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What can you do with NFTs?

This is Dragon, a cryptokitten that was sold for 170.000 dollars two years ago. Cryptokitties are at once blockchain collectibles and a game of sorts. The cats can be bred, resulting in new cats which will have a new generation on the Ethereum blockchain. The limited number of early-generation kitties have the highest collection value. Cryptokitties are an example of non-fungible tokens. While cryptocurrencies such as BitCoin have been the talk of the town for quite some time, they are far from the only blockchain technology on the rise. Among the more inconspicuous developments are these non-fungible tokens. So, what are they exactly? And what can you do with them?

Fungibility is a term which describes whether an object is interchangeable, whether it can easily be replaced by something which is (semantically) identical. Money is a fungible asset, the specific coin or banknote you possess is inconsequential, as they are equal in use and value. A painting, by contrast, is non-fungible, as its value lies in its specific expression. Even if the size, type of paint and canvas of a different painting would be identical, they are not interchangeable.

Herein lies the power of NFTs. Where bitcoins are interchangeable (each bitcoin holds the same value), NFTs are unique. They are equipped with metadata describing their specific, unalterable identity. This can be likened to an authenticity certificate. Moreover, they can be rare (if the developer limits the number of items in existence) and indivisible. Remember, you cannot buy a half an artwork, a quarter of a concert ticket or only Dragon’s tail. 

Uses of these tokens include (but are not limited to) digital artworks, tickets to events or in-game items. An exciting development, as it can take virtual assets to a new level. Pirating and plagiarism will be tackled quite effectively, as an NFT cannot be copied and shared illegally, it is as one-of-a-kind as a real world asset. In fact, their use also extends to actual real world assets. For example, some watchmakers have started to use an NFT as the accompanying authenticity certificate, including details and some extra information, for some of their vintage watches (read more).

Which brings us to the next question: what can you do with an NFT? If you are the proud owner of Dragon the cryptokitten, can you copy him to sell to another? Can you do this at the official Cryptokitties storefront? Does “exhaustion” apply? These questions are as of yet unanswered. 

Though no conclusive answers are available, some clues may lie in analogies. Can you use pictures of your acquired asset as your screensaver? On your website? On a book cover? Some ideas may be borrowed from copyright on artworks. If you were to buy a painting, you would have ownership rights but not the copyright for that specific painting. As for reproduction, you may reproduce the artwork for personal study, practice or use (e.g. art. 16b-c .of the Dutch Copyright Act (“DCA”)) but you cannot sell your reproductions. An image of the artwork may also be posted on a website, in the context of the freedom of expression or a sale of such artwork. So not merely as a decoration. This may be similar for NFTs that are protected by copyright. 

Speaking of copies, one has to be precise.The NFT itself is a concept. It is an allocation of ownership to a certain blockchain account by registering such ownership in the ledger a blockchain ultimately is. The object of such ownership can be anything. E.g. a certain cryptokitten or a picture of a soccer player. The idea behind blockchain technology is that such ownership information and all transfers therein are recorded permanently. It is not possible to double the object by copying its position on the blockchain. One cannot change the ledger.

However, the thing that is represented by the NFT, which may be an image, is a different matter. It is unlikely a copyright holder will object against the copying of the crytokitten, since spreading copies of the image may actually drive the value of the original NFT up. The image itself does not denote ownership, which lies in the NFT itself as it is recorded on the blockchain. Conceptually, this is not so different from a bitcoin, sharing or having a picture of a bitcoin is not the same as owning it and having access to its value. 

As far as “exhaustion” goes, it is hard to say how this will affect NFTs and it will probably vary depending on the type of NFT. As a freshen up: Exhaustion regulates that if a copy of a work is sold by the copyright owner (or with his permission), the copyright owner “exhausts” his rights to control distribution further. Meaning that if you sell something, you cannot prevent the buyer from selling it again or giving it away. As we know, digital exhaustion is a tricky subject. E-books and used software have been fighting the good fight for a while. In the case of NFTs, though, their value seems to lie in the fact that they are indivisible, rare and,unlike any other digital file, they cannot be multiplied through simple copying. An image of Dragon the cryptokitten or a derivative work will not have the same value as the NFT Dragon himself, as it will not have the same specifics in its metadata. Therefore, exhaustion may apply in a way that is more similar to real-life assets than to other digital assets. Which would mean that one can offer and resell an NFT. However, this has not been ruled on yet.

All in all, NFTs are an exciting development for technology as well as art, commerce and property in general. Its many uses are being explored as we speak, from watch certificats to digital cats. It will be interesting to see how this new type of property and the rights that govern it will be formulated and viewed by the layman and the courts alike.

16 November 2020 - Blockchain and law, Copyright

About Jetse Sprey

Jetse Sprey advocaat

Jetse finds solutions instead of problems and is able to break stalemates again and again. He speaks his mind and is not guided by what he thinks his clients want to hear.

He writes sharp, readable contracts. He has extensive experience with Blockchain and is an entrepreneur in this field himself. He writes convincing procedural documents and advice. He is knowledgeable in intellectual property, privacy and corporate law.

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