Study on Non-Fungible Tokens and Related Intellectual Property Law Issues, 71584-71586 [2022-25211]

Agencies

• DEPARTMENT OF COMMERCE
• Patent and Trademark Office
• Library of Congress
• United States Copyright Office

[Federal Register Volume 87, Number 225 (Wednesday, November 23, 2022)]
[Notices]
[Pages 71584-71586]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-25211]


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DEPARTMENT OF COMMERCE

Patent and Trademark Office

LIBRARY OF CONGRESS

United States Copyright Office

[Docket No.: PTO-C-2022-0035]


Study on Non-Fungible Tokens and Related Intellectual Property 
Law Issues

AGENCY: United States Patent and Trademark Office, Department of 
Commerce; United States Copyright Office, Library of Congress.

ACTION: Notice of inquiry; notice of public roundtables.

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SUMMARY: The United States Patent and Trademark Office (USPTO) and the 
United States Copyright Office (USCO) (collectively, the Offices) are 
conducting a joint study regarding issues of intellectual property (IP) 
law and policy associated with non-fungible tokens (NFTs). The Offices 
seek public comments on these matters to assist in their work on IP 
policy related to NFTs and in conducting the study. In addition, the 
Offices are announcing a series of three public roundtables to allow 
them to gather further input.

DATES: 
    Written comments: Public comments must be received no later than 
11:59 p.m. Eastern Time on January 9, 2023.
    Public roundtables: Roundtable 1: Patents and NFTs. Roundtable 1 
will be held on Tuesday, January 10, 2023. Requests to participate as a 
panelist must be received by 11:59 p.m. Eastern Time on December 21, 
2022.
    Roundtable 2: Trademarks and NFTs. Roundtable 2 will be held on 
Thursday, January 12, 2023. Requests to participate as a panelist must 
be received by 11:59 p.m. Eastern Time on December 21, 2022.
    Roundtable 3: Copyright and NFTs. Roundtable 3 will be held on 
Wednesday, January 18, 2023. Requests to participate as a panelist must 
be received by 11:59 p.m. Eastern Time on December 21, 2022.

ADDRESSES: 
    Submission of written comments: For reasons of Government 
efficiency, comments must be submitted through the Federal eRulemaking 
Portal at www.regulations.gov. To submit comments via the portal, enter 
docket number PTO-C-2022-0035 on the homepage and click ``Search.'' The 
site will provide a search results page listing all documents 
associated with this docket. Find a reference to this request for 
information and click on the ``Comment Now!'' icon, complete the 
required fields, and enter or attach your comments. Attachments to 
electronic comments will be accepted in ADOBE[supreg] portable document 
format (PDF) or MICROSOFT WORD[supreg] format. Because comments will be 
made available for public inspection, information that the submitter 
does not desire to make public, such as an address or phone number, 
should not be included. Visit the Federal eRulemaking Portal for 
additional instructions on providing comments via the portal. If 
electronic submission of comments is not feasible due to a lack of 
access to a computer and/or the internet, please contact the Offices 
using the contact information below for special instructions on how to 
submit comments by other means.
    Submission of business confidential information: Any submissions 
containing business confidential information must be marked 
``confidential treatment requested'' and submitted through the Federal 
eRulemaking Portal. Submitters should provide an index listing the 
document(s) or information they would like the Offices to withhold. The 
index should identify the confidential document(s) by document 
number(s) and document title(s) and should identify the confidential 
information by description(s) and relevant page number(s) and/or 
section number(s) within a document. Submitters should provide a 
statement explaining their grounds for requesting non-disclosure of the 
information to the public as well. The Offices also request that 
submitters of business confidential information include a non-
confidential version (either redacted or summarized) that will be 
posted on www.regulations.gov and available for public viewing. In the 
event that the submitter cannot provide a non-confidential version of 
their submission, the Offices request that the submitter post a notice 
in the docket stating that they have provided the Offices with business 
confidential information. Should a submitter fail either to docket a 
non-confidential version of their submission or to post a notice that 
they have provided business confidential information, the Offices will 
note the receipt of the submission on the docket with the submitter's 
organization or name (to the degree permitted by law) and the date of 
submission.
    Anonymous submissions: The Offices will accept anonymous 
submissions. Enter ``N/A'' in the required fields if you wish to remain 
anonymous.
    Public roundtables: The roundtables will be conducted virtually. 
Roundtable 1 (patents) and Roundtable 2 (trademarks) will be conducted 
using the Webex videoconferencing platform. Roundtable 3 (copyright) 
will be conducted using the Zoom videoconferencing platform. Requests 
to participate as a panelist at one or more of these roundtables must 
be submitted via email to [email protected] and must 
be received by the dates listed above (at DATES). Requests to 
participate as a panelist at a roundtable made in any other form, 
including as part of comments submitted via the Federal eRulemaking 
Portal, will not be considered. If email submission of requests to 
participate as a panelist is not feasible, please contact the Offices 
using the contact information below for special instructions. The 
submission of written comments in response to this notice is not a 
prerequisite to participation as a panelist in a roundtable. Please 
note that the Offices will review all requests to participate and will 
endeavor to invite participants representing diverse viewpoints on the 
subject matter discussed at each roundtable. The Offices may not be 
able to accommodate all requests.

FOR FURTHER INFORMATION CONTACT: Kevin R. Amer, Senior Level Attorney, 
USPTO, [email protected], 571-

[[Page 71585]]

272-9300; Branden Ritchie, Senior Level Attorney, USPTO, 
[email protected], 571-272-9300; Andrew Foglia, Senior Counsel, 
USCO, [email protected], 202-707-8350; or Jen[eacute]e Iyer, 
Counsel, USCO, [email protected], 202-707-8350.

SUPPLEMENTARY INFORMATION: The USPTO and the USCO have been consulting 
with stakeholders and working on both U.S. and international policy 
relating to emerging technologies, such as NFTs. These efforts have 
been collaborative, and each office also engages in its own activities 
impacting its respective responsibilities. For example, USPTO's work in 
this area is being done as part of the USPTO's AI and Emerging 
Technology Partnership, see https://www.uspto.gov/initiatives/artificial-intelligence/ai-and-emerging-technology-partnership-engagement-and-events, and as part of separate consultations and 
collaborations. The USCO continues to examine copyright issues arising 
from emerging technologies such as NFTs, software-enabled devices, and 
artificial intelligence. On June 9, 2022, Senators Patrick Leahy and 
Thom Tillis sent a letter to the USPTO and the USCO requesting that the 
Offices conduct a joint study addressing various IP law and policy 
issues associated with NFTs. The letter urged the Offices to ``consult 
with the private sector, drawing from the technological, creative, and 
academic sectors.'' USPTO and USCO responded on July 8, 2022, stating 
that ``we will indeed conduct the study.'' The Senators' letter, and 
the agencies' response, is at https://www.copyright.gov/laws/hearings/response-to-june-9-2022-letter.pdf.
    In furtherance of the study and consultations, the Offices request 
public comments on the questions provided below. Commenters need not 
respond to every question and may provide comments that are relevant to 
the subject matter of this study but that are not encompassed by the 
questions. Following the close of the public comment period, the 
Offices will hold a series of three public roundtables to allow members 
of the public to provide further input.

I. Topics for Public Comment

    Note Regarding the Use of the Term ``NFT'': Merriam-Webster defines 
``non-fungible token'' and ``NFT'' as ``a unique digital identifier 
that cannot be copied, substituted, or subdivided, that is recorded in 
a blockchain, and that is used to certify authenticity and ownership 
(as of a specific digital asset and specific rights relating to it).'' 
\1\ The terms ``NFT'' and ``NFTs'' in the questions below should be 
read consistently with this general definition. Accordingly, for 
purposes of the questions below, the terms ``NFT'' and ``NFTs'' do not 
refer to the underlying asset,\2\ but rather to the unique identifier.
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    \1\ Merriam-Webster. (n.d.). NFT. Merriam-Webster.com 
dictionary, available at www.merriam-webster.com/dictionary/NFT.
    \2\ The Offices here use the word ``asset'' broadly and take no 
position on its meaning in the context of NFTs in other bodies of 
law.
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    To the extent that your responses contemplate a definition 
different from the Merriam-Webster definition, please provide your 
definition before answering the questions, and explain how it is 
relevant to your answers.
    Questions for Public Comment: The Offices welcome comments from 
members of the public on any issues relevant to the subject matter of 
this study, and are particularly interested in answers to the following 
questions. To the extent practicable, in your written response, please 
identify which questions you are answering.
    1. Please describe:
    a. The current uses of NFTs in your field or industry, including 
the types of assets associated with NFTs (e.g., digital assets, 
physical goods, services); and
    b. Potential future applications of NFTs in your field or industry, 
including the types of assets that could be associated with NFTs (e.g., 
digital assets, physical goods, services).
    2. Please describe any IP-related challenges or opportunities 
associated with NFTs or NFT markets.
    3. Please describe how NFT markets affect the production of 
materials subject to IP protection.
    4. Please describe whether, how, and to what extent NFTs are used 
by or could be used by IP rights holders (including those who hold 
trademarks, patents, and/or copyrights) to:
    a. Document the authenticity of an asset;
    b. Document the seller's ownership of or authority to sell an 
asset;
    c. Document the seller's authority to transfer any relevant or 
necessary IP rights associated with an asset; and
    d. Document any limitations related to IP rights surrounding the 
sale, or the purchaser's use, of an asset.
    5. Please describe whether, how, and to what extent NFTs present 
challenges for IP rights holders, or those who sell assets using NFTs, 
with respect to the activities described in Question 4 above.
    6. Please describe whether, how, and to what extent NFTs are used 
by, could be used by, or present challenges or opportunities for IP 
rights holders (including those who hold trademarks, patents, and/or 
copyrights) to:
    a. Obtain their IP rights;
    b. Transfer or license their IP rights;
    c. Exercise overall control and management of their IP rights 
(e.g., digital rights management tools, mechanisms to facilitate the 
payment of royalties, etc.); and
    d. Enforce their IP rights, including any mechanisms that could 
mitigate infringement or help ensure compliance with contractual terms 
associated with the sale of an asset.
    7. Please describe how and to what extent copyrights, trademarks, 
and patents are relied on, or anticipated to be relied on, in your 
field or industry to:
    a. Protect assets that are associated with NFTs;
    b. Combat infringement associated with NFT-related assets offered 
by third parties; and
    c. Ensure the availability of appropriate reuse of NFT-related 
assets.
    8. Are current IP laws adequate to address the protection and 
enforcement of IP in the context of NFTs? If not, please explain why, 
including any gaps in current IP laws, and describe any legislation you 
believe should be considered to address these issues.
    9. Please describe any IP-related impacts those in your field or 
industry have experienced in connection with actual or intended uses of 
NFTs. When relevant, please describe any legal disputes that have 
arisen in the following contexts, and the outcome of such disputes, 
including citations to any relevant judicial proceedings:
    a. The relationship between the transfer of an NFT and the 
ownership of IP rights in the associated asset;
    b. The licensing of IP rights in the asset associated with an NFT;
    c. Infringement claims when either (i) an NFT is associated with an 
asset in which another party holds IP rights, or (ii) IP rights in the 
asset associated with an NFT are owned by the NFT creator;
    d. The type and/or scope of IP protection afforded to the NFT 
creator, including when that party is not the creator of the associated 
asset; and
    e. The application of one or more of the exclusive rights under 17 
U.S.C. 106 to transactions involving NFTs.
    10. Please describe any instances you have observed in which a 
party has sent or received:
    a. A notification of claimed copyright infringement, counternotice 
or material misrepresentation, pursuant to 17 U.S.C. 512, in connection 
with an NFT; and
    b. Other IP-related legal claims seeking the removal or 
reinstatement of NFT-associated materials.

[[Page 71586]]

    For each such instance, please describe the nature and outcome of 
this claim or process, including whether the material was ultimately 
removed, and if so, whether the material subsequently reappeared. If an 
infringement or 17 U.S.C. 512(f) action was filed, please provide 
citations to the court docket and any relevant judicial decisions.
    11. Please describe the extent to which adjustments are being made 
to IP portfolio planning and management in light of the emergence of 
NFTs.
    12. Please describe any experiences in seeking IP protection for, 
or use of, assets associated with NFTs in foreign jurisdictions.
    13. Please identify any additional IP issues associated with NFTs 
that you believe the Offices should consider in conducting this study.

II. Public Roundtables

    The Offices will hold three public roundtables focused, 
respectively, on copyrights, patents, and trademarks. The roundtables 
are not expected to address broad topics in cryptocurrency or 
decentralized systems generally, but rather only IP considerations as 
they relate to NFTs.
    Members of the public interested in participating as a panelist in 
one or more roundtables must submit such a request to 
[email protected] and provide their name, professional 
affiliation, and contact information, and designate the roundtable(s) 
at which they wish to speak. Such requests must be submitted by the 
dates listed above (at DATES). Please note that written comments should 
not be submitted to this address; any such comments will not be 
considered.
    The Offices will make every effort to ensure a broad range of 
stakeholder views are represented on the panels but may not be able to 
accommodate every request to participate. The Offices may also invite 
participation from individuals and entities who have not requested to 
participate. The submission of written comments in response to this 
notice is not a prerequisite to participation as a panelist in a 
roundtable.
    The Offices will contact individuals selected to participate as 
panelists at the roundtables for additional information to aid in 
preparing for the roundtables. A tentative agenda for each roundtable 
will be posted at https://www.uspto.gov/ip-policy/joint-study-intellectual-property-rights-and-non-fungible-tokens and https://copyright.gov/policy/nft-study approximately one week before it takes 
place.
    The roundtables will be livestreamed, and the Offices will post a 
link and instructions for members of the public to register to view 
them live. The USPTO will host Roundtable 1 (patents) and Roundtable 2 
(trademarks). Additional information regarding these roundtables and 
instructions for registering to view them will be posted at https://www.uspto.gov/ip-policy/joint-study-intellectual-property-rights-and-non-fungible-tokens. The USCO will host Roundtable 3 (copyrights). 
Additional information regarding this roundtable and instructions for 
registering to view it will be posted at https://copyright.gov/policy/nft-study. The roundtables will also be video-recorded and transcribed, 
and copies of the recordings and transcripts will be available on the 
above USPTO and USCO websites.

Katherine K. Vidal,
Under Secretary of Commerce for Intellectual Property and Director of 
the United States Patent and Trademark Office.

    Dated: November 9, 2022.
Shira Perlmutter,
Register of Copyrights and Director, United States Copyright Office.
[FR Doc. 2022-25211 Filed 11-22-22; 8:45 am]
BILLING CODE 3510-16-P; 1410-30-P