A guide to Non-Fungible Tokens (NFTs), 2023 - Flipbook - Page 19
Ownership of intellectual property rights
The general rule is that the first owner of copyright in a work will be the author
(section 11(1), CDPA). However, there are exceptions to this rule, including
where works are made by a person in the course of their employment. The
author of a computer-generated work (that is, when there is no human author)
is the person by whom the arrangements necessary for the creation of the work
are undertaken (section 9(3), CDPA).
It is important when exploring the potential ownership of IP rights in an NFT to
consider the following:
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The identity of author of the copyright work(s) that comprise the asset
underlying the NFT, and the entity which owns copyright in those work(s)
(which may not be the same, since the author is not always the first owner
or may have assigned their rights to someone else). This could be a
singular individual or entity, or multiple if there is more than one copyright
asset involved or joint copyright.
Whether the author might have assigned their copyright in the asset(s).
The identity of the author of the token and metadata portion of the NFT.
This will be the individual or entity that generated the associated code, but
ownership of the code (assuming copyright subsists in it) may not vest
in the individual, for example, if they were acting in the course of their
employment. Also, if the NFT is computer-generated, the author will be the
person by whom the arrangements necessary for the creation of the work
were undertaken (section 9(3), CDPA) (see Control and ownership).
If relevant, whether any associated trade marks or other IP rights are used
in the underlying asset, token or metadata.
Some aspects of IP rights in relation to NFTs are not yet settled. For example, in
the case of digital works (including code or metadata) that were algorithmically
(that is, computer) generated and are not the product of a human author, it
is unclear whether copyright will subsist insofar as literary works must be
the expression of the author’s intellectual creation to be original, so as to be
protected as copyright works (see Copyright: overview).
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