Bragaglia and Garcia: NFT and its effects on the consumer relationship

In an more and more digital world, the proliferation of non-fungible tokens (NFTs) undoubtedly raises, and will proceed to boost, questions on their idea, operational dynamics, and the decision of disputes which will come up from their use, together with via authorized means. and conflicting viewpoint.

As an preliminary step, and for the reader to have an accurate understanding of the topic, we are able to consider an NFT as a system of report that validates the possession of an asset, i.e. a digital certificates of authenticity. It could merely be the receipt of possession of an asset, or the asset itself, relying on what’s agreed between the events to the transaction.

Simply receiving an asset or property, NFT has a transparent uniqueness as it’s digitally distinctive and validated by a community. block chain. There is, due to this fact, a facet of the shortage of property, its financial content material, the truth is, comes from the certainty of possession.

Still from the conceptual space, there’s a duality that’s value highlighting and clarifying: once you purchase an NFT, you don’t essentially purchase the mental property of a selected product. And anyway, the purchaser can solely receive (i) the object itself, with out the copyright of its creation, which prohibits financial exploitation and the limitless proper to edit, show, disclose, publish or reproduce, which resembles a collector’s buy. which can’t be freely manipulated; or (ii) the merchandise itself and the related copyrights, leading to a broad proper to use the asset as you see match, topic to the limitations of relevant copyright regulation.

The sky’s the restrict for the prospects of utilizing NFT, however what we’re seeing at this time is the use of this know-how in artistic endeavors or mental property (bodily or digital, equivalent to a digital or tokenized sculpture, a ballet efficiency, a music on a streaming platform, a historic publication on a social community, a viral meme or perhaps a uncommon digital label for a sure beer), in the gaming universe (collectible gadgets that can be utilized in a sport, equivalent to armor, weapons). , equipment, and so on.) or in the subject of registration and authentication (verification via the possession deed of a property, civil information or an instructional certificates. badge — that’s, a disk protected by know-how block chainto repeat in a social community.

And we will not even think about the infinite prospects of utilizing NFT in the metaverse, regardless of the use of NFT as a social standing image in “NFT communities” and the widespread development of branches that run parallel to the non-fungible token. market., equivalent to platforms streaming NFT for music, and even shows and screens to show the token as a bodily portray or digital picture.

It will not be ignored that the fungible token is a brand new know-how, which nonetheless has restricted visibility, and which isn’t solely topic to particular laws, but in addition analyzed from a authorized perspective. But, a technique or one other, we don’t see how it’s potential to flee the utility of business, civil and consumer guidelines to resolve the dispute, particularly these coping with non-fungible property inside Civil Law. NFT.

It is vital to find out whether or not the transaction is strictly civil in nature, or whether or not it takes the type of consumption, drawing on two completely different authorized fashions to take care of the battle.

It remains to be the case to think about this case: in NFT a digital picture is created at the behest of a purchaser, and the creator, the copyright proprietor, sells the work to that purchaser, leading to a dispute. In our opinion, it’s a authorized relationship of a civil nature.

On the different hand, if collectible NFTs are produced on a big scale and supplied to the consumer without spending a dime, equivalent to non-fungible North American Basketball League (NBA) tokens.[1] —, it might be the consumer relationship that draws the consumerist norms.

From the authorized frameworks, however not solely from them, we are able to have doubts about the competent courtroom that may think about the request concerning the advertising of the non-fungible token. the silence of good contract or the competence mediation platform improves the questioning.

The contentious commercialization of an NFT, which has a consumer side, could, given the nature of the civil legal responsibility, end in a requirement to be filed in the courtroom of the domicile of the creator (CDC, Article 101. I). Or, in the case of a token transaction the place the consumer is domiciled in Brazil – and the token creator or service provider resides overseas – Brazilian jurisdiction seems to be competent to strive and adjudicate the motion arising from the failure of the transaction. (KPZ, Article 22, II). This, with out prejudice to the different competence guidelines supplied for in the KPK itself and in the related laws.

Still from a consumer relations perspective, one other very delicate subject that may require particular consideration is the method NFTs are contracted.

The transaction of an NFT relies on good contract, be it easier, equivalent to phrases of use, or extra advanced, with detailed and subtle laws. It is a superb concept, if we think about that it’s a dynamic and protected mechanism, which has the benefit of the so-called “self-execution”, since solely the authorized relationship is carried out. good contract is digitally signed and all contractual phrases are met; because of this, non-compliance essentially results in the execution of the penalties supplied for in the identical contract, via automated digital orders.

However, by way of consumption, good contract It should adjust to consumer legal guidelines. Therefore, the discount of paperwork in the transaction can’t be confused with the absence of a powerful contractual instrument that defines the object of the negotiation, the rights and obligations of the events and, once more, is in line with the guidelines relevant to the species.

In the face of so many peculiarities and novelties, it’s as much as the authorized practitioners not solely to introduce the ideas and operation of NFT know-how, but in addition to consistently search inventive options inside the authorized universe, particularly in litigation, which they benefit from. the authorized system and additionally the rules of defending the rights of residents.

One factor is for certain: each these concerned in the contractual relationship and the authorized brokers, respectively, have the responsibility, respectively, earlier than the transaction is carried out or earlier than the regulation in query is utilized, to research and deepen the object of the acquisition. all parts surrounding this enterprise relationship.

New instances name for brand new views, insights and data.

[1] – accessed on 03/16/2022.


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