Senators on NFTs, Ask US Patent and Copyright Offices about IP Rights

In a letter to the directors of the United States Patent and Trademark Office (USPTO) and the United States Copyright Office on June 9, 2022, Senator Thom Tillis (R-NC) and Patrick Leahy (D-VT) both agencies. Jointly considers intellectual property (IP) rights regarding non-fungible tokens (NFT or NFT).

NFTs are digital objects, and each NFT has a unique digital footprint that cannot be changed and is recorded and stored on the blockchain. NFTs represent ownership of unique items. NFT ownership and assignments are also recorded on the blockchain, allowing for secure and transparent record keeping, and the blockchain allows you to create only one NFT per item. (This is different from. for example, Streaming music files or digital photos. May be copied, pasted, and widely distributed. )

The creation and sale of NFTs has generated a great deal of activity around the world, with high-profile purchases reaching tens of millions of dollars and media attention. So far, the adoption of NFTs is most prominent in the areas of artwork and collectibles (for exampleDrawings, music, photography, and video), but NFTs can specify ownership of any unique asset (digital or physical), and their acceptance may be expanded.

Senators Tyris and Lee Hee, the ranking members of the Judiciary Subcommittee on Intellectual Property and the chairs of the Senate, are each in the spotlight. Citing the Commission’s obligation to review the intellectual property rights of emerging technologies and the potential impact of such technologies on intellectual property rights, the letter investigates the following questions with the USPTO and the Copyright Office: I’m asking you to do it. ¹ Regarding next year’s NFT and IP:

1. What are NFT’s current applications and their respective IPs and IP-related challenges?

2. What are the potential applications of NFTs in the future and what are their potential IP challenges?

3. For current and future applications of NFTs:

   a. How does the transfer of rights apply? How does the transfer of NFT affect the intellectual property rights of the related assets?

   b. How are license rights applied? Is it possible to license the intellectual property rights of related assets in the NFT context?

   c. How are infringements applied? What is a potential breach analysis when an NFT is associated with an asset subject to a third party IP? Or what if the underlying asset associated with the NFT is owned by the NFT creator and is infringed by another creator?

   d. What kind of intellectual property protection can you provide? What IP protection can I provide to NFT authors? What if the creator of the NFT is a different individual or entity than the creator of the associated asset?

   e. How else does 17USC §106 apply?

4. What are the current and future potential uses of government agencies to protect and manage intellectual property rights using NFTs, both internally and externally?

5. How are current statutory copyright protections such as the DMCA applied to the NFT market and are those protections appropriate to address current infringement concerns?

“We’re trying to understand how NFTs fit into the world of intellectual property rights, because rights exist today and can evolve into the future,” Senator said. ² Request the Board to consult with the private sector in preparing the response. Some questions may seem broad, but ideally the goal is to produce an extensive report that provides guidelines on how to handle NFTs in the IP domain in the future.

The question is important because of copyright and trademark rights, and patent rights in certain scenarios. can Protects NFTs or their specific elements. Owners of various trademarks and copyrights have succeeded in exercising their rights through infringement claims in the district court or by filing a DMCA deletion in the NFT market (“for example, High seas). However, the proceedings in the subject area are increasing rapidly, and the results are uncertain. Subsequent alerts are expected to discuss some of these decisions at the time of issuance.

Unfortunately, the problem that NFT Innovation is trying to solve by offering NFT buyers A few Authenticity verification does not necessarily match the reality of whether the NFT seller actually owns the trademark or copyright rights that may accompany the NFT. Relatedly, the sale of NFTs does not necessarily transfer the ownership (or license) of the copyright or trademark. As a result, NFT proof of ownership is currently not sufficient to prove ownership of intellectual property rights to the USPTO or the Copyright Office.

Obviously, as the use of NFTs grows rapidly, so does their legal implications. The USPTO and the Copyright Office have the difficult task of producing intellectual property reports in response to questions from Senators Tillis and Leahy, who address both the current and future of NFTs.

¹ Letter, 1-2 pages.

² Letter, p. 1.1.