NFT a autorské právo

NFT and copyright

An NFT (Non-Fungible Token) is a unique digital asset based on a public blockchain (most commonly Ethereum) with a confirmation of ownership of the asset, either completely virtual or tangible and converted into digital form. However, ownership of a token to an underlying work does not, in most cases, confer ownership, copyright or other rights to the work in question, so the owner of the token is usually only the owner of an intangible thing, the token, derived from another thing, the underlying copyright work. An example is the ownership of the NFT of the Mona Lisa, which does not confer any rights to the original painting.

As far as the creation of NFTs is concerned, from a legal point of view, it is perfectly fine to create a token from an underlying work to which the person creating the token has the corresponding copyright or licence from its creator, or from a copyright free work for which the term of the proprietary copyright has expired and is therefore free to use.

The actual transfer of NFTs takes place on the basis of so-called smart contracts, which, according to Czech law, most often represent a standard purchase contract for an intangible item. The smart contract specifies the scope of the rights transferred, in particular whether the buyer acquires all rights related to the token in question, including the possibility of its modification and resale, or is only entitled to hold the token in question. The current owner of a particular NFT and all transaction history can then be easily traced thanks to the blockchain notation. In this respect, the legal certainty and attractiveness of buying NFTs is thus increased.

However, if the copyright to the underlying work is to be transferred to the purchaser together with the token, it must be stipulated so in the contractual terms of the smart contract or the terms and conditions of the marketplace on which the transfer of the NFT in question takes place explicitly provide for such a transfer of rights.

Among other things, the lack of detailed legal provisions makes it problematic to determine the legal regime for creating a token from a work to which the person concerned does not have the corresponding copyright and which is not a copyright free work. Copyright protects the creator of a work from making that work available to the public, reproducing it and using it without his consent. However, a part of the expert community is inclined to believe that even in the case of use of another's work, there is not necessarily a copyright infringement, because the NFT is not the original of the underlying work or a copy of it, just a tokenised immaterial version of the work carrying a set of information and metadata in the blockchain referring to that work.

So far, most disputes between NFT creators and authors of works seem to have been settled out of court, mainly by deleting tokens from individual marketplaces based on a mutual agreement. The first court decisions on whether the use of someone else's work to create an NFT is illegal or "merely" unethical will therefore be very crucial in determining the future creation of NFTs.

We are keeping a close eye on further developments in the field of NFTs. If you are interested in more detailed information, please also contact the authors of the article or other members of EY Law or the EY team with whom you work, if appropriate.

Authors:

Ondřej Havránek

Kryštof Chmelan