A copyright is an intellectual property right which protects the ownership of a person over an

intellectual property by giving the person the exclusive or sole right to duplicate or further
copy the original work which was produced by him in the first place. Though the metaverse
is still in a nascent stage, it is developing rapidly even the users and organizations have
already started using the metaverse. In fact, Indian organizations are also not lagging behind
and recently Pooja Entertainment bought a virtual land namely Poojaverse in the metaverse
to showcase its upcoming films.1 Though the metaverse will function with the aid of
softwares, computer programmes and technologies that may be copyrighted in themselves,
this copyright protection may not extend to the metaverse itself since an essential requirement
for copyright protection is the work being a creative expression. Instead, the metaverse is a
virtual reality space or a digital universe where users can interact with each other just like in
the real world, the only difference being that such interaction would be achieved through
computer programmes. However, what becomes even more uncertain in all the uncertainty
revolving around copyright protection for the metaverse is that whether the creative
expressions of the users or organizations will be copyrighted. Currently, the metaverse is of
two types: open and closed. In the former kind, the right to access given to the users in
unhindered by the organization. This means that the work can also be reproduced by the users
without the knowledge or permission of the organization. On the other hand, in a closed
metaverse, every aspect is regulated by the organization so users have no control over it. It
may be argued that the problem of copyright infringement can be solved by making systems
closed, however the problem lies in the fact that in a closed metaverse, the big technology
companies like Google and Apple may try to gain control like they do in the real world to
hinder free access and use. Therefore, users hope for an open metaverse based on the
principle of free internet which is also the vision of the Web 3.0 on which the metaverse is
being built.2 It follows that in the closed metaverse system, organizations would be able to
protect their copyright and this may not be possible in the open system. Since, it is crucial to
develop the open metaverse in the consumer interest, the copyright regime for the metaverse
also has to be developed to balance the interests of all stakeholders. Many copyright
protection regimes are currently inept for this revolution, India being one of them. The
copyright regime in India is governed by the Copyright Act, 1957 read with the Copyright
(Amendment) Rules, 2021. The pertinent question is that how the risk of copyright
infringement is higher in the metaverse which makes the current copyright regime of India
1
https://www.forbes.com/sites/swetakaushal/2022/02/15/indias-pooja-entertainment-buys-virtual-land-in-
metaverse/?sh=6760021b558a
2
https://www.realvision.com/blog/open-vs-closed-metaverse
incapable. In the metaverse, the work of the original license holder would be easier to
reproduce. It can be compared to the digital space in general where the work is easily
accessible and distributable in the form of links. Such ease of sharing is not possible in the
physical world due to territorial and monetary constraints. Therefore, reproduction is limitless
in the digital space which poses a greater threat for the copyright holder. Moreover, since the
reproduction is limitless, it can be made on a global level beyond jurisdictions. Further, since
all the interaction in the metaverse will take place by the use of avatars, personality rights
will also be threatened. Right to personality refers to the right of an individual to protect his
personality which may include his voice, likeness or any other features which distinguishes
him from other individuals.3 In the virtual reality or the metaverse, impersonation is easier
through the use of software and AI. 4 The Copyright Act, 1957 does not define personalities.
But the act protects performer’s rights which is a form of personality rights. The personality
rights are also protected through common law principles and doctrines of passing-off. As the
identity of the infringer is difficult to determine in the metaverse due to the privacy and
identity protection provided by the Blockchain technology, the Copyright regime in India
would also be ineffective in preventing infringement of personality rights which may have
grave consequences. In this scenario, India can develop its copyright regime by following the
footsteps of the nations that have an advanced regime for the protection of copyrights in the
metaverse. For instance, in Europe the first step towards a copyright regime in the metaverse
was taken by the European Court of Justice in the case of Bezpečnostní softwarová asociace
— Svaz softwarové ochrany vs. Ministerstvo kultury5 by recognizing that even work created
inside the metaverse universe will also be granted the protection of copyright law as long as it
is an artistic work. It is crucial, because without recognition of rights, no law can be framed.
Similarly, India also needs to clarify its stance on grant of copyright to works created in the
metaverse. Further, in Europe, it has also been clarified that in the case of open metaverse,
the organization that is creating the basis by use and integration of software on which other
users can further produce new elements will be provided a license which will help in
identifying their copyright to the property. 6 The same approach can be adopted by India as
well.

3
https://www.mondaq.com/india/copyright/1214846/content-intellectual-property--the-metaverse
4

5
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62009CJ0393&from=LV
6
https://intellectual-property-helpdesk.ec.europa.eu/news-events/news/intellectual-property-metaverse-episode-
iv-copyright-2022-06-30_en
From a legal standpoint, the Berne Convention for the Protection of Literary
and Artistic Works, now ratified by 181 countries, establishes that contracting
parties must grant exclusive rights to authors over their works irrespective of
the type or form of their expression. The Berne Convention has since been
supplemented by other international agreements, including the WIPO
Copyright Treaty, adopted in 1996, which adapts the Berne Convention to the
digital environment. This agreement (Agreed Statement concerning Article 1(4)
of the WIPO Copyright Treaty) makes it clear that the storage of a protected
work in digital form in an electronic medium (such as an NFT or a file, the
content of which is displayed in the metaverse) constitutes a reproduction
which needs the prior approval of the copyright holder. It seems that the law
does not always travel so slowly.

NFTS AS INTELLECTUAL PROPERTY AND THE METAVERSE

NFT as stated earlier is a form of digital certificate which is authenticates asset ownership. It
can be used as a form of currency which can be used to buy and sell digital art and other
objects in Web 3.0 and the metaverse. Even digital artworks, music and other graphics can be
sold as NFTs itself which has gained popularity now. 7 NFTs, as the name suggests are non-
fungible which means they cannot be further traded like cryptocurrency. With the advent and
development of Web 3.0, the trade of NFTs has also grown. This has resulted in conflicts
regarding the status of NFTs as intellectual property due to the fact that their underlying basis
is artistic work which is a creative expression. A recent example of such conflict in India is
the case of Digital Collectibles v. Galactus Funware Technology Private Limited. 8 In the facts
of this case, the appellant was the creator of an online marketplace where third parties traded
Digital Player Cards. These digital cards used the attributes like names, photographs and
signatures of certain cricketers. The appellant had exclusive licenses with regard to the digital
cards. The defendant company has a mobile application named Striker wherein they carried a
business similar to the appellant and Digital Player Cards were traded through the use of NFT
Technology but without authorization of the said cricketers. The issue surrounded the breach
of copyright and passing off or more specifically the breach of personality rights. The Delhi
High Court in this matter ruled that since the Digital Player Cards did not use photographs of
the cricketers and instead another artistic work was used, a new creative element was added

7
https://www.finnegan.com/en/insights/articles/demystifying-nfts-and-intellectual-property-what-you-need-to-
know.html
8
2023 SCC OnLine Del 2306
and did not result in breach. Further, it was opined that the information used by the Defendant
like performance data was easily available in the public domain and the cricketers themselves
cannot grant the sole right to public information to any party. Therefore, the Hon’ble Court
concluded that there was no infringement since the right did not exist in the first place. It can
be seen that by virtue of this judgement, the Court has been able to set a ground for the future
legislative framework in India. While appreciating the objective of the metaverse and world
wide web, the Court has applied the current intellectual property regime in deciding the case.
The court has skilfully tailored the current law to harmonise it with a complex and
developing technology like NFTs. The Court has clearly applied the existing principles of
intellectual property to state that use of artistic images rather than the photographs of the
cricketers on the NFTs create a new element which means it is an original creative
expression. If this approach is followed by the courts and legislature in the future, it is amply
clear NFTs may also be granted the protection of intellectual property.
On another note, it is suggested that Non-Fungible Tokens (NFT) which help in identifying
the copyrighted work may also be recognized as a legal virtual digital asset in India in future
for the transactions in the metaverse as these NFTs cannot be reproduced. This implies that
the work will not be easily accessible like in the digital space and can be bought by each user
independently by virtue of NFTs for his personal use and enjoyment. It will thus reduce the
threat of commercialization of the original copyright holder’s work. Regarding India’s
concerns surrounding the regulation of NFTs, it is further proposed that India can also lay
down extensive obligations for the NFT platforms as intermediaries in the due course while
developing the framework for NFTs and their regulation in India.9