For two years, non-fungible tokens (JNF, or NFT in English) have experienced a spectacular boom in the field of culture. These tokens associated with a digital file by a “smart contract” and registered on the blockchain (a computer protocol considered inviolable) to guarantee authenticity, have made it possible to enhance digital works of art, until now difficult to sell because they can be reproduced indefinitely. Other JNFs have been used to market digital copies of physical works: paintings, sculptures, etc.
Leading market artists such as Jeff Koons, prestigious museums such as the Uffizi in Florence, the British Museum in London or the Hermitage in St. Petersburg, large auction houses such as Christie’s or Sotheby’s and intermediary platforms have begun to publish and sell these tokens. . In 2021, according to the NonFungible.com website, the JNF art sector would thus have represented a global sales volume close to 2.8 billion dollars (or euros), revealing a real speculative flight.
Since then, this market has experienced bearish trends in the first half of 2022. However, “These use cases are very likely to persist and develop over time”, estimates a report of the Superior Council for Literary and Artistic Heritage (CSPLA), attached to the Ministry of Culture, made public on 13 July. In his opinion, “All sectors are ultimately interested: from graphic arts to cinema, from publishing to music, from the private to the public sector”.
Infringements of Copyright
“Although JNFs are particularly rich in potential, they are not without risks and weaknesses for authors and rights holders, as well as for consumers”, immediately underline the speakers, Jean Martin, a lawyer at the Court, and Pauline Hot, a master of petitions at the Council of State, who heard about sixty experts. They invite public authorities “Ensure the use of this technology to favor the most virtuous use cases that will have a vocation to persist beyond the speculative phenomenon”.“The first risk identified isthe many scams that accompany any speculative phenomenon: scams, fraudulent transactions, sale of “empty” JNFs, embezzlement of wallets. “
Difficult to qualify precisely from a legal point of view, the JNF can be considered, according to these authors, as “an ownership title on the token, which can be associated with other rights on the digital file”. “Such digital files remain subject to copyright and related rights, unless they are expressly contracted”, insist the two speakers. On May 31, about twenty large foundations or bequests of artists, including those of Matisse and Picasso, had in fact denounced, in a joint text, the fact that “Non-fungible tokens are increasingly being used to market digital copies of works (…) often without the assistance of the artist or his successors in title “. This is particularly during resales “of JNF in the secondary market that the risk of copyright infringement is the strongest”add speakers.
A charter of good practices to be drawn up
Même quand il s’agit d’une œuvre tombée dans le domaine public, the commercial exploitation de son image doit veiller au respect du “droit moral de l’Auteur”, précisent les rapporteurs du CSPLA qui incitent à l’élaboration d ‘ a “charter of good practices” for platforms that issue JNF.
Another proposal, this time to stem the proliferation of fakes: “the establishment of third-party verifiers of the contents associated with JNFs exchanged on the blockchain”. The rapporteurs also ask that the “JNF be integrated into the European reflection on the harmonization of the fight against money laundering and the financing of terrorism” which thrives in particular thanks to the opacity of cryptocurrencies.
Finally, the very energy-intensive side of blockchains, which consume several tens of TWh per year, equivalent to the electricity consumption of entire countries (between one and three times that of Denmark), is another problem at the time of global warming, notes Il report. However, he notes that switching to other systems could help reduce this disastrous carbon footprint in the future and therefore argues “the exemplary environmental nature of the innovative projects of the JNF supported by public authorities “.
French museums waiting
By reviewing the initiatives implemented in the fields of art, heritage, music, cinema, audiovisual, book or photography, they first believe that the production of JNF constitutes a certain source of income, even if difficult to evaluate.. She can “allow, through participation mechanisms or collaborative funding, to support certain cultural projects”, judge the speakers, but also “To reach a new audience e (news) amateur communities “ from “More playful uses” as collectibles.
French museums have so far remained on the sidelines, out of caution. However, the report notes this “The risk of such a position is to lose the strategic positioning of cultural institutions in the metaverse (1)whose first creation of JNF for display in digital museums could be a first step ”. Remember that the President of the Republic declared in an interview with the specialized media The Big Whale, on April 24, 2022, that he was in favor of the development of large public cultural institutions. “of a policy in terms of JNF, for example through the promotion, dissemination and protection of twins or variants (note: digital reproductions) of their physical collections. And he wanted to start a collective reflection on “What would a dematerialized museum of the history of France be”.
The CSPLA report therefore supports “the implementation of progressive experiments”, for example with an actor such as the RMN photographic agency and external service providers, both for JNF acquisitions linked to recent digital works, and for the production of JNF associated with works from public collections. With the key “A guide to operational recommendations”.