The U.S. Patent & Trademark Office, and the U.S. Copyright Office, this week formally solicited public comments for their joint study on matters related to intellectual property and non-fungible tokens, as requested in June by members of the Senate Judiciary Committee. Written comments are due January 9, 2023.The offices also announced a series of three public roundtables on the study to be held on January 10, 12 and 18.
In a Notice of Inquiry published in the Federal Register November 22, the offices said they are particularly interested in answers to 10 specific questions:
1. Please describe:
a. The current uses of NFTs in your field or industry, including the types of assets associated with NFTs (e.g., digital assets, physical goods, services); and
b. Potential future applications of NFTs in your field or industry, including the types of assets that could
be associated with NFTs (e.g., digital assets, physical goods, services).
2. Please describe any IP-related challenges or opportunities associated with NFTs or NFT markets.
3. Please describe how NFT markets affect the production of materials subject to IP protection.
4. Please describe whether, how, and to what extent NFTs are used by or could be used by IP rights holders (including those who hold trademarks, patents, and/or copyrights) to:
a. Document the authenticity of an asset;
b. Document the seller’s ownership of or authority to sell an asset;
c. Document the seller’s authority to transfer any relevant or necessary IP
rights associated with an asset; and
d. Document any limitations related to IP rights surrounding the sale, or the purchaser’s use, of an asset.
5. Please describe whether, how, and to what extent NFTs present challenges for IP rights holders, or those who sell assets using NFTs, with respect to the activities described in Question 4 above.
6. Please describe whether, how, and to what extent NFTs are used by, could be used by, or present challenges or opportunities for IP rights holders (including those who hold trademarks, patents, and/or copyrights) to:
a. Obtain their IP rights;
b. Transfer or license their IP rights;
c. Exercise overall control and management of their IP rights (e.g., digital rights management tools, mechanisms to facilitate the payment of royalties, etc.); and
d. Enforce their IP rights, including any mechanisms that could mitigate infringement or help ensure compliance with contractual terms associated with the sale of an asset.
7. Please describe how and to what extent copyrights, trademarks, and patents are relied on, or anticipated to be relied on, in your field or industry to:
a. Protect assets that are associated with NFTs;
b. Combat infringement associated with NFT-related assets offered by third parties; and
c. Ensure the availability of appropriate reuse of NFT-related assets.
8. Are current IP laws adequate to address the protection and enforcement of IP in the context of NFTs? If not, please explain why, including any gaps in current IP laws, and describe any legislation you believe should be considered to address these issues.
9. Please describe any IP-related impacts those in your field or industry have experienced in connection with actual or intended uses of NFTs. When relevant, please describe any legal disputes that have arisen in the following contexts, and the outcome of such disputes, including citations to any relevant judicial proceedings:
a. The relationship between the transfer of an NFT and the ownership of IP rights in the associated asset;
b. The licensing of IP rights in the asset associated with an NFT;
c. Infringement claims when either (i) an NFT is associated with an asset in which another party holds IP rights, or (ii) IP rights in the asset associated with an NFT are owned by the NFT creator;
d. The type and/or scope of IP protection afforded to the NFT creator, including when that party is not the creator of the associated asset; and
e. The application of one or more of the exclusive rights under 17 U.S.C. 106 to transactions involving NFTs.
10. Please describe any instances you have observed in which a party has sent or received:
a. A notification of claimed copyright infringement, counternotice or material misrepresentation, pursuant to 17 U.S.C. 512, in connection with an NFT; and
b. Other IP-related legal claims seeking the removal or reinstatement of NFT-associated materials.
The U.S. Patent is the most powerful intellectual property tool available to American businesses. It provides a secure way to protect inventions and inventions’ intellectual property rights. The U.S. Patent offers a number of benefits, including the ability to prevent others from making and selling products that use your invention without your permission, the ability to collect royalties on sales of products that use your invention, and the ability to sue others who infringe on your patent.
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