In the beginning there was nothing…or very little. Starting with barter, the man never stopped innovating in his own way to act, almost as if it were his second nature. Agriculture and animal husbandry, maritime explorations in search of new products, development of land transport and the sea as in the sky. Trade gradually moved across borders, cities, villages, roads and dangers to be reached directly at home, camped for a computer, tablet or smartphone. Who has never bought online these days? Ever since for several years now, the stars have aligned in favor of marketplaces, these giants of digital commerce that makes almost everyone buy…
The law is widespread and has worked to make room for digital commerce to the benefit of consumers, as well as ensure competition and market stability. The legislator has also warned about forms of disloyalty, compliance issues and regulated delivery and withdrawal deadlines. The Ministry of Economic Affairs hastened to address the excesses of the dropshippinga recent yet legal practice of digital commerce.
But despite this quick and mundane adaptation, it seems that digital commerce is evolving in a significant and different way. Initially focused on the consumption of tangible products or services, digital commerce is gradually shifting to the sale of virtual products and services… via other worlds.
The metaverse: towards a transformation of digital commerce
What if Steven Spielberg’s movie? Ready Player One, released in 2018, proved to be a prophetic picture of tomorrow’s market? Virtual worlds connected to the internet, where everything is bought through currency and virtual titles? Where everyone would get the chance to live the life of their dreams through their avatar? If reality doesn’t surpass fiction, some companies have understood the potential the metaverse could generate in e-commerce and data collection. It is no coincidence that the Facebook company changed its name to Meta in 2021 given its futuristic program. If the concept seems to come from a science fiction novel, the number of people connected in these virtual universes is constantly increasing and new practices are emerging. Ranging from buying apartments, clothes and virtual works of art…
the metaverse is primarily based on an immersive experience enabled by 3D technologies, immersing the consumer in a virtual world. As surprising as it may seem, the user’s avatar can purchase products that are designed virtually and which do not necessarily exist in reality. Recently, Nike has massively invested in the virtual fashion market by selling its range of shoes: CryptoKicks whose prices can reach more than $10,000… Others aspire to turn the metaverse into a vector of virtual real estate acquisition through of sales, development, rental management, following the same model as standard real estate agencies.
Virtual reality headsets, tablets, controllers, many products are sold physically that are intended to optimize the experience of the metaverse. A high-definition experience that gives users greater confidence in the quality of the products they buy. With shops and virtual establishments, the digital commerce of metaverse are no longer subject to the restrictions of opening hours, compliance with delivery deadlines, compliance issues, recruiting salespeople, etc. If the system seems too good to be true, at least it is virtual and all the more beneficial because it allows the test the popularity of a product without producing it, while providing the consumer with an optimal experience.
First experience with NFTs
The strong enthusiasm of the metaverse today is mainly due to the success of NFTs laying the foundation for the new electronic trading. Starting in the art market sector with the dazzling success of the “Bored Ape Yacht Club” collection, whose images sell for exorbitant prices, NFTs have gradually opened up to other sectors. The cinema took advantage of this momentum to invest in the NFT market with a first film fully financed and directed in this way by a certain director named Martin Scorsese. As you will have understood, the NFTs have benefited from powerful relays, stars, entrepreneurs and influencers in their childhood. In fact, they are a pledge of social connection, a closed and exclusive club that brings together a community of individuals who share the same family of NFTs.
First experience with the commercial metaverse, the enthusiasm around NFTs has only prompted the big companies to arm themselves to conquer a new world. Amazon has started equipping itself with technologies from the metaverse, while eBay plans to launch its platform for selling NFTs. Avant-garde and visionary, the fashion sector cannot escape this dynamism to launch an attack on this new form of creativity. Fashion products, games and NFT works diversify the arsenal designed by Gucci, Louis Vuitton and Balenciaga in collaboration with renowned designers.
Even if the harvest of glory may experience setbacks, such as the recent fall of NFTs with the bursting of the cryptocurrency speculative bubble, the fact remains that the mechanism fascinates and will continue to improve. NFTs have proven to the world that digital trading is undergoing profound changes in the metaverse. More than a simple investment, it has transformed into a gateway to a new way of consuming by eliminating the bulk of 21st century businesses.
A legal world to rebuild?
The changes in digital commerce are not entirely cloudless and raise questions. If digital, consumer and competition rights take a turnkey place when it comes to traditional marketplaces, certain sprains and hesitations must be in the metaverse. On the one hand, it seems difficult to envision the future of the metaverse without GAFAM’s decisive action raising the issue of competitive asymmetry. On the consumer side, some argue for a legal extension of his personality and legal protection in the metaverse, while the most conservative propose a distinction between regimes.
Intellectual property law also appears to be affected by these developments, which is related to the uncertain legal qualification of NFTs. Being “legal aliens”, oscillating between title deed and simple token similar to virtual currency, the actions associated with them are uncertain. The relationship between counterfeiting and NFTs has been the subject of several disputes in the United States. In particular, the New York court ruled in favor of Hermès about the redirected reproduction in a digital work of his iconic bags in the work Meta Birkin.
Rome was not built in a day, it will certainly take a few more years before the metaverse takes root in practice and digital commerce takes on a new dimension. The rules of the game will certainly be determined by the practice and evolution of this new form of business and the mindset surrounding it. Some deplore the disintermediation of exchanges and the decoupling of morality at the expense of a new way of consuming that will profoundly change. The fact remains that this phenomenon is already on our doorstep… It is not a question of the future… but of now!
Tribune written by Raphaël A. Hérimian, corporate lawyer
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