While patent law usually comes to mind first when considering how best to protect virtual reality technology, copyright law may provide protection to virtual content. However, the strength of the copyright will depend on the degree of creativity incorporated. This is a particular concern in the case of virtual reality content, which may endeavor to replicate real-world environments. While a copyright may be registered, if the underlying claim is weak, it will be more difficult to find that a similar work is infringing.
In general, virtual reality products create simulated environments that are based on reality or on imagined worlds. Depending on how much creativity is required to create the simulated environment, the work may have more or fewer protectable elements. When an author’s creation portrays reality accurately, there may be very few ways to create the simulation. The fewer possible ways to create it, the less copyright protection a work will likely receive. If there is only one way to create something, it would be anti-competitive to allow only one author to create and protect it. Conversely, if there are many diverse ways to create the simulation, then the author must have made specific choices in order to achieve the final result. The contribution of the author’s expressive decisions would give the work stronger protection.
It is helpful to apply these principles to specific uses of virtual reality technology. One use is video games. Suppose two video games are set in present-day Los Angeles, and the game creators are striving to portray the city as realistically as possible. The more closely the two simulations succeed in reflecting reality, the more similar they would look to present-day L.A. and to each other. These simulated environments would receive weaker protection than they would if the setting were a fictional environment, or an imagined L.A. from a different time period.
Virtual reality is beginning to be used in training for pilots, commercial drivers and heavy-equipment operators, and will increasingly be used for more occupations as the cost of the technology decreases. Training simulations generally involve many different scenarios and terrains, all of which involve creative choices on the part of the authors, so copyright protection in these situations should be strong.
However, medical training simulations can present a contrast. Virtual reality allows doctors to conduct surgery on virtual patients, and in the case of patient-specific anatomy, the simulated anatomy is made to be an accurate replica of the anatomy of an actual patient. Because there is not much expression or originality in the realistic representation of the anatomy, copyright law may not afford much protection to the simulated anatomy.
Another use is in museums, which may feature simulated environments that allow people to feel they are in a particular geographic place at a certain time in history. These simulations will often be historical, requiring authors to make more creative choices, which would give the works stronger copyright protection.
If copyright protection of simulated environments is a priority for creators and rights holders, how much expression and value the author contributes should be considered. The more creative choice involved, the stronger the copyright protection will be.