Copyright law wrongly attempts to use reality as referent, this model precludes any ability of the next creator within the simulation to be able to distinguish between the reality of the public domain versus that of the external

In Bleistein, Holmes defined a copy of reality as “the personal reaction of an individual upon nature.”80 Under this view, the copy is infused with subjectivity as the author imprints the referent with an element of her personality. This definition of a copy, however, was formulated in the particular context of a copy of public domain reality (which includes, among other things, “nature”). More broadly, the Copyright Act defines a copy as a material object that is fixed in a tangible medium.81 To be protected by copyright law, a copy must also be an expression, i.e. it must be produced by a human author.82 Notably, a copy need not be copied in the sense of having a referent (although, practically, most works do have some referent).83 Now for the complicating. Where reality is the original, the precise type of copy may change the relationship between that copy and the original. Because the purpose of this Comment is to relate the ontology of reality generally to new reality technologies, I focus here on a particular type of copy: the simulation.84 At its heart, a simulation is simply a type of copy that seeks to imitate its original very closely.85 To discuss the concept of the simulation and its place in our ontology of reality, this Comment borrows from the conceptual model created by media theorist Jean Baudrillard.86 Baudrillard extensively theorized the nature of the simulation and argued that we should understand simulation in three orders: (1) the representation; (2) the simulation; and (3) hyperreality. At each stage, the copy becomes increasingly indistinguishable from its original. In the first order of simulation, the representation is clearly based on reality and there is no confusion between the original and the copy.87 The original is the unmistakable referent for the simulation. A first order simulation is the type of copy that we are most familiar with and how we would currently classify most of the works protected by copyright law. In the second order of simulation, the copy is still based on reality, but the borders between original and copy become blurred.88 As an imaginative example, Baudrillard described a map that has a one-to-one relationship with the territory it depicts such that it covers the territory exactly: If once we were able to view the Borges fable89 in which the cartographers of Europe draw up a map so detailed that it ends up covering the territory exactly . . . as the most beautiful allegory of simulation, this fable has now come full circle for us, and possesses nothing but the discrete charm of second-order simulacra.90 This map entirely covers the geographic reality underneath, which only peeks through in the map’s tattered, remote edges.91 The key difference between a representation and a simulation lies in the fact that a representation reflects reality, while a second order simulation masks it.92 Augmented reality technologies are of particular interest as second order simulations, as they mix “the completely real with the simulated or synthetic [by projecting] images and information in the wearer’s line of vision.”93 Mixed reality technologies—a specific type of augmented reality—are able to retain specific knowledge of an individual’s world in order to keep stable the location of digital objects: In mixed reality, a user can navigate through the real world and a virtual environment seamlessly, and simultaneously. The virtual objects are accurately positioned in the real-world space. If one moves towards an object it will get larger and vice versa. And when one moves around it, the virtual objects are seen from different angles and perspectives—just like the behavior of real objects.94 The ability of new reality technologies to blur the lines between the real and the simulated is one of their core claims and attractions. As these technologies become more common, their users may lose the ability to distinguish between public domain reality and simulation in their everyday lives.95 Creators have already started to imagine how this mixed world might appear to a user.96 For example, the animator and futurist Keiichi Matsuda is cluttered with advertisements, games, and messages.97 There, only a small slice of the physical world peeks through.98 This is the second order of simulation promised by new reality technologies. In the third order of simulation, a new type of reality is born. Reality becomes hyperreality, which is itself based on a simulation.99 Public domain reality, as we know it, disappears as a referent: With first and second-order simulation, the real still exists, and we measure the success of simulation against the real . . . . [T]he model now generates . . . ‘hyperreality’—that is, a world without a real origin. So with third order simulation we no longer even have the real as part of the equation.100 Here, our reality is itself a simulation, and that simulation is based on another simulation, which is based on another simulation, and so on.101 In this kind of copy, the copy is “not merely indistinguishable from what it copies but . . . the very distinction between copy and original disappears.”102 The role of public domain reality as a referent is no longer relevant to the model, as only created reality persists as a referent.103 Extending the example of the Borges fable discussed above, Baudrillard explains that in hyperreality, “[t]he territory no longer precedes the map”—instead, the map “precedes the territory.”104 In summary, the relationship between the original and the copy change due to the nature of the simulation, becoming increasingly blurred as the simulation becomes more accurate. For our purposes, the idea of hyperreality represents a world in which individual perceptions of reality are teeming with created things. In such a world, all of the referents for creative expression are themselves created.105 It is important that such a world factors into our conceptual model so that we can evaluate how well the current ontology of reality would balance the needs of progress and protection in an entirely created reality. This Comment uses Baudrillard’s three orders of simulation in section III as a structural basis for illustrating how the proposed conceptual model of reality might function for varying levels of simulation. Section IV discusses the potential implications for copyright protection of new reality technologies. The blurring of the original and the copy, so pronounced in the simulation, has troubling analytical repercussions. Even outside of the realm of the simulation, this blurring has appeared when courts analyze technologies that merely reproduce reality with a high degree of accuracy. 3. Reality-is-Subject-Matter; Originality-is-Variation The reality-is-original and representation-is-copy metaphors establish that the difference between the original and the copy is essential to understanding the ontology of reality in copyright law. Importantly, we must distinguish between reality itself and a copy of reality because it is only the copy that can obtain copyright protection. In addition, identifying whether the original is public domain reality or itself created is essential to determining infringement. However, there has been a conceptual blurring between the original and the copy in case law on the question of originality in heavily reality-dependent technologies.