Enforcing intellectual property rights in metaverse gaming platforms: The next steps for the EU's metaverse agenda

Abstract

This article delineates a comprehensive framework for the achievement of effective metaverse governance that reflects the EU's current metaverse agenda and promotes respect for intellectual property rights. To do so, this article follows a two-strand methodology. It engages in a doctrinal legal analysis and a policy-oriented assessment. It comprises four substantive sections. First, the article highlights the risks for copyright and trade mark infringements in the metaverse context under the EU legislative framework, taking into consideration landmark case law from the CJEU. The narrative moves to the enforcement of copyright and trade marks in metaverse gaming platforms; assessing the extent to which the enforcement aligns with the EU Declaration on Digital Rights and Principles (EU Declaration) and the broader EU Commission's Strategy for virtual words (EU Strategy). In particular, the article undertakes a focused analysis of the Terms of Service (ToS) of four prominent metaverse gaming platforms—Roblox, Fortnite, Minecraft, Sandbox—at face value on their stated terms and observes an overall satisfactory degree of compliance with several EU objectives, and arguably a higher degree of compliance when it comes to the protection of IP rights compared to other objectives, though with some room for greater alignment with the EU's agenda.

Following the case study insights, the article turns to the widely used remedy of blocking injunctions. The issuing of blocking injunctions directly hinders users' right to access the metaverse and might encroach upon the fundamental right of freedom of expression and information of metaverse users and therefore, a limited degree of compatibility with the EU's metaverse agenda objectives has been observed. Finally, the authors put forward two core recommendations that constitute a targeted approach which could result in more effective IP enforcement within metaverse gaming platforms and other metaverse platforms which function in a similar fashion, that is, which enable online user interactions in real time and may serve as social hubs for the public. The first is a legal reform proposal to amend Article 3 of the IP Enforcement Directive to include an additional sub-section entailing key principles of the EU Commission's metaverse policy when it comes to metaverse gaming providers. The second is a techno-legal recommendation for the use of AI enforcement tools within metaverse gaming platforms with the aim of safeguarding IP rights whilst at the same time achieving a higher degree of alignment aligned with key EU strategic goals for the metaverse context.