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

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:

Evans receives prestigious five-year Co-Hire appointment by the Penn State Institute for Computational and Data Sciences

Professor Tonya M. Evans has received a prestigious five-year Co-Hire appointment by the Penn State Institute for Computational and Data Sciences to add to her current tenured appointment at Penn State Dickinson Law School in Carlisle, Pennsylvania. The appointment begins on July 1, 2022.

This joint appointment with ICDS is a major milestone in Penn State Dickinson Law’s commitment to interdisciplinary research in the Penn State system. Professor Evans’ research focuses on the legal, policy, and economic justice implications of new technologies and innovation; specifically, distributed ledger technologies, cryptocurrencies and other cryptographically secured digital assets including non-fungible tokens (NFTs), decentralized finance (DeFi), and decentralized autonomous organizations (DAOs). Legal considerations include intellectual property, regulatory frameworks, and cross-border dispute resolution mechanisms. ICDS is a vibrant community of interdisciplinary researchers working on issues of significant importance to the research community with worldwide impact.

Professor Evans has authored two forthcoming law review articles related to her interdisciplinary work: The Genesis of Creative Justice: Disintermediating Creativity, 26 Lewis & Clark Law Review 3 (2022) and De-Gentrified Black Genius: Blockchain, Copyright & the Disintermediation of Creativity, 49 Pepperdine L. Rev. 101 (2022).

She will be discussing her findings on creative and economic justice in the metaverse on an upcoming episode of PBS NewsHour and also in a Twitter Spaces event on March 4th hosted by the Wall Street Journal.


Speaking inquiriesGravity Speakers Bureau

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Tech Intersect Podcast with Prof. Evans: Listen and subscribe here

Will legal ed and the practice of law pivot to meet the #neweconomy & #futureofwork?

“Lawyers aren’t going away. But the way we work is changing.”

Today’s client and, more importantly tomorrow’s client, demands that lawyers keep pace with the #futureofwork in the #neweconomy. Here’s where I think we are and where we HAVE to go.

How do you foresee this directly impacting the legal industry?

Asked by interviewer Adam Keirstead

Dean Evans

Well, there’s a really interesting move in the legal industry to prepare lawyers to have conversations with technologists in the IT department and those who are coding to leverage the existing master contracts that we have in order to figure out ways that we can automate certain functions.

Essentially, there are master agreements underneath that lawyers do, and there’s coding the coders and IT specialists do. They need to be able to talk to each other. This is an area that’s ripe for innovation on the law side.

Lawyers won’t go away, but the way that lawyers are interacting with business people, and in terms of our advice and how we work with them is going to certainly change!

Read the full transcript and listen to the original podcast with Dean Tonya M. Evans here.


tune into the Tech Intersect Podcast with Tonya M. Evans

Tech Intersect #142: Heather Maio-Smith on Making Knowledge More Accessible Through Video Tech Intersect™ with Prof Tonya M. Evans

There is power and potential in reimagining the use of audio and visual technology. It’s proven that we learn almost 91% better when we have the ability to interact and ask questions of the expert we are learning from. This week, episode 142 of the Tech Intersect™ Podcast with Heather Maio-Smith is about making knowledge more accessible through video! POWERED BY ADVANTAGE EVANS™ ACADEMY Globally, crypto investors realized total crypto gains of $162.7 billion in 2021, compared to just $32.5 billion in 2020. And in 2022, more than 200 million people worldwide have used crypto. Governments, including the US, are acknowledging the viability of this asset class and institutional investors are increasingly embracing digital currencies in their portfolios, even–and especially–in crypto winter’s bear market.Even with all the price volatility, clearly digital currencies are increasing in popularity, acceptance and adoption. In fact, the only thing more popular than crypto right now (sadly) are crypto scams. Crypto scammers took a record $14 billion in 2021. And the trend continues. So you need to arm yourself with strategies and the latest best practices to help you identify scams and protect against self-custody losses due to user error.You need a S.E.C.U.R.E. Advantage! I’ve got the keys.Register now for this free opportunity to embrace the new digital economy and future of wealth, and do so safely, legally and confidently. Register now at https://advantageevans.com/masterclass. Heather Smith is an experiential exhibit designer who has exhibited in Los Angeles, Cuba, and The United Nations. Heather partnered with USC Shoah Foundation on New Dimensions in Testimony to develop a new interview methodology. Heather now serves as the CVO of StoryFile. Heather’s work has been featured on NBC’s The Today Show, The New Yorker, The BBC and on 60 Minutes.Some of the talking points Heather Maio-Smith and I go over in this episode include:Why we learn better and retain more information when we can ask questions.The power of having access to knowledge in a real human-to-human way.How StoryFile is different than a simple live video.Whether the pandemic helped catapult this experience The future of conversational video technology.CONNECT WITH HEATHER MAIO SMITH:LinkedInStoryFileCONNECT WITH TONYA EVANS:Questions and requests: hello@techintersectpodcast.com Follow: Twitter @AtTechIntersect | Instagram @TechIntersect Web: Tech Intersect Podcast  Connect for exclusive content: http://eepurl.com/gKqDyP Produced by Galati Media, LLC.Support the showRegulate & The Rabbit Hole by Notty Prod licensed via Creative Commons Attribution-NoDerivatives 4.0 International License. Produced by Tonya M. Evans for Advantage Evans, LLC
  1. Tech Intersect #142: Heather Maio-Smith on Making Knowledge More Accessible Through Video
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