A guide to Non-Fungible Tokens (NFTs), 2023 - Flipbook - Page 18
Copyright: application to NFTs
The most important type of IP right for NFTs is copyright. Copyright may be
relevant as follows:
•
The work that forms the underlying asset of an NFT may be protected as
a copyright work. As noted in Constituent parts of an NFT the underlying
asset will often be an artwork. However, the asset underlying an NFT might
also, or alternatively, involve one or more other copyright works such
as a literary or musical work, film, sound recording or dramatic works.
•
It is also important to note that both the data or the metadata of the NFT,
explained in Constituent parts of an NFT, may themselves be copyright
literary works, if they meet the originality test as detailed above. See
Copyright: overview. However, it is unclear whether pure code would meet
this test. An analysis would be required on the particular facts.
Moral rights
The author of literary, dramatic, musical or artistic works and films also has
moral rights which could be relevant in relation to any copyright in the asset
underlying an NFT. These rights are threefold:
•
•
•
To be identified as the author.
To object to the work being subject to derogatory treatment.
To object to false attribution of authorship.
Unlike copyright, an author’s moral rights can only be waived and cannot be
transferred by assignment.
It should be noted that there are certain cases in which the first two moral
rights do not apply, including that the rights do not apply to computer programs
or any computer-generated work (sections 79(2) and 81(2), CDPA) and are
therefore unlikely to apply to the NFT data and metadata.
