Category: Copyright Office

My Thoughts on Copyright Office & USPTO Joint Study to Examine IP Issues Related to NFTs

Posted on by TME in Blockchain, Copyright, Copyright Office, Cryptocurrency, economic justice, entertainment law, Intellectual Property, Law Practice, law school, law student, NFT, trademark office, USPTO, Wills

Copyright 2022 Tonya M. Evans (Twitter/IG: @IPProfEvans)

On Tuesday, November, 22, 2022, the U.S. Copyright Office and the U.S. Patent and Trademark Office (USPTO) announced a joint study to examine various IP issues arising from the use of non-fungible tokens (NFTs). The Wednesday, November 23, 2022 Notice of Inquiry for the Federal Register can be found here.

This joint study follows a June 9, 2022 letter from Senate Judiciary Subcommittee on Intellectual Property leadership, Senators Patrick Leahy (D-Chair) and Thom Tillis (R-Tillis), requesting that the Copyright Office and the USPTO conduct a joint study and address issues related to NFTs and intellectual property rights in consultation with the private sector, drawing from the technological, creative, and academic sectors.

The notice seeks written public comments to several questions listed and also announces that the Copyright Office and USPTO intend to hold virtual public roundtables in January 2023.

A Closer Look at Copyright + NFTs

In late 2017 and early 2018, the era of token proliferation to leverage token issuance to raise funds to build blockchain-enabled projects (with a healthy dose of scams and unregistered securities), I began studying the intersection of copyright and blockchains, smart contracts, open source software and token standards in the Ethereum ecosystem (ERC-20 for fungible tokens and ERC-721 and later standards for non-fungible tokens).

My first law review article, CryptoKitties, Cryptography, and Copyright, presented at the 2019 BYU Copyright and Trademark Symposium and published in the American Intellectual Property Law Association Quarterly Journal, 47 AIPLA 219, 2019), examined the copyright implications of unique, scarce digital creative assets transferred and stored on blockchains, which I refer to herein generally as unique crypto assets (UCAs).

Specifically, I explored the emergence of NFTs created based on the ERC-721, a novel token standard at the time that enabled, for the first time, verifiable digital scarcity—an elusive characteristic in the world of Web 2.0. I analyzed whether ERC-721 tokens (and other non-fungible coding standards) could empower UCA holders to maintain control over their cryptographic creations in gaming, collectibles, and the full range of copyright-intensive industries, to name a few.

More recently, I examined the creative justice opportunities that might be enjoyed by systemically marginalized creatives when NFT and blockchain technology is leveraged.

I assessed whether such web3 technologies could provide and protect the economic power and creative control the Copyright Act promised but historically failed (and fails) to secure when at odds with discriminatory practices, contractual loopholes, and statutory impediments like the copyright transfer termination right.

I hope that stakeholders from all aspect of creativity, technology, education and policy submit comments and are invited to provide testimony during any hearings in these matters. This technology has disrupted copyright-intensive industries as much as it has the financial industry. And we’ve only just begun to explore the power and promise (as well as the pitfalls), to be sure.

In working with creatives and collectors at BlackNFTArt, Umba Daima and Black@, I know firsthand how disintermediated access to platforms that connect them on a peer-to-peer basis globally and to transfer artistry for cryptocurrencies (capital assets in the US) has begun to move the needle on the income and wealth gaps (at least before the current crypto winter).

I also know that numerous issues exist for artists, collectors and exchanges: the copyright complexities in the referenced art file connected to an individual token (because the token, itself, it not the art); direct and secondary liability issues for platforms; copyminting issues; file storage; how to respond to takedown notices and decentralized file storage issues; copyright transfer termination issues; estate planning and post-mortem copyright and license management issues. The list goes on. And that is just copyright!

So there is much to discuss. What intellectual property issues do you see at the intersection of IP and NFTs?

I’ve talked about this topic to several lawyers on my podcast, Tech Intersect, so listen, subscribe, share and let’s continue to conversation:

From crypto to IP, get on the fast track to learn and earn™

Posted on by TME in Blockchain, Copyright, Copyright Office, Cryptocurrency, Digital, entertainment law, Entrepreneurship, Infringement, innovation, Intellectual Property, Internet, Media, patent, Privacy, publishing law, Registration, Smart Contracts, Startups, Trademark, trademark office

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Government Shutdown Affects IP Profs, Attys too … Copyright.gov down!

Posted on by TME in Congress, Copyright, Copyright Office, Intellectual Property, law school, Media, trademark office, USPTO

October 1, 2013

Creative Commons License
Government Shutdown Affects IP Profs, Attys too … Copyright.gov down! by Tonya M. Evans is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 United States License.

As I prepared for my Copyright & Trademark class this morning, I needed to pull the text of one of the sections of the Copyright Act. So I surfed on over to Copyright.gov to access the full text of the Act when I bumped into an odd-looking notice page.

Without really looking at the text, I figured my browser had auto-completed the last URL I’d visited at the site so I typed in copyright.gov myself and hit send. The odd-looking notice page appeared again and there it was … an official notice that due to the government shutdown the Copyright Office is closed:

Copyright.gov special notice due to gov't shutdownSo it seems the government shutdown is INDEED having intended and unintended consequences as thousands of federal employees are furloughed, or receiving government IOUs because the government cannot pay. The strategy to defund the federal government in order to participate in the kabuki theater of purporting to defund the Patient Protection and the Affordable Care Act (Affordable Care Act or ACA) a/k/a Obamacare seems not only inane (and insane) but just plain inhumane.

[ObamaCare Exchanges start up just as government shuts down]

Dozens of offices are closed, including the Copyright Office. So the impact is real. Mail will be delivered. Social Security and Medicare benefits will continue to flow (although there will likely be delays). But WIC food benefits, federal courts, NIH, food safety, Head Start, federal loan processing, veterans services and work safety (to name just a few areas) are all immediately and negatively impacted (either by delays or closures). Even our military and military families are taking a hit. And because taxes and fines will go uncollected, valuable and much-needed revenue will take a hit as well.

Despite the Copyright Office closure, the United States Patent & Trademark Office remains open … at least for several weeks! It’s hardly a silver lining but not all agencies are impacted in the same way.

The USPTO notice reads as follows:

During the general government shutdown that began October 1, 2013, the United States Patent and Trademark Office will remain open, using prior year reserve fee collections to operate as usual for approximately four weeks. We continue to assess our fee collections compared to our operating requirements to determine how long we will be able to operate in this capacity during a general government shutdown. We will provide an update as more definitive information becomes available.

Should we exhaust these reserve funds before the general government shutdown comes to an end, USPTO would shut down at that time, although a very small staff would continue to work to accept new applications and maintain IT infrastructure, among other functions. (Should it become necessary for USPTO to shut down, details of the agency’s plan for an orderly shutdown are available on page 78 of the United States Department of Commerce’s shutdown plan, available here.)

It was avoidable. Continue reading “Government Shutdown Affects IP Profs, Attys too … Copyright.gov down!” →