Conclusion:

Abstract

Are there differences between the sale of an unopened Super Mario Bros. computer game and of the digital collage of 5,000 images? Viewed from the perspective of the doctrine of exhaustion, we can easily conclude that the two transfers have significant differences. The auction of the tangible data carrier of the Super Mario’s 1986 edition (for $660,000) 1 fits well into the doctrine. The auction of the NFT (non-fungible token) representing Beeple’s “Everdays: the First 5000 Days” (for an equivalent of an astounding $69.3 million) 2 seems to be hype with a snowball effect rather than a modern encapsulation of digital exhaustion. Some commentators, 3 including the present author in collaboration with Alexandra Giannapoulou, João Pedro Quintais, and Balázs Bodó, 4 have thoroughly introduced the incompatibility of the NFT mania with the existing copyright status quo, and so – in connection with the present book’s topic – the sale of tokenized information, which is capable of representing information related to digital artworks, is practically excluded from the scope of the exhaustion of the right of distribution. At the same time, NFTs de facto offer a “code-based digital ecosystem that has practical consequences for the copyright-relevant fields of creativeness.” 5 The sale and resale of NFTs is possible; an exchange of information and title to “own” and “trade” information related to copyrightable subject matter is technologically guaranteed. In line with that, a quasi-exhaustion regime has also emerged. As such, the NFT mania can practically evidence the need for and modern technology’s capability of offering digital marketplaces for artworks as well.