The Metaverse beyond the internet

ABSTRACT

Just as the evolution of the Internet has transformed the way people live and work, so too the next significant iteration of the Internet, commonly referred to as the Metaverse, which the authors suggest will go beyond the Internet as a sort of successor state to the Internet, will also lead to significant societal change. This paper considers a number of issues that are likely to test the law and its response including in the areas of online wrongs, intellectual property and digital assets.

KEYWORDS:

• Metaverse
• internet
• regulation
• online wrongs
• intellectual property
• intangible assets

View correction statement:

Correction

Acknowledgements

The authors are grateful to Ms Tomoe Suzuki of the NUS Centre for Technology, Robotics, Artificial Intelligence & the Law for her assistance on earlier drafts of this paper.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Correction Statement

This article was originally published with errors, which have now been corrected in the online version. Please see Correction (http://dx.doi.org/10.1080/17579961.2023.2254585)

Notes

1 Tim Harford, ‘Does Pornography Still Drive the Internet?’ (BBC News, 5 June 2019) <https://www.bbc.com/news/business-48283409> accessed 10 August 2021. See also David Kushner, ‘A Brief History of Porn on the Internet’ (Wired, 9 April 2019) <https://www.wired.com/story/brief-history-porn-internet/> accessed 10 August 2021 and Ross Benes, ‘How Porn Has Been Secretly Behind the Rise of the Internet and Other Technologies’ (South China Morning Post, 8 May 2017) <https://www.scmp.com/tech/innovation/article/2093428/how-porn-has-been-secretly-behind-rise-internet-and-other> accessed 28 October 2021.

2 See e.g. John Perry Barlow, ‘A Declaration of the Independence of Cyberspace’ (Electronic Frontier Foundation, 8 February 1996) <https://www.eff.org/cyberspace-independence> accessed 28 October 2021.

3 Don Slater, ‘Social Relationships and Identity Online and Offline’ in Leah Lievrouw and Sonia Livingstone (eds), Handbook of New Media: Social Shaping and Consequences of ICTs (Sage Publications 2002) 534.

4 ibid.

5 See e.g. Tim Greene, ‘What Is the Internet Backbone and How It Works’ (Networkworld, 12 March 2020) <https://www.networkworld.com/article/3532318/what-is-the-internet-backbone-and-how-it-works.html> accessed 28 October 2021.

6 A good example is the draft Online Safety Bill published by the UK government on 12 May 2021, at <https://bills.parliament.uk/bills/3137> accessed 11 April 2023.

7 Although the terms ‘the Internet’ and ‘World Wide Web’ are often used interchangeably to mean the same thing, and also to refer to online life – as is the case in this paper – a more technical understanding of the Internet is that it is the network of connected computers forming the infrastructure that data flows through including what makes up the Web, which are the pages that we view through a device.

8 For example, providing information overlays on objects, buildings or places that we encounter; or directional maps in the physical world that help us to navigate from point to point.

9 J Smart, J Cascio and J Paffendorf, ‘Metaverse Roadmap Overview’ (Acceleration Studies Foundation) 4, at <https://web.archive.org/web/20220119043102/www.metaverseroadmap.org/MetaverseRoadmapOverview.pdf> accessed 11 April 2023.

10 Tor Haugan, ‘Fiat Blocks: Students Use Minecraft to Build UC Berkeley (and Its Libraries) in Stunning Detail’ (Berkeley Library News, 23 April 2020) <https://news.lib.berkeley.edu/fiat-blocks> accessed 11 April 2023.

11 Rabindra Ratan and Yiming Lei, ‘What Is the Metaverse? 2 Media and Information Experts Explain’ (The Conversation, 12 August 2021) <https://theconversation.com/what-is-the-metaverse-2-media-and-information-experts-explain-165731> accessed 16 August 2021.

12 For a description and video, see Taylor Hatmaker, ‘Fortnite's Ariana Grande Concert Offers a Taste of Music in the Metaverse’ (Techcrunch, 10 August 2021) <https://techcrunch.com/2021/08/09/fortnite-ariana-grande-concert-metaverse/> accessed 16 August 2021.

13 Bernard Marr, ‘ABBA's Virtual Concert, The Metaverse and the Future of Entertainment’ (Forbes, 6 September 2021) <https://www.forbes.com/sites/bernardmarr/2021/09/06/abbas-virtual-concert-the-metaverse-and-the-future-of-entertainment/?sh=34bb2226844d> accessed 28 October 2021.

14 Mark Savage, ‘Abba Voyage: The Band's Virtual Concert Needs to Be Seen to Be Believed’ (BBC, 27 May 2022) <https://www.bbc.com/news/entertainment-arts-61592104> accessed 31 May 2022.

15 For an example of a contrary view, see Sean Monahan, ‘Techies Think We’re on the Cusp of a Virtual World Called “the Metaverse”. I’m Sceptical’ (The Guardian, 11 August 2021) <https://www.theguardian.com/commentisfree/2021/aug/10/techies-think-were-on-the-cusp-of-a-virtual-world-called-the-metaverse-im-skeptical> accessed 13 August 2021.

16 See e.g. Pranav Agarwal, ‘Augmented Reality: Explored’ (6 Jan 2019) <https://medium.com/acmvit/augmented-reality-explored-fc811b5eb770> accessed 8 May 2023.

17 Internet 2.0 being the onset of broadband and social media.

18 Matthew Ball, ‘The Metaverse Primer: A Framework for the Metaverse’ (29 June 2021) <https://www.matthewball.vc/all/forwardtothemetaverseprimer> accessed 11 August 2021.

19 ibid; see also Matthew Ball, ‘The Metaverse: What It Is, Where to Find it, Who Will Build It, and Fortnite’ (13 January 2020) <https://www.matthewball.vc/all/themetaverse> accessed 13 August 2021. Ball also admits that the full realization of these ideals is perhaps decades away.

20 For a useful overview of virtual worlds, see FG Lastowka and Dan Hunter, ‘The Laws of the Virtual Worlds’ [2004] 92 California LR 1.

21 For instance, see Andrew Webster, ‘Party Royale Could Fulfil Fortnite's Promise as a True Social Space’ (The Verge, 30 April 2020) <https://www.theverge.com/2020/4/30/21242668/fortnite-party-royale-social-space-metaverse-travis-scott> accessed 13 August 2021; FG Lastowka and Dan Hunter, ibid.

22 Digital Watch Observatory, ‘Digital Standards’ (Geneva Internet Platform) <https://dig.watch/issues/digital-standards> accessed 16 August 2021.

23 See Interoperability in the Metaverse (World Economic Forum Briefing Paper, January 2023) <https://www3.weforum.org/docs/WEF_Interoperability_in_the_Metaverse.pdf> accessed 18 April 2023.

24 Matthew Ball and Jacob Navok, ‘The Metaverse Primer: Interchange Tools + Standards and the Metaverse’ (29 June 2021) <https://www.matthewball.vc/all/interchangemetaverse> accessed 16 August 2021.

25 Tom Warren, ‘Sony really hated PS4 crossplay, confidential documents reveal’ (The Verge, 3 May 2021) <https://www.theverge.com/2021/5/3/22417560/sony-ps4-cross-play-confidential-documents-epic-games-agreements> accessed 1 November 2021.

26 Aron Garst, ‘Cross-Play Is the New Standard, but Developers Don't Think It Should Drive Development’ (Gamedaily.biz, 12 January 2021) <https://gamedaily.biz/article/1955/cross-play-is-the-new-standard-but-developers-dont-think-it-should-drive-development> accessed 28 October 2021.

27 For instance, the proposed European Digital Markets Act will require technology intermediaries providing core platform services to cooperate and interoperate with other service providers, making it possible for users to exchange messages and send files across different platforms, see European Parliament, ‘Deal on Digital Markets Act: EU Rules to Ensure Fair Competition and More Choice for Users’ (24 March 2022) <https://www.europarl.europa.eu/news/en/press-room/20220315IPR25504/deal-on-digital-markets-act-ensuring-fair-competition-and-more-choice-for-users> accessed 1 June 2022.

28 Matthew Ball and Jacob Navok, ‘The Metaverse Primer: Compute and the Metaverse’ (29 June 2021) at <https://www.matthewball.vc/all/computemetaverse> accessed 17 August 2021.

29 See e.g. Dan Goodman, ‘The Use of Mathematics in Computer Games’ (University of Cambridge, 2021) <https://nrich.maths.org/1374> accessed 28 October 2021.

30 J Yaden, ‘Fortnite Cannot Support More Than 100 Players, Epic Says’ (Gamespot, 30 March 2023) <https://www.gamespot.com/articles/fortnite-cannot-support-more-than-100-players-epic-says/1100-6512850/#:~:text=Epic%20Games%20CEO%20Tim%20Sweeney,the%20maximum%20Fortnite%20can%20support> accessed 11 April 2023.

31 Matthew Ball and Jacob Navok (n 28) above.

32 See also FG Lastowka and Dan Hunter (n 20), 64–65.

33 Andrew Bosworth, ‘Building the Metaverse Responsibly’ (Facebook, 27 September 2021) <https://about.fb.com/news/2021/09/building-the-metaverse-responsibly/> accessed 28 October 2021.

34 ibid.

35 Cathy Hackl, ‘The Metaverse Is Coming and It's A Very Big Deal’ (Forbes, 5 July 2020) <https://www.forbes.com/sites/cathyhackl/2020/07/05/the-metaverse-is-coming--its-a-very-big-deal/> accessed 28 October 2021.

36 See e.g. Anne McKinnon, ‘From Brain-Computer Interfaces to Digital Humans: How These Technologies Are Bringing Us Closer to the Metaverse’ (VRScout, 1 April 2020) <https://vrscout.com/news/bci-and-digital-human-technology-metaverse/>; Amir Reza Asadi, ‘BCI for Metaverse’ (24 March 2022) <https://metaverse.acm.org/bci-for-interaction-with-metaverse/> accessed 8 May 2023.

37 See e.g. Michael Bourlakis et al., ‘Retail Spatial Evolution: Paving the Way from Traditional to Metaverse Retailing’ (2009) 9 Electronic Commerce Research 135, 140–143.

38 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) [2016] OJ L119/1 (henceforth ‘GDPR’), Art 4(1). See also Singapore Personal Data Protection Act 2012 (Act 26 of 2012), s 2(1) (definition of “personal data”); UK Data Protection Act 2018, s 2(2); Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L281/31 (henceforth ‘Data Protection Directive’), Art. 2(a); California Consumer Privacy Act of 2018, §1798.140(o)(1).

39 California Consumer Privacy Act (n 38), s 1798.140(o)(1).

40 GDPR (n 38), Chapters 2, 3.

41 GDPR (n 38), Art. 6(1).

42 GDPR (n 38), Art. 7(4); Recitals (42), (43).

43 GDPR (n 38), Art. 8.

44 GDPR (n 38), Art. 9(1).

45 GDPR (n 38), Art. 9(2).

46 GDPR (n 38), Art. 14(2)(f). But see California Consumer Privacy Act, s 1798.140(o)(2) (excluding ‘publicly available information’ which is information lawfully made available from federal, state or local government records); Singapore Personal Data Protection Act, First Schedule, Part 2, para. 1 (enabling the collection, use or disclosure of personal data about an individual that is publicly available).

47 GDPR (n 38), Art. 9(2)(e) (in relation to special categories of personal data).

48 See e.g. Hosking v Runting [2004] NZCA 34, [2003] 3 NZLR 385 (NZ Court of Appeal, by a 3-2 majority). For examples of English cases that do not recognise a tort of invasion of privacy, see Kaye v Robertson [1991] 19 IPR 147; R v Khan (Sultan) [1997] AC 558; Schering Chemicals Ltd v Falkman Ltd [1982] QB 1; and Morris v Beardmore [1981] AC 446.

49 See, e.g. Duchess of Argyll v Duke of Argyll [1967] Ch 302; Venables v News Group Newspapers Ltd [2001] 1 All ER 908; Campbell v MGN Ltd [2004] UKHL 22.

50 See, e.g. Weller v Associated Newspapers Ltd [2015] EWCA Civ 1176.

51 [2015] EWCA Civ 1176.

52 Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457.

53 Fairhurst v Woodard, Case No. G00MK161 (County Court, Oxford, 12 Oct. 2021).

54 Creation Records Ltd v News Group Newspapers Ltd [1997] EMLR 444. The Metaverse analogy would be ‘private rooms’ or similar settings in which parties engage one another in activities and where outsiders are excluded.

55 Campbell (n 52).

56 Attorney-General v Guardian Newspapers Ltd (No. 2) [1990] 1 AC 109, 282 per Lord Goff.

57 Angus Crawford and Tony Smith, ‘Metaverse App Allows Kids into Virtual Strip Clubs’ (BBC News, 23 February 2022) <https://www.bbc.com/news/technology-60415317> accessed 20 June 2023.

58 Marie-Helen Maras and Lauren R. Shapiro, ‘Child Sex Dolls and Robots: More than Just an Uncanny Valley’ (2017) 21(6) Journal of Internet Law 3.

59 Section 376E of the Singapore Penal Code (Cap 224, Revised Edition 2008), as inserted by the Penal Code (Amendment) Act 2007 and subsequently revised by the Criminal Law Reform Act 2019, is in pari materia.

60 Or if the child travels with the intention of meeting the offender.

61 Helen Whittle, Cathering Hamilton-Giachritsis and Anthony Beech, ‘Victims’ Voices: The Impact of Online Grooming and Sexual Abuse’ (2013) 1(2) Universal Journal of Psychology 59, 62 (although the situations discussed by the authors in the cited article are different, to the extent that they include activities such as ‘sexting’ it is suggested that the consequences can be similar).

62 ibid, 60.

63 Section 376EB of the Singapore Penal Code is in pari materia.

64 Section 15A (summary conviction: up to 12 months or a fine or both; conviction: up to 2 years). Cf. section 15 (summary conviction: up to 6 months or a fine or both; conviction: up to 10 years).

65 Paula Bird, ‘Virtual Child Pornography Laws and the Constraints Imposed by the First Amendment’ (2011) 16(1) Barry Law Review 161.

66 Section 2256(6) of Title 18, U.S.C. states that ‘computer’ has the meaning given to such term in section 1030 of the same Code and the definition in this section provides that it ‘means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device’.

67 Section 2256(11), Title 18, U.S.C.

68 Bird (n 65), 167. S 1466A was enacted in response to the Supreme Court's decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), which found the predecessor legislation, the Child Pornography Prevention Act, unconstitutional.

69 Section 1146A(c), Title 18, U.S.C. Similarly focused legislation exists in Singapore's Criminal Law Reform Act of 2019, which appears to be modelled after the aforesaid US federal legislation.

70 United States v Dean, 635 F.3d 1200 (11th CA, 2011).

71 United States v Handley, 564 F. Supp. 2d 996 (S.D. Iowa, 2008).

72 Singapore Penal Code, s 377C(1). The same approach has been taken in the Singapore Online Safety (Miscellaneous Amendments) Act 2022 that came into force on 1 February 2023. Among other things, it introduces a new section 45D(1) to the Broadcasting Act 1994 (Revised Edition 2020) that interprets ‘egregious content’ as including ‘content depicting for a sexual purpose, or that exploits, the nudity of a child or part of a child in a way that reasonable persons would regard as being offensive, whether or not sexual activity is involved’. The objective of the Online Safety Act is to allow the regulator to issue directions to disable access by Singapore users to egregious content found on online communications services. Other examples of egregious content are content advocating or instructing suicide or self-harm, content that poses public health risks in Singapore, and content advocating physical or sexual violence and terrorism.

73 [2019] EWCA Crim 1650 (noting that hentai images involving animated images of children being subjected to various acts of sexual abuse did not involve any actual sexual harm of any actual children).

74 Criminal Law Reform Bill: Second Reading. Parliamentary Debates Singapore: Official Report, vol. 96, no. 37 (6 May 2019), 6.07pm Speech of Alex Yam.

75 ibid, 6.47pm Speech of Amrin Amin, responding to the speech of Alex Yam.

76 Suzanne Ost. ‘Criminalising Fabricated Images of Child Pornography: A Matter of Harm or Morality?’ (2010) 30 Legal Studies 230, 245.

77 Sameer Hinduja and Justin W Patchin, Bullying: Beyond the Schoolyard – Preventing and Responding to Cyberbullying (2nd edn, Corwin 2008), 45–51.

78 See e.g. Quora, ‘I’ve been seriously bullied in ROBLOX because of my avatar's skin color, then I’ve been called paper plane because some guy said my username was weird and the guy who did it wouldn't care and ended up hurting my feelings, does reporting work?’ (8 February 2021) <https://www.quora.com/I-ve-been-seriously-bullied-in-ROBLOX-because-of-my-avatars-skin-color-then-I-ve-been-called-paper-plane-because-some-guy-said-my-username-was-weird-and-the-guy-who-did-it-wouldn-t-care-and-ended-up-hurting-my> accessed 28 October 2021.

79 Cap. 256A, Revised Edition 2015.

80 Although the Hong Kong courts have expressed the view that the common law of Hong Kong does have a tort of harassment, see e.g. Wong Tai Wai v HKSAR Government, 2004 HKCA 260; CACV19/2003; Secretary for Justice and Commissioner of Police v Persons Unlawfully conducting themselves in any of the acts prohibited under paragraphs 1A, B or C of the Statement of Claim [2019] 5 HKLRD 500.

81 Epolar System Enterprise Pte Ltd v Lee Hock Chuan [2003] 2 SLR(R) 198.

82 For example, see Choo Zheng Xi and Fong Wei Li, ‘When Citizen Journalism Crosses the Line: Does the Harassment Act Have an Online Bite?’ (Law Gazette, June 2014 issue) <https://v1.lawgazette.com.sg/2014-06/> accessed 20 August 2021.

83 For example, see section 3, illustration (c) ('social media platform’), (d) (‘online forum’), section 4, illustration (a) (‘website’), all three illustrations to section 5 of POHA which involve posts on a website or a social media platform, and the section 6 illustration (‘open social media platform’).

84 Attorney-General v Ting Choon Meng [2017] 1 SLR 373.

85 Matthew Williams, Virtually Criminal: Crime, deviance and regulation online (Routledge, 2006) 98–99.

86 The position in relation to virtual stalking under POHA is less clear save where there exists communication or attempted communication between the perpetrator and the person being stalked, see section 7(3)(b) of POHA. However, like section 2A(3) of the UK Act of 1997, section 7(3) of POHA does not purport to provide an exhaustive list of examples, and it is possible for a court to take a robust interpretation of what involves stalking such as to include appropriate activities online even in the absence of any communication between the perpetrator and victim.

87 See e.g. Shweta Desai, ‘Metaverse Problematic in Work Environment, Warns Facebook Whistle-Blower’ (Anadolu Agency, 10 November 2021) <https://www.aa.com.tr/en/science-technology/metaverse-problematic-in-work-environment-warns-facebook-whistle-blower/2417534> (last accessed on 26 May 2022).

88 Government of France, ‘Against Information Manipulation’ <https://www.gouvernement.fr/en/against-information-manipulation> accessed 14 September 2021.

89 European Parliament, ‘Digital Services Act: Regulating Platforms for a Safer Online Space for Users’ (European Parliament Press Release, 20 January 2022) <https://www.europarl.europa.eu/news/en/press-room/20220114IPR21017/digital-services-act-regulating-platforms-for-a-safer-online-space-for-users> (last accessed 6 May 2022). The European Council and the European Parliament reached a provisional political agreement on the DSA on 23 April 2022, see Council of the EU, ‘Digital Services Act: Council and European Parliament Provisional Agreement for Making the Internet a Safer Space for European Citizens’ (European Union Press Release, 23 April 2022) <https://www.consilium.europa.eu/en/press/press-releases/2022/04/23/digital-services-act-council-and-european-parliament-reach-deal-on-a-safer-online-space/> (last accessed 6 May 2022). Final approval was given by the Council of the European Union on 4 October 2022 and affected services have until 1 January 2024 to comply with its provisions, see Council of the EU, ‘DSA: Council Gives Final Approval to the Protection of Users’ Rights Online’ (European Union Press Release, 4 October 2022) <https://www.consilium.europa.eu/en/press/press-releases/2022/10/04/dsa-council-gives-final-approval-to-the-protection-of-users-rights-online/> accessed 11 April 2023.

90 POHA (n 79), s 2(1) (defining an ‘entity’ as excluding any public agency).

91 This provision therefore does not apply to cases involving misinformation where a person believes the false statement of fact to be true and has no reason to believe that it is false. However, section 11(4) of POFMA allows a ‘Correction Direction’ to be issued to a person who has communicated a false statement of fact in Singapore ‘even if the person does not know or has no reason to believe that the statement is false.’

92 The breadth of what is potentially covered by POFMA is a matter that ought to be improved upon.

93 POFMA, section 11 (Correction Direction).

94 POFMA, section 12 (Stop Communication Direction).

95 POFMA, section 15 (provides for fines up to S$20,000 or imprisonment for a term not exceeding 12 months or to both in the case of individuals, and fines of up to S$500,000 for non-individuals).

96 POFMA, section 16(2) (‘Part 3 access blocking order’); section 22(1) (‘Part 4 disabling direction’); section 28 (‘Part 4 access blocking order’), section 33 (‘Part 5 access blocking order’), section 34 (‘Part 5 disable access order), section 40 (‘Part 6 account restriction directions’), section 42 (‘Part 6 access blocking order’), section 47 (‘Part 7 other measures’). Similarly, the Online Safety (Miscellaneous Amendments) Act 2022 allows the regulator to direct a provider of an internet access service to stop access by Singapore end-users to an online communication service that does not comply with directions of the regulator (see new section 45I to the Broadcasting Act 1994).

97 Under section 230, obscenity, child pornography, sex trafficking and other types of Federal criminal activities do not fall within the section 230 immunity, see 47 U.S.C. § 230(e)(1). Other exceptions include breaches of intellectual property (which will be addressed in a subsequent part of this paper) and communications privacy laws, see 47 U.S.C. § 230E(2), (4). Under the EU E-Commerce Directive, the immunities are subject to various conditions such as absence of knowledge of illicit activity or information and the requirement to act expeditiously to remove or disable access to the illicit resource, see, Council Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) OJ L178/1 (EU E-Commerce Directive), Arts. 12–14.

98 47 U.S.C. § 230(c)(2) (noting that content moderation obligations are voluntary); EU E-Commerce Directive (n 97) Art. 15. See Anupam Chander, ‘How Law Made Silicon Valley’ (2014) 63 Emory LJ 639; Daniel Seng, ‘Artificial Intelligence and Information Intermediaries’ <https://papers.ssrn.com/abstract=3935442>.

99 ibid, arts. 34, 35, DSA.

100 ibid, art. 37.

101 ibid, art. 42(2). Confidential information or information that may cause significant vulnerabilities or undermine public security or harm recipients may be removed. ibid, art. 42(5).

102 ibid, Preamble (90).

103 Draft Online Safety Bill: Presented to Parliament by the Minister of State for Digital and Culture by Command of Her Majesty, CP 405 (May 2021) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/985033/Draft_Online_Safety_Bill_Bookmarked.pdf> accessed 25 August 2021.

104 John Woodhouse, ‘Regulating Online Harms’ 12 (UK Parliament, House of Commons Library Research Briefing, 15 March 2022) <https://researchbriefings.files.parliament.uk/documents/CBP-8743/CBP-8743.pdf> accessed 1 May 2022.

105 Online Safety Bill (n 103), sections 2(1), 180 (defining ‘provider’ of internet service).

106 Online Safety Bill Explanatory Notes, at 7 <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/985031/Explanatory_Notes_Accessible.pdf>.

107 ICANN, ‘What Does ICANN Do?’ <https://www.icann.org/resources/pages/what-2012-02-25-en> accessed 29 October 2021.

108 IETF, ‘Mission and Principles’ <https://www.ietf.org/about/mission/> accessed 29 October 2021.

109 W3, ‘W3C Mission’ <https://www.w3.org/Consortium/mission> accessed 29 October 2021.

110 This has been done in existing virtual worlds, see FG Lastowka and Dan Hunter (n 20), 70.

111 Online Safety Bill (n 103), sections 57, 58.

112 Hong Kong International Airport, ‘Smart Airport’ <https://www.hongkongairport.com/iwov-resources/html/sustainability_report/eng/SR1819/airport-city/smart-airport-city/> accessed 27 August 2021.

113 See also section 18(1) – (3) of the Hong Kong Trade Marks Ordinance (Cap. 559) and section 27(1) – (3) of the Singapore Trade Marks Act (Cap. 332, Revised Edition 2005) which are in pari materia with the UK provisions. The UK Trade Marks Act is a transposition of the European Trade Marks Directive 89/104/EEC of 21 Dec 1988 (which was in turn replaced by Directive 2008/95/EC of 22 October 2008) and therefore, reference will also be made to European cases that have interpreted the equivalent provisions of the Trade Marks Directive.

114 Arsenal Football Club Plc v Reed (C-206/1) [2002] E.C.R. I-10273, para. 40; The Audience Motivation Company Asia Pte Ltd v AMC Live Group China (S) Pte Ltd [2015] 3 SLR 321, [55]-[56].

115 UK Trade Marks Act, s 11(2)(a), 11(3); Singapore Trade Marks Act, s 28(1); Asprey & Garrard Ltd v WRA (Guns) Ltd [2002] FSR 31; Premier Luggage and Bags Ltd v Premier Company (UK) Ltd [2003] FSR 5; The Audience Motivation Company Asia Pte Ltd v AMC Live Group China (S) Pte Ltd [2016] 3 SLR 517.

116 Case C-324/09 L’Oréal SA v eBay International AG [2011] ETMR 52, [67].

117 Case C-63/97 Bayerische Motorenwerke AG (BMW) and BMW Nederland BV v Ronald Karel Deenik [1999] ECR I-905.

118 Martin Senftleben, “Adapting EU Trademark Law to New Technologies - Back to Basics?” (30 June 2011) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1875629> accessed 29 October 2021; Christophe Geiger (ed), Constructing European Intellectual Property: Achievements and New Perspectives (Edward Elgar Publishing 2013) <https://ssrn.com/abstract=1875629> accessed 29 October 2021.

119 Registration in the same specification within a class set out in the International Classification of Goods and Services establishes a prima facie case for identity, because it is not within the scheme of the classification system to make distinctions within a specification based on whether the particular product is targeted at one or another market segment, Staywell Hospitality Group Pty Ltd v Starwood Hotels & Resorts Worldwide, Inc [2014] 1 SLR 911, [40].

120 UK Trade Marks Act, s 10(2)(a), (b); Singapore Trade Marks Act, s 27(2)(a), (b).

121 See e.g. Staywell Hospitality Group Pty Ltd v Starwood Hotels & Resorts Worldwide, Inc [2014] 1 SLR 911, [60]-[61].

122 Anke Moerland, New Trade Mark Uses in the Fourth Industrial Revolution: Virtual and Augmented Realities in Christopher Heath, Anselm Kamperman Sanders and Anke Moerland (eds), Intellectual Property Law and the Fourth Industrial Revolution (Kluwer Law International 2020, Kindle Edition), 280–337 <https://ssrn.com/abstract=3683788>.

123 ibid, 174–175, citing Adam Opel AG v Autec (C-48/05), paras. 23–24.

124 ibid. See also Hal Koss, ‘How Marketers Plan to Conquer the Metaverse’ (builtin, 7 September 2021) <https://builtin.com/marketing/metaverse-nft-brands>; Moerland, ibid, 156–157 and Janice Tan, ‘Hermes Sues Creater of Birkin-Inspired NFTs’ (Marketing Interactive, 24 January 2022) <https://www.marketing-interactive.com/hermes-sues-birkin-nft> accessed 14 March 2022.

125 UK Trade Marks Act, s 11(2)(c).

126 EU Misleading and Comparative Advertising Directive (2006/114/EC); UK Business Protection from Misleading Marketing Regulations 2008; O2 Holdings Ltd v Hutchinson 3G UK Ltd (C-533/06) [2008]); L’Oreal v Bellure (C-487/07) [2009]; Singapore Trade Marks Act, s 28(4).

127 See Staywell (n 119), [65].

128 See also Singapore Trade Marks Act, ss 8(4), 27(3).

129 Whether a mark is well-known in the country or a substantial part of it is a question of fact and degree based on the six criteria outlined in Art. 2 of a joint recommendation from the Assembly of the Paris Union and the General Assembly of WIPO. Le Mans (BL O-012-05); Hotel Cipriani SRL et. al. v. Cipriani (Grosvenor Street) Limited et. al. [2008] EWHC 3032 (Ch).

130 UK Trade Marks Act, s 56. The section has been revised to extend protection to well-known trade marks ‘irrespective of whether the goods or services in relation to which the other trade mark is used are identical with, similar to or not similar to those for which the well known trade mark is entitled to protection.’ UK Trade Marks Act, s 56(2A).

131 In the matter of Application 2462176, in the name of American Auto Exchange, Inc. for the mark AAX, in classes 9, 35 and 42, and in the Matter of Opposition No. 96190 by GA Modefine S.A., [6]-[7].

132 Moerland (n 122), 318.

133 See e.g. Case C-375/97 General Motors Corporation v Yplon SA [1999] ECR I-05421 (a ‘mark with a reputation’ must be known by a significant part of the public concerned in a substantial part of the relevant territory, taking into account the market share of the mark, the intensity, geographical extent and duration of its use, and the size of the investment made by the undertaking in promoting it); Case T-47/06 Antarctica Srl v Office for Harmonisation in the Internal Market [2007] ECR II-00042, [37]-[38] (‘NASDAQ’) (holding that there was no difference between the definitions of a trade mark with a reputation and a well-known mark, and ruling that in this instance, ‘[NASDAQ,] the earlier mark [with a reputation] was also known to a large part of the general public, which is interested in financial indices on account of their present or future investments’).

134 See also US Trade Marks Act, s 43(c)(B) (‘association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark’).

135 See also US Trade Marks Act, s 43(c)(C) (‘association arising from the similarity between a mark or trade name and a famous mark that harms the reputation of the famous mark’).

136 Section 10(3A) of the Act of 1994. See section 18(4) of the Hong Kong Trade Marks Ordinance and section 55(3)(b) of the Singapore Trade Marks Act which are in pari materia.

137 Section 43(c)(3).

138 See e.g. Case C-323/09 Interflora Inc. v Marks & Spencer [2011] ECR I-08625, para. 91.

139 See e.g. Lila Postkarte BGH 1 ZR 159/02 (German Federal Court of Justice); Pfizer Inc. v. Gall Pharma GmbH, 17 0b 15/19v, [2009] ECLI:AT:0GH0002:2009:0170OB 00015.09V.0922.000 (Austrian Supreme Court).

140 UK Trade Marks Act, s 10(3).

141 547 F.3d 1095 (9th Cir. 2008) (Rock Star).

142 ibid, 1096.

143 450 F Supp 3d 467 (SDNY, 2020).

144 ibid, 488.

145 Case C-100/11 Helena Rubinstein SNC and L’Oréal SA v Office for Harmonisation in the Internal Market [2012] ECLI:EU:C:2012:266, [95].

146 Moerland (n 122), 181–182.

147 See e.g. Detective Comics v Bruns Publications, 111 F.2d. 432 (2nd Cir. 1940); Warner Bros. Inc. v American Broadcasting Companies, Inc., 720 F.2d 231 (2nd Cir. 1983).

148 Marvel Enterprises Inc v NCSoft Corp, 2005 WL 878090, 74 USPQ 2d (BNA) 1303 (CD Cal 2005) (Marvel).

149 Singapore Copyright Act 2021, ss 49, 112(1)(a) (literary, dramatic and musical works), 113(a) (artistic works), 118 (published editions), 121(a)(i) (sound recordings), 124(a) (films), 127(a) (broadcast), 131(1)(a) (cable programmes); UK Copyright, Designs and Patents Act, s 16(1)(a); US Copyright Act, s 106(1).

150 Singapore Copyright Act 2021, s 41(2)(d), (2)(e); UK Copyright, Designs and Patents Act, s 17(3); US Copyright Act, s 101 (definition of ‘pictorial, graphic, and sculptural works’).

151 Singapore Copyright Act 2021, ss 64, 112(1)(d) (literary, dramatic and musical works), 113(c) (artistic works), 121(a)(iv) (sound recordings), 124(d) (films), 127(b) (broadcast), 131(1)(b) (cable programmes); UK Copyright, Designs and Patents Act, s 16(1)(d); US Copyright Act, s 106(4), (5).

152 Singapore Copyright Act 2021, ss 41(2)(a), 50; UK Copyright, Designs and Patents Act, s 17(6).

153 Meshwerks Inc. v. Toyota Motor Sales Inc., 528 F.3d 1258 (10th Cir. 2008) (finding the digital wire-frame model of Toyota's vehicles to be unoriginal and infringing Toyota's copyright in its vehicle designs).

154 Singapore Copyright Act 2021, s 292; UK Copyright, Designs and Patents Act, s 28A. See e.g. Public Relations Consultants Association v. The Newspaper Licensing Agency (2013) UKSC 18.

155 Singapore Copyright Act 2021, ss 265, 266; UK Copyright, Designs and Patents Act, s 62; HK Copyright Ordinance, s 71; US Copyright Act, s 120(a). The exact wording of the freedom of panorama exception however varies with the legislative implementation.

156 UK Copyright Act 1956, s 9(8); Singapore Copyright Act 2021, s 267; See Solar Thompson Engineering Co Ltd & Anor v Barton [1977] RPC 537; Flamelite (S) Pte Ltd v Lam Heng Chung [2001] SGCA 75. In the UK, this defence was subsumed pursuant to the ensuing reorganization of rights in 3-dimensional works into three separate but co-ordinated rights of copyright, registered designs and unregistered design rights. For a discussion about copyright and registered designs, see Lionel Bently, ‘The Return of Industrial Copyright’, (2012) 10 EIPR 654<https://doi.org/10.2139/ssrn.2122379>. The equivalent provision in the Australian Copyright Act, s 71, was repealed in 1989.

157 Singapore Copyright Act 2021, s 275; UK Copyright, Designs and Patents Act 1988, s 51, Schedule 1, s 6.

158 Singapore Copyright Act 2021, s 112(1)(e); UK Copyright, Designs and Patents Act, s 16(1)(e); US Copyright Act, s 106(2).

159 Micro Star v Formgen Inc, 154 F3d 1107 (9th Cir 1998) where the court held that the new maps created were in effect sequels to the story behind the game.

160 In an open world setting where users are encouraged to create and thereby add to the world, it would seem prima facie that copyright for new creations will vest with the creator subject to the terms of service.

161 Sony Computer Entertainment America, Inc. v. Bleem, LLC, 214 F.3d 1022 (9th Cir., 2000).

162 Bleem, ibid, 1027.

163 817 F.Supp.370 (S.D.N.Y. 1993).

164 Betsy Rosenblatt, ‘Moral Rights Basics’ (March 1998) <https://cyber.harvard.edu/property/library/moralprimer.html#:~:text=In%20the%20United%20States%2C%20the,of%20who%20owns%20the%20work> accessed 2 November 2021.

165 See US Copyright Act, § 106A(a)(1); UK Copyright, Designs and Patens Act 1988, ss 77, 84; Singapore Copyright Act 2021, s 371.

166 See US Copyright Act, § 106A(a)(2), (3); UK Copyright, Designs and Patens Act 1988, s 80. Cf. Singapore Copyright Act 2021, s 380 (right not to have altered copy represented as unaltered).

167 See US Copyright Act, § 106A(d)(1).

168 See US Copyright Act, § 106A(d)(2); UK Copyright, Designs and Patens Act 1988, s 86(1); Singapore Copyright Act 2021, s 370(b).

169 See e.g. UK Copyright, Designs and Patents Act 1988, s 86(2).

170 See e.g. Théberge v Galerie d'Art du Petit Champlain Inc [2002] 2 S.C.R. 336 (although the Supreme Court of Canada found for the copyright owner in ruling that there was no ‘reproduction’ of the original work when posters were transferred onto canvasses).

171 Snow v The Eaton Centre Ltd [1982] O.J. No. 3.

172 See Wikipedia, ‘Snapchat: Filters, lenses, and stickers’ <https://en.wikipedia.org/wiki/Snapchat#Filters,_lenses,_and_stickers> accessed 2 November 2021.

173 Patrick Masiyakurima, ‘The Trouble with Moral Rights’ (2005) 68 MLR 411.

174 See David Tan, ‘Image Rights and Data Protection’, in Simon Chesterman (ed), Data Protection Law in Singapore: Privacy and Sovereignty in an Interconnected World (2nd edn, Academy Publishing 2018).

175 California Civil Code, § 3344.

176 New York Civil Rights Law, § 51. This right has recently been enhanced by way of the new §50-f by way of Senate Bill S5959D, which creates a right of publicity for deceased individuals, including the ability of using technology to create digital replicas, and the creation of a registry for this purpose.

177 Legal Information Institute, ‘Right of Publicity: An Overview’ <https://www.law.cornell.edu/wex/publicity> accessed 8 May 2023.

178 971 F.2d 1395 (9th Cir., 1992).

179 ibid, 1398–1399.

180 Midler v Ford Motor Co, 849 F.2d 460 (9th Cir. 1988).

181 Tan (n 174) above.

182 Irvine v Talksport Ltd [2002] EWHC 367 (Ch), [34].

183 ibid, [38], [46].

184 Rihanna v Arcadia Group Brands Ltd (T/A Topshop) [2013] EWHC 2310 (Ch), [74].

185 For instance, the online platform Foursquare provides personalized recommendations of places to go near a user's current location based on users’ previous browsing history and check-in information. This has created privacy and even stalking concerns. Wikipedia, ‘Foursquare City Guide’ <https://en.wikipedia.org/wiki/Foursquare_City_Guide> accessed 8 May 2023.

186 See generally Tan (n 174) above.

187 Marvel (n 148) above.

188 See e.g. Giovanni Sartor, ‘Providers Liability: From the eCommerce Directive to the future’ (2017), European Parliament: Directorate-General for Internal Policies: Policy Department – Economic and Scientific Policy at 10 <https://www.europarl.europa.eu/RegData/etudes/IDAN/2017/614179/IPOL_IDA(2017)614179_EN.pdf>.

189 For example, see L’Oreal SA v eBay International AG [2009] EWHC 1094 (Ch), [2009] RPC 693 (L’Oreal).

190 CBS Songs Ltd v Amstrad Consumer Electronics Plc [1988] AC 1013, 1058 per Lord Templeman; Unilever plc v Gillette (UK) Ltd [1989] RPC 583, 608–609 per Mustill LJ; L’Oreal, ibid, [359]; Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch), [2010] FSR (21) 512, 543 (Newzbin).

191 Lionel Bently et al, Intellectual Property Law (5th edn, Oxford University Press 2018), pp1287–1288. See also Paul S Davies, ‘Accessory Liability: Protecting Intellectual Property Rights’ (2011) IPQ 390.

192 SABAF SpA v Meneghetti SpA [2002] EWCA Civ 976, 59 per Peter Gibson LJ.

193 Fish & Fish Ltd v Sea Shepherd UK [2015] AC 1229, [40].

194 (1853) 2 E & B 216, 232.

195 CBS Songs, (n 190), 1058 per Lord Templeman.

196 ibid.

197 Belegging-en Exploitatiemaatschapij Lavender BV v Witten Industrial Diamonds Ltd [1979] FSR 59, 65 per Buckley LJ; Ong Seow Pheng v Lotus Development Corp [1997] 2 SLR(R) 113, [34]-[35].

198 CBS Songs (n 190), 1058 per Lord Templeman.

199 CBS Songs, ibid, 1058; The Koursk [1924] P 140, 156. The law of conspiracy may also be applicable depending on the facts.

200 Thus facilitation combined with knowledge of the primary actor's intention is insufficient as mere knowledge is not equivalent to having a common design, see Fish & Fish Ltd v Sea Shepherd UK (n 193) above, [39].

201 Fish & Fish Ltd v Sea Shepherd UK (n 193) above, [21], [37], [55].

202 Unilever plc v Gillette (UK) Ltd [1989] RPC 583, 609.

203 ibid.

204 The Koursk (n 199) above. But see Case C-324/09 L'Oreal SA v eBay International AG [2011] ECR I-6011 and the E-Commerce Directive, Art. 14(1).

205 Marvel (n 148).

206 ibid, *3.

207 ibid, *4.

208 For example, Newzbin (n 190); Football Dataco Ltd v Sportradar GmbH (No 2) [2013] Bus LR 837.

209 464 US 417 (1984).

210 EU Copyright Directive 2019, Art. 17(4)(b), (c). See also Case C-401/19 Republic of Poland v European Parliament and Council of the European Union [2022] ECLI:EU:C:2022:297.

211 ibid Case C-401/19, [86].

212 FG Lastowka and Dan Hunter (n 20).

213 See e.g. Brad Jones, “What Would Happen if Cryptocurrency Became More Popular Than Cash?” (Futurism, 8 December 2017) <https://futurism.com/what-would-happen-if-cryptocurrency-became-more-popular-than-cash> accessed 8 May 2023.

214 It has been reported that Dolce & Gabbana unveiled a collection of dresses, suits, jackets, etc that can be worn by digital avatars and sold as NFTs, see Malcolm Moore, ‘NFT Mania Is a Sign of a Land Grab for the Online “Metaverse”’ (Financial Times, 9 September 2021) <https://www.ft.com/content/1ae22d81-4c23-4475-8661-354f1b8dbc7c> accessed 13 September 2021.

215 Wikipedia, ‘Non-fungible Token’ <https://en.wikipedia.org/wiki/Non-fungible_token>.

216 Rakesh Sharma, ‘Non-Fungible Token (NFT) Definition’ (Investopedia, updated 8 March 2021) <https://www.investopedia.com/non-fungible-tokens-nft-5115211> accessed 7 September 2021.

217 Elizabeth Howcroft, ‘Virtual Real Estate Plot Sells for Close to $1 mln’ (Reuters, 18 June 2021) <https://www.reuters.com/technology/virtual-real-estate-plot-sells-close-1-mln-2021-06-18/> accessed 7 September 2021, Tim Bradshaw, ‘Bored Ape Start-Up Set to Make $300mn in Metaverse Land Sales’ (Financial Times, 30 April 2022) <https://www.ft.com/content/f34c15c1-8bd4-481f-82a4-15428c185f13> accessed 8 May 2023.

218 Ethereum Improvement Proposals, ‘ERC-721: Non-Fungible Token Standard’ (14 January 2018) <https://eips.ethereum.org/EIPS/eip-721> and Ethereum Improvement Proposals, ‘ERC-1155: Multi Token Standard’ (17 June 2018) <https://eips.ethereum.org/EIPS/eip-1155 accessed 8 May 2023.

219 Johnathan Jaehnig, ‘Where Are NFTs Stored?’ (MakeUseOf, 28 February 2023), <https://www.makeuseof.com/where-are-nfts-stored> accessed 2 June 2023.

220 Colonial Bank v Whinney (1885) 30 Ch D 261, 285 (per Fry LJ).

221 AA v Persons Unknown [2020] 4 WLR 35, (AA) [55]-[56].

222 See also David Fox, ‘Cryptocurrencies in the Common Law of Property’ in David Fox and Sarah Green (eds), Cryptocurrencies in Public and Private Law (Oxford University Press 2019) [6.30]-[6.31]. But see Kelvin FK Low and Ernie GS Teo, ‘Bitcoins and other Cryptocurrencies as Property?’ (2017) 9(2) Law, Innovation and Technology 235, where it is argued that cryptocurrencies are in personam choses in action as the owner has the right to have her public Bitcoin address appear as the last entry in the blockchain in relation to a particular Bitcoin.

223 AA (n 221) above, [58].

224 National Provincial Bank Ltd v Ainsworth [1965] AC 1175 (Ainsworth), 1247–1248.

225 Fairstar Heavy Transport NV v Adkins [2013] EWCA Civ 886, [47].

226 Vorotyntseva v Money-4 Ltd [2018] EWHC 2596 (Ch) (application for an interlocutory injunction); Copytrack Pte Ltd v Wall [2018] BCSC 1709 (summary judgment for tracing order granted); Shair.com Global Digital Services Ltd v Arnold [2018] BCSC 1512 (application for a preservation order and mareva injunction to prevent dissipation of corporate property); Fetch.ai Ltd v Persons Unknown Category A [2021] EWHC 2254 (Comm) (application for an interlocutory injunction and other reliefs where the judge said he was satisfied that the cryptocurrencies in question, at least some of which were decentralised, were choses in action); CLM v CLN [2022] SGHC 46 (application for interlocutory injunction). In the case of B2C2 Ltd v Quoine Pte Ltd [2019] SGHC(I) 3, [2019] 4 SLR 17, [142] which involved Bitcoin and Ethereum, the Singapore International Commercial Court held that the defendant was right to assume that cryptocurrencies could be treated as property as they had the fundamental characteristic of intangible property as being an identifiable thing of value that met the classic definition of a property right. On appeal the Court of Appeal said there was much to commend this view though the court did not express a final view as it determined the appeal on another point, see Quoine Pte Ltd v B2C2 Ltd [2020] SGCA(I) 2, [2020] 2 SLR 20, [144].

227 AA (n 221), [55].

228 Ainsworth (n 224).

229 AA (n 221), [58]-[59]. The Taskforce's legal statement is available at https://technation.io/lawtech-uk-resources/#gf_41 [‘Legal Statement’] accessed 8 September 2021. In Tulip Trading Ltd v Bitcoin Association for BSV [2022] EWHC 667 (Ch) the court said it was satisfied that Bitcoin could be classified as property based on the Legal Statement and cases involving interim relief such as AA.

230 [2020] 2 NZLR 809.

231 The public key is a cryptographic code which is paired to a private key that allows the encrypted information to be unlocked giving access to change the decrypted information, which in this case, represents the ownership and quantity of cryptocurrency. This is also a means of proving ownership.

232 Ruscoe (n 230), [120]; and see also Legal Statement (n 229) [49]-[57].

233 ibid, [123].

234 Whinney (n 220).

235 Furthermore, it was pointed out in Legal Statement (n 229), [75] that Fry LJ attributed a very broad meaning to things in action as a kind of residual category of property.

236 The Colonial Bank v Frederick Whinney (1886) 11 App Cas 426, 440, and see also Legal Statement (n 229) [76]-[77].

237 [2014] EWCA Civ 281, [2015] QB 41 (Datateam), [26]. Jean Bacon, Johan David Michels, Christopher Millard and Jatinder Singh, ‘Blockchain Demystified: A Technical and Legal Introduction to Distributed and Centralised Ledgers’ (2018) 25 Rich J L & Tech 1, [194] states that Datateam renders the property status of digital tokens on distributed blockchain applications under property law uncertain even though (at [182]) many such tokens would satisfy the general common law test as set out in cases such as Ainsworth.

238 Datateam, ibid.

239 [2008] AC 1.

240 Halsbury's Laws of England, Volume 13 (2017), para 12(4).

241 [2013] Ch 156 (Armstrong), [50]-[52].

242 ibid, [61].

243 For example, Attorney-General of Hong Kong v Daniel Chan Nai-Keung [1987] 1 WLR 1339; In re Celtic Extraction Ltd [2001] 1 Ch 475.

244 Armstrong (n 241), [59].

245 Datateam (n 237), [42]. See also FG Lastowka and Dan Hunter (n 20), 40–42.

246 Boardman v Phipps [1967] 2 AC 46, 127.

247 See Datateam (n 237), [42].

248 Council Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases [1996] OJ L77/20, Art. 7(1).

249 This is by way of the one-way hash function. See Wikipedia, ‘Hash function’ <https://en.wikipedia.org/wiki/Hash_function> accessed 8 May 2023.

250 Ruscoe v Cryptopia (n 230), [127]. See also Legal Statement (n 229), [59]-[65].

251 Often denoted by a prefix such as ‘Unique’, ‘Rare’, ‘Legendary’, ‘Divine’ and different colour schemes attached to the descriptions of the items.

252 Blizzard, ‘Blizzard End User License Agreement’ (as revised on 1 June 2021) (Blizzard EULA) <https://web.archive.org/web/20210622212345/https://www.blizzard.com/en-us/legal/fba4d00f-c7e4-4883-b8b9-1b4500a402ea/blizzard-end-user-license-agreement> accessed 13 September 2021.

253 See e.g. Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2006] FCAFC 40, [39], [42]-[43] per Finn and Sundberg JJ.

254 Scott Wisniewski, ‘Taxation of Virtual Assets’ (2008) 7 Duke Law & Technology Review 1, 4.

255 Blizzard EULA (n 252), section 1Ciii. This is what Wisniewski refers to as real money transfers that support the in-world exchange, ibid.

256 Blizzard EULA (n 252), section 10Bii.

257 Attorney-General of Hong Kong v Daniel Chan Nai-Keung, above (n 243) where section 5(1) of the Theft Ordinance defines the term ‘property’ as including things in action and ‘other intangible property’. See also UK Theft Act 1968, section 4(1) and section 22 of the Singapore Penal Code (Cap 224, Revised Edition 2008) where the term includes not just intangible property but also ‘virtual currency’.

258 OBG Ltd v Allan (n 239) where, by a bare majority, the House of Lords held that intangible property could not be the subject of the tort of conversion. For a criticism of this approach, see Sarah Green, ‘To Have and to Hold? Conversion and Intangible Property’ (2008) 71 MLR 114.

259 Generally, see Andrew Ashworth, ‘Is the Criminal Law a Lost Cause?’ (2000) 116 LQR 225; Thomas Crofts, ‘Criminalization of Voyeurism and “Upskirt Photography” in Hong Kong: The Need for a Coherent Approach to Image-Based Abuse’ (2020) Chinese Journal of Comparative Law 1, 8–9.

260 See e.g. Christina Pazzanese, ‘Regulators put cryptocurrencies in crosshairs’ (The Harvard Gazette, 29 September 2021) <https://news.harvard.edu/gazette/story/2021/09/regulating-the-unregulated-cryptocurrency-market/> accessed 1 November 2021; Ryan Haar, ‘U.S. Officials Send Mixed Messages on Crypto Regulation as China Pumps the Brakes. Here's What It all Means for Investors’ (NextAdvisor, 1 October 2021) <https://web.archive.org/web/20211023020143/https://time.com/nextadvisor/investing/cryptocurrency/crypto-regulation-talks-heat-up> accessed 1 November 2021.

261 Mina Smith, ‘Tencent Patent Could Let People Inherit In-Game Items’ (Gamerant, 12 July 2021) <https://gamerant.com/tencent-digital-inheritance-patent/> accessed 24 September 2021.

262 FG Lastowka and Dan Hunter (n 20), 50–51.

263 Jeffrey Rousseau, ‘Take-Two's Zelnick Skeptical about Metaverse and Cryptocurrency’ (gamesindustry.biz, 19 May 2021) <https://www.gamesindustry.biz/articles/2021-05-19-take-twos-zelnick-skeptical-about-metaverse-and-cryptocurrency> accessed 1 November 2021; Victor Tangermann, ‘Facebook Hardware Devs Reportedly Skeptical of Metaverse’ (Futurism, 29 October 2021) <https://futurism.com/facebook-hardware-skeptical-metaverse> accessed 1 November 2021.

Additional information

Notes on contributors

Tan Cheng-Han

Tan Cheng-Han is Professor in the Faculty of Law at the National University of Singapore where he was previously Dean from 2001 to 2011, and Chairman of the E W Barker Centre for Law and Business from 2012 to 2019.

Daniel Seng Kiat-Boon

Daniel Seng Kiat-Boon is Associate Professor in the Faculty of Law at the National University of Singapore and Co-Director of the Centre for Technology, Robotics, Artificial Intelligence, and the Law.