HONG KONG SAR, CHINA Law and Practice Contributed by: Angus Forsyth, Angus Forsyth & Co.
ity, and “photograph” means a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film. Under Section 1 of the Copyright Ordinance, copy - right is a property right that subsists in (inter alia) artis - tic works. 8.2 Legal Protection for Different Types of Photographs The coverage in the Copyright Ordinance of “artistic works” extends to photographs, irrespective of artis - tic quality. In the case of an artistic work (including a photograph as defined), the duration of copyright is 50 years from the end of the calendar year in which the author dies. It is further provided in Section 72 of the Copyright Ordinance that it is not an infringement of copyright in an artistic work to copy it, nor to issue or make available copies to the public, for the purpose of advertising the sale of the work. 9. Artworks and New Technologies 9.1 NFTs A non-fungible token (NFT) can be defined as a unique, digital certificate that is stored on a blockchain. The non-fungibility of an NFT is found in its unique, inde - pendent, standalone and fixed value in contrast to the “fungibility” of assets of an interchangeable nature, such as dollar cash or bitcoin. The NFT provides cer - tain ownership rights in an asset of a typical digital character, such as a digital work of art. The NFT pro - vides a powerful tool to establish and demonstrate ownership rights in the digital asset, where it is often hard to demonstrate such rights given how quickly and easily digital works can be replicated. The NFT is generated under the terms of a “smart contract”, which is a contractual binder stored as computer code on a blockchain. The NFT includes the unique identifier, the blockchain wallet address of the current owner and an identifier of where the digital work of art associated with the NFT may be found. A blockchain transaction is fully transparent in that anyone can view an NFT and its underlying informa - tion, including the blockchain address of the current
owner and the blockchain address of each owner since the original creation of the NFT. The buyer of an NFT must already have a digital wallet in order to receive, access and transfer the NFT in question. This is because an NFT can be bought and sold like any other piece of property, but the purchase and sale are effected by transferring the NFT through a block - chain transaction from the seller to the purchaser. In this connection, it is very important to realise that the ownership of an NFT is simply the ownership of a vir - tual asset on the blockchain, but this ownership does not extend to any rights or other entitlement to the underlying asset, such as a painting or a book, with particular reference to the attachment of any copyright in the NFT asset. 9.2 Counterfeit NFTs The positioning of an NFT on the blockchain consoli - dates the authentic creation. This structure does not permit inauthentic or counterfeit entry into the block - chain. 10. Gifts, Donations, Trusts and Inheritance 10.1 Planning for Generational Transfer of Artworks There are two possible ways to move and transfer an artwork or art collection under sensible planning: • the artwork can be settled into a trust with reliable trustees to own and exploit the artwork for the purposes set out in the Trust Deed; or • the artwork can be bequeathed by a will made by the owner to such causes as the owner/testator may decide, whether personal or charitable. 10.2 Legal and Fiscal Issues in Artwork Succession The position in Hong Kong under the Intestates’ Estates Ordinance fixes the devolution of title upon intestacy to parties which the deceased intestate may not approve, but no amendment is possible.
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