Правова природа NFT як об’єкту цивільних прав

Abstract

The scientific article is devoted to a comprehensive study of the legal nature of non-fungible tokens (NFTs) as objects of civil rights under the legislation of Ukraine. The relevance of the research is обусловed by the rapid development of the NFT market, the absence of specific legislative regulation, and the necessity of adapting Ukrainian civil legislation to the challenges of the digital economy. The paper analyzes the technical nature of NFTs as a prerequisite for their proper legal qualification. It examines the functioning of blockchain technology as a distributed ledger, the minting process, the role of smart contracts in automating the performance of contractual terms, and the distinctions between the ERC-721 and ERC-1155 standards. The article substantiates a critical thesis: an NFT does not constitute the digital object itself but rather represents a digital certificate of authenticity confirming ownership of the token as a digital asset. The position of NFTs within the system of objects of civil rights of Ukraine is determined. The study demonstrates the impossibility of qualifying NFTs as “things” in the classical sense or as securities, due to the absence of issuer obligations and the absolute uniqueness (non-fungibility) of tokens, or their limited fungibility exclusively within a single series governed by a unified smart contract. The most accurate legal qualification is recognized as a combination of the concepts of a “digital thing” (Article 179¹ of the Civil Code of Ukraine) and a “secured virtual asset” within the meaning of the Law of Ukraine “On Virtual Assets” (not yet in force), as NFTs meet the criteria of an intangible asset, constitute objects of civil rights, possess economic value, and are expressed as a set of data in electronic form. It is further established that a smart contract may be regarded as a civil law agreement in relation to an NFT token. Particular emphasis is placed on the fundamental distinction between ownership of an NFT and copyright in the underlying work. It is established that the acquisition of a token does not automatically entail the transfer of economic copyright. The transfer of such rights requires the conclusion of a separate written agreement in compliance with copyright legislation. The article also analyzes international regulatory approaches to NFTs, in particular the provisions of the Markets in Crypto-Assets Regulation (MiCA) of the European Union. It is proposed to consider blockchain-based registration systems as evidence of the fact of creation of a work and the emergence of copyright. Finally, proposals are formulated for improving Ukrainian legislation in the field of NFT regulation.