A guide to Non-Fungible Tokens (NFTs), 2023 - Flipbook - Page 13
An example of this would be where museums create NFTs of their art and other
exhibits. In this instance the buyer will clearly not be gaining ownership or rights in
the original exhibit, but instead will gain effectively a limited edition reproduction
of such exhibit, with the value being added by the link with the creator as the
museum with rights to the work.
The parties involved should therefore be clear on the NFT’s relation to any asset
it might represent, including to determine:
•
Whether the minter of the NFT has obtained appropriate consents from the
creator of the underlying asset or owner of the IP rights in the underlying
asset (who will not necessarily be the creator).
•
Whether or not ownership of the IP rights in the underlying asset is
intended to be transferred to the person who acquires the NFT (which will
not always be the case) or, if not, what (if any) rights there are to use the
underlying asset.
•
How the person who acquires the NFT obtains possession or control of the
underlying asset if they have the right to do this.
There are potentially four aspects of legal ownership linked to an NFT. That of:
•
•
•
•
The data and the metadata of the NFT.
The IP rights in the data and the metadata of the NFT (if there are any:
see section on computer-generated works under Ownership of intellectual
property rights).
The underlying asset.
The IP rights in the underlying asset represented by the NFT.
An in-depth due diligence process should be undertaken by any potential buyer,
just as would be done for a non-digital asset purchase, to establish the position
in relation to all four. See further at Intellectual property rights in relation to the
potential IP rights that may subsist in respect of NFTs.
