MEXICO Trends and Developments Contributed by: Victor Adames and Paola Becerril, Becerril, Coca & Becerril
Can NFTs Be Protected Under Copyright in Mexico? The emergence of blockchain technology and digital assets has significantly disrupted traditional notions of ownership, commercialisation, and intellectual prop - erty protection. Among these innovations, non-fungi - ble tokens (NFTs) have gained particular prominence as tools for representing and trading digital and digit - ised assets in online environments. Their rapid adop - tion – especially in relation to works of art, music, and other creative expressions – has raised important legal questions regarding the scope and limits of copyright protection in the digital ecosystem. Despite their growing economic relevance, NFTs oper - ate within a legal grey area, particularly in jurisdic - tions where no specific regulatory framework exists. In Mexico, while NFTs are not expressly regulated under current legislation, their interaction with copyrighted works necessarily triggers the application of the Federal Copyright Law (FCL). This article examines whether and to what extent NFTs may be protected – or restricted – under the Mexican copyright regime, clarifying the distinction between ownership of a token and ownership of the underlying work, and analysing the legal implications for authors, rights-holders, and purchasers of NFTs. What exactly is an NFT? It is code. A sequence of metadata that represents the virtual data of either a digital or a physical asset embedded in such a form in the online environment. The “non-fungible” part of NFT refers to its lack of interchangeability; in other words, it cannot be replaced with another item, even one that appears similar and to be of equivalent value. It is unique and irreplaceable. How NFTs work NFTs require for their operation blockchain technol - ogy. This latter is a digital accounting ledger which is completely shared and decentralised, and which records all transactions and assets. This technology ensures that transactions cannot be manipulated in secret as well as guaranteeing the integrity of the data transmitted and its transparency.
In online jargon, the process of generating an NFT in a blockchain is called “NFT minting”. The minting process gives an NFT its non-fungible essence, as this converts a digital file into a token (piece of data) and then inserts it into a blockchain. Why is copyright so important for NFTs? Unlike cryptocurrency tokens, which are fungible in much the same way as traditional fiat currency, NFTs’ value is not set in stone, and their appreciation relies on the type of information that is being digitised through them. The sense of scarcity, value and uniqueness of NFTs is often entirely reliant on copyrighted material. There are examples of high-value NFTs auctioned for millions of dollars that consist of the minting of works of art such as sculptures, paintings and songs. Characteristics of copyrights in relation to NFTs In general, copyright is the faculty given to authors of literary or artistic works, which represents a moral and economic right in their favour. Copyrights are a form of intellectual property. Likewise, NFTs represent non-material ownership for their title-holders, as the core protection of the metadata expressed in this form belongs to a single user, who is the only one holding the exclusive right to commercialise it. Both concepts – copyright and NFTs – originate in the immaterial realm. However, copyrights have a fully developed legal framework in the physical world, while NFTs are useful only in digital environments. Unlike copyrights, NFTs lack real-world legal existence and cannot be materialised in the way copyrights can. Copyrights are protected in favour of their authors once they have been fixed in a tangible medium of expression. This is what the Berne Convention estab - lishes as automatic protection; for example, a drawing made on a piece of paper or even through electron - ic means such as image-making software, ensures immediate protection and may be commercialised by its author through electronic or physical means. NFTs on the other hand, provide certainty regarding the ownership of a token in a blockchain, and this token can have embedded data that may represent copyrighted material; however, this latter situation will
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