A. Overview and background
1 Non-fungible tokens (literally non-exchangeable tokens), or NFTs for short, are a digital phenomenon that boomed in 2020 and 2021. During the COVID-19 pandemic, numerous cultural institutions and projects expanded their digital activities, and the art market also showed interest. An NFT of "Everydays: the First 5000 Days", a collage of images by Mike Winkelmann, known as Beeple, was auctioned by Christie's in 2021 for £69,300,000.
2 NFTs are a digital certificate in the form of a so-called smart contract, which is stored in a blockchain file. The blockchain is a decentralised distributed ledger.
3 There are numerous different types of tokens. The best known is probably the "currency token", which can be used as a means of payment (examples: Bitcoin, Ethereum).
4 Just as acquiring ownership of a workpiece does not simultaneously mean acquiring the copyright usage rights, the acquisition of an NFT does not automatically include the copyright to the linked work.
5 Similarly, NFTs are independent of the physical ownership of a work of art.
B. Position of CC
6 In a blog post designed as an FAQ, the Creative Commons organisation has formulated its position on the coexistence of CC content and NFTs, with particular reference to CC0 release.
7 If a work linked to an NFT is released to the public under CC0, the underlying work can be freely shared and edited by anyone, even if the token itself can only have a single owner. The owner of the NFT does not acquire any special rights that would restrict a CC licence for others. Rights arising from the NFT and rights arising from a CC licence are independent and separate from each other. Ownership of a token does not conflict with the CC licence terms. These remain unchanged. Due to their commercial nature, works offered under a CC BY-NC licence cannot be used to generate NFTs without further ado – this must be negotiated separately, as such an NFT does not itself constitute a licensing transaction, but economically requires a form of work utilisation. [29]
8 Creative Commons also takes a position on data ethics and emphasises that not everything that is permitted under licence law is worthy of support. It is therefore recommended that, before issuing an NFT, regardless of any existing licensing options, the authors be consulted and cooperate with them. The licence terms do not meet the highest ethical standards, and authors whose works are tokenised without their consent may feel exploited. The original authors may also not want to be associated with NFTs because they see it as potentially damaging to their reputation. If they conclude that only offering works under restricted licences, this would also be a loss for the general public. For these reasons, Creative Commons does not support the minting of NFTs from the works of others without the consent of the creator, unless the works are already in the public domain.
9 Creative Commons also recognises a possible benefit in combining NFTs and CC0 releases to financially support a creator or institution that issues an NFT. In this case, an NFT holder would probably not be interested in gaining control over the uses of the work, but would want the authors to continue to be able to exercise their rights in full in order to continue to benefit from the licensing of the work. In addition, an NFT could be linked to membership in exclusive associations and embody prestige.
10 Finally, Creative Commons points out that NFT licence terms may conflict with those of a CC licence. On the one hand, care should be taken to separate the terms and conditions for the NFT from those of the underlying work, and on the other hand, to ensure that both remain compatible with each other.
C. Commentary
11 Intuitively, certification as a digital unique item for content that is to remain openly accessible and be redistributed is a contradiction. This can be resolved if the two are considered separately from one another. In this context, therefore, a strict separation principle has been discussed.
12 Creative Commons' reminder in this regard to pay attention to the compatibility of NFT contracts and CC licences therefore points to a significant practical problem arising from the combination of copyright licences and NFT contracts.
13 Nevertheless, not least in order to avoid contradictions between NFTs and copyright licences, the CC0 release is emerging as a prominent feature in connection with NFTs.
14 The NC licence module, on the other hand, is generally unsuitable for use within an NFT, as these are typically part of commercial activities and are traded on the corresponding platforms for crypto assets. Exceptions are nevertheless conceivable, such as use as a trophy or digital challenge cup for gaming or e-sports competitions. Awards that remain with the winners (such as the NFT trophy for the best goal of the 2020 European Football Championship, sponsored by Gazprom at the time) do not, of course, meet the condition of non-commercialisation.
15 The ND licence module protects the integrity of the works underlying the NFT. These may not be edited during the tokenisation process. If Gustav Klimt's Kiss were not yet in the public domain work but were under a CC BY-ND licence, the 10,000 tiles of the painting, which the Vienna Belvedere linked to NFTs on Valentine's Day 2022, would have been a licence violation. Although the NFTs assigned to the tiles do not change the work itself, they do require fragmentation .
16 The SA licence module is fundamentally independent of an NFT licence, as it refers exclusively to the tokenised work. It is important to note the NFT contract terms, which must not interfere with this licence condition.
17 Molly Marias' suggestion of an NFT parallel to Creative Commons licences
18 As a result, NFTs do not offer any significant benefits for the purposes of free licences. In contrast, corresponding CC licences allow the commercial use of content, including in the form of an NFT. The least compatibility problems between NFT and CC licences are to be expected in the tokenisation of works that are released under a CC0 licence. In addition to its original function, the CC0 licence therefore also serves as a notification that there are no copyright restrictions on the use of the NFT in question.
Creative Commons License
Open Access Kommentar, Commentary on I. NFT/Crypto Market is licensed under a Creative Commons Attribution 4.0 International License.
