Footprint: Is the NFT you purchased legally protected?
Written by Grace, Footprint Analyst
Written by Grace, Footprint Analyst
Date: 2021/11/17The author in the above "Do fancy purchases of NFT own copyright?
" mentioned that NFT buyers get the rights specified in the smart contract in the rights attached to the NFT work during the transaction, and cannot enjoy any rights to the mapped work. However, the NFT market is still booming, and we have to pay attention to many problems arising from it.
Problems with current NFT transactions
At present, the largest trading platform is Open Sea, known as Amazon in the NFT world, with a complete range, and of course the handling fee is relatively high. NFT artists sell NFT works with ownership, and buyers purchase the works, and the ownership of NFT is transferred with the transfer of fees. Although NFT cannot interact freely, it can be listed for sale on the trading platform, or sold at a price, or packaged for sale, or auctioned.
There is no big difference in the process between NFT transactions and commodity transactions on e-commerce platforms, and the problems that arise are similar to those in traditional markets, mainly including:
Trading platforms are difficult to supervise and may be used for criminal purposes such as money laundering
Most of the current NFT trading platforms are decentralized exchanges. In principle, trading on them only needs to abide by the rules of the exchange, which is anonymous, and the wallets used by the exchange are also anonymous. As mentioned above in Open Sea, there is no need for KYC verification for registered accounts, and transactions can be carried out only by connecting to the MetaMask wallet. Products such as NFT are both cultural products and closely linked to virtual products, so their value can easily be inflated, and some people can easily launder money through this method. Currently, NFT minters and sellers are not currently subject to anti-money laundering obligations.
Counterfeiting and piracy take the lead, and the intellectual property rights of the original author are violated
In March 2021, the paintings released by the artist Weird Undead were stolen to make NFT for sale. This incident sent a message to the public: not all NFT-mapped works are original to the creator.
Therefore, we have to think about a problem: the NFT trading platform does not require the creator to be the copyright owner of the work, so it is possible that the minted NFT has not been authorized. One of the reasons for buyers to buy NFT is for the authenticity, uniqueness (NFT is fundamentally a guarantee and identification of the uniqueness of works on the chain) and scarcity of the NFT.
When the works used to mint NFT are pirated, without copyright or authorization, can the authenticity, uniqueness and scarcity of minted NFT really be guaranteed? In other words, is the NFT you bought still "pure"?
One of the reasons why NFT can create a boom is the uniqueness and authenticity of NFT itself. Purchased an NFT work, for example an oil painting. When the oil painting is printed in every corner of our alley, you can take out the original NFT as a voucher to claim that this oil painting is yours. But when this oil painting was first used to cast NFT, it was already unauthorized and pirated. Is there any basis for your claim?
Under such circumstances, do you get the ownership of the NFT work or the right to use the NFT work for the NFT purchased at a high cost? Or is it just the right to appreciate?
At present, relevant laws do not stipulate NFT transactions. There is a big controversy about whether NFT is a property right. There are also many opinions on whether casting NFT has intellectual property rights. However, NFT has reached a consensus as a certificate of rights.
We might as well take a look at the current legal protection of intellectual property from the Asia-Pacific and Europe and the United States, and then analyze whether the NFT traded can be protected by law.
The Status Quo of Intellectual Property Protection in the Asia-Pacific Region——Taking China as an Example
The protection of intellectual property rights in China is mainly regulated by a series of laws such as the "Civil Code of the People's Republic of China", "Copyright Law of the People's Republic of China", and "Trademark Law of the People's Republic of China", which protect intellectual achievements with expressive forms.
Creating a piece of content is an intellectual achievement, presented by a carrier. That is, the right to modify, reproduce, exhibit, distribute, disseminate information on the network, protect the integrity of works, compile and many other rights, collectively referred to as copyright/copyright. The protection of the above-mentioned rights is for the author's life and 50 years after his death, and the protection period for protecting the integrity of the work is not limited.
Therefore, as the creator of the original work to create an oil painting, on the premise of not transferring the copyright, he has the right of distribution of the oil painting and the right of information network dissemination for life and 50 years after his death.
The so-called reproduction right refers to the right to make one or more copies of a work by means of printing, photocopying, rubbing, recording, video recording, dubbing, remake, digitization, etc. The right to make a work available to the public so that the public can obtain it at a time and place of their choosing.
Under this premise, making the oil painting into an NFT is actually making a copy of the oil painting digitally. If the caster does not obtain authorization, uploading the oil painting to make NFT without authorization is a violation of the creator's right to reproduce; and then putting the NFT up for sale is regarded as a violation of the creator's right to disseminate information on the network.
Therefore, before the relevant laws have made specific provisions on intellectual property infringement in the field of NFT technology, the current legal provisions can be referred to. However, NFT relies on the underlying technology of the blockchain. The combination of open features on the chain and the anonymity of the NFT trading market makes the protection of intellectual property rights of NFT a more difficult issue. With the rapid development of technology, the legal protection path needs to be improved.
The US political system is a federal system, and its legal system is a civil law system. A country with statute law + case law, the protection of intellectual property rights is relatively complete. The federal government has formulated copyright laws, trademark laws, patent laws, etc., and the states have also formulated own copyright law, trademark law. At the same time, the United States' compliance with court precedents has also played a greater role in the protection of intellectual property rights. According to the International Intellectual Property Index published by the U.S. Department of Commerce in 2020, the U.S. ranks first in the world in terms of intellectual property protection.
image descriptionhttps://www.theglobalipcenter.com/ipindex2020-chart/
Data source: 2020 International Intellectual Property Index
The protection period of copyright in the United States is the life of the author. When the author dies, his works/intellectual achievements will be transferred to public property. Compared with France, China and Canada, the protection period of the United States is relatively short. However, the U.S. cracks down on intellectual property infringement more vigorously, and stipulates the dual principle of compensation + compensation.
Normative thinking on NFT transactions
It is true that the support of the ERC721 standard makes NFT a better carrier for the virtual mapping of physical objects, and realizes the transformation of economic models. However, it is an indisputable fact that the NFT market has both advantages and disadvantages, so how to solve the disadvantages (piracy and infringement) in the current NFT market? That is, how to regulate NFT transactions and how to protect artists/content creators?
In general, the development of technology precedes the law. The infringement of intellectual property rights in the field of NFT technology has not produced new infringement methods, and it is still an infringement of rights such as the right of reproduction and the right of network information dissemination. For NFT transactions, there is an urgent need for laws to keep pace with the times to restrict regulations. All parties involved in NFT transactions should also strengthen their awareness of intellectual property protection.
Here, the author makes suggestions based on the current intellectual property laws and other relevant laws of various countries:
The content creator is the author of the original work: When your own work is stolen and used to make NFT, you can seek help from the platform and provide relevant evidence. If the collection of evidence is achieved, it is recommended to appeal to the judicial authority for protection of rights;
Founder: Casting NFT uses its own works. If it is someone else's work, it is recommended to obtain authorization, at least the right of reproduction and the right of information network dissemination;
Platform: Increase the verification of the source of the creator's work, such as clearly stipulated in the user agreement.
summary
summary
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