Role Of The Nigerian Lawyer In The Metaverse
ABSTRACT
Technology, instead of diminishing the legal profession, actually reinforces it and makes lawyers more germane amid expeditiously changing times. The impact of technology on the legal world is indisputable, especially given the context of the Metaverse.
The metaverse which is considered the next horizon of a digitalized world is the conglomeration of cyberspace and physical reality. It aims to give a far more immersive experience to individuals through an alternative reality that may soon become integrated with their everyday lives just like the internet.
Although the Metaverse is still constantly being developed, it is predicted that the Metaverse could accommodate nearly every kind of lawful or unlawful human activity and as a result, give rise to the emergence of an array of novel legal issues that will need to be addressed by lawyers. It is pertinent to note that Nigerian lawyers are not exempted from this call of duty as the Metaverse will impact the Nigerian legal space. It becomes important for Nigerian lawyers to understand the whole concept of the Metaverse and their roles in the Metaverse to enable them to address these legal issues whenever they arise.
Keywords: Metaverse, Non-fungible token (NFT), Smart Contract, Block-Chain, Avatar, Technology, Augmented Reality (AR), Virtual Reality, Mixed Reality, Nigerian Lawyer
Definition of words
Non-Fungible Token (NFT)
Non-fungible tokens often referred to as NFTs, are blockchain-based tokens that each represent a unique asset like a piece of art, digital content, or media1. An NFT can be thought of as an irrevocable digital certificate of ownership and authenticity for a given asset, whether digital or physical2
Smart Contract
Smart contracts are simply programs stored on a blockchain that run when predetermined conditions are met3. They typically are used to automate the execution of an agreement so that all participants can be immediately certain of the outcome, without any intermediary’s involvement or time loss4.
Block Chain
A blockchain is a digital ledger or database where encrypted blocks of digital asset data are stored and chained together, forming a chronological single-source-of-truth for the data5.
Avatar
According to the Cambridge dictionary, an avatar is an image that represents one in online games, chat rooms, e.t.c and that one can move around the screen.
Introduction
The Metaverse is an emerging cyberspace realm where people and entities (and various forms of algorithms and artificial intelligence) will interact , engage in games , sports, and entertainment , buy and sell “real world” and “in the Metaverse” goods and services, and otherwise get into legal disputes just like IRL (in Real Life) persons and entities6. As the Metaverse evolves and expands, so too will the number of legal and regulatory issues which will arise that lawyers must help their clients navigate7. A profound understanding of the concept of the Metaverse and the role of lawyers in the Metaverse will enable lawyers with reference to Nigerian lawyers, to properly address these legal and regulatory issues.
This essay focuses on the Conceptual analysis of the Metaverse and how it works, Possible legal issues that may arise in the Metaverse and the Role of a Nigerian lawyer in the Metaverse.
What is the Metaverse and How Does It Work?
The term “Metaverse”, a combination of the prefix “meta” ( beyond) and “universe”, is commonly used to describe communal and interactive cyberspace where content , commerce and networking exist with increasing permeability to the real world8.
Metaverse was created in 1992 by Neal Stephenson and is based on blockchain technology, using digital assets called “Smart Contracts”9. These Smart Contracts are stored on the blockchain and can be used in other virtual worlds and the real world10.
It is a shared virtual-reality space where people can interact with the digital world and engage with one another through custom avatars11.As Matthew Ball, the former head of content at Amazon, stated, “The metaverse is a persistent, synchronous and live universe that spans both the digital and physical worlds with total inclusion”.12 As a result, users can buy and sell products, assets and real estate using cryptocurrency, attend various events and business meetings, play games, and socialize with others just like in the physical world13. What makes transactions carried out on Metaverse more real is the fact that ownership of a 100% virtual good can be proven and has authority via code on an immutable ledger14. In simpler words, a person is able to purchase land, a house, a car, or any other assets using a Non-Fungible Token (NFT) on a virtual platform and prove them to be their own15.
While the metaverse can take numerous forms, Presence and Interoperability are two fundamental features16. The first and most important factor is Presence, which refers to the sensation of actually being in a virtual world with others17. Decades of research have demonstrated that having a sense of embodiment — which may be obtained with virtual reality technologies like head-mounted displays, increases the quality of online interactions.18
Second, interoperability refers to the capacity to move freely across virtual places while using the same virtual assets, such as avatars and digital objects19. For example, ReadyPlayerMe allows users to build an avatar that they can utilize in a variety of virtual worlds, including Zoom meetings via apps like Animaze20. At the same time, blockchain-based technologies like cryptocurrencies and non-fungible tokens can make it easier to move digital assets across virtual borders21.
The Metaverse has three (3) dimensions; Virtual Reality (VR), Augmented Reality (AR) and Mixed Reality (MR). For VR, one is transported into the virtual space via hardware devices like the VR headset22. In AR, the virtual space or content is projected into one’s physical environment. It overlays visual elements, sounds and other sensory input into real world settings to enhance the user experience while XR is a combination of both23.
It is pertinent to note that the Metaverse and the internet do not mean the same thing. The Metaverse is not the same as the internet neither does it compete with it—it builds on it24. In the Metaverse, users traverse a virtual world that mimics aspects of the physical world using technologies such as virtual reality (VR), AR, AI, social media and digital currencies while the internet is a worldwide system of computer networks25.
What Legal Issues May Arise in the Metaverse?
As with any groundbreaking technological development, the Metaverse will raise novel and complex legal issues26. As the practical applications of the Metaverse continue to broaden and evolve with improvements in technology, so too will the legal and regulatory challenges27. It must be noted that the metaverse as it stands is currently under-regulated, which could pose a problem for clients if they want to start investing in the companies that are running it and the digital assets it produces28.
Any Nigerian lawyer looking to participate in Metaverse should consider the laws in the following areas and determine possible regulatory parameters instead of waiting for these issues to emerge before doing so;
Intellectual Property Rights (IP)
Intellectual property law preserves the right of creators against their inventions, trademarks, or other creations29. The use of virtual images and virtual performances may lead to concerns over the use of image rights and copyright, and dealing with different approaches in different jurisdictions30.
An important aspect of the virtual landscape that a Nigerian lawyer should take cognizance of as it relates to Intellectual Property is Trademark. A trademark is a word, phrase, slogan, design, or logo that acts as a source indicator for goods or services.31 Trademark law protects against unauthorized third-party use of a trademark, in a way that would lead a reasonable consumer to believe that the trademark owner was either the source of the goods/services, endorsed, or sponsored such goods/services, or in a way that would dilute the trademark32. While mixed and augmented reality has allowed brands to reach out to developing new industries and consumer base, it has also generated challenges for trademark owners and users, particularly in the gaming industry.33
Brands have filed trademark dilution and infringement cases involving metaverse goods and services34. For example, Hermes sued Mason Rothschild for trademark infringement for his creation and sale of “Metabirkins,” NFTs attached to digital images depicting bags resembling Hermes’ Birkin bags35. The case is still pending in the Southern District of New York36.
Among the questions a Nigerian lawyer should endeavour to seek an answer to is , “Can a company take legal action against users who infringe their intellectual property rights in the metaverse?37 A Nigerian lawyer will need to assist in identifying IP rights that will be appropriate in the Metaverse and ensure appropriate consents and licenses are put in place.
In the same vein, it is suggested that a Nigerian lawyer venturing into the metaverse should also take cognizance of copyright risks and patent risks. A copyright is a legal protection given to the creators or originators of creative expressions, whether they are literary, musical, artistic, or cinematographic works, or adaptations of any of these works38. It gives the creator of the work an exclusive and assignable right, that while exclusive to the author, is subject to the recognized legal rights of others39. It is not enough for an idea or concept to be created in the mind of the creator; it must also be expressed or fixed in some media, such as paper, diskettes, flash drives, CD-Rom, VCD, DVD, and so on, in order to be protected40.
A patent is a government authority or licence conferring an exclusive right or title for a set period, especially the sole right to exclude others from making, using, or selling an invention in the country it is obtained without permission or consent during the lifespan of the patent41. Patent use in the metaverse, like other intellectual property, presents both opportunities and risks.42
Data Security and Privacy
Digital security and privacy will be among the most significant legal issues facing platform owners43. It is pertinent to note that data in the metaverse will become exponentially more valuable than it already is, and technologies will become increasingly integrated into multiple aspects of users’ lives44. This developing technology will stress-test existing laws and put even greater pressure on regulators to match the sophistication of the technology45.
Most countries in the European Union (EU) are benefitting from relatively effective, though rather restricting data privacy laws and regulations46. Unfortunately, Nigeria is still lagging. That said, the metaverse environment has no national or geographic boundaries47. Users from Nigeria and certain countries may not be as protected as the countries in the European Union (EU)48. How will the companies in the Metaverse communicate these differences? How will they deal with international law and regulations? 49 . This must be critically examined.
Behaviour in the metaverse can reveal extensive information about people’s interests, behaviours, and even biometric data that otherwise would not be available50. This raises concerns about what data companies can collect, who owns it and how it can be used51. Existing privacy and consumer protection laws may not adequately address these issues and data collection in the metaverse raises jurisdictional questions that make it difficult to know which data protection laws apply52. A Nigerian lawyer who wants to venture into Metaverse will need to reevaluate consent and data protection mechanisms to minimize risks associated with improper data collection of his prospective clients.
Criminal Law
There have already been allegations of criminal acts in the metaverse, including crimes associated with the physical body such as sexual harassment, assault and even rape, among others53. Meta (formerly known as Facebook) responded by adding a safety feature to its Horizons World metaverse that prevents an avatar from coming within a certain proximity of another’s avatar54.
The metaverse environment will extrapolate the issues and challenges that exist in real life. As a result, crimes such as impersonation, obtaining by false pretences, cyberbullying and other cyber crimes are likely to ensue. It is probable that the greater human interaction in the metaverse will lead to crimes, requiring a redefinition of some crimes and new ideas about the prosecution of metaverse criminal activity55.
Insurance and Contractual Agreements
Due to the complex and novel issues that may arise in these areas, it is suggested these areas be scrutinized. For instance: “Can avatars enter a legally binding contract?” “Can an avatar be insured?” “Can the real person be held responsible for the actions of their avatar?”56 “How will contracts be designed and executed?”57. Lawyers will need to start thinking of possible answers to these questions instead waiting for these issues to emerge before proffering solutions to them.
The Role of a Nigerian Lawyer in the Metaverse
The Metaverse is an exciting space that presents many business opportunities and a fundamental shift in the economy58. But it also poses a challenge for lawyers in that one can not necessarily apply traditional methods of legal thinking, frameworks and regulations that have existed for hundreds of years in this new environment59. In line with this, a Nigerian lawyer venturing into the metaverse is required to be “forward-looking” with the sole responsibility of mitigating and guarding against potential liabilities and risks of his clients within the metaverse platform.
As novel legal, regulatory and technical problems emerge within the metaverse, lawyers are responsible for figuring out how existing regulations will apply to the platform and ensuring that developers, tech companies, and avatars work within the ecosystem and prioritize privacy in products60. A Nigerian lawyer needs to be able to understand these technologies and anticipate the potential problems their clients may have and help to implement mitigation strategies.
A Nigerian lawyer venturing into the metaverse may need to figure out potential employment issues within the metaverse. It is unclear how employment law would work within the metaverse61. For instance, “could avatars have distinct employment rights?”62 Having a good business and technical understanding of the product or activity operating within the metaverse is a starting point to understanding how to analyze and understand the legal issues flowing from the metaverse.63
The Metaverse will extrapolate all the problems, issues, benefits, and challenges we have currently in real life64. The exact complexities of the metaverse are unforeseeable, but having the growth mindset as a lawyer and not a very outdated perspective on legal issues, risks and limitations are crucial65.
The role of a Nigerian lawyer—mitigating and guarding against potential liabilities and risks cuts across but is not limited to the following;
- Proffering legal advice to companies that want to purchase digital real estate assets on Decentraland or develop their digital branding presence66.
- Drafting of contractual agreements and “Smart contracts” between parties.
- Determination of which jurisdiction or country’s law applies to a client’s activity on metaverse.
- Helping clients to capitalize on opportunities in the Metaverse.
- Protection and enforcement of the Intellectual Property rights of clients.
- Institution of defamation lawsuits and other lawsuits for clients.
- Keeping a close tab on the client’s account(s) on metaverse through user activity monitoring software to prevent fraudulent activities on the account(s)67.
- Mediation of disputes between parties
- Exercise due diligence on virtual land or business purchases in the Metaverse.
Conclusion
The unfolding of the metaverse will bring along with it several business opportunities and novel legal issues bordering on Intellectual property rights, Data Security and Privacy, among others. As these novel legal and regulatory problems emerge within the metaverse, lawyers are responsible for figuring out how existing laws and regulations will apply to the platform68. In February this year, ArentFox Schiff announced that it had become the first major US law firm to “join the Metaverse” by acquiring a land site in Decentraland, a fact that underscored how seriously lawyers are taking one of the latest technology trends69.
While the metaverse holds great promise for merchants and investors alike, without a system for design, promulgation, and enforcement of rules, it could be dangerous70. Critical scrutiny of the Nigerian legal system reveals that applying the various existing provisions of the law under the Nigerian legal system in the Metaverse environment could be frustrating.
For instance, Sections 1 and 2 of the Land Use Act 1978 vest ownership, administration and control of all lands in a state on the Governor of the state with no provision for Virtual lands or its ownership71. Also, none of the laws in Nigeria makes any provision(s) for Avatar because this reality had not been contemplated at the time of drafting the various laws in operation today. Thus, how can a Nigerian lawyer determine how an avatar may be made liable for action in the metaverse when there are no corresponding laws dealing with that and what court has the jurisdiction over disputes that may ensue in the metaverse? There is an urgent need for regulators to be abreast with the reality of virtual real estate, and other issues and enact relevant laws to govern them.72
Also, The Labour Act 2004 makes no provision for the digital world of work as it exists in the metaverse73. There is therefore a need for such situations to be contemplated and necessary reviews made to fit the reality of today’s digital world of work74.
If the metaverse will deliver on the promises of the benefits it proffers , a commensurate apt legal response to the possible novel legal issues is required75 to enable lawyers effectively tackle them whenever they arise.
Recommendation
To enable Nigerian lawyers effectively accomplish their roles and responsibilities within the Metaverse whenever the need arises, the following are recommended;
- Laws and Regulations should be enacted to combat possible novel legal issues that may emerge within the metaverse. Existing laws and regulations should also be amended to accommodate these possible legal issues. For instance, The Nigerian Data Protection Bill 2020 and other germane data and privacy regulations should be amended. Applying old provisions of the law to new technology like the Metaverse can be likened to trying to put a square peg into a round hole.
- The government should properly monitor and regulate the sale and ownership of virtual real estate in the metaverse76.
- Legal professionals in Nigeria need to adapt to offer a broader range of expertise to clients. The way to do this is to redefine the services that they offer by applying legal knowledge within modern contexts and advancing their technological abilities.77
- Laudable Investments in research and formulation of effective policies by the Government
- Sensitization and education of Lawyers and Law students on what the Metaverse is and the role of a lawyer in the metaverse. This is important as this will help them to understand, prepare and anticipate potential problems that may emerge within the metaverse and proffer solutions to them.
- Lawyers and law students should have a good understanding of Technology law {Tech law).
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Photo Credit: CNET
About Author
Ani Freedolyn is a 400-level law student at the Obafemi Awolowo University, Ile-Ife, Nigeria. She loves to write about contemporary issues confronting her society and the legal profession with a view to proffering solutions to them. She believes that writing is a weapon one can use to change the world and make it a better place to live.
