For two years, non-fungible tokens (JNF, or NFT in English) have experienced a spectacular boom in the field of culture. These tokens associated with a digital file through a “smart contract” and registered in the block chain (computer protocol considered inviolable) as a guarantee of authenticity, have made it possible to value digital works of art, until now difficult to sell because they are infinitely reproducible. Other JNFs have been used to market digital copies of physical works: paintings, sculptures, etc.
Star artists on the market such as Jeff Koons, prestigious museums such as the Uffizi in Florence, the British Museum in London or the Hermitage in Saint Petersburg, large auction houses such as Christie’s or Sotheby’s and intermediary platforms have embarked on the publication and sale of such tokens. In 2021, according to the NonFungible.com site, the JNF artistic sector would thus have represented a global sales volume of close to 2.8 billion dollars (or euros), revealing a true speculative overflow.
Since then, this market has seen quite bearish trends in the first half of 2022. However, “It is very likely that these use cases will persist and develop over time,” estimates a report from the Superior Council for Literary and Artistic Property (CSPLA), attached to the Ministry of Culture, made public on July 13. According to him, “All sectors are ultimately affected: from graphic arts to film, from publishing to music, both the private and public sectors.”
copyright infringements
“While JNFs are particularly rich in potential, they are not without risks and weaknesses for authors and rights holders, as well as consumers,” The rapporteurs, Jean Martin, a lawyer for the Court, and Pauline Hot, master of applications at the Council of State, immediately underlined that they listened to some sixty experts. They invite the public authorities “ensure the use of this technology to promote the most virtuous use cases that will have the vocation to endure beyond the speculative phenomenon.”“The first risk identified wasthe multiple scams that accompany any speculative phenomenon: scams, fraudulent transactions, sales of “empty” JNFs, misappropriation of wallets. »
Difficult to accurately qualify from a legal point of view, the JNF can be considered, according to these authors, as “a property title on the token, to which other rights on the digital file can be associated”. “Such digital files remain subject to copyright and related rights, unless explicitly contracted”, the two rapporteurs insist. On May 31, some twenty important foundations or artists’ estates, including those of Matisse and Picasso, had, in effect, denounced, in a joint text, the fact that “Non-fungible tokens are increasingly used to trade digital copies of works (…) often without the assistance of the artist or his successors”. This is particularly during resales. “of JNF in the secondary market that the risk of copyright infringement is the strongest”the speakers add.
Preparation of a letter of good practices
Even when it comes to a work that has passed into the public domain, the commercial exploitation of its image must ensure respect for the “moral rights of the author”, specify the CSPLA rapporteurs who encourage the development of a “letter of good practices” for platforms that issue JNF.
Another proposal, this time to stop the proliferation of counterfeits: “the establishment of third-party verifiers of the content associated with JNFs exchanged on the blockchain”. The rapporteurs also ask that the “JNF is integrated into the European reflection on the harmonization of the fight against money laundering and the financing of terrorism” which thrives in particular thanks to the opacity of cryptocurrencies.
Le côté très énergivore des blockchains, in short, which consomment plus dizaines of TWh for an, equivalent to the electrical consumption of entire countries (between one and three fois celle du Danemark), is a major problem with the heure du réchauffement climatique, relieve The report. However, he points out that switching to other systems could make it possible to reduce this disastrous carbon footprint in the future and therefore advocates “the environmental exemplarity of innovative JNF projects supported by public authorities”.
French museums waiting
Reviewing initiatives launched in the fields of art, heritage, music, cinema, audiovisual, books or photography, first of all they consider that the production of JNF constitutes a certain source of income, although it is difficult to assess.. She can “allow, through participation mechanisms or collaborative financing, to support certain cultural projects”, judge the speakers, but also “reach new audiences and (news) fan communities » by “more playful uses” as collectibles.
French museums have so far stayed on the sidelines, out of an abundance of caution. However, the report finds that The risk of such a stance is to overlook the strategic positioning of cultural establishments in the metaverse. (1)whose early creation of JNF intended for display in digital museums could be a first step”. Remember that the President of the Republic declared in an interview with the specialized media La Gran Ballena, on April 24, 2022, that he was in favor of development by large public cultural establishments. “of a policy in terms of JNF, for example through the promotion, dissemination and protection of twins or variations (note: digital reproductions) from their physical collections. And he wanted to launch a collective reflection on “What would a dematerialized museum of the history of France be?”
The CSPLA report thus advocates “the implementation of progressive experiments”, for example with an actor such as the RMN photographic agency and external service providers, both for JNF acquisitions linked to recent digital works, and for the production of JNF associated with works in public collections. with the key “A Guide to Operational Recommendations”.
.