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| 2 minutes read

You think you "own" an NFT? think again.

Never have I had to respond to so many questions about art ownership. So much, in fact, that I thought it could be useful to share some of my thinking here.

Data is free flowing information. At the most basic level, data is just information. And in a democratic society, information, just like ideas, are free and free flowing. As such, an entry in a ledger, even a really sophisticated ledger like the blockchain, is not something that can be appropriated. 

In law, property is ‘the right to enjoy and dispose of things in the most absolute manner’  whereas intellectual property ('IP') is a branch of law that comprises all the rules applicable to ‘intellectual’ or ‘immaterial’ creations, which are ‘intangible property’.The notion of physical property thus applies to tangible things, whereas intellectual property applies to those intangible goods that the law designates (and for clarity, the law does not designate data - or entries in a ledger - as one of the types of intellectual property that may be appropriated; IP as a form of 'ownership' is reserved to patentable inventions, trademarks and creative content). There is currently no European legislation  specifically regulating the issue of data ownership.  

Now, what does this mean in practice?                

Can one own a physical a piece of art? Yes. What do you own: the  'tangible property' i.e. the canvas, the statue, the physical sheet of paper embodying the work. Do you own the intellectual property in a piece of art just because you hold the original or a limited edition of it? No, if you want to own the intellectual property in the artwork, it needs to be assigned to you from the creator, by contract. 

Can one own a digital print of an art piece? well first, does an art piece fall under one of the categories of IP that can be protected and therefore 'appropriated'? yes. Artworks may be protected under the rules of copyright law. Conclusion: yes, if you are the creator of that art piece (and if your work meets the conditions for protection) you will be able to claim ownership rights in the form of IP rights over the art piece. 

I am not the creator of the art piece, I am not interested in IP rights, can I 'own' a digital print in the same way as I would own a physical print? Well. since a digital piece of art is nothing more than 'data', no, in that sense you cannot own digital data any more than you can own a method, a recipe, a technique, or an information. 

To conclude, NFTs are wonderful property titles and fantastic reservoirs of information about an art piece. They can serve to authenticate the identity of the owner of an asset, be it tangible (the holder of the physical work) or intangible (the creator of the work). NFTs do not create ownership rights out of thin air. 

So what is this new craze all about — and what explains the stratospheric prices? These supposedly unique tokens are secured using blockchain technology and are “akin to a digital certificate of authenticity”, as digital artist Brendan Dawes told Today. If you believe the crypto evangelists, they are the future of art, music and asset ownership more broadly. 


entertainment & media, fintech