NFTs and Copyright: How to choose the right license?

One of the fundamental principles provided by Blockchain Technology is the elimination of intermediaries from any transfer or recording of data. With this in mind many Crypto projects aim to replace centralized systems which tend to prioritize their own interests over those of users. 

NFTs first appeared on Bitcoin during 2014, the ability to directly upload Artworks onto a Blockchain so they could be purchased directly by a peer, was a signal of drastic change to come! Apart from the technical complexities necessary to put something online through Counterparty, we had to wait until 2017 with the arrival of the ERC-721 standard on Ethereum before NFTs began to become accessible to most users.

Since then, more and more Artists have taken advantage of this technology to publish content on Platforms that have made access to the Blockchain much easier! 

So, you buy your favourite Artists work and want to use it commercially, what are the problems you may encounter? In addition to this question, even if the NFT does belong to you, what are the limits of its use and what are the challenges of using Blockchain? 

What are Copyright, Copyleft and Creative Commons?

Before being able to determine what the ins and outs of the rights of use for Non-Fungible Tokens are, it is important to take stock of what already exists in the World today regarding Copyright and the right to use Artistic works.

Indeed, depending on the country where you’re located there will be differences between right of use and Copyright. Generally, the two are confused, yet one relates to the author of a work, while the other focuses more on monetary aspects and reuse.

Copyright

For now, let’s take a look at the right to use with a term you must have seen regularly, Copyright.

According to Wikipedia, here is its overall definition:

“Copyright is a type of intellectual property that gives its owner the exclusive right to make copies of a creative work, usually for a limited time.”

A very restrictive concept that allows only one thing, to place a work with its copyright held within a written medium for a given period of time.

It can be a music score, a choreography or a drawing, whatever its nature as long as it can be recorded and above all provide the means to take legal action against anyone using a piece of work without having the consent of its owner.

For example, the night lighting of the Eiffel Tower is Copyrighted and it is therefore forbidden to use the night image of the Iron Woman without prior agreement..

You’ll understand once you see the small logo © somewhere, reproduction is prohibited with few exceptions, as in the French “droit d’auteur”.

Copyleft

Much less known than its big brother, the Copyleft is nevertheless very interesting! According to the GNU Foundation, here is its general definition:

“Copyleft is a general method for making a program (or any other work) free, forcing all modified or extended versions of that program to be free as well.”

Here we have a system completely opposed to Copyright except for one detail, the Copyleft obliges users in one direction. Although this leaves great creative freedom in the modification of works, Copyleft is primarily used in the world of computer code.

Indeed, in this Universe, restricting or completely closing the base code ends up harming its use and prevents new ideas from formulating. 

Little used in the field of Art, Copyleft nevertheless remains an asset library that it would be a great shame to be without!

Creative Commons

Then in the 2000s came the Creative Commons. Conceived by the late Aaron Schwartz, these new licenses made it possible to combine simplicity, protection and sharing in a single concept.

Their goal? Distribute knowledge and culture as much as possible whilst respecting the original author’s choices. Thanks to these licenses, the reuse of works is therefore free but the author can still choose certain conditions:

• Attribution (BY) : Specify if any changes that have taken place, no other restrictions.
• Share Alike (BY SA) : If changed, the new creation must respect the same license (BY SA)
• No Derivatives (BY ND) : If modified, the material cannot be redistributed
• Non Commercial (BY NC) : Unlike previous licenses, it is forbidden to use the creation for commercial purposes.

It is possible to combine the different licenses with each other until you arrive at something very restrictive (BY NC ND) but the advantage is that, unlike Copyright, you will not have to pay for your license.

The advantage of using Creatives Commons licenses lies in their flexibility and therefore allows quite extensive customization of what you want to distribute! 

What about copyright and NFTs?

Here comes the question of Non-Fungible Tokens and their use. The first question to ask yourself is: what exactly does an NFT represent? The answer is simple, an NFT is a certificate of authenticity. 

It allows you to prove that you are the author, buyer or seller of an Artwork, nothing more. The virtual work as such is hosted on a (de)centralized server and all the rights surrounding it still adhere to the regulations of the non-blockchain world.

This is why on the different art platforms, the conditions of reuse are a little vague and leave this aspect to the Artists to decide on. However, we should not be disappointed: Doesn’t the foundation of Blockchain lie in the individual empowerment of everyone regarding the use of Crypto Assets?

There are, however, a few projects that have managed to further blur the boundaries between the two worlds. Taking the example of MarbleCards, it is very interesting to note that the only creative aspect of the project is in the card itself but not in the image that appears in the central circle.

Surprisingly, it was not the various commercial projects used on MarbleCards that were the first to react, but the community of Crypto Artists! Indeed, the latter felt that they had been harmed by this market which did not bring them any royalties because their work was reused outside their control.

Fortunately, this drama was quickly settled by a percentage of redistribution of the sale to the Artists who got in direct contact with the project. That said, these requests are handled on an individual basis and it is up to the Artists themselves to take this step.

Another much more recent example concerns the Valuables projects. This time round the line is even more blurred: how much does a Tweet belong to you? Although you are the author of it, technically all aspects of the post go directly to Twitter. It’s sure no one ever thought they would have to claim royalties from users of the social network.

What’s more fun, is this form of “back to basics” because there was a time when it was not possible to delete your Tweets!

The challenges ahead

The biggest challenge facing the Copyrighted world is going to be the decentralized aspect of projects on the Blockchain which tend to want to make everything published on them immutable into infinity. At the moment it is extremely complicated to put images directly on the Blockchain, but more and more IPFS are used so that images can never be censored or altered by any authority.

Given the increase in the number of Artists who use NFTs to make themselves known or even the arrival of very popular artists like Deadmau5 who are starting to do it, more than ever the question of Copyright and reuse will arise. 

In the event that a Crypto Artist successfully sells a work that reuses Copyrighted content, global regulatory authorities may impose a record fine on him, but the work will continue to circulate and be sold again and again..without identifying new buyers. It may even have the perverse effect of increasing the value of the work for its disruptive side!

Another aspect that should not be overlooked is that of the musical content. Even if Audius wants to compete with Spotify, it still remains to convince the Artists to come and use the decentralized streaming platform to be able to succeed in breaking through.

2021 will be a turning point

More and more initiatives to distribute musical content are emerging to highlight Artists rather than the majors who pocket the majority of revenue.

Although lawsuits can take place, the decentralized nature of the Blockchain makes it extremely difficult, if not impossible, to remove content once posted on it. If more and more Artists start using this medium to distribute their content with, for example Creative Commons licenses, soon Copyright owners may have to fight against an increasingly large and active community.

Even if they choose to accommodate this change, it will be difficult for them to have such a large slice of the pie as before unless Artists decide to stick to an old model that favours only an elite.

2021 will be a decisive turning point for Artists. They will have to make a choice between working on a more equitable and equal solution between rights holders… or adopting a much more militant style to continue to enjoy the benefits the Blockchain offers.