Introduction
Are we entering a new era in computing? Recently, at the Worldwide Developers Conference 2023, Apple expanded its product portfolio to great media attention and introduced the "Vision Pro", which Apple calls the first spatial computer and which is expected to be available in the US in spring 2024.
This series of articles will provide an overview of the product from a legal perspec-tive, looking at potential legal issues from different angles. But first, let's start this introductory article with what Spatial Computing is all about.
“Spatial Computing” and the functionality of Spatial Computing Devices
“Spatial Computing” is difficult to define as it is a generic term that applies to a wide range of technologies. The term dates back to 2003 and includes Virtual Reality, Augmented Reality and Mixed Reality. Spatial Computing refers to human-machine interaction that uses three-dimensional computation to create and manipulate references to real objects in space. Physical interactions such as body movements, gestures and speech are used as input for interactive and digital media systems, merging the real and digital worlds and allowing people to enter the world of computers rather than interacting with them from a distance.
Although Spatial Computing projects have been around for a long time, the release of high-end Spatial Computing Devices has undoubtedly added to the excitement. Spatial Computing Devices are mixed reality headsets that allows the user to decide how much of the immersive environment they want to experience. When the headset is turned on, the user is initially in the real-world envi-ronment and is presented with the familiar Apple home screen. While the user is still aware of their physical surroundings, their eyes are shown on the external display. If the user decides to switch off their environment, the external display is deactivated. The user controls the device with their eyes, hands and voice. Spatial Computing Devices also have a 3D camera that can be used to record content. During the recording process, the outside display shows this to bystanders.
Spatial Computing Devices can include a number of different functions and applications:
- Interactive Apps:
One feature is interactive apps that use the eye and hand interactions of Spatial Compu-ting Devices. These applications can include gesture-based games, productivity tools, cre-ative applications and more. For instance, Spatial Computing Devices can be used for work by displaying virtual screens that users can adjust in size and position. Those who want to use the headset for entertainment will be able to watch films and videos on virtual screens, creating a virtual cinema. Spatial Computing Devices will also support games and users will be able to connect controllers to it.
- Communication Apps:
Another feature is communication apps that use the features of Spatial Computing Devices to enable enhanced video calls, video chats or conference calls. These applications can use eye and hand tracking to enhance communication and interaction during calls.
- Assistive Technologies:
Spatial Computing Devices provide opportunities for assistive applications – applications that help people with special needs by using eye and hand tracking to control devices, communicate with others, or perform other everyday tasks.
- Augmented Reality and Virtual Reality:
Spatial Computing Devices can be integrated with augmented and virtual reality applica-tions allowing users to interact with virtual objects using their eyes and hands.
Overview of legal challenges
Spatial Computing Devices are surrounded by a number of legal challenges, some of which will be briefly highlighted in the following.
Competition Law
It might be possible for advertisers to display “relevant” information to users of Spatial Computing Devices, such as contextual special offers, depending on their location and viewing angle. How-ever, there are limits to what can be done under competition law. The issues range from the hardware, the operating system to the app stores. But what impacts may the Digital Markets Act and Art. 101 TFEU / Sec. 1 Act against Restraints of Competition (“ARC”) have? Stefan Horn looks at this this issue.
Data Protection Law
By capturing facial expressions, gestures or physiological responses to content, Spatial Compu-ting solutions such as Spatial Computing Devices typically process personal data. While the use of such data in the domestic sphere is permitted under European data protection law due to the so-called household exception pursuant to the General Data Protection Regulation (“GDPR”), their use in the public sphere raises a number of legal issues.
- Spatial Computing solutions such as Spatial Computing Devices collect both third-party da-ta and user data. This may include sensitive data such as biometric data or health data. However, Spatial Computing Devices and other Spatial Computing solutions also collects data that we are not used to seeing collected by other devices, such as eye movement, pupil dilation, and facial muscle tracking. This data could potentially be used to infer what users like based on how they respond to various stimuli. And it is not hard to imagine that some may want to use this data for emotion detection techniques to get an advantage in transactions and advertising. Which also raises issues with current legislation aimed at preventing the use of certain types of data in advertising, like the Digital Services Act.
- In Spatial Computing Devices, the process of collecting data is often opaque. Some solve this problem with a display on the outside of the headset that shows third parties whether the user is aware of their surroundings, i.e. whether cameras are imaging the environment and whether the 3D camera is recording. Whether this meets the transparency require-ments of the GDPR would need to be assessed on a case-by-case basis. Overall, there seems to be a lack of information about the privacy practices of Spatial Computing providers.
Employment Law
Pursuant to the Betriebsverfassungsgesetz [German Works Council Constitution Act], the work council has a right of co-determination when "technical monitoring devices" are introduced, even if the employer does not intend to actually use these applications for monitoring purposes. This means that if a company wants to use Spatial Computing Devices in its company, the works coun-cil could have a right of co-determination.
Intellectual Property Law
It is in the nature of Spatial Computing Devices that they record their surroundings and may cap-ture copyrighted content of third parties in the user's environment. This can raise copyright issues as the capture and storage of such content is likely to constitute a copyrightable reproduction un-der the Urheberrechtsgesetz [German Copyright Act]. For a more detailed discussion of intellectual property issues, please see our article Spatial computing: are IP laws a match for new technology? By Louise Popple, Maarten Rijks and Kachenka Pribanova.
Liability Rules
Spatial Computing Devices raise liability issues. For example, the question of claims for damages arises if users make mistakes or cause damage in connection with their use. There is also the question of whether and to what extent the provider is liable for the behaviour of its users. Other questions might be who is responsible for ensuring that the application works properly, or who is responsible for the accuracy of the information displayed.
Trademark Law
Within Spatial Computing, various information is displayed virtually. The closer the virtual infor-mation is to reality, the more likely it is to come in contact protected trademarks. If third parties include trademarks in their applications without having entered into appropriate agreements with the trademark owners, the question of possible claims for damages arises. . To learn more about Spatial Computing and trademark law, please read the article by Louise Popple, Maarten Rijks and Kachenka Pribanova. You can also consult an April 2023 White Paper. Though centered around the metaverse, the issues identified also apply to spatial computing: How licensing practice should adapt, difficulties in determining the applicable law, competent courts and identifying infringers.
Outlook
With the launch of Vision Pro, Spatial Computing has received another boost. It has become clear that this topic offers interesting possibilities that could truly catapult us into a new era of compu-ting. However, it is also apparent that there are still a number of unresolved legal issues in this area. It will be interesting to see whether these legal hurdles can be overcome and the great po-tential of the technology realised.
