Virtual reality has opened up a whole new world of scent, taste and tactile experiences, but should these be the subject of legal protection? asks Dr Vladimir Samoylov

Comment: A novel chemical composition or a recipe may be the subject of a patent. One may even be able to register a distinctive scent as a trade mark. Copyright however, is unlikely to protect creative expressions for senses other than visual or auditory.

Although the issue has not come before the courts in New Zealand, the smell of perfume and the taste of cheese have been the subject of copyright claims in Europe. Both were unsuccessful due to the difficulty in discerning original creative expression in these products. And the inseparability of the expression from its functional purpose was the basis for the feel of a Koosh Ball being denied copyright in the USA.

The basis for denying copyright to non-visual/auditory expressions may soon become obsolete, at least in the world of virtual reality. With the growing popularity of virtual reality headsets such as the HTC Vive and PlayStation VR, as well as recent progress in complementary sensory technology, including scent expellers and virtual reality skin, substantial expansion of the creative canvas for non-visual/auditory expression is foreseeable. Unconstrained by the laws of nature, creators in this field will be limited only by their own imaginations. In their virtual worlds, pine trees might smell like the ocean with just a hint of raspberries, and yet feel like jelly to the touch.

The question of course is, should copyright extend to such creative expressions?

On the one hand, there does not appear to be any lack of creativity in the virtual reality field. So protection extending to expressions for the non-visual/auditory senses does not seem necessary to incentivise creators in the field. Such expansion of copyright, at this time, may also be premature. Technology for communicating to senses other than visual or auditory is at the early stages of development. Anything being communicated through such technology is, at this stage, likely to comprise general concepts as opposed to discernible original expressions.

On the other hand, the virtual reality field may not appear lacking in creativity because it is likely to be driven by more than merely monetary incentives. The creativity may nevertheless be worthy of reward, being society’s gratitude for the work in its recognition that it is deserving of legal protection. It is also likely that as technology for communicating to senses other than auditory or visual improves, allowing for the development of intricate expressions, the creators will become increasingly interested in protecting their work.

In my article “Sensing the Future of Copyright” (published in Issue 124 of the Intellectual Property Forum: Journal of the Intellectual Property Society of Australia and New Zealand), I explain, with reference to practical examples informed by those working in design as well as the virtual reality field, how creative originality can be discerned in non-visual/auditory expressions. Although, it is unlikely to be the case now, it is foreseeable that creative originality in such expressions will become clearly discernible. I argue that copyright should be available to the creators when this is the case.

Whether you think non-visual/auditory expressions should be protected, or not, the conversation is a timely one. Virtual reality is developing rapidly. Meanwhile, the New Zealand Copyright Act, is currently under review.

Vladimir Samoylov is a solicitor and recent PhD graduate from Victoria University of Wellington.

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