Metaverse avatars face eight major legal issues

Teresa Teng’s virtual person on stage, does it involve infringement?

In a New Year’s Eve party in 2022, the “Teng Lijun” virtual human sang affectionately with real-world singers on the stage, and the charm was alluring. Emotional performance leads to rational thinking: Does it require the authorization of his family to recreate a deceased artist to perform with a virtual human?

As more and more virtual people enter the lives of natural people, more and more legal issues will arise.Since most of the existing laws are formulated based on the real world, in the face of legal disputes and even criminal cases related to virtual humans, how to apply them requires serious consideration by the legal community.

“Internet Law Review” today published an article by Huang Bin, a special expert and senior co-partner of Beijing DHH (Shenzhen) Law Firm, covering ethics to criminality, reputation rights, portrait rights, name rights, voice rights to copyright, Inheritance, discusses eight legal issues related to virtual humans.

The new crown epidemic, which has spread for more than two years, has made people accustomed to “online work and study” for a longer period of time. At the same time, it has promoted the centralized and large-scale emergence of virtual people, and has entered many games, media, cultural tourism, finance, etc. field.

Virtual characters, virtual singers, virtual anchors, virtual reporters, virtual employees and other forms of virtual people have come to us.

As an important role in connecting reality and opening up the Metaverse, virtual humans can naturally interact with real people, provide users with rich creative content, and bring the ultimate immersive experience. It may even get rid of the limitations of virtual images and present virtual worlds and reality A possibility for worlds to mirror each other.

Virtual human enriches people’s life, but also brings many legal problems. This article attempts to make the following analysis and discussion.

1. Ethical issues

With the widespread use of virtual people in real life, the emotional connection between people and virtual people is getting closer and closer. This emotional connection may affect people’s real social interaction, and may even develop feelings for virtual people or even get married. , which may generate a series of ethical risks;

In addition, the immersive experience brought by virtual human may have an impact on people’s spiritual and psychological state, change people’s daily behavior and methods in the real world, and may even produce violent tendencies, and there are also certain ethical risks;

Although the brain-computer interface is currently only used in the medical field, with the development of technology, such as being used in the study, work and life of natural people, it may make the learning and thinking between natural people and virtual people interconnected, which will confuse the boundaries of ethics;

Virtual humans and natural humans competed on the same stage. Vanke awarded the Outstanding Newcomer Award to a virtual employee “Cui Xiaopan”, resulting in increasingly blurred boundaries between natural humans and virtual humans, as well as certain ethical risks.

At present, in terms of virtual human ethics, relevant laws, regulations and ethical norms have yet to be improved, and there are potential risks.

In August 2020, Xiaoice of Xiaoice, a spin-off company from Microsoft, officially launched the virtual human product line and resurrected the 1.18 million virtual boyfriends previously customized by users. In order to reduce ethical risks, XiaoIce Company firstly separates the user-oriented virtual human products from the commercialization of XiaoIce, and the second is to “play steadily”, and always maintain a certain restraint on the increase in the number of virtual lovers when opening the product.

2. Criminal issues

Since the advent of virtual humans in the 1980s, virtual human-related crimes have occurred in some countries.

(1) In 2005, someone used software to beat virtual people in the virtual life game and plundered their property, and then sold it into money in the real world, and was arrested by the Japanese police.

(2) In 2007, a “virtual rape case” occurred in the online game “Second Life”. A virtual woman was used by a virtual sex devil to control the body of her character in the game and carried out “rape”. The Belgian police An investigation was launched but ultimately no charges were filed.

(3) In 2008, a woman in Japan “fallen in love” with a man on the Internet and became a “husband and wife”. Because she was abandoned by her “husband”, the woman hacked into the “virtual husband” personal computer and converted the “virtual husband”. The “virtual clone” of the “virtual clone” was killed, and the Japanese police arrested the woman on suspicion of illegally hacking into a computer and creating false electronic data.

(4) In 2008, paying “online money” could have sex with “virtual children” in a virtual community. The case was suspected of violating the child protection regulations, and the German police intervened in the investigation.

(5) In 2016, Jordan Bellamyre, a female player, was sexually harassed in “QuiVR”.

(6) In December 2021, during the test of Meta’s Metaverse platform “Horizon Worlds”, a female tester claimed that she was sexually harassed in the virtual world. On February 6, 2022, Meta announced that it will launch the “Personal Boundary” function, which will establish a circle around the virtual character and maintain a safe distance from others to avoid unnecessary touch and interaction. .

Due to the strong sense of immersion and authenticity in the virtual world, people’s emotional reactions in the virtual space will be very strong, and it will cause a strong sense of unease and discomfort in people’s psychology and physiology.However, crimes such as intentional homicide, intentional injury, rape, and forced indecency require the object of the crime to be a real natural person. Although a virtual person is theoretically immortal, it does not have real life. The existing legal provisions cannot constitute the above-mentioned crimes.

Virtual murder, virtual rape, and virtual molestation may constitute computer-related crimes such as the crime of illegally intruding into a computer information system, the crime of illegally obtaining computer information system data, etc. due to intrusion into a computer information system to obtain computer information system-related data;

Virtual rape and virtual molestation may constitute the crime of illegal intrusion into computer information systems, the crime of illegally obtaining computer information system data, the crime of disseminating obscene materials, etc.

Virtual robbery may constitute the crime of illegally invading computer information systems, illegally acquiring computer information system data, and robbery by using programs to control virtual people and rob property;

Virtual theft may constitute the crime of illegal intrusion into the computer information system, the crime of illegally obtaining data from the computer information system, and the crime of theft due to the acts of invading the computer information system and obtaining the relevant data of the computer information system.

3. Reputation issues

The virtual human is the pioneer who opens the Metaverse and the ticket to the Metaverse. In the Metaverse, people can freely set the name and social image of the virtual avatar, produce, consume and invest through the virtual avatar, and interact with other people and things in the Metaverse, which inevitably involves the relationship between the real person and the virtual avatar. Legal relationship, the virtual avatar also has personality attributes such as name, portrait, honor, and privacy. The personality attributes should be attached to the natural person and present the same, but not the same, personality form as the natural person’s personality rights in the real world.

Case 1: The case of Xiong Wenyu and Yang Jingyao

Brief introduction to the case: Xiong Wenyu is the owner of a clothing store. Since December 2013, Yang Jingyao has repeatedly purchased Hanfu from the online store opened by Xiong Wenyu under the online name “Miss Shangying”. In May 2014, Xiong Wenyu suspected that Yang Jingyao had resold the Hanfu he had purchased under the name “Long Xiangshou” at a high price, and continued to send messages that violated Yang Jingyao in the official group of Qinghui Pavilion under the online name “Qinghui Pavilion Yuanyuan”. The reputation information accuses Yang Jingyao of being a “scalper” who resells Hanfu. Xiong Wenyu disregarded Yang Jingyao’s defenses and explanations, and continued to incite and request members of the QQ group to conduct human flesh searches on Yang Jingyao in the form of a reward, with the intention of finding out Yang Jingyao’s IP address and personal information to reveal. While finding out some of Yang Jingyao’s information, some members who did not know the truth used insulting language to personally attack Yang Jingyao, causing Yang Jingyao’s reputation to be violated again.

The court held that: Yang Jingyao and Xiong Wenyu registered real information on the Internet involved in the case. Xiong Wenyu posted on Qinghuige Guanqun and other websites under the names of “Buguangbuguangyuanyuan” and “Qinghuige Yuanyuan”. Use insulting language to maliciously degrade the personality of “Miss Shangying”. Although “Buguang Buguangyuanyuan”, “Qinghuige Yuanyuan” and “Miss Shangying” belong to virtual people in the online world, these virtual people are the mapping of civil subjects in the real world in the online world. Xiong Wenyu’s above-mentioned The behavior caused Yang Jingyao’s social evaluation to be lowered. Xiong Wenyu had the intention to insult Yang Jingyao subjectively, and objectively caused damage to Yang Jingyao’s reputation. Therefore, Xiong Wenyu’s behavior has constituted a reputation infringement and should bear the tort liability in accordance with the law.

Case 2: The case of Ma Ling and Kong Wei

Brief introduction to the case: The defendant reprinted “Outside the Number! Xi’an’s largest self-media “In Xi’an” and “IN Live” were sold by Sina” article: “This Sina account without V has more than 400,000 followers, and has been secretly linked with various public officials for a long time. In Xi’an, even the entire Within Shaanxi, people were demagogic, fanned the flames, and adopted means of infinitely magnifying individual conflicts, creating and planning group incidents, and alienating class relations, which caused great harm to the social stability of Xi’an and Shaanxi as a whole, and has long attracted the attention of relevant departments. This Weibo is maliciously smeared, full of swear words, and distorts the facts. Very subjective Weibo is often sent out by improper means without review, and it is often maliciously framed by various enterprises, institutions, companies, government departments, etc. in Xi’an, and even not released I went to a street restaurant and then charged a high fee to delete Weibo, which is already full of infamy.” As of March 30, 2015, the article had a total of 13,787 views and 245 likes.

The court held that although the two accounts “in Xi’an” and “IN Live” were not citizens or legal persons, they had virtual personalities as virtual subjects on the Internet. Virtual personality alone does not have the right of reputation, because the disputes over the right of reputation are caused by the infringement of the reputation of the virtual personality, which will reduce the social evaluation obtained and maintained by the real subject behind it. The article published by the defendant did contain insulting and defamatory remarks, and the article also had a certain amount of reading, thus causing damage to the reputation of the two accounts “in Xi’an” and “IN Live”. According to the evidence, the two accounts are well-known, so the plaintiff’s reputation as the management and user of the two accounts is of course damaged. Therefore, the plaintiff’s claim that the defendant should stop the infringement, restore the reputation, eliminate the influence, and make an apology is justified in law.

By registering virtual network names, network users can participate in cyberspace activities with virtual personalities in accordance with the law, which can bring spiritual pleasure to the actual network users themselves, and sometimes can also create real material wealth for them. Therefore, The infringement of the virtual personality of the network user in cyberspace can also be transformed into the infringement of the personal rights, property rights and other legitimate rights and interests of the network user in reality;

In the network environment, the virtual name must correspond to the natural person in real life, so the rights and obligations of the network tort liability should be borne by the natural person represented by the virtual name;

As a network virtual subject, it has a virtual personality. Virtual personality alone does not have the right of reputation, because the disputes over the right of reputation are caused by the infringement of the reputation of the virtual personality, which will reduce the social evaluation obtained and maintained by the real subject behind it. At the same time, according to the “Personality Rights Extension Protection Theory”, the personality rights of virtual avatars are the extension of people’s personality rights in the real world in time and space, and the extension in the virtual space of the Metaverse;

In addition, the virtual avatar enjoys the personality rights of an incomplete natural person, excluding the personality rights related to the living body, such as the right to life, the right to the body and the right to health.

The personality rights enjoyed by virtual avatars should be similar to the personality rights of legal persons, and are a kind of quasi-personality rights, which need to be exercised by people in the real world.

4. Name right issue

 

Article 1012 of the Civil Code stipulates that natural persons have the right to name, and Article 1013 stipulates that legal persons and unincorporated organizations have the right to name. The virtual person in the Metaverse is not a natural person who enjoys life, and can only enjoy the right of name with reference to a legal person or an unincorporated organization. The virtual person is not a living natural person, so the name of the virtual person may infringe the right of the natural person’s name. If the virtual person’s name is falsely used or copied by others, it may cause unfair competition due to confusion, misidentification and dilution.

If a virtual person’s name is falsely used or copied by others, it will constitute an act of unfair competition. First of all, the virtual person name should meet the precondition of “having a certain influence”. To determine the “virtual person name with a certain influence”, it should be considered. The main part of the virtual person name, the establishment and use time of the virtual person name, the number of visits and a certain market reputation, known to the relevant public, the duration, degree and geographical scope of any publicity, the status of protection and other factors. Comprehensive judgment.

Case 3: He Jiong v. Shanghai Zigu Honglan Artificial Intelligence Technology Co., Ltd.

Brief introduction to the case: Shanghai Zigu Honglan Artificial Intelligence Technology Co., Ltd. used He Jiong’s “portrait emoticon package” and the name attached to He Jiong’s personality interests in the bookkeeping. Intended to be “sentimental”.

The court held that: First, the core logic of the software involved in the case is to create a virtual AI character, project the overall image of the natural person’s name, portrait, personality characteristics, etc. onto the AI ​​character, and allow the user to set a certain amount with the AI ​​character. This is the use of the plaintiff’s overall image and personality representation, which belongs to the scope of the plaintiff’s personality freedom interests, and the personality interests of portrait rights and name rights cannot completely cover the personality interests involved in the software involved in the case.

Secondly, the functions of the software involved in the case allow the AI ​​characters to be highly related to real natural persons, which can easily allow users to have an emotional experience of real interaction with the plaintiff. Under this premise, the software presets the function that the user can choose to establish an intimate relationship with the plaintiff, allowing the user to arbitrarily set the mutual appellation with the AI ​​character, and also set such as “love you” and “hug” on the interactive page. Intimate dialogue label, the above function settings not only belong to the category of the plaintiff’s free decision on how to use his personality elements, but also involve the plaintiff’s personal dignity being respected.

The defendant did not obtain the plaintiff’s permission to use the plaintiff’s personality elements in the above-mentioned way, infringing the plaintiff’s personality freedom and interests and respecting the personality, which constituted an infringement of the plaintiff’s general personality rights.

5. The issue of portrait rights

Article 1018 of the Civil Code stipulates that natural persons enjoy the right to portrait and have the right to make, use, publish or permit others to use their portraits in accordance with the law. A portrait is an identifiable external image of a specific natural person reflected on a certain carrier by means of video, sculpture, painting, etc.

The portrait right is a personal right, and only real natural persons have this personality right, while the virtual person itself does not enjoy the portrait right. The use of the portrait of another person as an image by a virtual person does not comply with the provisions of Article 1020 of the Civil Code for fair use, and should obtain the permission of the right holder, otherwise the image of the virtual person may infringe the portrait right of a natural person.

Case 4: Shanghai Ninth City Information Technology Co., Ltd. and Diego Armando Maradona

The court held that: Ninth City Information Technology Company and Ninth City Computer Technology Company used Maradona in the main interface of the “Hot Blood Ball” game developed and operated by Maradona without the legal authorization of Maradona. Donna’s portrait and the words on his signature subjectively have the fault of not fulfilling the reasonable and appropriate duty of care, infringing on Maradona’s portrait rights.

The face-pinching system has become a standard feature in games, and with the addition of black technology and the improvement of players’ face-pinching skills, people want to pinch their favorite real stars. This kind of use of other people’s portraits on virtual clones belongs to the production, use, and disclosure of other people’s portraits, and it is suspected of infringing other people’s portrait rights.

6. Voice rights

The second paragraph of Article 1023 of the Civil Code stipulates that the protection of the voice of natural persons shall refer to the relevant provisions on the protection of portrait rights. This article clearly protects the voice of natural persons. Although it does not specify that natural persons enjoy the right of voice, which is an independent and specific personality right, it clarifies that natural persons enjoy the rights and interests of voice, and the protection of portrait rights is applied with reference.

Because virtual people are not living natural persons, they do not have voice rights or voice rights, but they may infringe voice rights or voice rights by imitating the voices of stars or smearing or defacing other people’s voices. Living or deceased star voices are Under the protection of the law, the celebrity voice here can be a verbal expression with content, or it can be just a piece of laughter. To vilify and deface other people’s voices means: inappropriate borrowing, processing and other means cause the use of the voice to violate or deface the voice. It tarnishes the original intention and effect of other people’s voices, for example, the English speech of Lei Jun, chairman of Xiaomi Corporation, at the launch of Xiaomi’s new products in India was made into a ghost video.

If the above behavior does not constitute an infringement of voice rights or voice rights, it may also constitute unfair competition due to confusion and misidentification.

Imitation of other people’s voices by virtual persons may also infringe sound trademark rights. Sound trademarks refer to trademarks composed of sound elements that can distinguish the source of goods or services. The sound elements can be composed of musical sounds or non-musical sounds. , can also be composed of both musical and non-musical sounds.

7. Copyright issues

The images of virtual characters can usually be protected as works of art. The works in the Copyright Law are required to be original, and the names of virtual characters are not original because they are only simple words, so they cannot be protected by the Copyright Law. Confusion and misidentification can be protected by the Anti-Unfair Competition Law.

A virtual person who plays the role of a natural person needs to be authorized by himself, while a virtual person who recreates a deceased artist needs to be authorized by the deceased artist’s family or a contracted performance company during his lifetime. The works created by the virtual person shall be copyrighted by the natural person, legal person or unincorporated organization that created the virtual person.

8. Inheritance issues

In the Metaverse, virtual identities become people’s identity in the virtual world. When the natural person in the real world corresponding to the virtual identity dies, this involves legal issues related to the inheritance of virtual property.

Article 127 of the “Civil Code” confirms the protection of data and network virtual property, and Article 1122 stipulates that “heritage is the legal personal property left by a natural person when he dies”.

Case 5: Zhu Lin and the Xinyang Branch of China Mobile Communications Group Henan Co., Ltd.

The court held that: the plaintiff requested the defendant’s mobile company to cooperate in transferring the mobile phone number used by his father to the plaintiff’s name. The ownership of the mobile phone number belongs to the state, and the communication tool number belongs to virtual property in a broad sense. Specific personal attributes generate certain related interests. It can be seen that the right to use a mobile phone number also has property rights, and its essence is a usufructuary right.

According to the first paragraph of Article 1122 of the Civil Code of the People’s Republic of China, inheritance is the legal personal property left over by a natural person when he dies. The right to use a mobile phone number can be inherited as a natural person’s personal legal property.

Therefore, the corresponding digital assets corresponding to the avatar’s identity in the Metaverse can be inherited in accordance with the Succession Chapter of the Civil Code.

Author: Attorney Huang Bin

Special Expert for Internet Law Review

Senior Associate Partner of Beijing DHH (Shenzhen) Law Firm

[Disclaimer] This article only represents the author’s personal views and has nothing to do with this platform. This platform remains neutral to the statements and opinions in this article, and does not provide any express or implied guarantee for the accuracy, completeness or reliability of the content contained herein.

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