Finding nemo: Digital art, tokenised assets, virtual property and the right of communication in copyright law

Abstract

The increasing prevalence of immersive technologies and blockchain platforms in modern commerce has ignited animated debates among intellectual property law scholars on the use of nonfungible tokens (NFTs) in the sale of crypto-assets or virtual property. Despite the rapidly growing interest in the implications of NFTs for copyright law, particularly in the realm of digital art, relatively little attention has been given to the question of whether the rights of copyright stakeholders (as opposed to the works in which such rights subsist) are capable of tokenisation as NFTs or of being transferred via NFT-tethered transactions in blockchain environments. This article highlights the dangers of treating copyright as capable of being tokenised or transferred as NFTs on blockchain platforms, and argues that such an approach poses fundamental risks to the ‘nemo dat’ principle in property law. The article further proposes that the right of communication in copyright law should be extended to include the minting of NFTs in relation to digital files containing creative expression, to protect the interests of digital artists from the exploits of rogue crypto-traders on blockchain platforms.