Controversy of Copyright Application and the China Plan of Metaverse Products

2.1.1 Criteria for Judging the Originality of Metaverse Products

The “independence” in the originality standard refers to the independence of the creation of the work. The independence here does not mean that one person creates alone, works completed by two or more people also have independence, only those who participate in the creation can become the author. One who only organize work for others to create works and provide some consulting opinions, material conditions or perform some other auxiliary work cannot be regarded as creation.^[2] Therefore, when discussing whether metaverse products are original, it is necessary to clarify whether the production tools or materials provided by the metaverse shared space material library can be counted as “other auxiliary labor”? Taking the customization of the virtual anchor image of the metaverse as an example, the application system uses a three-dimensional digital model to draw, split, model and finalize the real person, and complete the creation of the virtual character in the form of a real body replica, the character is not only a cartoon image but the combination of realistic images can also complete preset instructions based on actions, sounds, clothing and other elements in the material library.^[3] To complete this set of character images, the creator generally needs two steps to achieve it. One is to input the real body image or actions (such as photos, 3D scan data, etc.), and the other is to “click” the mouse to use the intelligent system of the metaverse to generate automatically. These two steps are not complicated in terms of operation complexity, and are even a bit childish. From a technical point of view, the production system and material library that relies too much on metaverse scenes are more like products automatically generated by the metaverse. Therefore, is this system still considered auxiliary labor? Can metaverse products meet the originality standard?

In the author’s opinion, the intelligent system products in the metaverse have the ability to create independently, and have achieved a leap from auxiliary labor to creative labor, but the key to meeting the originality standard lies in whether people are willing to admit their “creation” creativity. The reason is: First of all, judging from the “unique” in originality, the creative material library in the Metaverse scene may be collected from the public domain, or it may come from private domain materials uploaded by users, but no matter which method of creation, the metaverse products is the product of an individual’s “independent” operation, it is not borrowed from the hands of others, nor is it divided into multiple people’s cooperation, from the perspective of the main composition and creation method, the products of the metaverse meet the “unique” standard. Secondly, judging from the “creation” in originality, original metaverse products have less controversy over creativity standards, while derivative metaverse products have greater creative controversies, mainly focusing on the consideration of comprehensive factors such as the degree of reference and absorption of prior materials, the content of reinvention, and the concrete expression form of ideas,^[4] this is also the key to the controversial nature of the originality criterion. Finally, as discussed in the application scenario of placing the metaverse, due to its technical characteristics of mapping, virtuality and interactivity, the operation of accurately mapping physical objects in the physical world to the virtual world is equivalent to a “copying” behavior, and this behavior whether everything in the produced virtual world can still meet the “creation” standard is judged based on subjective perception, it has to be said that more and more metaverse scenes incorporate rich elements of prior matter in the public domain and meet the requirements of “creation”, whether it is determined to be a work protected by copyright law will raise another question: whether introducing prior art from the public domain into the private domain of the metaverse would risk squandering public resources and expanding private domain protection. To discuss this issue, we can first clarify whether the metaverse products conform to the “expression” form of the work, then identify the object types, and sequentially analyze the “public welfare-private rights-sharing” copyright paradigm transition under technical rationality.

2.1.2 Metaverse Products Are Formally Consistent with the Dichotomy of Thought and Expression

Following the judgment of the above-mentioned originality standard, the classic “idea-expression” dichotomy of copyright law is first introduced. The biggest difference between the creation process of metaverse products and traditional human creation focuses on the presentation form of the work. This presentation may be a visual feast, auditory impact, sensory stimulation, etc. The form of presentation is no longer a deductive expression that simply changes novels into TV series and movies, oral works into audio or audiovisual works, and graphic design drawings into physical models or model works.^[5] Everything in the metaverse world can be physical objects in the physical world or original virtual objects, the metaverse world itself is an interactive space of digital life. The expression form of the metaverse products transcends the scope of literature, art and science,^[6] and incorporates human behavior and thought dynamics. To cite a common typical example in life – the AI anchor virtual character sold on Taobao, including not only appearance design, but also application design. Regarding application design, designers can set up AI anchors to sell goods. They only need to enter needs and behaviors into the system, and then they can “sit back and relax” and rely on the AI anchors to help designers sell goods and make money. I would like to ask, for the same AI anchor, is there any difference in “expression” between the AI anchor with application attributes and the AI anchor with appearance design? To address this issue, existing copyright theories and institutional arrangements need to start from the perspective of artistic and functional expression. Appearance design AI anchors can be easily defined as fine arts due to their unique artistic beauty. However, AI anchors with application attributes may become design patents and cannot fall under copyright law because they have both artistic and practical functions. The implication is that a simple beautiful AI anchor standing still may be a beautiful painting, but if dynamic attributes such as movement, language, style (roaring or gentle wind) are added, she will become an Internet celebrity AI anchor, and also add based on the design of the application attributes for selling goods, judging from the results, the Internet celebrity AI anchor is indeed a new expression of artistic and practical design, and even this expression eventually made it protected by patent law. Although different “expressions” will also produce different object types, it is at least clear that the products of the metaverse conform to the dichotomy between ideas and expressions in copyright law.

2.2.1 The “Behavioural” Factor of Rights Acquisition: Original Acquisition and Derivative Acquisition

As one of the elements in obtaining civil rights, behaviour can be divided into juristic acts, factual behaviour and quasi-juristic acts. Generally, acquisitions based on factual behaviour are original acquisitions, and acquisitions based on juristic acts and quasi-juristic acts can be original acquisitions or derivative acquisitions. In the metaverse scenario application, there is a difference between original acquisition and derivative acquisition based on “behavioural” factors. Original acquisition refers to a situation in which rights are not acquired on the basis of the rights or intentions of prior objects in the physical world or the rights or will of prior rightholders but the way in which the rights of metaverse products are acquired through legal provisions or factual behaviour. Original acquisition contains two scenarios: (1) There is no prior rightholder, as in the cases of construction acquisition and preemptive acquisition, in the application of metaverse scenarios. (2) There is a prior rightholder, but the right is not obtained according to his will, as in the preemption of something in the application of the metaverse scenario. Derivative acquisition refers to the acquisition of the rights of metaverse products through juristic acts according to the will of the prior rightholder. It is further divided into creation acquisition and transfer acquisition. The former refers to the creation of other rights by prior rightholders for others with regard to physical objects in the physical world (including rights arising in the metaverse world). The latter means that the prior rightholder transfers his physical objects in the physical world or virtual objects in the metaverse world to others through certain juristic acts (such as obtaining ownership through a sales contract). In short, original acquisition means that the right belongs to the rightholder from the beginning, rather than being procured from others. Derivative acquisition refers to the rights acquired by inheritance from the prior rightholder.

2.2.2 Argument on the Consequences of “Behavioural” Factors: Original Products and Derivative Products

There are two types of metaverse products: original products and derivative products. An original product refers to visual stereo imaging with the data representation of length, width and height based on 3D modelling technology that is presented in a virtual environment. Parameter settings such as structure, function, shape and colour are all created by the designer. The 3D model data of original products in the metaverse are the concrete expression of the designer’s ideological labour, and should belong to the protection scope of copyright law. Derivative products refer to the visual stereoscopic imaging generated by three-dimensional rendering, processing, transformation and other technologies based on the structure, function, shape, colour and other elements of the prior object. Whether the three-dimensional model data of metaverse derivative products can be included in the protection scope of copyright law should be determined according to the specific situation of whether the referenced prior object is in the public domain or the private domain. The greatest difference between modern society and traditional society is that in a traditional society, where materials and resources are both scarce, innovation is indeed a process of “creating something from nothing”. In contrast, in a modern society with abundant materials and advanced technology, innovation has become a process of “from having to being superior, and from being superior to being perfect”, and the object of copyright protection generated is largely dependent on existing knowledge or prior knowledge and is a reinnovation on the achievements of others. To determine whether this kind of “reinnovation” can generate copyright, the source of rights acquisition or rights generation must first be identified.

2.2.3 Tenure Disputes under the “Behavioural” Model: Public Domain and Private Domain

Usually, the prior objects involved (here, the prior objects include not only physical objects but also existing ideas or knowledge) are divided into those in the private domain and the public domain. The use or exploitation of prior objects in the private domain has strict copyright boundaries, and the crossing of such boundaries constitutes infringement. Some of the prior objects in the public domain have flowed into the public domain from the private domain, and some have been freely available to all from the time of their creation, the use and reference of prior objects in the public domain are not only the source of human knowledge recreation, but they also exist within a space that must be reserved for the protection of public rights by copyright law.^[7] Under this premise, there are also strict institutional norms and specific rules in the copyright law for the private and public domains to prevent any party from amplifying overwhelming social interests. For example, originality requirements, fair use and other systems^[8] in copyright law are all institutional designs for classifying intellectual achievements into the private domain or the public domain in the process of producing, learning, imitating and recreating works.^[9] This has also become part of the basis and criteria for judging whether the act of “twinning” the prior object of the physical world in the metaverse application scenario generates copyright. To better understand the focus of copyright disagreement in the metaverse world, we now take the application scenario in the field of architecture as an example and analyse several behavioural modes of acquiring the rights of metaverse products.

4.2.1 Object Standard Definition

From the perspective of technical characteristics, metaverse products are more in line with the criteria for judging works of applied art. If the visualization product of a metaverse product is listed as the object of copyright protection as a work of applied art, it is an applied “artwork” rather than an “applied” artworks that is protected. There is no obvious difference between the applied “artwork” and general works of fine art in the identification of the object of protection. When an infringement lawsuit occurs, the copyright owner of a metaverse product must prove that the defendant has copied the aesthetically pleasing “art” shape, which can exist independently of the “applied” function in works of applied art; only in this case can infringement be confirmed. If a metaverse product is included in the object of copyright protection as a craftwork (a type of fine art work), it will be protected by copyright law like a work of fine art, not a “craft”.

4.2.2 Classification of Object Types

Further clarify the scope of protection objects of China’s copyright law, it is necessary to adopt an extensive interpretation of the concept of “model work” but employ a restrictive interpretation of the applicable standards and content regulations. This is because the types of digital architectural models in the metaverse are often not precisely located in the application of copyright law; of course, the issue of the application of copyright objects is not only a problem of legal containment in the metaverse but also a “common problem” arising from many digital technologies under emerging technologies. Taking a famous ancient building as the prototype to derive an original metaverse architectural model as an example, does it belong to a work of fine art, a photographic work, an architectural work or a model work? On this issue, let us first consider the experience and practices of different countries and international organizations. At first, many countries did not consider including the shape of a building as the object of copyright protection, and there is no object type of “architectural work”. It was not until the Berne Convention included “architectural works” in the types of works that various countries began to follow suit, as in the case of the American “Architectural Works Copyright Protection Act” (1990) and the British “Copyright, Designs and Patents Act” (1988), Article 4. At that time, WIPO interpreted “architectural works” as including both architectural models and the buildings themselves. Chinese Copyright Law did not initially include architectural works as the object of copyright protection but “protected the buildings themselves as works of fine art”.^[55] It was not until 2001 that architectural works were separated from the extensive interpretation of “works of fine art” and became independent copyright subject matter. “Model work” is not an enlarged or reduced representation of the shape and structure of a certain prior object but a new three-dimensional model that is exaggeratedly processed and extensively modified and is different from the prior object. “Photographic works” refers to “art works that record the image of an objective object on a photosensitive material or other medium by means of instruments”,^[56] in which “art work” does not include simply re-engraving or recording existing buildings through 3D scanners; otherwise, the term violates the legal principle of the type of object of copyright law and makes it difficult to distinguish the essential difference between works of fine art and photographic works. To address this issue, it is necessary to question the degree of connection between a metaverse product and the original famous ancient building. Professor Wang Qian, a Chinese scholar, once proposed the “pretest method of presumed three-dimensional objects” to distinguish the “image” and “figure” of a prior object.^[57] This method actually denies “different-dimensional copying” and considers that the transformation of the form or dimension of the predecessor from a “two-dimensional plane” to a “three-dimensional solid” or from a “three-dimensional solid” to a “two-dimensional plane” is not a basis for identifying “copying” conduct, which should be judged on the basis of the relationship between the "“image” and the “figure” of the prior object. Based on this, it can be affirmed that the “image” of ancient buildings “twinned” in metaverse products has not actually changed, so “photographic works” are excluded from the object type. Designers have added many aesthetic techniques and beautification techniques to the “modelling” of ancient buildings, adding new artistic beauty to ancient buildings, which may also be displayed in galleries and museums as “works of fine art”. In addition, if the metaverse product is a reconstruction design plan of an ancient building in the physical world, it can be regarded as an “architectural work”, and if it is a model demonstration of the reconstruction of an ancient building or a simulation of a physical model, it can be included in copyright law objects as “model work”.

Based on the above analysis, it is controversial whether model works under copyright law can cover model works displayed by metaverse products. After all, when interpreting “model work”, various countries and regions described forms using words such as “shape” and “structure”, which only describe appearance. A three-dimensional digital model in the metaverse exists more to show the internal structure, details and operation mechanism of the object; such a three-dimensional digital model that shows internal characteristics and a model work that shows only a surface appearance seem similar in the copyright law; however, they are not completely equivalent. Therefore, it is suggested that, drawing on the provisions of Article 2, Paragraph 1 of the Berne Convention on “scientific models”,^[58] for the “model works” stipulated in Article 3 of China’s Copyright Law, “extensive interpretation” can be considered to cover the metaverse. Three-dimensional digital models, especially the interpretation of the concept of “model works” in the “Copyright Law Implementation Regulations”: “Model works refer to three-dimensional works made to a certain proportion based on the shape and structure of the object for the purpose of display, experiment or observation.” The “three-dimensional works” here include but are not limited to the object types of three-dimensional digital models in the metaverse. Here, it is necessary to adopt a teleologically restrictive interpretation in the identification standards, applicable criteria and rights content of digital models. Digital three-dimensional models of the metaverse that are enlarged, reduced, or made to the same scale as real objects must not be included, and “replicas” in the metaverse must be strictly excluded through purposeful restriction.^[59] Because the “twinning” act of a metaverse product to a prior object in the physical world may harm the interests of the prior rightsholder. Therefore, stricter requirements should be put forwards in terms of “originality”, “different-dimensional copying” and “technological protection measures”.

4.3.1 Rules of Fair Use

Set open fair use rules instead of imposing strict restrictions. A metaverse product formed by the comprehensive use of digital modelling; simulation; machine learning and intelligent control and other multiprogram, multitechnology and multimethods is not fair use if it is only simple picture reproduction. If the purpose and character of the use are changed, and new expressions, new meanings or new functions are added, even if it appears to be “copying and use” in form, it can actually be regarded as fair use rather than infringement. Considering the copyright laws of various countries, the common practice in most countries and regions is to add catch-all provisions on the basis of the old law.^[60] For example, Article 24 of China’s Copyright Law enumerates the last article of fair use, which is “other circumstances prescribed by laws and administrative regulations”. On the surface, catch-all setting regarding the fair use of “other circumstances” seems to have some elasticity and openness to apply;^[61] however, it is in fact a stricter additional restriction on digital technology. This is because the metaverse often needs to use works that actually exist in the physical world. Even if the use behaviour fully complies with the specific types of statutory exemptions for fair use listed in Article 24 of China’s Copyright Law, it must be subject to the verification and standard review of the first step of the three-step inspection method, “certain special circumstances”. Such a provision actually results in a further “closing” rather than an “opening” of the fair use system,^[62] and it is even less conducive to breaking through the boundaries of digital technology innovation and development.

It is therefore recommended that, first, the most urgent task is to obtain general terms of fair use by “holistic analogy” to verify the initial and subsequent loopholes brought by new technologies to build elastic and open fair use rules. Second, set up more inclusive “tolerated use”^[63] and expanded implied licensing rules^[64] to leave enough room for rights holders to make concessions in creative sharing. Third, regarding the structure of interest distribution between prior rightsholders, disseminators, and users of metaverse products,^[65] on the one hand, interest distribution designers should consider retaining the absolute dominance of copyright property rights for intellectual achievements. On the other hand, prior right holders can moderately delegate non-property rights (value in aesthetic or practical sense) to the public. In this way, “chilled innovation” will not be caused by the exclusive rights of copyright. Besides, the “copying use” mentioned in the second step of the three-step test will raise new questions in the metaverse application scenario: is "“different-dimensional copying” “copying”? With this question in mind, it is necessary to advance the following discussion.

4.3.2 Judgement of Different-Dimensional Copying

The behaviour of the metaverse application scenario “twinning” the physical-world prior object belongs to different-dimensional copying, and different-dimensional copying is included in the reproduction right. In the metaverse application scenario, the “copy” of the physical world’s prior object is a necessary process for the reasoning and simulation of the entire technical solution. It is also an important criterion for judging whether metaverse products can become copyright objects; if it is forbidden to “copy” anything in the physical world, it is equivalent to restricting the progress of technology and the sharing of knowledge. This is not the legislators’ original intention for design copyright, nor is it a situation that technology developers and market openers are willing to see; therefore, the different-dimensional transformation of the three-dimensional digital model involved in the metaverse product from a two-dimensional plane to a three-dimensional model, and from a three-dimensional object to a three-dimensional model, cannot avoid the topics of different-dimensional copying and copy infringement. Objectively, the conversion data source of 3D objects to 3D models that frequently appear in metaverse products are often the surface data of the prior objects captured by 3D scanning equipment, which is unable to obtain the exact data on the internal structure of the prior objects.^[66] Designers create secondary creations by “creatively” adding and modifying the internal structure, scene, colour, shape, etc., of prior objects to generate 3D digital visualization with more practical functions and better expression. This leads us to realize that “different-dimensional copying” in the metaverse is not a copy-and-paste behaviour in the traditional sense as we understand it, but a composite behaviour that combines “copying” and “creation” into one.

It is therefore recommended that, in the metaverse application scenario, if the “twin copying”^[67] of the physical-world prior object involves the appearance of the existing copyrighted prior object, the “twinning” behaviour without permission constitutes an infringement of the reproduction right. In addition, even if the metaverse product depicted by the model or graphic is not the appearance of an industrial product or a work of fine art, if it is a three-dimensional digital model manufactured according to two-dimensional product design drawings, engineering design drawings, etc., it should also belong to the scope of different-dimensional copying. The inclusion of different-dimensional copying into the reproduction right limits the designer’s “source of inspiration” to a certain extent, but it is a realistic demand for the development of the cultural industry.^[68] It is a kind of replication behaviour that aims to stimulate the designer’s innovative vitality, expand the control scope of the reproduction right, and enable it to cover different dimensions and different spaces involved in the application scenarios of the metaverse. It is necessary to carefully distinguish the composite behaviour combining “different-dimensional copying” and “manufacturing” into one.

4.3.3 The Trade-off Strategy Between “Public Domain” and “Private Rights”

Regarding the game of interest competition in “public domain” and “private rights”, the competitive equilibrium theory of the famous British economist Joan G. Robinson can be introduced as a preliminary guide. Regarding the research on the reaction of monopoly profits on the number of companies producing a given product, she believes that changes in the number of companies will change the demand and cost curves of the companies. This law and economics theory can be used to examine the number of users in the metaverse scenario and the impact of its innovative products on monopoly innovation in the public domain, and provide theoretical support for making next-step recommendations.

Assume that AC and MC are the average cost curve and marginal cost curve of products created by Metaverse users respectively, AR is the demand curve for the public domain, MR is the marginal revenue curve, and OM is the output of products produced when the Metaverse users is alone in an equilibrium state, MH is the average cost of output OM, and MP is the price of the metaverse products. In Figure 1, users are obtaining excess returns from the products of the Metaverse. However, although the user is said to be in a state of equilibrium, the metaverse scene to which he belongs is not. The rate of return on innovation in the Metaverse scenario is represented by the area FPHG. In Figure 2, users are obtaining the innovative benefits of normal metaverse products. H and P in the figure coincide (average cost equals price), and the area FPHG disappears. The dual conditions of equilibrium are achieved when the demand curve is tangent to the average cost curve.^[69]

Figure 1:

Metaverse innovation returns.

Figure 2:

Metaverse products innovation gains.

Based on the above analysis, under conditions of perfect competition, the average cost curve must have a lowest point, that is, in the Metaverse scenario, once the output of products (privatized attributes) transformed by a user using the public domain exceeds this lowest point, the average cost of innovation in the metaverse scenario begins to increase. Of course, this is actually a highly simplified speculation on various conditions of physical media that are popular in the public domain in the physical world. The conclusion is: the more open the public domain is, the higher the number of private rights that users have, and the more innovative the market will be. On the contrary, the more closed the public sphere is, the number of private rights will be reduced sharply, the lower the innovation activity will be.

In this regard, more specific suggestions are put forward on the procedural rules in copyright law. First, it is recommended to shorten the practical copyright author protection period to “lifetime + 50 years after death” because this part of copyright has an immediate impact on the social development of the physical world and the real economy. Second, regulate the reasonable use behavior of metaverse users, optimize the injunction system, the indirect infringement liability system of network service providers, etc. to ensure the legitimacy of the copyright relief system. In general, these two suggestions aim to speed up the circulation of copyrighted private domain products, thereby stimulating the creative vitality of users in the metaverse scene. After all, users’ creativity affects the transformation and application capabilities of metaverse scenes, and even affects the re-innovation of knowledge and the supply and demand relationship in the public domain.

4.3.4 Protection of Technological Measures

The “twin” feature of the metaverse application scenario determines that metaverse products must be designed with the help of the prior object in the physical world. The part excavated from the public domain and the creative part are integrated, and it is difficult to distinguish them, which will inevitably lead to the use of the creative part by others in the digital environment, thereby damaging the legitimate interests of the rightholder. However, neither high-intensity technological measures nor technological measures that sacrifice public interests are the original intentions of legislators, and the leverage between them must be leveraged through reasonable “technological measures”. Especially in the application scenario of the metaverse, the behaviour of metaverse “twinning” (copying or exploiting) can be limited to the scope of “adequate legal protection” and “effective legal remedies” through reasonable technological measures.^[70]

It is therefore recommended that, reasonable technological interventions should be used to minimize the possibility of rightsholders being infringed upon. Here, the idea of a “reasonable limit” has two meanings. First, it does not use transitional technological measures to impose intervention, resulting in metaverse products being imprisoned in an isolated island of technological measures and rendered useless. Second, the limited standards and rules are not necessarily strictly controlled from the source, but some specific and normative technological revisions are made in the process of dissemination in combination with the fair use system, the reproduction right system and the compensation system to protect the copyright while encouraging innovation. Third, the copyrights of the massive amounts of metaverse products controlled by the “digital centralizers” in the metaverse (leading digital merchants or large platforms) need to be moderately “delegated”, and be wary of the “rights monopoly” phenomenon in the metaverse that restricts market circulation.