International legal aspects of the circulation of non-fungible tokens and the qualification of rights to digital objects in various jurisdictions

Abstract

The article examines non-fungible tokens as a new type of digital objects whose economic significance outpaces the formation of stable legal constructions suitable for their qualification and protection in cross-border circulation. It is shown that in most cases an NFT functions as a unique entry in a distributed ledger with metadata referring to a digital or physical object, as a result of which a systematic discrepancy arises between the purchaser’s expectations and the actual scope of rights acquired: control over the token is not identical to ownership of exclusive rights to the associated content and is usually accompanied only by limited licensing opportunities defined by user agreements and the logic of smart contracts. A comparison of the approaches of key jurisdictions reveals competing models: in the United States, the emphasis is placed on trademark protection and the qualification of certain issuances through the criteria of an investment contract; in the United Kingdom and Singapore, recognition of tokens as objects of property is developing, which expands the arsenal of security measures and remedies of restitution even when the identity of the infringer is uncertain; in the EU, regulatory asymmetry is observed due to the exclusion of unique tokens from the pan-European regime, which stimulates national experiments and the risk of fragmentation; in China, circulation is permitted in the format of “digital collectibles” with a ban on cryptocurrency settlements and strict restrictions on the secondary market; in Russia, uncertainty of qualification persists, leading to recourse to the category of “other property” and to isolated practice of including tokens in the bankruptcy estate without elaboration of their civil-law nature. Particular attention is paid to conflict-of-laws difficulties caused by the impossibility of linking a digital asset to classical criteria of location, as well as to a set of risks associated with infringements of intellectual property rights during minting, the limited effectiveness of content removal, the conflict between automatic code execution and the institutions of invalidity and termination, the variability of tax qualification, the vulnerability of the market to money laundering through fictitious transactions, the regulatory consequences of fractional NFTs, and the problems of inheritance in the event of loss of private keys. As a cross-cutting conclusion, the need for technologically neutral harmonization and the development of minimum standards for information disclosure, conflict-of-laws connecting factors, and mechanisms of intermediary liability is identified, taking into account the hybrid nature of the token as an object of control over a record and a set of contractual rights of access to the associated content.