The present chapter will look at the possible application of smart contracts in the intellectual property arena in general, but it will specifically discuss mostly copyright solutions, although a few uses apply to different areas of protection. This presents a few challenges, at the time of writing many of the proposals that will be discussed have not yet been implemented, or are in a prototype level, and as such we may have to assume their viability based on nothing other than a few examples that have not been fully tested. Similarly, legal discussions about the blockchain and smart contracts tend to be surrounded by considerable hype, often fuelled by commercial interests, and it is often difficult to separate facts from sales pitches. This is why this work will try to take a more sceptical approach to the phenomenon.
This article analyses the main legal requirements in the California Consumer Protection Act (CCPA), general data protection regulation (GDPR) and the intersections between privacy laws, genomic data and smart contracts (such as fungible and non-fungible tokens (NFTs). The CCPA and GDPR laws impose several restrictions on the storing, accessing, processing and transferring of personal data. This has generated some challenges for lawyers, data processors and business enterprises engaged in blockchain offerings, especially as they pertain to high-risk data sets such as genomic data. The technical features of NFT, distributed storage and wallets to trace and govern genomic (DNA) data sets will allow data donors to establish digital ownership and control in line with privacy laws using ‘programmable privacy smart contracts’. To be legally compliant, the design of blockchain value propositions should include privacy-by-design capabilities in the smart contract coding language itself. This article describes three domains (privacy laws, genomics and NFTs) and begins to explore how data engineers can address the challenges of coding privacy laws, the legal requirements into smart contracts. This current approach focuses on NFTs and genomic data requirements which include the selection of genetic metadata borrowing from developing ERC specifications and their programming logic. Programmable privacy is a unique way to write and design computer code, which can automatically check the legal compliance of the smart contract in a trust-less and decentralised way. We exemplify the approach by describing the conceptual value proposition of Genobank.io, a privacy-preserving genomic data platform.
Abstract This chapter focuses on how machine learning (ML) and distributed ledger technologies (DLTs) change the environment of the law, the substance of legal goods, and on the extent to which these changes affect legal protection. ML applications, for example, can decide a person's credit worthiness or employability. Moreover, DLTs can, for instance, self-execute transactions and policies without and beyond the law. One of the main challenges here thus concerns the regulatory effects of these novel technologies and the potential incompatibility of legal protection with techno-regulation (defined as the regulatory effects of a technology, whether or not intended). This challenge will be discussed in terms of automated compliance (‘legal by design’) and technological articulation of fundamental rights (‘legal protection by design’).
With the rapid development of new technologies taking place during the 4th Industrial Revolution, new types of disputes of significant specificity have gradually begun to emerge. Among such cases a special category of cases has been formed by disputes arising from smart contracts based on block chain technology. There are two possible ways to resolve such disputes. Under the first approach, they are subject to consideration by traditional arbitration institutions, guided by the usual rules and guidelines (blockchain arbitration). The second approach involves the need to create innovative applications based on blockchain technology and designed to resolve disputes arising in a digital decentralized environment ( blockchain arbitration). Such applications, in turn, are divided into two groups. The first group consists of projects involving the creation of a special arbitration combining the advantages of international commercial arbitration and blockchain technology; the second group includes projects involving the establishment of a decentralized quasi-judicial system for dispute resolution. The paper attempts to analyze the most interesting projects related to each of the listed groups and assess the prospects of their development. Based on the results of the analysis, the author comes to the conclusion that the implementation of such projects will lead to the emergence of many issues (among which the problem of choice of applicable law, determination of place of arbitration, arbitrability, as well as the possibility of recognition and enforcement of awards made by such arbitral tribunal). Under the influence of new technologies, international commercial arbitration is gaining a new direction of its development. In the future, the development of new technologies will require not only rationalization of existing dispute resolution mechanisms, but also a fundamental rethinking.
Purpose: A burgeoning body of research has described how the blockchain technology may affect the way firms operate within the recording industry which has undergone profound changes due to the dematerialisation of music and the emergence of now consumption habits. The purpose of the paper is to explore both the challenges and the opportunities related to the application of smart contracts and blockchain mechanisms to the recording industry. Approach/Methodology/Design: Based on a review of contributions made to the literature in various fields, we discuss recent developments, relying on several examples and use cases which bring an updated perspective to a topical question. While the blockchain brings interesting solutions in favour of an improved management of copyright data and fees collection, several barriers impede their uptake and large-scale adoption. Findings: We argue that the absence of both technological and regulatory standards, the resistance to change, and the necessary use of cryptocurrency, are all obstacles to a profound transformation of the sector. Practical Implications: To overcome these limitations, we suggest three recommendations that deal with technological standards, cooperative agreements, and international regulation around blockchain. Originality/Value: So far, the literature tends to focus either on blockchain technology or on smart contracts when discussing technological evolution within the recording industry. In this paper, we bring together these two elements which are definitely complementory to each other. Further research efforts are required to investigate in more details the feasibility and relevance of the recommendations we make.
The article gives a brief analysis of the place of a cryptocurrency in the system of objects of civil law rights. According to the results of the study, the authors conclude that it is incorrect to equate legal regimes of the cryptocurrency with the legal regime of virtual objects. The authors consider it promising to regulate legal features of the distributed ledger and register objects of civil law rights in the distributed ledger. A cryptocurrency is a means of payment that has no independent value. Thus, the mechanism of performance of obligations needs special elaboration. It is also noted that in the legal regulation of any social relations an essential role is assigned to the mechanisms and guarantees of restoration of violated rights and legitimate interests. To this end, the cryptocurrency regulation is inextricably linked with the institution of civil liability. The cryptocurrency combines the features of many civil law rights, but does not fully correspond to any of them. The assignment of the cryptocurrency to other property is possible within the framework of the current legislation without creating new objects of civil law rights, which can lead to conflicts and disputes concerning their legal regime.
The principles of contract law have shown continued resilience in light of constant technological developments, including the mainstream adoption of the Internet. The ability to absorb technological change may be attributable to the broad manner of their formulation. For example, the foundational proposition that ‘legal intention can be expressed in any manner’ has enabled the nearly seamless acceptance of online contracting. If intention can be manifested by a nod or a handshake, it can also take the form of a click or a swipe. Similarly, the requirement of consideration can be met not only by peppercorns or money, but also by one’s permission to share personal information in return for the provision of online content and services. While the Internet hardly creates academic excitement anymore, a number of internet- related technologies may pose a challenge to the principles of contract law and may, finally, test their flexibility. Purportedly, blockchain-based smart contracts, which are often defined as the encoding of legal terms in self-executing computer code, enable not only the automation of performance but also the delegation of enforcement to immutable code. The theory is that if both performance and enforcement are entrusted to impartial machines, breach becomes impossible. Smart contracts are also premised on the ability to translate contractual obligations into algorithms – a process aimed at the elimination of ambiguity and enhancement of legal certainty. Abstracting from technological minutiae, we must inquire whether, or to what extent, such ‘operations’ are desirable or legally permissible. The challenges of automation are further aggravated by advancements in artificial intelligence. The accompanying problems exceed those inherent in the possibility of inadvertent orders, unforeseen transactions or computer errors. We are forced to inquire whether such technological phenomena as algorithmic trading, machine learning or autonomous agents affect the existence of intention and, on a broader level, raise problems concerning the validity and enforceability of any resulting contract – if only due to the unprecedented transactional imbalances introduced by them. An additional set of difficulties concerns ubiquitous computing, loosely defined as the user-facing technologies involving the Internet-of-Things (‘IoT’). Smart objects and self-checkout terminals blur the division between online and offline environments and force a revision of our understanding of ‘online contracting.’ When the Internet spills over our computer screens and when we encounter requests for consent and contractual terms in contexts that have traditionally been non-commercial, it becomes difficult to rely on such basic principles as the objective theory of contract or on the presumption that in commercial contexts the parties intend to be legally bound. The point is not to question the continued applicability of such principles or presumptions but to illustrate the difficulty in their application. In sum, my chapter explores the legal implications of the said technologies and, while abstaining from unnecessary futurism, presents a realistic picture of their legal relevance. Particular attention is devoted to the overreaching question whether the principles of contract law, in their traditional formulation, are capable of accommodating (or withstanding ?) technological change. While it is difficult to predict technological trajectories and future legal developments, it is possible to extrapolate from existing trends and anticipate certain theoretical bottlenecks created by technological change.
Automation is taking hold in different aspects of business across every industry and every sector. Consistent with this trend, the notion of embedding automation into legally binding contracts is also gaining momentum. COVID-19 is fuelling digital transformation and has highlighted frustrations with static contracts that sit disconnected from digital processes and systems. As automated ‘smart contracts’ become more common, lawyers have been grappling with how to preserve the legal integrity of the contract whilst harnessing the benefits of automation and digital connectivity. Automation of contract performance is a field lacking in standard definitions. This paper proposes a framework to assist discussion and development of legally enforceable automation of contract performance and explores high level features of contracts along the spectrum of contract automation by proposing an initial model for the levels of automation (and digitalisation). This model draws analogies with the SAE International J3016 “Levels of Automation” widely adopted for autonomous vehicles.
The object of the present work is to provide a legal analysis of the formation of legally binding agreements through blockchain-based smart contracts. Smart contracts are computer codes that are capable of running automatically upon the occurrence of specific conditions and according to pre-specified functions. These codes can be stored and processed on a blockchain and any change is recorded in the blockchain. The expression “smart legal contract” refers to the use of smart contracts in the contractual domain to perform already existing contracts or to express legally binding agreements in the form of lines of computer code. Regarding the latter, researchers question whether blockchain-based smart contracts can be considered legally binding contracts. The study aims at putting in correlation contract requirements with blockchain- \nbased smart contracts. The scope of the analysis is to verify how to interpret the rules on contract formation to make blockchain-based smart contracts fit into contract law.
Property law has traditionally relied on tangible boundaries to delineate legal thinghood and to inform the bounds of in rem rights and duties. Unfortunately, property doctrines have fossilized around tangibility, causing fragmentation in the legal treatment of digital assets. In the United States, for example, cryptocurrencies and non-fungible tokens (NFTs) may simultaneously be classified as commodities, securities, currencies, assets, or not property at all, depending on the jurisdiction, domain, or specific asset in question. This fragmented system of overlapping legal treatments increases the information cost of using digital assets, decreases efficiency, and ultimately hinders future innovation.\nIn this Article, I propose a unified and tech-neutral approach to legal thinghood, providing a theoretically coherent and robust way to increase property law’s resilience in adapting to future technologies. Specifically, I deconstruct the conceptual purpose of tangibility in traditional doctrines of legal thinghood, uncovering its role as a technology (i.e., a tool) in property law to delineate rights. From this insight, I derive a coherent doctrinal test for distinguishing between digital assets that fulfill all conceptual requisites to be legal things and assets that do not. By doing so, I conclude that the traditional ontological categories of property law, such as choses in possession, are sufficiently robust to incorporate new and evolving digital assets. This tech-neutral approach paves the way toward an elegant and efficient legal treatment of digital assets and digital resource management in the twenty-first century.
Smart contracts are the back-end programs of blockchain-based applications and the execution results are deterministic and publicly visible. Developers are unwilling to release source code of some smart contracts to generate randomness or for security reasons, however, attackers still can use reverse engineering tools to decompile and analyze the code. In this paper, we propose EShield, an automated security enhancement tool for protecting smart contracts against reverse engineering. EShield replaces original instructions of operating jump addresses with anti-patterns to interfere with control flow recovery from bytecode. We have implemented four methods in EShield and conducted an experiment on over 20k smart contracts. The evaluation results show that all the protected smart contracts are resistant to three different reverse engineering tools with little extra gas cost.