also explicitly recognizes works of compilations. However, while the Lehman Report considered the relevancy of the compilations category to multimedia works, it was ultimately rejected in favour of the definition of "audiovisual works".49 The Lehman Report stated with respect to the problem of characterizing multimedia works under copyright (though this could apply equally to virtual works) that:
Ultimately, if subject matter characterization remains a requirement of copyright, in the case of virtual works and virtual environments embodying virtual works, it may be sensible to use an "audiovisual works" category to characterize individual VR works, and use the compilations category for VE’s which will usually be made up of many virtual works in addition to other copyrightable elements.
Virtual works pose significant subject-matter problems under current Canadian copyright law. In some cases, the solution might be as simple as enacting more specific categories of protection (e.g., an "audiovisual works" category) for works that are amalgams of traditional copyrightable works. In others, like artificially intelligent, interactive, multisensory-engaging and experience-producing works, the solutions may prove more vexing and ultimately may be insurmountable for copyright as presently understood. A sui generis approach might then seem the best solution. Rather than stretching copyright principles to the breaking point and allowing a further muddying of their underlying rationales, legislators should take this opportunity to provide the judiciary with more finely-crafted and precise tools to deal with these entirely new forms of subject matter. As the use of virtual reality technology and the production of virtual environments and works begins to grow, so too will issues surrounding their protectability, ownership, authorship and the scope of protection we are willing to grant to creators.
On that point, Vaver and Nabhan observe that:
Where we draw this line will determine the extent to which virtual reality, virtual environments and virtual works succeed as a new medium of expression in our society. It is hoped that Canadian legislators will recognize the tremendous potential of this still infant technology and begin defining its place in Canada's intellectual property regime.
ã 1995, Nicholas J. Dasios 1Glaholt & Associates (June 1995) 9 I.P.J. 105-126 This material is not intended to provide legal advice. Readers should not act upon information contained in this material without obtaining professional legal advice. This material may be considered advertising under the Rules of Professional Conduct of the Law Society of Upper Canada.
ENDNOTES of Glaholt & Associates, Toronto. The author wishes to thank professor David Vaver of Osgoode Hall Law School for his encouragement and suggestions. Plato, Symposium, sec.212, in B. Jowett, trans., The Dialogues of Plato (Oxford: The Clarendon Press, 1875), vol. 2, 62. Virtual reality (henceforth sometimes "VR") is the name given to a surrogate three-dimensional interactive environment created by computers within which human users are "immersed". This "virtual" environment (henceforth sometimes "VE") is often called "cyberspace" and involves the use of various devices linked to a computer and worn by the user to facilitate "immersion". The point is elaborated in the next section. A virtual environment, generally, is the complete computer-created sensory "world" in which users are immersed. The environment has been created from the ground up with whatever objects (buildings, trees, cars, etc.), attributes (gravity, plasticity of the walls, the number of suns and moons, etc.), features (music, sound, dialogue, etc.) and capabilities (the option to fly, to change your perspective, etc.) the VE designer wished to include. Virtual user interfaces are similar to regular software user interfaces, except they normally can communicate tactile, auditory, and visual feedback to the user, as well as receive and interpret it from the user, based on the user's, VE's, and virtual work's interaction. 6 Very generally, virtual works are compilations of potentially all the virtual elements available to VE creators. Virtual works "reside" within VEs and can be: (1) works that have been created for users to experience within virtual environments; or, (2) works created by the user while within a virtual environment. See Part III for a more detailed definition of virtual "art" works and for an example.Virtual objects and figures are the building blocks of virtual environments. Virtual objects are generally made up of a number of polygons and have a plethora of properties attached to them (ie. surface texture, colour, flight or movement path, plasticity etc.). Virtual figures are sets of virtual objects that have been attached to each other. Virtual objects and figures have three-dimensional "addresses" in which they "reside" or from which they begin whatever journey, movement or action designated by the VE's creator. This term is a contraction of "digital identity" and was invented to identify the digital representations of characters found within VEs. In some VEs, the user can assume a digidentity and experience the VEs plot and action as that character, with the character's physical and other special attributes and powers (as in "quest" VEs). The recent controversy in the U.S. regarding Vanna White's "appropriation of identity" bears directly on the issues surrounding the use of digidentities in VEs:
White v. Samsung Electronics America, Inc., 989 F.2d 1512 at 1517 (9th Cir. 1993), Kozinski J., dissenting. The concept of a sui generis approach to software protection is discussed in P. Samuelson, "Benson Revisited: The Case Against Patent Protection For Algorithms And Other Computer Related Inventions", (1990) 39 Emory L.J. 1025 at 1029. For a good treatment of VUIs from a U.S. copyright perspective, see Andrew H. Rosen, "Virtual Reality: Copyrightable Subject Matter and the Scope of Judicial Protection" (1992) 33 Jurimetrics Journal of Law, Science and Technology 35-65; Bradford P. Lyerla, "Copyrightability of Software User Interfaces: The Natural Law Versus the Social Utilitarian Approach" (1993) 10 The Computer Lawyer 21-24, discussing the policy justifications for wide vs. narrow protection of user interfaces in the U.S. For the uninitiated, "holodecks" (as seen in the hit television series Star Trek: The Next Generation) are advanced VR-systems in use in the 24th century. They feature, amongst other things, entire rooms devoted to the conjuring up, in real time, of fully three-dimensional, photo-realistic, and interactive environments complete with representations of tangible objects, people, fictitious characters, places, eras, etc. at the whim of the user of the holodeck facilities. This is accomplished through the use of a combination of technologies. Distant objects are holographic representations on the walls of the Holodeck. Nearby objects are holographic projections in space. Objects that require interaction are combinations of projected holograms and shaped forcebeams (for example, this technique is used when simulating steps or a wall). Static objects that need to be picked up are "physically replicated" onto the Holodeck (eg. food, paper, a snowball). Finally, animated objects are comprised of a partially stable form of matter (held in place by forcebeams operating at the molecular level) created by the "replicators" for use in the Holodeck. In addition, digidentities conjured up by the holodeck computer have artificial intelligence and often serve as protagonists in spontaneously created and dynamically responding virtual environments and adventures. In the television series, holodecks are used for recreational as well as scientific and educational purposes. For a more detailed discussion of the Holodeck’s features, uses and its technical inner-workings, check the Internet newsgroup rec.arts.startrek.tech (subject: Mini-FAQ: The Holodeck and Computers) or World Wide Web archive site http://www.ucalgary.ca/~jsbell/star_trek.html. For text versions of Holodeck FAQs, try the following FTP site, maintained by Joshua Bell: ftp.cc.umanitoba.ca:/startrek/minifaqs/.William Gibson coined this term to describe his vision of virtual environments and virtual reality in Neuromancer (New York: The Berkley Publishing Group, 1984) at page 51:
Ibid. at 190-194. Howard, Rheingold, Virtual Reality (New York, NY: Summit Books, 1991) at 26-27. The legal profession itself is a candidate for VR application development: see Regina A. Gore, "Reality or Virtual Reality? The Use of Interactive, Three-Dimensional Computer Simulations at Trial" (1993) 19 Rutgers Computer and Technology Law Journal 459-493. An Act to Implement the North American Free Trade Agreement, S.C. 1993, c. 44 (henceforth "NAFTA Implementation Act"). Sections 52-80 of the Act repeal, amend, or add to provisions of the Copyright Act, R.S.C. 1985, c. C-42, as am. by the Copyright Amendment Act, S.C. 1988, c. 15 (henceforth "C.A.A.") and the Canada-US Free Trade Agreement Implementation Act, S.C. 1988, c. 65 (henceforth "F.T.A. Act"). Computer programs are currently protected as literary works under the Copyright Act. Under s. 2,computer program "means a set of instructions or statements, expressed, fixed, embodied or stored in any manner, that is to be used directly or indirectly in a computer in order to bring about a specific result." Non-literal components of computer programs such as screen displays and user interfaces are neither mentioned nor provided for. These components are central to the viability of VEs. Note, however, that patents have been discussed as a possible avenue of protection for the sequence of functional steps embodied in computer programs and such non-literal elements as their screen displays and user interface: Timothy J.Sinnott, "Patent versus copyright protection for computer software" (1992) 9 Canadian Computer Law Reporter 33-42 and Robert H. Wilkes, "Patenting software in Canada" (1992) 9 Canadian Computer Law Reporter 25-33. At its most basic, "multimedia" is a term describing the marriage of existing media forms such as video, photography, animation, music, sound and text into a completely new medium of expression. A commercial example would be an encyclopedia on CD-ROM, such as Microsoft's Encarta, which contains 21,000 articles and drawings, plus video clips, animations, readings by poets, and examples of 46 languages. Users are encouraged to interact through hypermedia links, which allow one to "jump" around the encyclopedia's contents pursuing thematic strands. Sandra Morris describes the difference between multimedia and virtual reality in K. Pimental, Virtual Reality: Through the new looking glass (New York: Windcrest/McGraw-Hill, 1993) at 10:
With the NAFTA Implementation Act's [subs. 53(3)] revised definition for compilations of works (now subs. 2 and 2.1 of the Copyright Act), characterization problems for multimedia applications are less pressing. However, the interactive nature of some multimedia applications and displays still poses problems for Canadian copyright law: see B.B. Sookman, "Computer-assisted creation of works protected by copyright" (1990) 5 I.P.J. 165. Pimental, supra note 19 at 231. Ibid. at 5. O'Leary J.'s statement in Delrina Corp. v. Triolet Systems Inc. (1993), 47 C.P.R. (3d) 1 at 15 (Ont.), illustrates a reluctance to go the U.S. route for the protection of screen displays:
Cf. Nintendo of America Inc. v. Camerica Corporation (1991) 34 C.P.R. (3d) 193 (Fed. T.D.), affd (1991) 36 C.P.R.(3d) 352 (Fed. C.A.), where in seeking an interlocutory injunction, the plaintiffs argued that copyright in the audiovisual display of a video game originating from a computer program is protected by the underlying copyright which exists in that program. The first instance judge stated that the issue of whether copyright subsists in the audio-visual displays of video games has never been judicially considered in Canada, and that this was a serious issue that would merit consideration at trial. See U.S. Copyright Regulations, 37 C.F.R. § 202 (1988): "The Copyright Office has now decided to treat video game displays the same as other works that include authorship in a computer program and screen displays. A single registration will be made for the audiovisual authorship and any related computer program code owned by the same claimant. Separate registrations will not be made. If audiovisual authorship predominates, the single registration should be made in a Class PA." Under the Copyright Act of 1976, 17 U.S.C. § 101 (cf. 102(a)(6)), "audiovisual works" are "works that consist of a series of related images which are intrinsically intended to be shown by the use of machines, or devices such as projectors, viewers, or electronic equipment, together with the accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied." Rosen, supra note 10 at 60. Under 17 U.S.C. § 101 (1988), "motion pictures" are "audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with any accompanying sounds, if any." A "cinematograph" includes "any work expressed by any process analogous to cinematography...": Copyright Act, s. 2, as amended by the NAFTA Implementation Act, s. 53(2). The usefulness of the cinematograph category to the protection of virtual works is dicussed in the next section.. David Vaver & Victor Nabhan "Intellectual property: copyright and new technologies", in Contemporary law: Canadian reports to the 1990 International Congress of Comparative Law, Montreal, 1990 (Cowansville, Qué.: Éditions Yvon Blais, 1992) at 362. Cdn. Admiral Corp. v. Rediffusion Inc., [1954] Ex. C.R. 382 at 394 per Cameron J. David Vaver, "Copyright phase 2: the new horizon" (1990) 6 I.P.J. 38 at 47 ("Phase 2"). The copyright amendments proposed by Bill C-57, introduced into the Commons in 1994, aim to give some protection to improvised performances. Bill C-57 received royal assent on December 15, 1994, and is now known as the World Trade Organization Agreement Implementation Act, S.C. 1994, c.47 (henceforth "WTO Implementation Act"). See s. 56 of the WTO Implementation Act, introducing a definition of "performer's performance" into section 2 of the Copyright Act. Ibid. Phase 2. Ibid. Stern Electronics, Inc. v. Kaufman 669 F.2d 852 (2d Cir. 1982); Midway Manufacturing Co. v. Artic International Inc. 704 F.2d 1009 at 1012 (7th Cir. 1983). Cdn. Admiral Corp. v. Rediffusion Inc., supra note 29 at 400. Vaver, Phase 2, supra note 30 at 45. Bruce Lehman, et al., "Intellectual Property and the National Information Infrastructure", Draft Report of the NII Task Force Working Group on Intellectual Property Rights, July, 1994 [henceforth "Lehman Report"]. 991 F.2d 511 at 519 (9th Cir. 1993). In Advanced Computer Services of Michigan Inc. v. MAI Systems Corp., 845 F. Supp. 356, 363 (E.D. Va. 1994), the conclusion that a copyrighted program stored only in RAM is sufficiently fixed so as to constitute a "copy" was confirmed. On the issue of duration, District Judge Ellis felt that:
(1991) 81 D.L.R. (4th) 412. Linden J.A. sums up his rationale in this way (ibid., at 490):
In the end, what transpires on the field is usually not what is planned, but something that is totally unpredictable. That is one of the reasons why sports games are so appealing to their spectators. No one can forecast what will happen. This is not the same as a ballet, where, barring an unforeseen accident, what is performed is exactly what is planned. No one bets on the outcome of a performance of Swan Lake. Ballet is, therefore, copyrightable, but team sports events, despite the high degree of planning now involved in them, are not. 17 U.S.C. § 101 Ibid. Lehman Report, supra note 36. On this point, Rosen, supra note 10 at 60, argues:
Lehman Report, supra note 36. Ibid. Nabhan and Vaver, supra note 28 at 374.
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