NFTs and intellectual property – can they be protected?

Terence Broderick

NF Ts and intellectual property can they be protected

Non-fungible tokens (NFTs) are taking the internet by storm, as this previously obscure technology starts to be leveraged by companies and individuals alike to connect with customers and extract value from digital assets. An NFT is an interesting concept with regards to intellectual property — here, we explore whether NFT-related innovations can be protected with IP rights.

What is an NFT?

An NFT is a unique cryptographic asset linked to an object. It uses blockchain technology to record ownership and validate authenticity. Everyone from Elon Musk to Lindsay Lohan seems to be getting involved, with recent high-profile NFT examples including the world’s first ever tweet and the new Kings of Leon album.

NFTs aren’t a new concept — they’ve been used in gaming for many years. Previous applications include Cryptokitties, which enable players to breed collectable digital cats using NFTs. They can also be used inside gaming environments to represent in-game assets that can be controlled by the user instead of the developer.

Future uses for NFTs

While the world figures out exactly how to make widespread use of NFTs, their future potential is somewhat unclear. However, innovators are undoubtedly thinking about how these cryptographic assets could be used to solve technical problems. It seems likely that there are a rich vein of possible applications in any field where access to an object, physical or virtual, is key.

We now live in a service-driven world where ownership of goods isn’t necessarily as important as flexibility. It seems that there are potential applications of NFTs in fields such as Battery as a Service (BaaS), Software as a Service (SaaS) and Mobility as a Service (MaaS), where access to an asset, rather than ownership of an asset, is the key revenue generator. NFTs provide a way by which proof can be provided of a customer’s right to access the asset at a specific time and place, and the storage of the NFT on the blockchain can be used to enable that asset while benefitting from the associated immutability and security.

It would also seem that there are potential applications in fields such as watermarking, where an NFT could be used to verify the authenticity of a piece of data, as well as steganography, where an NFT could be used to hide a piece of information inside another piece of information. However, as will become clear below, NFTs should not be confused with inherent confirmation of the authenticity of goods themselves.

Can you patent an innovation that utilises an NFT?

If you’re innovating using NFTs, it may be possible to obtain a patent, providing that your innovation solves a technical problem.

The patent system provides a very broad interpretation of ‘technical problem’, but the software-leaning nature of NFTs means that more care will be needed when patenting innovations that utilise NFTs than those based on physical sciences.

It will be important to clearly define how the NFT assists in the solution of the technical problem, whether it be connected to blockchain, watermarking or some other field.

It should be said, however, that solutions to problems that can appear to be non-technical are often motivated by technical considerations and it would be wise to consider patent protection for these too. Often, commercial and business problems may well be solved using technical means, so overlooking patent protection for these solutions can deprive your business of a key intellectual property right that can add to the value of your business.

Can an NFT guarantee the authenticity of a product?

The potential for blockchain to solve counterfeiting has been much discussed, but unfortunately NFTs do little to assist. While NFTs can authenticate the work and the chain of title, the issue remains that if the original entry on the ledger is false or contains errors, NFTs will simply confirm and perpetuate this falsity. While some platforms are working to address this, it’s easy to see how the system could be abused. Great caution is advised until safety checks are fool-proof and consumer understanding is improved.

Can an NFT transfer copyright?

The quick answer is ‘yes’, but this process isn’t automatic. It’s important to make the distinction between ownership of the NFT and ownership of the content and/or the IP rights therein. NFTs have associated ‘smart contracts’ which effectively govern how they can be used and the rights granted to the owner. The rights granted by an NFT depend on the contract and these could vary with every token. As with all copyright assignments, ownership will only transfer if expressly provided for and agreed to by the author of the original work. In the absence of such express terms, ownership of an NFT will not grant ownership of the digital asset, the underlying content or any associated IP rights. As such, the NFT owner cannot reproduce, make derivative works of, perform, display or distribute copies of the content. These activities remain the exclusive domain of the owner of the copyright.

Already, there is a considerable divergence in the rights and terms being granted to NFT owners. Some licences grant the owner of a non-exclusive ‘moment’ the rights “to use, copy, and display” the moment solely for “personal, non-commercial use,” “as part of a marketplace,” or “as part of a third party website or application”. The CryptoKitties licence is more generous and allows NFT owners to make commercial use of their kitties, so long as the use doesn’t result in earning more than $100,000 in gross revenue each year. The licence governing the Kings of Leon album states that the NFT owner has a right to display the art and included merchandise for as long as the buyer owns the NFT, but only for personal purposes. Use such as in third-party products or within movies and other media is expressly prohibited. This works in a similar way to the inherent licence granted by most music download purchases.

Can NFTs themselves be protected with IP rights?

As with cryptocurrencies, if NFT creators decide to give proprietary names to their own tokens, these may be protectable as trade marks. The likelihood of this seems slim at this point as it will only add to consumer confusion.

In the UK, it has recently become possible to protect graphic marks such as a graphic file. This may make it possible to protect any representation of NFTs. A visual representation of NFTs may help to improve consumer awareness, understanding and trust.

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