Auteurs

Alison Dennis

Associé

Read More

Alice Matthews

Trainee Solicitor

Auteurs

Alison Dennis

Associé

Read More

Alice Matthews

Trainee Solicitor

25 mai 2022

Digital Health – 8 de 8 Publications

Digital health in the metaverse: legal and regulatory challenges in the virtual world

  • In-depth analysis

Following Facebook's rebrand to 'Meta' on 28 October 2021, the metaverse has been catapulted to the fore of conversations concerning the future of technology. The existence of this mixed-reality world will afford digital health companies both a wealth of opportunities to explore, and a new legal landscape to navigate.

As a concept, the metaverse is a difficult one to grasp. The term itself originates from a 1992 novel called Snow Crash, where the characters were able to enter a virtual world through their avatars. The metaverse is set to be a mixed reality experience in a digital world, where people will be able to feel and believe that they are at a different location to where their body is physically. In Mark Zuckerberg's speech made on 28 October 2021 at the Facebook Connect event, he claimed that in the metaverse, people will be able to "get together with friends and family, work, learn, play, shop, create as well as entirely new categories that don’t really fit how we think about computers or phones today".

The COVID-19 pandemic has catalysed the trend of patients turning to digital solutions for healthcare, lifestyle and wellness services, such as online pharmacies, teleconsultations, COVID-19 test certification services, the NHS track and trace app, and online lifestyle coaching and fitness workouts. The creation of the metaverse will open up opportunities for digital health companies, and many have already started preparing to take advantage of these.

Firstly, the metaverse could be harnessed to improve medical education and training. Companies are creating cloud communication platforms using extended reality and metaverse technology to facilitate global engagement and collaboration. Such projects aim to revolutionise medical education, surgical planning and training, augmented assisted surgical operations and oncology treatment, and diagnosis. The existence of this digital world may also expedite medical processes and procedures, with more precision, and thus with fewer risks and a faster recovery. Examples of virtual and/or augmented reality being used in medicine and healthcare include:

  • augmented reality vein visualisation, which is already enabling clinicians to locate patients' veins accurately and at speed
  • glasses paired with an app giving guidance to new mothers learning how to breastfeed
  • software giving surgeons 'x-ray vision' by fusing digitally enhanced images directly into the microscope of a medical device
  • headsets used by medical students to see the human body in 3D
  • apps showing nearby defibrillators through augmented reality.

The metaverse also offers fertile ground for improving the patient-doctor interface. At the beginning of the patient journey, teleconsultations through the metaverse will be more realistic than our current experience of them, with the mimicking of physical presence. As the patient journey progresses, the virtual world will facilitate the remote monitoring of patients, through data interconnectivity. This will enable more personalised care, treatment, and diagnosis. Healthcare systems will also be provided with access to better data and patterns of disease.

As well as medical education and patient monitoring, the metaverse may be used for different therapies. Virtual reality has already demonstrated that it can help to mentally stimulate dementia patients, which can aid with retrieving memories, while also improving mood. Virtual reality has also been used for pain management and physical therapy, through the simulation of in-situ coaching.

These opportunities all come with practical challenges, such as the threat to the personalised nature of the patient-physician relationship, and the energy costs of processing vast amounts of data. There is also the question of how to bridge the virtual and the real worlds of healthcare, in particular whether such technology is safe enough for patient care.

The unchartered territory of the metaverse will also present new legal and regulatory challenges:

Collaboration and interoperability

For the metaverse to be viable, interoperability must be achieved to the extent necessary to allow all assets and data to work seamlessly. In order for all headsets and devices to have access to the metaverse, technology companies are likely to have to agree to specific standards.

Non-fungible tokens ("NFTs")

NFTs prove title to unique digital versions of underlying assets, either digital or physical. NFTs provide the ability to transfer or claim ownership over an asset using blockchain. While most jurisdictions do not currently have any legislation or regulations governing NFTs specifically, existing regulations may still apply (for example, through references to 'cryptoassets').

Data protection

Healthcare in the metaverse will run on the collection and utilisation of patients' personal data. Individuals' movements and physiological responses, and potentially even brainwave patterns, will be tracked. The volume of this data will be exponentially greater than the amounts currently collected.

Additionally, NFTs pose an issue relating to a person's right to be forgotten. Blockchain technology is immutable and will keep a permanent record of ownership and transactions, and so will not allow individuals the right to be forgotten, or the right to rectify inaccuracies in their personal data. This may breach data protection law.

It is not yet clear who will be responsible for ensuring personal data is kept secure in the metaverse. Nor has it been decided how people will be provided with the necessary data protection notices, and be given the opportunity to give or refuse consent, when accessing the multiple different platforms on the metaverse.

Cyber security

The likelihood of cyber-attacks occurring will increase as people transfer more of their lives into the digital space. The vast volume of data being stored and collected, as well as integrated contactless payment systems for virtual transactions, will further increase this risk. New legislation will be required to address these enhanced security risks and will have to be updated to reflect the dynamic nature of the metaverse. Businesses must react to these changes as they come.

Intellectual property (IP)

Anticipating the metaverse

It is important to scope IP (and any licences) to anticipate future use. Brand owners are already preparing to monetise the metaverse, with Nike and Converse having recently filed trade mark applications to cover virtual goods and services.

Jurisdiction

Perhaps the biggest question mark is which country's rules will apply to the metaverse, and who will be held responsible for its regulation. This remains yet to be determined, though the end decision will greatly impact how businesses should go about navigating the metaverse.

Copyright works

Copyright will offer developers the potential benefit of obtaining royalties from others using copyrighted software. Originators and other rights holders should take steps to protect their metaverse assets and software, mark such copyrighted works properly, register them in jurisdictions where this is possible, and ensure that any agreements with other parties protect against unauthorised distribution of the works. Companies looking to use others' copyright should ensure that they have proper licences to do so.

Patents

Digital health companies looking to develop technologies for use in the metaverse may wish to protect such IP by filing patents for inventions related to the virtual reality and/or augmented reality space. Owning such patents gives the benefit of potential licensing revenue.

Artificial intelligence (AI)

The UK government ran a 10-week consultation, ending on 7 January 2022, dealing with how IP produced by AI should (or should not) be protected. Avatars and AI will create virtual assets in the metaverse, and so the result of the consultation will be key to determine ownership in the new virtual world.

The issues above are just a few of the many legal issues that are likely to arise on the creation of the metaverse. While this digital world is a vague idea for now, it presents digital health companies with a whole new avenue to take the lead in and get ahead of others.

Call To Action Arrow Image

Latest insights in your inbox

Subscribe to newsletters on topics relevant to you.

Subscribe
Subscribe

Related Insights

e-santé

Issues with regulation of telemedicine in the UK

7 juin 2022
In-depth analysis

par Alison Dennis et Sarah Parkin

Cliquer ici pour en savoir plus
robotic-arm
Brexit

Brexit readiness for overseas medical devices manufacturers: trade marks

6 août 2020
QUICK READ

par plusieurs auteurs

Cliquer ici pour en savoir plus
robotic-arm
Sciences de la vie et Santé

Brexit and MDR readiness for overseas medical devices manufacturers: where should you locate your sales operations in Europe?

29 juin 2020
IN-DEPTH ANALYSIS

par Alison Dennis

Cliquer ici pour en savoir plus