[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