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Pokémon Go is just the beginning of an absurd copyright struggle in AR

The EGDF's Jari-Pekka Kaleva anticipates a major legal hurdle

Pokémon Go was the huge global hit that was finally able to push augmented reality to mainstream. It was also the hit big enough to wake up European copyright watch dogs. And if it is up to them, the introduction of augmented reality will be first and foremost a legal battle instead of an artistic and technological challenge.

Augmented reality is coming, but not for everyone in Europe

For years European Commission has tried to harmonise and modernise the European copyright framework. In some areas, like with minimum standards for trademarks, it has been successful. In some other areas, it has failed miserably. One of those areas is the freedom of panorama. The freedom of panorama, or the lack of it, determines whether or not you are allowed to take photos, film, create paintings or any other images on buildings, sculptures and other works of art that are permanently located in public space, without an authorisation from an architect or artist behind those works.

Most of the EU member states, among others Germany, Spain and Poland, grant the almost full freedom of panorama. Some, like Finland and Denmark, limit it to buildings. Other member states, like Estonia and Slovenia, only grant it for non-commercial use. And few, like Sweden, France, Italy and Greece, do not grant it at all.

Thus it is not a surprise that quickly after the launch of Pokémon Go Swedish Bildupphovsrätt, an association representing sculptors and other creators of works of art, accused the game for ruthlessly exploiting the creators of sculptures. As it is still an open question how the existing Swedish copyright framework will be implemented in augmented reality, it is unclear how strong legal base these accusations actually have. All in all, the debate has now started, and it will not end until the current legal framework is tested in long and burdensome legal battles around Europe or before the European copyright framework is modernised.

"As France, Sweden, Italy and Greece are struggling to digest the first generation of augmented reality technology, the next generation will be even a bigger challenge for them"

From the perspective of game developers, this means that European digital single market area is divided into:

  • those countries that allow new and innovative augmented reality content to be developed freely,
  • countries that allow it be developed freely for buildings, but not for sculptures,
  • countries who only allow it to be developed for non-commercial projects,
  • and counties that don't allow it to be developed at all, if a game developer is not ready to find and get a permission from every single architect and artists whose works protected by copyrights are visible on the screen.

Luckily, at the moment, game developers can still limit the access to their games to those countries that allow them to develop their content without restrictions. Unfortunately, this might change soon.

European Commission has proposed a new regulation banning geoblocking in the European Union. In practice this means that cloud service providers would not be able to block the access to their services for customers coming from other EU member states. However, any content or services protected by copyright are left out from the final proposal for the directive. The Commission plans to re-examine this exemption already in two years after the regulation has been accepted. If the exemption will be removed, game developers will not be able to limit the access to their games to selected member states, as e.g. all application stores would become European instead of being national.

If this happened, it would also mean that the developers of augmented reality games could no longer be able to limit the access to their games to the EU member states respecting the freedom of panorama. This could easily lead to a situation where the regulatory barriers and legal uncertainty would quickly crush the emerging field of augmented reality based technology, business and art in Europe.

The blurred vision of the European augmented reality

As the success of the European games industry demonstrates, digital artistic content is one of the few areas where Europe is still the leading globally. The augmented reality is a new frontier in the human creativity that literally builds a new layer of European digital artistic content on the top of the rich physical European cultural heritage. It is a frontier, where European game developer studios with games like Shadow Cities were early pioneers.

Thus Europe has the talent needed to conquer the global markets now when the augmented reality is finally rising. Unfortunately, for many Member States legal barriers will be the obstacles that hinder the European creators from becoming global pathfinders and trendsetters by being the early adapters of the cutting edge technological opportunities.

As France, Sweden, Italy and Greece are struggling to digest the first generation of augmented reality technology, the next generation will be even a bigger challenge for them. 3D scanning technology is going forward quickly and in a not so distant future the augmented reality will be based on 3D scans of the environment surrounding a player, instead of location data. Naturally this means that a game has to be allowed to make detailed 3D scans of the public space as well.

In this context, it is important to remember that the 3D scans would not be made about individual objects like sculptures or facades. Instead the scans will be general 3D models of the environment itself that do not separate different objects and therefore these scans cannot be used for 3D printing specific objects, if they can be used for it at all. In any European country, where general 3D models created from public space are not included in the freedom of panorama, this is likely to inflict a long legal debate. As making multiple versions of the game is often too burdensome, in order to be on the safe side, many European game developers will rely on less detailed versions of the scanned public space in their games.

Consequently, for many EU member states the next generation of European augmented reality will be based on blurred 3D boxes while the rest of the World will be creating augmented digital content on detailed 3D models that include facades and statues in public space. As game developers in the USA are likely to face similar challenges in their home markets with sculptures, the road to the augmented future is likely to be paved by Chinese creators, if the USA and Europe fail to solve their legal problems.

"While the new proposal from the Commission will be negotiated in the European Parliament, members of the parliament will have a new opportunity try to introduce the freedom of panorama in the European regulation"

The Commission has failed to take a step forward, it is time for the Member States and European parliament to act

According to Politico, 25 of 26 EU Member States were ready to introduce European wide freedom of Panorama, but as France fought back, in the end the Commission did not include it in its proposal for changes in the European copyright regulation published in September 2016.

This does not mean that the dreams of building an augmented reality friendly copyright framework would have been buried. On the other hand, European Parliament voted with a crushing majority against killing freedom of panorama last year while debating its position on the future of the European copyright system. On the other hand, MEP Marietje Shaake (ALDE) failed to get the majority of the parliament to support the original position of the copyright report drafted by MEP Julia Reda (Pirate Party) that tried to make the freedom of panorama a rule in the entire Union.

While the new proposal from the Commission will be negotiated in the European Parliament, members of the parliament will have a new opportunity try to introduce the freedom of panorama in the European regulation. And that is something members of the parliament supporting the full freedom of panorama are planning to do over the next months.

However, getting the support from the Parliament alone will not be enough to introduce the Freedom of Panorama in all European countries. The Members States also have to support it. If the Freedom of Panorama is reintroduced by the Parliament, it is clear that at least France will continue to fight it, but it will not be able to block it without support from other Member States.

Consequently, during upcoming months we will see if the majority of the Members of the Parliament and Member States have the courage to move the legal obstacles from the augmented future and finally introduce the full Freedom of Panorama on the European level. It is a decision that will define what kind of European digital cultural heritage can be created for the upcoming generations during the early days of augmented reality.

European Games Developer Federation (EGDF) is supporting Wikimedia in its efforts to introduce full Freedom of Panorama in all European countries.

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