Virtual reality has brought about a plethora of opportunities for hardware manufacturers, advertisers, content providers and many other types of business in the games industry. With these opportunities come legal risks too which is where firms like Harbottle & Lewis can provide specialist advice. Daniel Tozer, a Partner at Harbottle & Lewis, spoke at Casual Connect Europe 2017 on the key questions facing developer’s real-world responsibilities in relation to VR.
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Daniel Tozer, Partner at the London law firm Harbottle & Lewis, leads the technology and data team, helping businesses from startups to multi-nationals, in sectors that range from gaming to fashion, with legal issues concerning data and technology.
Legal Considerations for New Technologies
Daniel particularly enjoys the mental challenges of this work. He explains, “Working with the tech and games industries means that we have to find solutions to legal problems for technologies that were not even considered when the relevant rules were put in place.” Daniel is also something of a techie; although he loves new technology, he admits that keeping up with the pace of change is both a blessing and a curse!
Before coming to Harbottle & Lewis, Daniel spent nine years working in-house at Vodafone in a range of senior legal roles. During this time there, he worked on projects relating to new technology products, such as the iPhone, mobile gaming and services like Facebook and Google, and how they would impact the mobile industry. The experience he gained during that time allowed Daniel to relate to the challenges facing Harbottle & Lewis’s clients today. Harbottle & Lewis is one of the leading firms in the UK working with the games industry and their clients have produced some of the leading games.
Law was a natural career choice for Daniel; he has always enjoyed problem solving, as well as a good argument! After three years at university, and a year of post-graduate education, finally qualifying as a lawyer after a further two-year “training contract” is a welcome validation for these years of effort. Moving to an in-house role early in a legal career is a relatively common step, but then returning to private practice as a Partner is pretty unusual in Europe (although more common in the US). Daniel feels that this move has been incredibly helpful; having worked in-house for many years he is able to empathize with the pressures his clients are under and avoid being “just another traditional lawyer”.
Daniel’s advise to people who are interested in a career in law is to first understand that there are many different types of lawyers and many different kinds of jobs in the law. Lawyers can work in law firms (private practice), directly in businesses (in-house), in government, in charities, in academia, and in many other areas. Also, technological change is coming to the legal industry. It is important to think about how artificial intelligence will change the way law firms and in-house law departments operate. While some roles will disappear, others will open up. So determine what type of legal activity interests you (e.g. are you excited by privacy rights? Are you interested in protecting intellectual property?) and try to understand how individuals and companies will get legal advice in that area as the future unfolds. Ask lots of questions, and try to meet as many people as possible in the areas of interest to you. Your network is your greatest asset.
The greatest challenge in Daniel’s work is keeping up with the changing technology. The only solution is to be constantly cognizant of new developments and, whenever possible, try them out. As he points out, “You can’t properly advise on virtual reality if you’ve never tried a VR headset.”
A Changing Ecosystem for Games and Law
The UK has a fantastic legacy in the games industry, and, as Daniel describes, it is energetic and innovative and expanding at a tremendous rate. When Daniel was growing up video games were for children, but that has completely changed.
Within the next few years Daniel expects that esports will continue to increase in popularity and that VR will have arrived as a mass-market platform. Harbottle & Lewis has a strong presence and core interest in both these areas; they are well-placed to meet the needs of their clients in the game industry.
Law firms will also see increasing change in the next several years coming from technological innovation. Some of the low end commodity work is already being done by AI bots; Daniel foresees that this will increase. The commercial models and personnel structures of law firms have already been changing as a result, and these changes will also continue. A major challenge will be how to educate and train future lawyers when some of the “trainee-work” may be automated.
The Problem with Patents
Issues arising from patents are an important consideration at Harbottle & Lewis, but they are accustomed to dealing with them, including applications, licenses and litigation. Patents are a way to protect core, valuable IP, Daniel explains, but they are not always easy to enforce. Enforcement can be complicated and expensive, and so enforcement activity tends to gravitate to areas and industries which has sufficient financial resources to risk/protect. The mobile industry has had to deal with patent issues for a while now, and of course the games industry is not immune to patent problems. As an example, there will be a number of patents on file in the various registries of the world relating to virtual reality. But Daniel explains, “How enforceable they are will only be certain once decided in court. What is certain is that when real money starts to be made out of VR, the patent claims will start to fly in and those on the receiving end will have to decide whether to settle or fight the claim.”
Larger VR companies and independent VR companies have slightly different situations when dealing with potential legal issues arising from VR. Of course the larger companies have deeper pockets to handle legal issues and may even have an in-house legal team. But they also present a more attractive target for claims of patent infringement or personal injury.
What About Hacking?
Possibilities of hacking VR devices, identity and personal information thefts and similar threats are additional concerns with VR. Daniel asserts that VR provides an incredible opportunity to gather very rich data about the user, data that you, of course, wouldn’t want to share with a hacker. And, of course, the VR experience is intended to remove you from the real world, so the idea of a hacker controlling your experience is very disturbing. VR security is a serious consideration.
Real-World vs Virtual Reality
The difficulty with VR is, quite simply, the VR concept itself. “The better the VR concept is, the more the individual commits to it, and the less aware they are of the real world.” Daniel points out a number of problems that can arise. “How do you prevent real-world injuries in this situation? How do you prevent traumatic shock in an all-too-real experience? How do you obtain proper, valid real-world consent from a user in a VR experience?” When you add to that the possibility of a hacker taking over the experience, there are significant real-world concerns.
Who is Vulnerable in VR?
Children are particularly vulnerable when using VR, Daniel asserts. “Think about the warning on Nintendo Wii to take a break from time-to-time; a VR experience should think very seriously about a similar style of warning, and particularly if it is focused on younger users who may be less inclined to take a break. When testing a VR experience, developers should consider having children as part of the test groups even if the game is not overtly directed at children.”
An interesting VR case Daniel was involved with concerned the protections a model needed to have in her contract to appear in a VR experience. There are completely different issues from the usual video clearance agreement. In a VR experience, the user could interact with the model’s representation, so obviously she was concerned with the kinds of interactions a user could have.
In general there are three main areas of concerns specific to VR developers. First, there are added risks of personal injury from such things as in-game nausea and real-world trips and bumps. Second, data protection, since VR is a rich source of data, but the problem remains of how to get real-world consent to use it. And finally, there is the issue of the rights of individuals appearing in a VR experience because of the interactivity VR allows.
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