NFTs study welcomed after FTX collapse
Public call for comments urged by Congress now open | Joint study focuses on laws and policies covering NFTs | Move welcomed by IP lawyers | Morgan Lewis | Finnegan | Perkins Coie | CDAS.
Following a call from Congress, the US Patent and Trademark Office ( USPTO) and the US Copyright Office ( USCO) have announced a joint study into the laws and policies surrounding non-fungible tokens (NFTs) and IP rights.
Back in June, US Senators Patrick Leahy and Thom Tillis wrote to the offices requesting that they conduct such a study, urging them to ‘‘consult with the private sector, drawing from the technological, creative, and academic sectors”.
In response, the offices jointly issued a Federal Register Notice yesterday, November 23, seeking written responses from the public to several questions.
A sign that NFTs ‘are here to stay’
Commenting on the upcoming study, Morgan Lewis partner Ron Dreben suggested that it is a significant move.
“The fact that both the USPTO and Copyright Office have been called upon to dedicate resources to the study and make recommendations about NFTs evidences how relevant nearly all forms of intellectual property are to NFTs and the metaverse,” he told WIPR.
“The call for comments is a chance for stakeholders and other interested parties to educate these IP agencies about their concerns and experiences so far in this new space.”
Anna Naydonov, partner and co-leader of the litigation section at Finnegan, Henderson, Farabow, Garrett & Dunner, added that the call for comments is a sign that NFTs are "here to stay".
“The main significance [of the study] is the USPTO and the Copyright Office essentially acknowledging that NFTs are not a passing trend but a phenomenon (along with web3 and other blockchain-enabled solutions) that are here to stay,” she told WIPR.
“I applaud their willingness to come up with thoughtful, long-term guidance for this fast-developing space,” she continued. “Input from key stakeholders, who are on the frontlines of these emerging issues, is key to ensuring [that] regulation and guidelines in this space do not hinder progress or disadvantage the US as compared [with] other jurisdictions.”
Drew Schulte—partner at Perkins Coie—told WIPR in a video interview in August that it is a key development, but not because of what the offices will decide.
“Ultimately the significance of the study rests in the fact that it’s additional exposure for NFTs, blockchain technology and how they’re being used.”
He said that such discussions by government bodies help to normalise the new technology, “and that’s always a positive”.
Questions for the public
Respondents are asked first to include their own definition of the term ‘NFT’, and are instructed to read questions consistently with Merriam-Webster’s definition of ‘non-fungible token’ and ‘NFT’.
That definition is: “a unique digital identifier that cannot be copied, substituted, or subdivided, that is recorded in a blockchain, and that is used to certify authenticity and ownership (as of a specific digital asset and specific rights relating to it)”.
Questions include whether current IP laws are adequate to address the protection and enforcement of IP in the context of NFTs; the extent to which adjustments are being made to IP portfolio planning and management in light of the emergence of NFTs; and whether respondents have had any experiences in seeking IP protection for, or use of, assets associated with NFTs in foreign jurisdictions.
There are also several questions that relate to the various applications of IP law to NFTs, including how and to what extent copyrights, trademarks, and patents are relied on, or anticipated to be relied on, in the respondents’ field or industry, to:
