Bibliographie sélective OHADA

Non-fungible tokens (NFTs) now attract personal property rights but continue to challenge existing copyright law. NFTs consist of a digital file, which is either linked to or embedded within a CryptoToken. Copyright in a digital file is, as information only, exploited via communication to the public and making available, whereas a protected work incorporated in a tangible object, i.e. a painting, is exploited via distribution. So, where does this leave protected work incorporated within an NFT, and in particular CryptoArt? What is the nature of a CryptoToken and how does this relate to the underlying digital art file? The landmark case Osbourne v Persons Unknown & Ors [2023] EWHC 340 (KB) confirmed that NFTs are personal property, but the nature of such property rights remains unclear. Drawing on empirical evidence, this paper advocates how copyright law should be interpreted so as to treat NFTs as tangible CryptoAssets, with protected work, whether linked or embedded within the NFT, as incorporated within the CryptoToken. This would equate CryptoArt NFTs to paintings, enabling the distribution of copyright and legitimising secondary markets, which are central to the value and purpose of such NFTs. This reflects the position in practice, is technologically neutral and allows for technological development. It would also provide legal clarity, bolster business confidence, and ensure consumer protection in a rapidly evolving digital landscape. This paper also critiques the Property (Digital Assets etc) Act 2025, arguing that the creation of a third category of ‘thing’ in terms of property rights adds further complexity and challenge from a copyright perspective.