Amin Hosseini is an IPilogue Writer and an LLM Candidate at Osgoode Hall Law School.

The Singapore High Court ruled on 21 October 2022 that non-fungible tokens (NFTs) can now be considered property, . are blockchain-based assets with a distinct identification number and metadata which can represent real-world objects and cannot be copied or replaced. They are minted using smart contracts. In , the NFT's owner applied for a loan on and provided the as collateral. Later, he failed to make loan payments and asked for an extension. The defendant initially consented to offer an extension of time to repay the loan. However,  he also declared that if the loan was not fully paid by the timeframe, he would use the "foreclose" option of the NFTfi's Smart Program. The defendant then used the "foreclose" feature to move the NFT from the escrow account into his cryptocurrency wallet. The claimant reminded the defendant of their agreement but the defendant declined to negotiate further and declared he would keep the Bored Ape NFT for himself. He then advertised sale of the Bored Ape NFT.

The claimant then sued the defendant for an “equitable proprietary claim” over the Bored Ape NFT, conversion, breach of contract, and unjust enrichment. The claimant also requested a proprietary injunction banning the defendant from dealing with the Bored Ape NFT in any form.

The court had to determine whether the Bored Ape NFT, and NFTs in general, are capable of giving rise to proprietary rights which could be protected by an injunction in making its decision. In deciding the case, the court applied Lord Wilberforce’s criteria for property in National Provincial Bank Ltd v. Ainsworth (the “Ainsworth test”), which was previously used to decide if crypto assets are property.

According to the , “before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be (1) definable, (2) identifiable by third parties, (3) capable in its nature of assumption by third parties, and (4) have some degree of permanence or stability.”

The court maintained that the test’s first criterion means that the asset must be capable of being isolated from other assets, whether of the same type or of other types. Thus, NFTs fulfil the first requirement, since they can be distinguished using their metadata. Second, the asset must have an owner who can be recognized by third parties. For NFTs, the presumed owner would be whoever manages the wallet that is connected to the NFT. The third requirement comprises two aspects: “third parties must respect the owner's rights in that asset, and that the asset must be potentially desirable.” Here, the court believed that these prerequisites would be satisfied because  the owner has the exclusive authority to transfer the NFT to a third party using blockchain technology and such NFTs are the subject of market activity. Finally, to satisfy the fourth requirement, the aforementioned NFT is as permanent and stable as money in bank accounts.

The court that NFTs meet the Ainsworth criteria and therefore may be formed as property in a general sense, leaving open the question of what the specific nature of this property right is. For the reasons outlined, the court approved the claimant's request for a proprietary injunction.

This decision demonstrates that NFTs can be considered property  separate from the item they represent. The judge's ruling is a turning point for NFTs and the decision may have widely applicable effects and implications.

Further reading

Read more mere about .

To read more about the absence of proper Regulation of NFT Platforms and the associated outcomes, please see .

For in-depth knowledge about how smart contracts combine property and contract functions, please see .

The post Steps forward: Singapore Deems NFTs as Property appeared first on IPOsgoode.

Under , protection is granted to “” This definition should include both commissioned and non-commissioned art. However, an important question arises concerning the latter: should an illegally-scrawled piece of art (graffiti for example) receive any protection at all? The doctrine of unclean hands states that “” Of course, such a principle could easily be interpreted restrictively to deny non-commissioned street art copyright protection. But nuance, as always, is a recommended approach.

The doctrine of unclean hands only applies when the wrongdoing is relevant to the copyrightability of the work. Although lawsuits involving street art often end in settlements, the few existing analogous cases demonstrate that, as long as ",” protection should be granted.

Moreover, copyright law marks a clear distinction between the intangible work it protects and the physical embodiment of that work. Thus, the ownership of the surface on which street art is composed is irrelevant to its creator’s rights, as the United States'  only grant protection over the intangible work.

When it comes to establishing infringement, must be proven: "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” The first criterion involves, , the very copyrightability of the work in question. As explained previously, the first criteria is met provided the original work is fixed in a tangible medium and original.

However, because part of an infringement analysis relies on demonstrating "probative similarities between the works," establishing the copying of constituent elements of the work can be a little more complicated. tend to look for mistakes that are common to both the plaintiff's and the defendant's works, as those can rarely be the result of coincidence. However, those do not always exist and art being inherently subjective, the fundamental issues in copyright cases involving visual art can stretch beyond mere legal interpretations into artistic ones. In a domain where many their work has been influenced by someone else and where every “new” creation seems to somehow stem from another, where can we draw the line and establish that an artist’s work is completely his? Certain artists do have trademark aesthetics, but are those enough to say that a very similar looking piece of art is necessarily infringing?

The sudden rise in street art infringement lawsuits theses past few years is unsurprising. This particular form of artistic expression has become a favoured object of , , and even as . Highly competitive industries like the fashion industry are exploiting street art’s undeniable marketability. As expressed in the against American Eagle, “'street credibility’ is highly sought after by retail brands for the cultural cachet and access to the profitable youth demographic it offers.” Unfortunately, street artists must fend with more than the copyright issues underlying such realizations, as “.” Pursuing these companies to protect their intellectual property is becoming a necessity. “Street credibility” goes beyond aesthetics, with stakes in an artist’s reputation and integrity. As a matter of fact, the complaints against and  each make reference to the artists being considered “sell outs” as one of the main damages caused by their association with such corporations.

Of course, these issues have always existed. But street artists have been reluctant to go after infringers. Putting aside monetary issues, for many of them “.” Their desire to paint on the street often stems from an indifference towards the formal art world and everything it entails, but mainstream brands’ sudden interest in street art has left artists with no other option but to fight for their rights. Deterrence from doing so — in the form of vandalism charges — remains for creators of non-commissioned work as fighting for ownership rights over their art also means revealing their identity. But, for the most part, times have changed and counter culture now seems to stop where infringement begins.

Aicha Tohry is an IPilogue Editor and a JD Candidate at Université de Montréal.

The post When Choosing the Street (Art) Life Leads to the Court Life Choosing You appeared first on IPOsgoode.

In the case, purchasers of a Netherlands corporation (Fairstar) operating a shipping business were trying to gain access to the email correspondence between the former CEO of Fairstar (Adkins) and a Chinese shipyard which had been commissioned to build new ships for Fairstar.  Since the deal was arranged prior to the purchase of Fairstar, certain specific details of the deal were only ever in the email correspondence between Adkins and the shipyard.  Therefore, Fairstar’s goal was to gain access to the emails in question, which were stored on the personal server of Adkins.  Fairstar claimed that their right to access these emails was proprietary in nature.  Their arguments for access were limited to this proprietary right rather than on the basis of any fiduciary obligation Adkins owed to Fairstar, or on the basis that the information was confidential.

The lawyer for Fairstar presented the court with a number of cases which suggested either explicitly or implicitly that information contained in emails could be the subject of property claims.  However, all of these cases were distinguished by Justice Edwards-Stuart because they failed to provide definitive reasons why information contained in emails could be someone’s property.  For example, in one of the cases, , an employer’s database was accessed via email by a former employee and a judge held that the information was the property of the employer.  Justice Edwards-Stuart was not convinced that the same rights should be extended beyond databases to include all information contained in emails.

Without any direct precedent on the point, Justice Edwards-Stuart was in a position to consider whether there could reasonably ever be property in an email based on current practices and consequential analysis.  Justice Edwards-Stuart considered 5 possible cases of a person or persons holding property in an email.  He considered that either:

(1) that title to the content remains throughout with the creator (or his principal);

(2) that, when an e-mail is sent, title to the content passes to the recipient (or his principal) - this being by analogy with the transfer of property in a letter when one person sends it to another;

(3) as for (1), but that the recipient of the e-mail has a licence to use the content for any legitimate purpose consistent with the circumstances in which it was sent;

(4) as for (2), but that the sender of the e-mail has a licence to retain the content and to use it for any legitimate purpose; and

(5) that title to the content of the message, once sent, is shared between the sender and the recipient and, as a logical consequence of this, is shared not only between them but also with all others to whom subsequently the message may be forwarded

He rejected each possibility in turn on the basis that to accept that there exists property in an email would bestow upon the property owner a level of control over emails which does not conform with our traditional understanding of the email system.  Since Fairstar made no other legal claims for access to Adkins’ email except on the basis of a proprietary right, their application to inspect the emails could not succeed.

The basis of the Justice Edwards Stuart’s reasoning is unsurprising.  Information  traditionally protected on the basis of a pure proprietary right.  Justice Edwards-Stuart  to the possibility of success for Fairstar had they expanded their legal argument to include some extra-proprietary rights to have access to the emails.  Although there were reasons having to do with the  of Fairstar which may have caused the lawyers for Fairstar not to raise these arguments, failing to do so may have cost them access to certain information they needed to run their business successfully.  In my opinion, whether or not some different legal claim may have succeeded, the court was right to rule that an email is not property.

Adam Stevenson is a JD Candidate of Western University, faculty of law.

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