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Computers and Law: Journal for the Australian and New Zealand Societies for Computers and the Law |
CRYPTOKITTIES, ART TOKENS AND
BORED APES IN THE METAVERSE:
HOW NON-FUNGIBLE TOKENS (NFTS) CHALLENGE AUSTRALIAN COPYRIGHT LAW DURING
AN AGE OF DISRUPTION
WELLETT POTTER[*]
ABSTRACT
The post-COVID-19 era is an age of disruption, which presents significant social, cultural and technological challenges and opportunities for society at large. There has been substantial wealth generation fuelled from digital currencies, which has led to interest and sales of Non-Fungible Tokens (‘NFTs’) and their associated assets. This article will examine the growth and hype about artistic NFTs in the context of recent years. It will then examine the application of current Australian copyright laws to such NFTs and their assets to determine subsistence and infringement of these works. The notion of what it means to ‘own’ an NFT will be examined. When applying traditional proprietary notions of ownership to NFTs, it will be seen that they have the capacity to challenge established norms which have evolved in a material, pre-technological world. Finally, this article will ponder the question as to whether a new type of virtual ownership right is emerging for NFTs and their associated assets.
CONTENTS
The post-COVID-19 era is an age of disruption, which presents significant social, cultural and technological challenges for society at large. On one hand, while there has been supply-chain interruptions, food shortages and inflation in many countries, on the other, there has been substantial opportunities, increased digitalisation[1] and significant wealth generation fuelled by digital economies. One of the implications of this has been the growth, interest and sales (‘drops’) of Non-Fungible Tokens (hereafter ‘NFTs’). NFTs have been in existence for over a decade, but during the last year their popularity and notoriety has exploded. In 2021, global NFT sales topped $24.9 billion, a massive increase from $94.9 million in 2020.[2] Interestingly, 85% of all NFT transactions have been performed by 10% of traders, which indicates that a small minority are engaging in a large number of sales.[3]
As of December 2022 in Australia, there are no specific regulations which have been developed for NFTs. Nor has there been any intellectual property (‘IP’) litigation involving NFTs. Depending on its use, an NFT might fall under intellectual property, consumer and securities law. An NFT might also qualify under the general definition of a ‘financial product’, through s 763A of the Corporations Act 2001 (Cth) and be subject to the regulatory framework of the Australian Securities & Investment Commission (‘ASIC’).
This article seeks to examine how NFTs and their associated assets challenge Australian copyright law and notions of proprietary ownership in the post-COVID era. To achieve this, firstly, this section will examine the growth and hype about NFTs in the context of recent years. There will be discussion about what an NFT is and exploration of some of the most expensive and notable drops throughout 2021. This will lead into analysis in Section II about what it means to own an NFT, which will explore the process of token creation and sale.
Section III will then examine the application of current Australian copyright laws to NFTs to determine how copyright may protect them. This article will then focus upon the copyright protection of NFTs attached to digital art as a case study, using the example of a Bored Ape Yacht Club NFT (‘BAYC’). Then, the notion of NFT copyright infringement will be discussed. The issue as to whether tokens are considered property in their own right will also be considered. As there has not been any copyright litigation involving an NFT in Australia at the time of writing, recent cases from China, the US and UK will be used to analyse these issues.
Finally, section IV will argue that from a legal perspective, NFTs challenge traditional notions of property, which originated in the pre-technological, material world, involving the fundamental concepts of ownership, control and what it means to possess an item. It will be pondered whether a new type of virtual ownership right – a meta-property right – for digital assets is slowly evolving in the NFT marketplace.
Although the term ‘NFT’ is often used, there generally remains confusion about what it is and how it is used. When a good is ‘fungible’, it means that it is ‘easy to exchange or trade for something else of the same type and value’.[4] An example of a digital fungible product is bitcoin – like can be exchanged for like. However, by their very nature, NFTs are not fungible, meaning that no two NFTs have the same properties – each is unique and it is this uniqueness that gives them value (emphasis added). It is very important to note that an NFT is the token which is attached to an asset, rather than the asset itself (emphasis added). An NFT is defined as ‘a unique unit of data (= the only one existing of its type) that links to a particular piece of digital art, music, video, etc. and that can be bought and sold.’[5] An analogy can be drawn to an auction ledger, which outlines the details of what has been auctioned, as distinct to the item which has been sold.
Another way to describe an NFT is a type of digital deed or token on a blockchain platform, which is linked to a unique item. The blockchain acts as a type of a public ledger by representing and authenticating the digital asset (sometimes referred to as the underlying asset), by verifying its ownership and history. Each new transaction represents a new block on the chain. Blockchain registration results in NFT ownership being recorded in a decentralised and transparent way. Another benefit is that registration can assist the creator to receive a resale royalty payment if the NFT is later resold – this instruction is coded into the contract so that it happens automatically upon resale.[6] The information which is recorded on the blockchain includes who created the asset, who linked it to the blockchain and its purchase history. This important and nuanced distinction between the NFT (i.e., the token/data on the blockchain) and the digital asset to which it is linked is one which is not often well understood. For the purposes of this article, where relevant, the terms ‘NFT/token’ and ‘asset/associated asset’ will be used to delineate these items.
NFTs originated from the need in digital environments to be able to replicate the properties belonging to physical items, which include uniqueness, scarcity, being rivalrous and proving ownership. This began as a method for visual and digital artists to be able to prove digital ownership of their work on the blockchain and to be able to control their work’s value.[7] Tokens have the capacity to enable scarcity for any associated asset.[8] For example, a token can make the ownership of digital art exclusive, and verify the ownership of such assets, which were issues that had previously been problematic. As the blockchain comprises of many computers working on complex algorithms to validate a transaction and all records are kept public, this means that it is very difficult to conduct fraud. The unique identity of the NFT on the blockchain cannot be replicated or replaced and this assists in proving/tracing ownership. The NFT concept has rapidly expanded to various types of items across many industries, including the gaming industry, where it is now commonplace for in-game purchases to be NFTs. Popular NFT games include ‘The Sandbox’, ‘Cryptokitties’, and ‘Axie Infinity’.
Broadly, there are two categories of NFTs: those which are associated with digital, intangible works and those which are associated with tangible works. In the first category, many types of digital assets may be attached to NFTs – for example, any type of image/artwork, a video, an audio file, online real-estate, memes, gaming avatars/assets, or even a tweet. When a digital asset is the subject of an NFT, it is important to note that what is usually stored on the blockchain is a link to it, rather than the asset itself (it is unusual to store the asset on the blockchain). Specific examples of digital NFTs include Cryptokitties, which were created in 2017 by Dapper Labs, Cryptopunks, which were launched in 2017 by Larva Labs and the BAYC which was created in 2021 by Yuga Labs.
The other category of NFTs are associated with tangible assets. They work through linking the asset with the NFT via a QR code or link. In this way, these NFTs have similar properties to a certificate of title for real property. When a purchase is made, no physical object changes hands, but the NFT guarantees the authenticity of the original asset and denotes ownership. It is possible for these NFTs to be associated with many types of assets. Examples include tokens for tangible artwork, sound recordings, ticketing for events and certificates of title for real estate[9] – the possibilities are almost limitless.
In the past year, NFTs have gained media attention due to record-breaking sales. In December of 2021, PAK’s NFT attached to an artwork titled ‘The Merge’ sold for a record $91.8 million USD, which comprised of 28,983 collectors purchasing 312,686 NFTs to this work.[10] The way that this drop worked was that over three days, purchasers could buy any number of tokens that they wished – this is known as an ‘open edition’ drop, where there is no limit on tokens.[11] The tokens began at a price of $75 USD and increased at six-hour intervals by $25 USD.[12] Purchasers received their token to access the art once the drop closed.[13]
Another token attached to artwork which sold in March of 2021 was a digital collage artwork (a digital JPEG file), titled ‘Everydays – the First 5000 Days’ by Artist Beeple (Mike Winkleman).[14] This sold at Christie’s for $69 million USD.[15] It comprised of a collage of artworks, which Beeple had been producing each day for fourteen years.[16] Similarly, another sale of distinction in November of 2021 was a token for virtual land in the online game ‘The Sandbox’, which was purchased by investor Republic Realm for $4.3 million.[17]
However, there appears to be volatility in the NFT marketplace and speculation is that growth has started to slow as of December 2022.[18] An example is Twitter founder Jack Dorsey’s first tweet, which was linked to an NFT and sold for $2.9 million in 2021.[19] The tweet was published on 21 March 2006 and stated ‘just setting up my twttr’.[20] However, Dorsey’s tweet NFT value dropped 99% in a year,[21] which demonstrates that an NFT’s value is driven by market demand. Community engagement with tokens plays a critical role with this.[22] There are cycles that expand and contract through time, with expensive NFTs pitched to a niche market. This parallels the situation with tangible collector’s assets, such as fine art.
There are various economic and socio-cultural factors which prompt people to attribute value to NFTs. Such factors pertain to the digital file linked to the NFT and include utility, aesthetics/appeal to their owner, the uniqueness and scarcity, the fame of the creator/owner and the potential liquidity status of the asset itself. The purchase of NFTs as an investment has been attractive to wealthy individuals such as celebrities and singers, with examples including singer Justin Bieber owing a $625,130 USD portfolio and comedian Dave Chappelle a $262,000 USD portfolio.[23]
Part of the socio-cultural attraction of NFT ownership was explained by celebrity Paris Hilton, when interviewed in January of 2022 on the Tonight Show with Jimmy Fallon. Both parties had purchased separate digital cartoon ape NFTs from the popular BAYC, with Ms Hilton purchasing her ape for approximately $300,000 USD.[24] Upon showing the audience a hard-copy digital print of her NFT BAYC #1294 (‘ape #1294’) which was depicted wearing a hat and sunglasses, Ms Hilton explained what attracted her to purchase it. ‘That’s my ape – it’s really cool... the hat, the shades... I was going through a lot of them, I was like, I want something that reminds me of me, but this one, it does. We made, like, another version of it where he takes the hat off and blonde hair comes out... [an] animated version.’[25]
Mr Fallon went on to further articulate his attraction to his token, ‘We’re part of the community. This is my ape. It reminded me of me a little bit because I wear striped shirts, I’ve worn these heart sunglasses because my daughters, just as a joke, they have them and just as a joke - I put them on, so I’ve done this and I love yacht-rock and being breezy. And I like the blue.’[26] What can be gleaned from this conversation is that these purchasers have bought their NFT apes for several reasons which will briefly be explored.
Firstly, each of the tokens attached to digital ape images are an economic investment, due to their value, uniqueness and scarcity. Also, the fact that each token has been purchased by a celebrity will likely improve their liquidity status in the future, should they be sold. Secondly, these assets belong to a popular NFT collection, so they are a type of digital collector’s item which are highly sought-after. Thirdly, the aesthetics of each individual ape has appealed to their purchasers, with each personally identifying with them. This is similar to the reasons that attract people to buy tangible collector’s goods, such as baseball cards or vintage Smurf figurines.
As mentioned earlier in this article, as a token is an intangible good – a record on a digital ledger - this begs the question as to what a buyer is actually paying for when they make a purchase. What does it mean to own a token when the asset exists in an intangible, digital environment or in the metaverse? The following section will unpack these issues in greater detail.
In order to understand what it means to own a token, it is necessary to understand a general overview of the minting process. The first step is that a creator must have created some type of asset (for example, an artwork, literary work, etc) which they wish to link to an NFT.[27] A creator can upload the details about this asset to an NFT platform, and execute a smart contract. This involves deciding upon the conditions of the contract, coding this and uploading this data to the appropriate NFT platform. Doing this has given some creators greater freedom in setting their own cost and cutting out middle entities, which has been particularly exciting for the digital art industry.[28] The smart contract is usually programmed to self-execute if particular conditions of sale are met,[29] which are based in contract law.[30] It is also possible to program smart contracts to create new events or execute further contracts or tokens, or to embed cryptocurrencies or further digital assets (although this happens infrequently).[31]
Depending on the complexity and timing of the transaction, a compulsory registration fee is charged. This is known as a ‘gas fee’ and is often very expensive due to the carbon emission cost. This has meant that in the past, the token market has generally been geared towards the wealthy. This ‘gas fee’ is usually paid to the network validators and it covers the cost of the blockchain services, including energy costs, validation and securing fees.
There has been controversy associated with the amount of power and therefore carbon emissions that it takes to mint a token. The reason for this is that the underlying process of maintaining certain blockchains known as ‘proof of work’ is deliberately energy intensive.[32] An example is Ethereum blockchain, where miners must solve an algorithm to add a new block of verified transactions. This is deliberately a high-energy and therefore expensive task, so as to dissuade fraudulent activity. An average NFT on the blockchain has been found to have a carbon footprint which is higher than an EU resident’s monthly electricity usage.[33] However, in recent times, some blockchain, such as Solana, are offering the opportunity to be carbon neutral and this results in lower ‘gas fees’.
When a creator mints a token, after paying the ‘gas fee’, they are assigned a ‘public key’. This is used to verify that they minted (or authored) the digital item – it is a type of certificate of authenticity. The ‘public key’ is recorded in the token’s metadata and on the blockchain, which gives it transparency. Minting on the decentralised blockchain also means that this data cannot be altered or deleted. The ‘public key’ has the additional utility of allowing a creator to earn resale royalties, every time that their token is later resold to a new owner, which is a particularly attractive option to artists.[34] This has provided a solution to a long-standing problem of resale royalties, particularly for digital artists. It also fulfils one of the aims of copyright – to incentivise authors to continue producing their works.[35]
Because NFTs are secured on the blockchain, they are minted and traded using various forms of cryptocurrency, including Solana, Flow, Ethereum and Wax. Upon buying a token, a new owner is assigned a ‘private key’, which is stored in a digital wallet. This ‘private key’ provides security and verifies original ownership, proving that the new owner’s digital token is the original.[36] When a purchaser meets the conditions outlined in the smart contract (usually through purchasing the token with cryptocurrency) the smart contract is automatically executed.[37] It will distribute the NFT to the purchaser and record the transaction on the blockchain.[38]
A smart contract contains terms of sale – it provides a license, which outlines the permitted use of the associated digital file. When the purchaser executes the contract, the terms are typically grounded in pre-existing IP rights and can considerably vary. For example, a purchaser is usually not granted commercial rights to the digital file attached to the token. Instead, the IP rights to the associated asset are likely retained by the copyright owner, who may be the creator. In a similar situation to other creative works which are the subject of IP rights, it is only the copyright owner who has the right to exercise those rights, including the right of reproduction.
Alternatively, in a rarer number of situations, a token purchaser may be granted partial or full commercial rights to their associated asset, such as the right to exploit derivative works. The licensing of the BAYC is one such example which will be examined as a case study. The next section will unpack these issues by starting with a discussion about subsistence in tokens and their linked digital assets under Australian law.
When considering copyright subsistence in NFTs under Australian law, there are several issues to unpack. Again, it is important to delineate between copyright of the associated asset and copyright of the token itself.
When considering whether copyright subsists in an associated asset, there are a number of subsistence criteria that must be met and if they are satisfied, then copyright automatically vests. Firstly, it is necessary to consider how the associated asset would be classified as subject matter under the Copyright Act 1968 (Cth) (hereafter ‘the Act’). Under the Act, works are divided into Part III and Part IV works. Part III works are those which are historically more creative endeavours and fall within the scope of the Berne Convention.[39] This incorporates literary, dramatic, musical and artistic works.[40] Part IV works include more modern works, including sound recordings,[41] films,[42] television/sound broadcasts[43] and published editions of works.[44] If an associated asset fell under one of these categories, then it may qualify for protection, as long as the other subsistence criteria are met.
Although the scope of subject matter that may be protected through copyright is broad, there are some associated assets which would likely fall outside of copyright protection. For example, the associated assets to recent NFTs have included perfume or customisable Nike sneakers.[45] Such subject matter falls outside of copyright, but may be covered under other IP protection. Brands are increasingly using NFTs as another form of innovative revenue, with companies such as Adidas, Dolce & Gabbana, Nike and the US NBA entering the metaverse and/or selling collectable items as tokens.
For copyright to subsist under Australian law, it is important that an author is identifiable, they must have a territorial connection to Australia[46] and they must demonstrate sufficient originality in the creation of the work.[47] These issues will be unpacked in greater detail in the next section. As long as the associated asset falls within the scope of copyright subject matter and all of the subsistence criteria are met, copyright would vest separately in the asset. Of note is that unless the author of the associated asset is also the token creator, this means that authorship would vest in two different people for two different works – (1) for the creation of the associated asset; and (2) for the creation of the token. This fact is often not well understood by the public at large.
Another issue is whether the token creator has the right to mint a token from an associated asset. Sometimes this can be straightforward, particularly if the associated asset is created or owned by the same person who mints the NFT. However, this issue can become complex if a copyright-protected work has already been licensed for particular uses, or where some rights have already been transferred, but a license has been retained for a particular use/s. It is debatable as to whether the minting of an NFT of an associated work would be covered under pre-existing licenses - terms would need to be closely interpreted.
As a token primarily comprises of text on the blockchain and can be reduced to zeros and ones in its most basic form, its subject matter may qualify as a literary work under Part III of the Act.[48] However, the arrangement of the data underlying the token may be found to lack sufficient arrangement to qualify for copyright protection – this would require evaluation on a case-by-case basis.
The other subsistence criteria denotes that a literary work must be an original work of human authorship,[49] which is reduced to a tangible form by an author (i.e., the token creator or author). This reduction to tangible form is the process of being made; of being written.[50] When a token creator mints their token, they are engaging in a process of reduction to tangible form, through the arrangement of the code for the smart contract.
Also, the token creator must have a territorial link to Australia - at the time the token is made, as the author, they must be a qualified person,[51] or the first publication (i.e., executing the smart contract/placing the token on the blockchain) must occur in Australia.[52] Under the Act, a qualified person is an Australian citizen or resident.[53]
If a token became the subject of a judicial subsistence enquiry, it is likely that the process of the input of the creator (author) in expressing the data in a tangible form would be rigorously examined.[54] There would be a focus upon whether the process contained sufficient original authorial ‘independent intellectual effort’ through the expression of the arrangement of the token’s data.[55] This is because copyright will only protect the expression of data, but not the data itself (i.e., the idea/expression dichotomy).[56] It is possible that some tokens may fail to meet this criterion due to a lack of established independent intellectual effort in the expression of the arrangement of data.
The future use of artificial intelligence (‘AI’) in token creation must also be considered. Unlike the UK’s copyright legislation, for any type of computer-generated work, the Act does not make provision for the author to be considered the person by whom the arrangements necessary for the creation are undertaken.[57] During the past ten years, there has been Australian jurisprudence which suggests that, if applied to NFTs which are created through AI processes, the expression of token data may be found to be too far removed from the actions of a person/people who arranged those processes, due to a lack of human ‘independent intellectual effort’.[58] In this situation, the result is that subsistence will fail for lack of establishing sufficient human authorship. As AI continues to advance at an astounding pace,[59] this is likely to be a relevant future issue. If the Act remains the same regarding authorship of computer generated works, then this matter requires judicial evaluation and is heavily fact dependant.
Under copyright, when the subsistence criteria are sufficiently met, as the author of the work, the token creator is conferred a bundle of rights. These include the right to (1) reproduce the token in material form;[60] (2) publish the token;[61] (3) communicate the token to the public;[62] and (4) make an adaptation of the token,[63] which is defined as ‘an arrangement or transcription.’[64] Hypothetically, if any of these rights are infringed, then copyright litigation may commence. However, in executing the smart contract, the token creator decides which of these rights to retain and which to transfer to the purchaser. The next section will discuss licensing in further detail and will use the BAYC as a case study.
As previously mentioned, the terms of token licenses vary. Most involve a centralised collaboration model, where there is no transfer of commercial rights for the associated asset. The result is that a purchaser is not permitted to commercially exploit the associated asset or a derivative work.[65] They can prove ownership of their token on the blockchain, but there are no intellectual or property rights for the associated asset.[66]
Under such conditions, in essence, what a token purchaser is buying is the right to be recorded on the blockchain as the official token owner, the right to access/use the associated asset non-commercially and the right to sell the token in the future. Interestingly, this directly contrasts with the way that NFT sales are marketed, which often suggest that tokens are personal property sold as a digital asset. The use of language in marketing often indicates that token ownership equates to full proprietary and/or IP ownership of the associated asset.[67] The issue of token marketing will be discussed in the next section.
On the other end of the licensing spectrum, few token smart contracts use a decentralised collaboration license, which allow full commercial IP rights to derivative works of the associated asset. Such terms are unusual. It means that the token purchaser can commercially exploit derivative works based on the associated asset. The BAYC is an example. The license grants the BAYC purchaser an unlimited worldwide license to use, copy and display the art for the purpose of creating derivative works, without requiring permission from Yuga Labs.[68] The commercial success of such a business model seems promising. Firstly, the initial sale of the BAYC has exceeded $1 billion in a year and secondly, several ape owners have engaged in lucrative commercial projects involving derivative works.[69] Examples include a partnership between music producer Timbaland for a BAYC hip-hop metaverse band, the use of the BAYC to promote NBA basketball shoes, and a contract with Universal Music’s 10.22PM label to form a four-ape BAYC band.[70] Whether decentralised collaborative licenses become popular for future NFT sales remains to be seen.
Whenever any commercial exploitation is involved, terms will always be closely scrutinised. A current example is from the US, involving Miramax and Quentin Tarantino. In January of 2022, Tarantino sold an NFT linked to a digital image of his original hand-written script of movie ‘Pulp Fiction’ for 1.1 million USD.[71] Although Tarantino owned the rights to the original screenplay and Miramax owned the rights to the screenplay, Tarantino was sued by Miramax for copyright and trademark infringement, breach of contract and unfair competition.[72]
Miramax argued that Tarantino did not have the right to mint NFTs, because they were captured under the term ‘emerging technology’ and had been assigned to them under the screenplay contract. Tarantino argued that the tokens were not captured under those terms and therefore it was within his rights to mint the tokens from his hand-written screenplay. On 8 September 2022, the parties settled the case,[73] so it is uncertain what would have been ruled about the classification of NFTs had the case proceeded to trial. This case demonstrates that license disputes pertaining to terms of IP linked to NFTs will likely be fiercely litigated in the future.
As of December 2022, there has not been Australian litigation about the copyright infringement of a token or an associated asset. Currently, it seems unclear as to whether token infringement will become a prevalent future issue. It must be remembered that infringement can only be found if copyright subsists in a work to begin with. When considering subsistence in a token, as has been discussed, it may be found that this fails, due to insufficient originality and/or authorship of the data.
A more pertinent issue is infringement of an associated asset when minting an NFT. Taking an artistic work as an example, it is hypothetically possible that a digital artist could have an artwork downloaded by an unauthorised person and minted on an NFT platform without their consent. This highlights a difficult issue – proof of authorship/ownership of the associated asset. How do NFT platforms know whether the associated asset is truly authored or owned by the person identified as the author or owner during the minting process? Companies are concerned about the fact that their IP can be minted into NFTs by unauthorised people. DC and Marvel have issued warnings that NFT platforms should not mint tokens from their IP.[74]
An asset which has been reproduced and communicated to the public without permission through minting on an NFT platform could amount to copyright infringement, because these actions would infringe upon an artist/owner’s rights.[75] In this situation, the artist/owner could litigate for infringement. If an artist’s moral rights were also somehow infringed, then this could also be litigated.
Taking the BAYC as an example, the terms of licence include the right for an ape owner to engage in secondary uses and to create derivative works if they wish. It is, however, hypothetically possible for anyone to run a Google search, locate a JPEG image of a BAYC ape on the internet and make a copy of a cartoon ape via screenshot, or via downloading the image to their computer as a JPEG file. This JPEG file could also be disseminated online via social media. Perpetrating these acts would technically infringe upon a BAYC owner’s copyright. However, it appears as though such infringing acts are often tolerated by token owners, as long as no commercial aspect is involved. This hypothetical example also highlights how easy the medium of the internet makes it to infringe copyright. It also raises the issue of the potential liability of the role of NFT platforms.
As an NFT platform is the means through which a token is displayed, published, communicated, disseminated and sold, a relevant issue is whether the platform could be jointly liable if the rights to an associated asset is infringed by a third party user.
On 23 March 2022, China’s first NFT platform infringement case was heard in the Hangzhou Internet Court (a specialised court for internet litigation).[76] The associated asset was an artistic work - a cartoon from the popular ‘Fat Tiger’ series. It depicted a tiger receiving a vaccination, which had been linked to an NFT and sold on a platform by a third party.[77] The court found that the NFT platform had contributorily infringed the plaintiff’s rights to the cartoon through dissemination.[78] It was ruled that the defendant had to destroy the NFT by sending it to an inaccessible address (it is not possible to remove NFTs from the blockchain) and damages of RMB 4,000 (USD $600) were awarded.[79] The court emphasised the importance of NFT platforms implementing policies to check ownership of IP works on their platforms.[80]
In Australia, the current situation regarding online content platforms suggests that they could be held liable for NFTs which infringe copyright, or NFTs which are linked to infringed associated assets. The 2017 case of Pokèmon Company International Inc v Redbubble Ltd[81] (‘Pokèmon’) considered the liability of Redbubble, an online marketplace, in relation to copyright infringement of an artistic work, as well as violation of Australian Consumer Law. Although this case did not pertain to NFTs, the underlying principles would likely be applicable in an NFT context.
Redbubble allowed third parties to upload images to their website, which could then be printed onto products (such as mugs, clothing etc) when ordered by customers.[82] An unauthorised original artistic image of Pikachu belonging to the Pokèmon Company was uploaded to the Redbubble site and Pokèmon sued for infringement.[83]
The Federal Court examined Redbubble’s actions in attempting to mitigate copyright infringement.[84] This included user agreements declaring that the user owned or had permission to upload the works, a system of notification of infringing content, a take-down procedure and a content-monitoring team.[85] After examining these methods, the Federal Court found that this was insufficient to mitigate Redbubble’s liability. The court stated ‘In each case the originator was the artist [user] who had placed the image on the Redbubble website. Redbubble, however, was responsible for determining that content through its processes, protocols and arrangements with the artists’.[86]
After analysis, the Federal Court found that Redbubble could have taken other steps to have prevented the infringement from occurring, but chose not to.[87] Redbubble were found to have committed three forms of infringement, including (1) direct infringement through communication of the infringing works to the public;[88] (2) knowingly exhibiting infringing works publicly to engage in trade[89] and (3) indirectly infringing through the authorisation of the reproduction of the copyright material to manufacture and sell infringing articles.[90]
The Federal Court rejected the awarding of an injunction and nominal damages were set at $1.[91] This reflected the court’s finding that the Pokèmon Company had not sufficiently demonstrated that they had truly suffered loss, while taking into consideration the methods Redbubble used to mitigate infringement. In 2018, an appeal and cross appeal was filed, but this has been stayed until after a July 2022 decision was handed down from a trademark infringement case involving Redbubble.[92]
The court’s analysis and ruling in Pokèmon suggest that it will be difficult for NFT platforms to argue ignorance of potential infringement by users. In Australia, there are no safe harbours for commercial online content platforms for when their users infringe. As seen in Pokèmon, having users agree to terms of service, including an agreement not to upload infringing material and/or providing indemnity to the NFT platform for infringement or illegal activity, will not necessarily allow online platforms to escape liability.[93] However, Pokèmon suggests it is important for NFT platforms to be able to prove to the court what measures they implement to mitigate copyright infringement. The next section will consider whether tokens are considered property in their own right.
Having explored the implications of infringement, another issue to ponder is whether a token may be considered to be property in its own right. As of December 2022, there has been no Australian cases directly on-point. However, on 10 March 2022, the High Court of England and Wales passed judgement regarding two stolen NFTs.[94] The proceedings were for a restraining order to prevent the dissipation of the tokens and for a Bankers Trust Disclosure Order.[95] The Bankers Trust Disclosure Order was against Ozone Networks Inc, a peer-to-peer NFT marketplace based in the US, for information which would help to identify the unknown perpetrators.[96] The two tokens were owned by the claimant, Laviniah Osbourne (‘LO’), a British citizen, and were stolen by unknown person/s.[97]
The background was that on 24 September 2021, in exchange for work, LO had been gifted some tokens which she stored in her crypto wallet.[98] Two of these tokens represented artworks from the ‘Boss Beauties’ collection, depicting career women from a range of backgrounds.[99] Without LO’s consent or knowledge, on 17 January 2022, unknown persons illegally accessed LO’s wallet and stole these tokens, transferring them to two other Ozone accounts.[100] On 27 February 2022, LO discovered they were missing, traced them to the new accounts and commenced legal proceedings to freeze the accounts and to prevent any further transactions of these tokens.[101]
The English High Court found that the claim was a good cause of action, despite being lodged against unknown persons – clearly, the tokens had been defrauded from LO’s account.[102] Because the order was directed at unknown persons, an issue that was material to this claim was the location of the tokens at the time they were stolen.[103] The court described an NFT as ‘a stream of electrons resulting in a credit item to a crypto account.’[104] It was found that the physical manifestation of a token would likely be where their servers were located.[105] However, in this instance it would have been impossible to litigate on that basis.[106] Instead it was found appropriate to follow other recent UK decisions involving crypto currency fraud, where the location (and therefore jurisdiction) was determined not by the location of the server, but of the location of the owner’s domicile, which was Britain.[107] Then, the High Court turned attention to the Bankers Trust Disclosure Order against Ozone, analysed the requisite tests and found this appropriate to execute.[108]
When considering whether the tokens constituted property, his Honour Pelling J stated, ‘I am satisfied on the basis of the submissions made on behalf of the claimant that there is at least a realistically arguable case that such tokens are to be treated as property as a matter of English law.’[109] The injunction against unknown person/s was granted,[110] with the acknowledgement that if it was not, there was a ‘very real risk that these assets will be transferred through multiple different accounts at great speed, and in a way that will make it practically either very difficult, or possibly even impossible, for the claimant to trace and retrieve her assets.’[111]
Therefore the English High Court acknowledged that such tokens might be treated as legal property – a chose in action. This means that tokens are capable of being owned in their own right and have associated proprietary remedies, which allow their owner to enforce their rights. If a similar situation were to occur in Australia, the outcome may be the same.
Now that the treatment of tokens as legal property has been analysed, the next section will explore the tension between tangible ownership rights and the licensing of digital goods. It will be seen that the digital environment presents interesting tensions when traditional proprietary ownership is considered in the context of intangible, licensed tokens.
Historically, the notion of tangible property ownership spans centuries and is a foundation of capitalistic societies. Looking at artistic works and real estate as examples, it can be seen that the associated rights provide the owners/proprietors with a monopoly over their work through control. An owner’s monopoly rights include the right to use the work, to transfer or destroy it, or to exclude others from using it.
Monopoly rights stem from the idea that the owner ought to be incentivised for investing in/creating that property, by receiving benefits from exploiting their rights. These rights have their origins in a non-technological era through Lockean justification,[112] where an owner exercises control over their work through exclusive possession and the right to sell that item, make a copy of it, destroy it etc. Because of the nature of tangible property, this involves a physical asset, which is controllable due to its exclusivity.
When the asset is acquired and possessed, others are prevented from exercising control over that asset. A one-to-one relationship exists between the owner and the item, although there may be different categories of co-ownership involved. An analogy here can be made to a famous work of modern art, which hangs in a gallery – there is only one, authentic original, the monopoly of which is exercised through possession. Ownership of the original is clearly delineated through physical possession. If reproductions of the art are made, despite looking like the artwork, they are not the original. Nor may the owner who buys a reproduction claim ownership of the original, authentic work.
When considering a tangible good, there are two different forms of property rights that might be controlled: (1) the property rights in the tangible item itself (i.e., the form of physical possession and control that can be exerted over the item) and (2) the IP rights that exist if the item is a work which falls under copyright. Taking the modern art example, (1) the property rights exist in the art itself as it hangs in the gallery. The art is possessed by a gallery and they exercise physical possession and control over it. (2) Secondly, there is a separate bundle of IP rights which vest in the owner of the work. Depending on the conditions of sale, this might be the gallery, or the artist. The artist would also possess moral rights attached to the art, which remain a personal, personhood right for as long as copyright subsists and which cannot be sold. These rights are for attribution of authorship;[113] against false attribution[114] and for integrity of authorship.[115]
However, for any intangible, digital items which tokens are attached to, the tangible property rights of ownership do not exist in these works to begin with. Digital items cannot be possessed or appropriated in the same way as tangible items are, because by their very nature, they are intangible. Such items exist in an online environment and in their most basic format, they can be reduced to zeros and ones – to data, or information. Under Australian law, a tangible property right simply cannot vest in information.
This means that the only rights that intangible items are likely to possess are IP rights, as has been explored in Section III. Whether such items exist as a digital artwork connected to a token, or as a piece of virtual property in the metaverse, it is fascinating that many people who purchase such items feel a sense of tangible possessory ownership over the item. This feeling of possession and ownership is akin to physically possessing a tangible good in the physical world. However, the reality is that this type of digital ownership can never truly be the same as physical ownership, due to the differences in medium. A person simply cannot possess an intangible work in an identical way to a tangible work due to its very nature. Although there is constant innovation in technology, it is currently impossible for digital items to replicate exactly the same property rights as tangible goods.
The expectations of token purchasers and the reality of what they purchase are very different. The reality is that, under some smart contracts, when a purchaser believes that they ‘own’ an NFT, they do not ‘own’ or possess the item at all.[116] Instead, there are restrictive conditions, which, at the most, allow access to and personal use of the digital asset associated with the token. In most situations, the purchaser will not be granted any commercial IP rights to the associated asset – such rights are likely to be retained by the copyright owner.
Of note here is that the marketing and branding of NFTs, often use words which denote physical ownership akin to a chose in action, rather than admitting that limited rights are instead licensed. However, many token creators market their tokens as personal property, when in reality, tokens are licensed (and would be litigated) under IP laws. When tokens are sold, what is often deliberately not emphasised is the fact that the digital items associated with the token cannot ever be truly possessed in the same way as a physical item. Instead, this myth of NFT ownership is perpetuated as being identical to physical possession, when in reality, often what a purchaser is granted are limited rights of access and personal use. The price that purchasers are willing to pay is usually for the opportunity to proclaim to the world at large that they ‘own’ the token, as affirmed by the blockchain, which gives them access to the associated file. This is a type of kudos – a type of ‘digital kudos’– and the price that some have been willing to pay for this has been staggering. What should also be noted is that when a person’s identity is usually logged on the blockchain, it is not by their identifiable name, but by a string of unique numbers or letters, known as the TokenID, so it is not usually easy to identify a purchaser.[117]
The reason for the perpetuation of this proprietary ownership myth of tokens is that sales can be highly profitable. Purchasers are more likely to buy a token if they can claim that they ‘own’ it, similar to owning and possessing a rare vintage Smurf or fine artwork, rather than conceding that all they have paid for is a license, often for limited, non-commercial rights.
Having explored what constitutes creation, ownership and infringement of an NFT, this begs the question as to whether new forms of ownership will eventually be developed, particularly as humanity increasingly transitions into virtual environments such as the metaverse. The digital environment is already a place of entertainment, socialisation, work and commerce.
NFT usage is representative of the shift in global economies from the tangible to the intangible.[118] When global NFT productivity began in earnest, it was speculated that this would promote a substantial shift in the application of copyright.[119] To-date, this has not occurred. Instead, what has happened is that tokens have become another method to promote the commercialisation of digital items through pre-existing IP paradigms.[120] However, the fact that the business of NFTs has boomed around the world appears to suggest that there has been a subtle shift in purchasers’ thinking. There appears to have been an acceptance of the differences in the concept of ownership regarding digital items and the differences in property rights that digital ownership entails, as compared to tangible items.
Instead of needing to display a monopoly right over a work through physical possession and control, many NFT purchasers appear satisfied with claiming prized ownership on the blockchain by paying for what amounts to limited non-commercial rights under license. The fact is, that in many situations, token owners do not physically possess and control the digital item attached to their token in the same way as they could a tangible good. As global NFT sales continue to soar and the metaverse expands, it appears as though this virtual ownership right – what could be termed a type of meta-property right – is being heavily utilised and accepted in the marketing of NFT and digital asset sales.
Concurrently, what is fascinating is that there appears to be a shift in collective consciousness about the notion of copying digital items such as tokens. Acts which technically infringe upon a token owner’s copyright are being tolerated, as long as no commercial aspect is involved. Activities such as reproduction and dissemination, that were once viewed as a major threat to innovation are often viewed as concepts that are acceptable as part of the creative activities of humanity.[121] This collective shift in thinking has resulted in some NFTs adopting Creative Common licences, therefore by-passing copyright altogether.[122] Although it is beyond the scope of this article, the development of tokens through Creative Commons will be an issue to watch with interest in the future, as will other licensing initiatives that promote collaboration, such as ‘can’t be evil’ licenses.[123]
Recent academic commentary has suggested that in marketing tokens, there ought to be a characterisation of tokens as choses in action (as occurred in the UK) rather than relying upon intellectual property and terms of licensing.[124] This would result in the NFT purchaser being permitted a full bundle of property rights - to ‘use, benefit from, capture the rise in value from, and otherwise benefit from the social value of being the owner of the item.’[125] However, this prospect will likely generate extensive debate by those whose interests are at stake.
In Australia, it will be interesting to observe whether, in the future, licensing will continue to primarily be used to determine the rights relating to ownership and use of tokens and their associated assets, or whether a new type of legal framework or regulatory regime will emerge. As the technology underlying tokens continues to develop, there is tremendous potential for new uses and innovation. As this article has explored, NFTs have the capacity to challenge and shift traditional notions of ownership and the limits of this trend are currently unknown. As to whether and how copyright responds remains to be seen.
[*] Lecturer, University of New England, Armidale, Australia. This article was developed from a presentation given online at the Asian Pacific Copyright Association 2022 Conference (National University of Singapore) 14 November 2022. The author can be contacted at wpotter2@une.edu.au.
[1] See generally, Daren Tang, ‘The Future of Intellectual Property and WIPO in a Time of Crisis and Opportunity’ (2022) 32 Australian Intellectual Property Journal 204.
[2] Elizabeth Howcroft, Reuters: NFT Sales Hit $25 Billion in 2021, But Growth Shows Signs of Slowing (Web Page, 12 January 2022) <https://www.reuters.com/markets/europe/nft-sales-hit-25-billion-2021-growth-shows-signs-slowing-2022-01-10/>. Note: data was taken from market tracker DappRadar.
[3] Ibid.
[4] Cambridge University Press, Cambridge Advanced Learner’s Dictionary and Thesaurus, Fungible (Web Page, 19 October 2022) <https://dictionary.cambridge.org/dictionary/english/fungible>.
[5] Cambridge University Press, Cambridge Advanced Learner’s Dictionary and Thesaurus, Non-Fungible Token (Web Page, 19 October 2022) <https://dictionary.cambridge.org/dictionary/english/non-fungible-token>.
[6] Logan Kugler, ‘Non-Fungible Tokens and the Future of Art’ (2021) 64(9) Communications of the ACM 19, 20. Also see generally, Michael D Murray, ‘NFTs Rescue Resale Royalties? The Wonderfully Complicated Ability of NFT Smart Contracts to Allow Resale Royalty Rights’ (July 15, 2022). Available at SSRN: <https://ssrn.com/abstract=4164029> or <http://dx.doi.org/10.2139/ssrn.4164029> .
[7] See generally, Jessica Bookout, et al, 'A Brief Introduction to Digital Art & Blockchain' (2019) 37(3) Cardozo Arts & Entertainment Law Journal 553.
[8] Joshua A T Fairfield, ‘Tokenized: The Law of Non-Fungible Tokens and Unique Digital Property’ (2022) 97(4) Indiana Law Journal 1261, 1262.
[9] Kent Barton, ‘New Frontiers, Enter the Metaverse: Challenges and Opportunities in NFTs’ (Shapeshift Report, 29 May 2021) Foreword.
[10] Fang Block, PAK’s NFT Artwork ‘The Merge’ Sells for $91.8 Million – PENTA (Web Page, 7 December 2021) <https://www.barrons.com/articles/paks-nft-artwork-the-merge-sells-for-91-8-million-01638918205>.
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] Jacob Kastrenakes, Beeple Sold a NFT for $69 Million – The Verge (Web Page, 12 March 2021) <https://www.theverge.com/2021/3/11/22325054/beeple-christies-nft-sale-cost-everydays-69-million>.
[15] Ibid.
[16] Ibid.
[17] Elizabeth Howcroft, Reuters: NFT Sales Hit $25 Billion in 2021, But Growth Shows Signs of Slowing (Web Page, 12 January 2022) <https://www.reuters.com/markets/europe/nft-sales-hit-25-billion-2021-growth-shows-signs-slowing-2022-01-10/>.
[18] Alex Wilhelm and Anna Heim, Are We Entering a NFT Downturn – TechCrunch (Web Page, 11 March 2022) <https://techcrunch.com/2022/03/10/are-we-entering-an-nft-downturn/>.
[19] Jeff Kauflin, Why Jack Dorsey’s First-Tweet NFT Plummeted 99% In Value in a Year, Forbes (Web Page, 14 April 2022) <https://www.forbes.com/sites/jeffkauflin/2022/04/14/why-jack-dorseys-first-tweet-nft-plummeted-99-in-value-in-a-year/?sh=525d80ef65cb>.
[20] Jack Dorsey, Just setting up my twttr - Twitter (Web Page, 21 March 2006) <https://twitter.com/jack/
status/20>.
[21] Kauflin (n 19).
[22] Logan Kugler, ‘Non-Fungible Tokens and the Future of Art’ (2021) 64(9) Communications of the ACM 19, 20.
[23] Jai Singh, Bored Ape NFT’s most popular with celebrities like Madonna and Paris Hilton – Proactive Investor UK (Web Page, 24 June 2022) <https://www.proactiveinvestors.co.uk/companies/news/985805/bored-ape-nft-s-most-popular-with-celebrities-like-madonna-and-paris-hilton-985805.html>.
[24] Nate Kostar, Paris Hilton Announces BAYC #1294 Purchase on the Tonight Show – Rarity Sniper News (Web Page, January 2022) <https://raritysniper.com/news/paris-hilton-announces-bayc-1294-purchase-on-the-tonight-show/>.
[25] The Tonight Show With Jimmy Fallon, ‘Paris Hilton Surprises Tonight Show Audience Members By Giving Them Their Own NFTs’ (YouTube, 25 January 2022) 00:04:25-00:04:55 <https://www.youtube.com/watch?v=5zi12wrh5So&t=386s>.
[26] Ibid 00:04:55-00:05:22.
[27] Rebecca Carroll, ‘NFTs: The Latest Technology Challenging Copyright Law's Relevance within a Decentralized System’ (2022) 32(4) Fordham Intellectual Property, Media & Entertainment Law Journal 979, 986.
[28] Ibid 1005.
[29] Shaan Ray, ‘NFTs and Smart Contracts – LinkedIn’ (Web Page, 19 May 2021) <https://www.linkedin.com/
pulse/nft-smart-contracts-shaan-ray-mba>.
[30] Fairfield, (n 8) 1290.
[31] Ray (n 29).
[32] Justine Calma, The Climate Controversy Swirling Around NFTs – the Verge (Web Page, 16 March 2021) <https://www.theverge.com/2021/3/15/22328203/nft-cryptoart-ethereum-blockchain-climate-change>.
[33] Ibid.
[34] Ethereum Inc, Non-Fungible Tokens (NFT) (Web page, 25 October 2022) <https://ethereum.org/en/nft/>.
[35] John Locke, Second Treatise on Government (1680); Statute of Anne 1710 (UK) 8 Anne, c 19; Hettinger, ‘Justifying Intellectual Property’ (1989) 18(1) Philosophy & Public Affairs 31, 36–7.
[36] Ethereum Inc (n 34).
[37] Ray (n 29).
[38] Ibid.
[39] Berne Convention for the Protection of Literary and Artistic Works, opened for signature 9 July 1886, 943 UNTS, 178 (‘Berne’. The UK signed Berne on behalf of its dominions (including Australia) on 5 December 1887. Berne formally entered into force in Australia on 1 March 1978 and the US on 1 March 1989.
[40] The Act s 32.
[41] Ibid ss 85 and 89.
[42] Ibid ss 86 and 90.
[43] Ibid ss 87 and 91.
[44] Ibid ss 88 and 92.
[45] Chris Williams, Nike Bought RTFKT. Now Its NFTs Are Trading at a Premium (Web Page, 15 December 2021) <https://cryptobriefing.com/nike-bought-nft-now-its-nfts-are-trading-premium/>.
[46] The Act ss 32(1)(a), (c).
[47] IceTV Pty Limited v Nine Network Australia Pty Limited (2009) 239 CLR 458, 478–9 [47]–[48] (Gummow, Hayne and Heydon JJ) (‘IceTV’).
[48] The Act s 32.
[49] Sands & McDougall Pty Ltd v Robinson [1917] HCA 14; (1917) 23 CLR 49, 55 (Issacs J); Desktop Marketing (2002) 119 FCR 491 532 [160(2)] (Lindgren J), 593 [409] (Sackville J) (‘Desktop Marketing’); IceTV (n 47) 474 [33]–[34] (French CJ, Crennan and Kiefel JJ); Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCAFC 149; (2010) 194 FCR 142, 172 [100] (Perram J) (‘Telstra Appeal’).
[50] The Act s 22(1).
[51] Ibid s 32(1)(a).
[52] Ibid s 32(2)(c).
[53] Ibid s 32(4).
[54] Neal F Burstyn, ‘Creative Sparks: Works of Nature, Selection, and the Human Author’ (2015) 39(2) Columbia Journal of Law & the Arts 281, 299-303.
[55] IceTV (n 47) 478–9 [47]–[48] (Gummow, Hayne and Heydon JJ).
[56] Agreement on Trade-Related Aspects of Intellectual Property Rights opened for signature 15 April 1994, 1869 UNTS 299 (entered into force 1 January 1995) art 9 § 2 (‘TRIPS’); Omri Rachum-Twaig, ‘A Genre Theory of Copyright’ (2016) 33(1) Santa Clara High Technology Law Journal 34, 78–82.
[57] Copyright, Designs and Patents Act 1988 (UK) (ch 48) s 9(3).
[58] IceTV (n 47) 474 [33], 479 [48] and 494–5 [99] (French CJ, Crennan and Kiefel JJ); Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCA 44; (2010) 264 ALR 617, 685 [344] (Gordon J); Dynamic Supplies Pty Limited v Tonnex International Pty Limited [2011] FCA 362; (2011) 91 IPR 488, 500 [49] (Yates J); Sports Data Pty Ltd v Prozone Sports Australia Pty Ltd Sports Data Pty Ltd v Prozone Sports Australia Pty [2014] FCA 595; (2014) 107 IPR 1, 13 [74], 14 [76] (Wigney J).
[59] Courtney White and Rita Matulionyte, ‘Artificial Intelligence: Painting the Bigger Picture for Copyright Ownership’ (2020) 30 Australian Intellectual Property Journal 224, 224-228.
[60] The Act s 31(1)(a)(i).
[61] Ibid s 31(1)(a)(ii).
[62] Ibid s 31(1)(a)(iv).
[63] Ibid s 31(1)(a)(vi).
[64] Ibid s 10.
[65] Fairfield (n 8) 1298.
[66] Farah Mukaddam, NFTs and Intellectual Property Rights – Norton Rose Fulbright (Web Page, October 2021) <https://www.nortonrosefulbright.com/en/knowledge/publications/1a1abb9f/nfts-and-intellectual-property-rights>.
[67] Ibid.
[68] Edward Lee, The Bored Ape Business Model: De-centralized Collaboration via Blockchain and NFTs, (PDF, 16 November 2021) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3963881>.
[69] Ibid.
[70] Ibid.
[71] Niel Elan, Pulp Fiction NFT Lawsuit (Miramax V. Tarantino, Et Al.): A Preview Of Coming Attractions – Forbes (Web Page, 25 July 2022) <https://www.forbes.com/sites/legalentertainment/2022/07/25/pulp-fiction-nft-lawsuit-miramax-v-tarantino-et-al-a-preview-of-coming-attractions/?sh=9921fc6ca24d>.
[72] Miramax LLC v Quentin Tarantino and Visiona Romantica Inc (United States District Court, Central District of California, Case No. 2:21-cv-08979).
[73] Ibid, Notice of Settlement.
[74] Sunny Kumar, Georgina Rigg and Kira Green, The NFT Collection: The Rise of NFTs – Copyright Strikes Back? (Part 3) – K & L Gates (Web Page, 7 July 2022) <https://www.natlawreview.com/article/nft-collection-rise-nfts-copyright-strikes-back-part-3>.
[75] Adarsh Vjayakumaran, ‘NFTs and Copyright Quandary’ (2021) 12(5) Journal of Intellectual Property, Information Technology and Electronic Commerce Law 402, 410 [34].
[76] Shenzhen Qicedie Cultural Creativity Company Ltd v Hangzhou Yuanyuzhou Technology Company Limited (2022) Zhe 0192 Minchu No. 1008. Translation provided by TaylorWessing.
[77] Ibid.
[78] Ibid.
[79] Ibid.
[80] Ibid.
[81] [2017] FCA 1541; (2017) 351 ALR 676 (Pagone J).
[82] Ibid 679 [5].
[83] Ibid 691-693 [32]-[35].
[84] Ibid 679 [6].
[85] Ibid 682-3 [15], 710-714 [59]-[66].
[86] Ibid 701 [48].
[87] Ibid 714 [67].
[88] Ibid 699-702 [45](a)-[49], contravening s 36 of the Act.
[89] Ibid 699 [45](b), 702-704 [50]-[54] contravening s 132AG of the Act.
[90] Ibid 699 [45](c), 704-709 [55]-[57].
[91] Ibid 719, Orders.
[92] Hells Angels Motorcycle Corp (Australia) Pty Ltd v Redbubble Ltd (No 5) [2022] FCA 837 (Greenwood J).
[93] Pokèmon 679 [6].
[94] Lavinia Deborah Osbourne v Persons Unknown, Ozone [2022] EWHC 1021 (Comm) (Pelling J).
[95] Ibid [3]-[4].
[96] Ibid [4].
[97] Ibid [8].
[98] Ibid [7].
[99] Ibid.
[100] Ibid [8].
[101] Ibid [8]-[10].
[102] Ibid [12]-[13].
[103] Ibid [12].
[104] Ibid [14].
[105] Ibid.
[106] Ibid.
[107] Ibid [15], following Ion Science Limited v Persons Unknown & Others (Unreported) [2020] (Comm) [15] (Butcher J).
[108] Ibid [32]-[55].
[109] Ibid [13].
[110] Ibid [17].
[111] Ibid [20].
[112] Justin Hughes, ‘The Philosophy of Intellectual Property’ (1988 – 1989) 77 Georgetown Law Journal 287.
[113] The Act pt IX div 2.
[114] Ibid pt IX div 3.
[115] Ibid pt IX div 4.
[116] Capitol Records v Redigi, 910 F 3d 649, 659-660 (2nd Cir, 2018).
[117] Andrew Guadamuz, ‘The Treachery of Images: Non-Fungible Tokens and Copyright’ (2021) 16(12) Journal of Intellectual Property Law & Practice 1367, 1370.
[118] Tang (n 2) 205.
[119] See generally, Ifeanyi E Okonkwo, ‘NFT, Copyright and Intellectual Property Commercialization’ (2021) 29 International Journal of Law and Information Technology 296.
[120] Ibid.
[121] Edward Lee, ‘NFTs As Decentralized Intellectual Property’ (Forthcoming) 2023 University of Illinois Law Review, 3.
[122] Ibid 46. Also see generally, Molly Marias, ‘I Want My NFT!: How a NFT Creative Commons Parallel Would Promote NFT Viability and Decrease Transaction Costs in NFT Sales’ (Forthcoming) 12(1) NYU Journal of Intellectual Property & Entertainment Law.
[123] Lee (n 121) 47.
[124] Fairfield (n 8) 1299-1312.
[125] Lawrence J Trautman, ‘Virtual Art and Non-Fungible Tokens’ (2022) 50(2) Hofstra Law Review 361, 424-425.
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