Non-fungible tokens and liability of online marketplaces

Abstract

The rise of NFTs seems to open new horizons for the exploitation of works in the digital world. This, of course, does not come without challenges. A number of IP infringement disputes are now coming to the forefront; minting NFTs without the consent of the creator of the original work and malicious use of a trade mark as an NFT without the permission of the brand owners are but a few examples. In light of the absence of any judicial guidance, this chapter aims to reflect on how the use of NFTs can trigger copyright or trade mark infringements and examine to what extent NFTs marketplaces can be liable for IP infringements that take place within their platforms, taking into consideration a line of case law from the CJEU and EU legal instruments.