Original title: "Legal Issues Related to NFT Artworks"
Currently, there are generally two ways to create NFT artworks. One is to directly create and form NFT artworks online, and the other is to cast offline physical artworks into NFT artworks. Although there are many legal issues regarding the former, there are currently few controversies; regarding the latter, there are indeed many different views because it involves more links and subjects.
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1. The legal nature of NFT artworks
NFT artwork is essentially a work presented in digital form, which has many of the same characteristics as general digital works, but also has some of its own characteristics.
The form of digital works has been affirmed by our country's legislation.my country's "Copyright Law" stipulates digitalization as a way of exercising the right of reproduction. Item (5) of Article 10 of the law stipulates that the production of works by means of printing, copying, rubbing, recording, video recording, dubbing, remake, and digitization The right to one or more copies belongs to the right of reproduction. The law also makes open-ended regulations on the form of works. Article 3 stipulates that a work refers to an intellectual achievement that is original in the fields of literature, art and science and can be expressed in a certain form, as long as it meets the requirements ofIngenuity, which is an intellectual achievement, can take some formThese three features are the objects of copyright protection, and the certain form here certainly includes the digital form.
The form of digital works is also recognized by judicial practice. At present, the general attitude of the court is that as long as it can reflect the author's personalized expression, bring spiritual enjoyment to the audience, and be original, it constitutes a work, whether it is dynamic such as short videos or non-dynamic such as pictures.
A very controversial issue in the creation of digital works is how to define fair use and maintain the balance between copyright and encouraging creation.For example, there has been a lot of controversy over whether many short clips of "watching a movie in X minutes" constitute reasonable use.Reasonable use of works, such as introducing, commenting, and explaining a certain issue in creation, first, the citer must have independent creative thinking; second, the cited work cannot constitute the main support for his creative thinking; third, respect the cited legal rights. For example, Professor Wang Qian gave an example. For example, regarding the news about the fire at Notre Dame de Paris, some TV stations quoted clips from the movie "Notre Dame de Paris" to show the historical situation, which does not constitute infringement. However, in some movie programs, the host introduces for 30 seconds, and then plays the movie highlights for half an hour, which will be judged as infringement. "
Digital works themselves naturally have the need for dissemination, and have the right to disseminate information on the network.According to the "Provisions of the Supreme People's Court Concerning Several Issues Concerning the Application of Law in the Trial of Civil Dispute Cases Infringing the Right of Information Network Dissemination", network users and network service providers, without permission, provide through the information network works, performances, Audio and video recordings constitute direct infringement; network service providers assist network users to implement acts of infringing on the right of information network dissemination when providing network services, which constitute direct infringement and assisting infringement.
Under normal circumstances, digital works have the problem of difficult rights protection and evidence collection.It is difficult to define the ownership of digital works, especially dynamic short videos, it is difficult to obtain evidence of video dynamics, it is difficult to determine the identity of the infringing subject, and it is difficult to identify and obtain evidence after the work has been modified and created many times. In practice, judges generally believe that new technologies, including evidence preservation with blockchain timestamps, have become an important means of copyright protection.
In addition to copyright, rights protection may also involve trademark infringement or unfair competition.Copyright is to encourage creation, but sometimes the main point of dispute may not be the creation itself, but trademark rights or unfair competition, which can be resolved through trademark infringement or unfair competition litigation procedures.
For original digital works, attention should be paid to retaining the evidence formed during the creation process, including but not limited to created scripts, communication records during the creation process, relevant original documents, etc. After the work is completed, if possible, it is best to register the work in time. The work registration certificate can fix the specific time of creation and publication of the work and other information, which may be important evidence in future litigation.
Based on the characteristics of blockchain and NFT technology protocol, NFT artwork, as an NFT product, is a new type of digital work.first level title
2. The legal effect of NFT artwork blockchain storage
my country has formed a legal system framework for signatures, documents, evidence based on electronic data, and electronic data based on blockchain technology for depositing, obtaining evidence, reviewing and identifying. The essence of NFT artwork is a kind of electronic data stored in the blockchain network.
my country's "Electronic Signature Law" stipulates the legal effect of data message form documents and digital signatures. Documents and signatures embodied in the form of electronic data that meet legal requirements are legally recognized.Data messages refer to information generated, sent, received or stored by electronic, optical, magnetic or similar means. For contracts or other documents, documents and other documents in civil activities, the parties may agree to use or not use electronic signatures and data messages. Where the parties agree to use electronic signatures or data messages, their legal effect shall not be denied just because they are in the form of electronic signatures or data messages.
my country's "Civil Code" stipulates that the data message is one of the written forms of the contract.The parties may enter into a contract in the form of electronic data exchange.Article 469 of my country's "Civil Code" stipulates that the parties may conclude a contract in written, oral or other forms. Written form refers to contracts, letters and data messages (including telegrams, telexes, facsimiles, electronic data interchange and e-mails) and other forms that can tangibly express the contents contained therein. It can be seen that the data messages in the "Civil Code" include telegram, telex, facsimile, as well as electronic data interchange and e-mail. Among them, electronic data exchange and electronic mail are the main forms of concluding contracts through computer network systems.
my country's "Civil Procedure Law" stipulates that electronic data is one of the forms of evidence.Evidence in the form of electronic data may be submitted to prove the facts of the case.Article 1 of the "Provisions of the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security on Several Issues concerning the Collection, Extraction, Review and Judgment of Electronic Data in Criminal Cases" stipulates that "electronic data is formed during the occurrence of a case and is stored, processed, and The transmitted data that can prove the facts of the case.
What is a data message? According to the interpretation of the National People's Congress Law Committee, data messages are also called electronic information, electronic communication, electronic data, electronic records, electronic documents, etc. Generally refers to all kinds of information formed by electronic means.
The "People's Court Online Litigation Rules" stipulates that electronic data stored by blockchain technology can be submitted as evidence and can be used as a basis for determining facts. It stipulates that if the electronic data submitted by the parties as evidence is stored through blockchain technology and is consistent with the technical verification, the people's court may determine that the electronic data has not been tampered with after being uploaded to the chain, unless there is evidence to the contrary that is sufficient to overturn it. Before the formulation and implementation of the "People's Court Online Litigation Rules", in June 2018, the Hangzhou Internet Court held the first case of blockchain deposit evidence. The evidence at that time was stored on the Bitcoin blockchain network through Factom. The court judgment mentioned,The screenshot of the webpage, the source code and the call information packaged and compressed files downloaded in the evidence preservation platform are hash calculated. After comparison, the value is consistent with the hash value of the electronic data submitted by the parties for blockchain preservation, so it can be confirmed that the case involved The electronic data has been uploaded to the FACTOM blockchain and the Bitcoin blockchain, and has been preserved intact and has not been modified since it was uploaded.
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3. The casting rights of NFT artworks
The issue of casting rights and interests of NFT physical artworks, such as who has the right to cast NFT artworks, etc., is essentially a question of the relationship between NFT artworks and the rights and interests of artwork authors, collectors, and users.
As a native element of the digital world, NFT is essentially a heterogeneous Token. Since the metadata of this Token is associated with a specific item, the combination of the heterogeneous Token and metadata forms an NFT product, and the NFT product can be understood It is a digital product with specific use value that can be combined with programs. Therefore, the process of casting NFT products is a process of digitizing specific product information data and anchoring it with a specific TokenID. Therefore, it can be said that the digital presentation of specific data information is the essence of NFT product casting. So what is the act of digitizing specific data information?
First of all, it is certain that in many cases, the act of digitization is a right of reproduction. Our country's "Copyright Law" mentions that making one or more copies by digital means is duplication. Item (5) of Article 10 of the Law stipulates that the reproduction right in copyright property rights refers to the right to make one or more copies of a work by means of printing, photocopying, rubbing, audio recording, video recording, dubbing, photocopying, and digitization.
But we also need to see that the process of digitization is not limited to copying, there may be processing or even re-creation of data. Especially because of the combination of NFT products and programs, in different application scenarios, different degrees of processing and re-creation are usually required. A number of other acts of this nature may therefore also be included, which may include:
Exhibition rights. If the work itself should be a digital work, when casting it into an NFT product, if the TokenID is directly anchored to the digital work, and there is no copying itself, it can be considered that the creator has exercised the exhibition right of the work.
filming rights. If the work itself is static, but it was filmed in all directions when the NFT was cast, and some other creative elements may be added, then the right to film is exercised.
Adaptation rights. If the work is an offline physical object, then the NFT product casting process, for example, if it is adapted into a small video, then the right of adaptation is exercised.
translation rights. For example, for works with Chinese style elements, when casting NFT, it may also be translated into foreign languages, so translation rights may also be included.
compilation rights. If multiple digital works are uniformly minted into NFT products, compilation rights may be included.
Internet dissemination rights. Almost all NFT product casting behaviors must exercise the right of network communication. Because after casting, it can be seen with NFT, which has carried out network transmission.
Data rights. Among them, other rights except data rights and interests are all copyright property rights, which require the permission of the copyright owner to exercise. As for data rights and interests, that is, the right to collect and use data related to works, according to the provisions of Article 22 of my country's "Network Security Law", "If network products and services have the function of collecting user information, their providers shall expressly notify users and gets agreement". Article 32 of the "Data Security Law" stipulates that "any organization or individual collecting data shall adopt legal and legitimate methods, and shall not steal or obtain data in other illegal ways." When casting NFT products, if collecting, using, Processing the data of other users requires the authorization of the relevant user.
With the continuous development of digital technology, the digital operations in NFT casting in the future may become more and more diverse, which may involve more copyrights, data rights and even the exercise of other rights, and the forms of authorization may also become more and more diverse. This dynamic The development is reflecting the reality of the rapid development of digital technology.
The particularity of NFT artwork is that it can contain more data related to it. The full amount of NFT rights licensing, because it is combined with the program, can achieve different forms of authorization and licensing through technical means in the future. The combination of law and technology can make the casting problem, which is essentially the exercise of rights, more convenient and effective.When casting NFT artwork, pay special attention to the copyright of the work, when collecting data to form a full amount of information, for example, collectors can legally own the data generated by the work, including relevant historical data related to creation, use, appreciation, and collection Information casting becomes NFT information content, which will be able to enrich the content of NFT works and facilitate audiences to better understand and appreciate artworks.
