More and more companies are now using new technologies to promote their brands and activities or directly offer their products and services. In this context, virtual reality technologies and other forms of immersive techniques have now reached a level of stability and performance that appeals to many professionals.

France stands out for the proliferation of publishing and marketing companies for this new type of audiovisual content, which are now perfectly integrated with players in the media and video game industries.

Virtual reality (VR) solutions are composed of a host of source code elements, software, SaaS functions, graphic interfaces, technical sensors, and connected objects, each protected by intellectual and even industrial property rules.

To date, there are no legislative texts specifically governing the use of software generating a form of augmented or virtual reality. Given the wide variety of legal texts that may apply and the obligations arising from them, it is of vital importance that professionals contractually regulate their relationships from the creation of VR content regarding their exploitation and licenses.

The challenge for development studios necessarily involves regulating virtual reality licenses and franchises in order to protect their expertise and intellectual property.

For operators of VR rooms or virtual or augmented reality solutions, the challenge concerns the security and reliability of both the software and hardware components that support the VR user experience.

Réalité virtuelle / Réalité mixte / Réalité augmentée / Metavers

These terms are often used to identify similar or even identical technological solutions. In summary, all of these concepts refer to a digitally altered form of physical reality.

Virtual reality refers to all technological tools that allow the user to immerse themselves in an alternative digital environment, whether inspired by the real world or not. Spaces within video games, 360° images and videos, or fully online social networks thus fall within a broad definition of virtual reality.

Mixed reality consists of a combination of elements or objects that blend both digital or virtual objects and elements from the real world.

Augmented reality integrates digital elements or content into the real world, within a real environment accessible from digital devices such as headsets, smartphones, glasses, CAVEs, etc.

The latter is experiencing rapid growth as a convergence point for innovative technologies in distribution (corner shops or fully virtual stores), consumption (advertising, brands, ARsquatting, etc.), and the distinction between public and private spaces.

Finally, the metaverse encompasses all technologies that enable the creation of virtual spaces incorporating immersive 3D experiences. They are generally linked to real-time interconnected services.

Virtual Reality & VR Space – Franchise and Rights License

Many virtual reality studios and software publishers offer their content through franchise and distribution agreements.

Deployed through specialized partners in indoor VR rooms, arcades, amusement parks, or VR spaces adapted for corporate communications, virtual reality solutions are growing massively for recreational and professional use, particularly through SaaS interfaces that facilitate relationships with franchisees, content updates, and product development.

Several financing options for virtual reality projects are now available at the national level, notably through the CNC (Centre for the Promotion of Digital Experiences), local funding, or even private funding (Virtual Reality Venture Capital, Beaumarchais Orange XR Foundation, etc.).

Integrating a publisher into a virtual reality solution

To develop and consolidate the content of their virtual reality solutions, VR studios often offer the integration of third-party content through integration agreements.

This represents a major advantage for software development and distribution companies, benefiting from the studios’ expertise and know-how, particularly in virtual reality software and applications.

These content integration agreements for existing virtual reality offerings involve strict oversight of the products’ intellectual property rights, including any potential or even necessary adaptations of software elements for their porting to VR solutions.

Similarly, issues related to the marketing and advertising of products integrating protected elements must be considered.

Virtual reality contract: the essential clauses

Given the diversity of issues associated with the use and operation of virtual reality tools, virtual reality licensing agreements can include a variety of contractual clauses.

This involves companies considering the distribution and subscription conditions for VR solutions, the types of franchises envisaged, the financial elements, remuneration and royalties of rights holders, any IT developments required to integrate their needs, advertising, maintenance, bug fixes and updates, exclusivity and possible non-compete agreements related to the publisher, and more generally the intellectual property rights of all these obligations.

Issues related to the personal data collected and used must also be addressed in a way that ensures compliance with the GDPR and identifies the responsibility of each partner for the processing implemented and, to a lesser extent, their ownership.

Other, more traditional clauses relating to contract law will also be included.

Virtual reality, collected data and GDPR

The use of virtual reality solutions involves the analysis and collection of a considerable amount of data that may constitute personal data within the meaning of the General Data Protection Regulation (GDPR).

The recording of gestures and movements—micromovements of the head, torso, hands, and eyes, etc.—and the capture of faces and voices are likely to pose very significant challenges: indeed, they can directly or indirectly identify or establish a wealth of personal information about the individual: their identity, profession, information related to their medical condition, their behavior in specific situations, etc.

Several authors refer to an individual cognitive signature or kinematic fingerprint to identify the compilation of this information. Their use is strictly regulated by various laws, which, in the event of a violation, can lead to very severe penalties for both the solution publishers and the operators of virtual reality systems.

Video Games, Esports & Gaming: The Future of Virtual Reality

The video game industry, and its competitive counterpart, esports, quickly became interested in virtual reality techniques that push the boundaries of traditional concepts of video games to increasingly resemble physical activities.

As early as 2016, three companies launched virtual reality technical solutions: HTC Vive (PC), PlayStation VR (Sony), and Oculus Rift, supported by several video game publisher studios dedicated to virtual reality.

Several esports events have been piloted in recent years to create a first VR esports scene: The Unspoken on Oculus Rift launched in May 2017 by Microsoft, Oculus, Asus, Intel, and Insomniac Games; at CES 2016, Virtuix organized a VR esports tournament.