NFT technology application and legal regulation

For a period of time, people from sports art circles, collection circles, games and entertainment circles have joined the NFT industry. Music artists released songs and albums in the form of NFTs; Rolling Stone, Time Magazine, and Snowden all announced the launch of NFTs; a digital composite work created by a digital artist named Beeple, Mike Winkelmann, sold for $69.3 million at Christie’s auction The price shocked the entire art world. eBay will allow NFTs to sell digital collectibles on its platform, becoming the first e-commerce company to set foot in the NFT field.

The industry, investment community and regulatory agencies are closely watching this boom. What exactly is an NFT application, what problems it solves, and what problems exist? What is the difference between NFT and other digital cryptocurrencies? What kind of legal logic does its issuance transaction need to comply with and how should it be regulated? We start with the experience of popular application services and summarize its product features to further analyze the legal nature of NFT products and the relevant regulatory ideas of the NFT industry.

In this article, NFT (Non Fungible Token) refers to different quality tokens. NFT products are specific digital products formed by combining NFTs. The NFT industry is related to NFT products such as NFT platforms. NFT applications generally refer to NFT in specific Applications in scenarios, products, and industries.

It needs to be emphasized that the legal thinking on the development of NFT applications, the practice and exploration of NFT products and industrial laws and regulations have just begun. What we are giving here is a framework. On the one hand, it is to more accurately understand the legal nature of NFT applications and the regulatory ideas based on this. On the other hand, we hope to use this framework to inspire people to apply legal characteristics and regulatory ideas to NFTs. We will jointly explore the compliance operation of NFT application development, because this is the foundation and key of NFT technology application and industrial development.

1. The NFT application provides a new service experience

Let’s first look at the more successful NFT applications nowadays. Without exception, these applications are based on the form of digital products; they optimize a certain experience; some of their content and value are directly related to off-chain, and some are purely on-chain digital products. There may be more successful applications and more good experiences in the future, which may require us to continue to summarize and explore.

(1) NBA TOP SHOT

NBA TOP SHOT is an NBA player collection card platform blockchain application established on the Flow blockchain by the National Basketball Association (National Basketball Association) and Dapper Labs. This card will make a player’s life exciting Moments such as three-pointers, slam dunks, assists, and other short videos are accompanied by unique NFT products that include match information, rarity, recent sales records and other information for players to buy, sell, and display. NBA TOP SHOT divides them into several categories based on their rarity: “common”, “rare” and “legendary”.

Probably because the American NBA star card has a market foundation, the NBA TOP SHOT product is very popular after its launch, and it ranks among the best in the total sales of the NFT field. Five months after the launch of the public beta, it has more than 800,000 registered accounts, processed more than 3 million transactions, and reached sales of US$460 million in the secondary market. On February 23, 2021, LeBron James’s “Legend Moment” in the Cosmic Series 1 Set sold for $208,000, which is the highest purchase price for NBA TOP SHOT collections so far.

What role does NBA TOP SHOT play in optimizing the card trading experience? In the past physical cards, the NBA may charge royalties when the card is sold for the first time, but it will not increase the revenue from the second transaction. Through the characteristics of ownership, programmability, uniqueness, and scarcity determined by NBA TOP SHOT, the NBA and the Players Association can obtain commissions in both the first transaction and the second transaction. The specific implementation is that Dapper Labs will take a 5% fee in each transaction, and these proceeds will be distributed to the NBA and the National Basketball Players Association. According to official website data, to date, Dapper Labs has contributed $49 million to the NBA and the Players Association.

NBA TOP SHOT has completely changed the traditional fan economy and re-established the connection with fans. It not only brings economic value to ordinary fans, but also reflects fan loyalty and participation. In the past more than 3 million transactions, 1 million transactions have a transaction value of between 10 and 50 US dollars; in addition, 90% of NFT transaction prices reaching six figures are not resold but used for collection.

(Two) Sorare

Sorare is a global fantasy football game released in 2019 based on the ERC721 agreement, allowing users to use digital player cards to buy, sell and manage virtual football teams. To become Sorare’s football manager, users must first register their team and apply for 10 regular player cards. Then you can form a starting lineup of 5 people and earn points based on the players’ performance in the actual football game. Users can also participate in various competitions and get ETH rewards. Sorare has obtained official licenses from teams such as Real Madrid, Bayern Munich, Liverpool, etc., and is therefore widely welcomed.

What convenience does Sorare bring to players? Sorare card owners can verify the scarcity and ownership of their cards and can transfer them freely. Each player card displays several attributes, such as rarity, average score, and experience value. The player cards in Sorare include three types of scarcity: rare, super rare and unique. Each player card has a unique version, 10 super rare copies and 100 rare copies.

(Three) SuperRare

SuperRare single-version digital artwork market. SuperRare is a digital art market founded by John Crain in 2017 based on the ERC721 agreement, where artists can convert their real single-page artworks into collectible digital works. SuperRare’s historical trading volume and digital products traded have made it a major art NFT platform.

What convenience does SuperRare bring to artists? Artists can issue authenticated digital art works on SuperRare and be authenticated on the Ethereum blockchain to prevent forgery and provide historical sources. Artists can use virtual reality galleries and digital displays to display their works in SuperRare. On the other hand, art collectors can buy art on SuperRare, and then resell NFT on secondary markets such as OpenSea. All transactions on SuperRare are conducted through ETH, and buyers need to pay 3% for all purchases. transaction fee. Similar to traditional art museums, SuperRare also collects commissions from artists. For a sale, the artist receives 85% of the income, while SuperRare retains 15%. For the second sale, the artist will receive a 10% royalty. SuperRare describes itself as a combination of Instagram and Christie’s.

(4) CryptoKitties

CryptoKitties is the first NFT mainstream application. CryptoKitties is a game based on the Ethereum ERC721 protocol that allows users to collect and breed virtual cats. Each Token represents the only digital cat on the blockchain. These digital cats are different in appearance and features and cannot be copied, destroyed or taken away. CryptoKitties is the first NFT protocol to attract mainstream attention at the end of 2017. Since users can breed rare digital cats and resell new kitty for profit, the game has attracted great attention. Although the “prime time” of CryptoKitties has passed, the game still established its iconic status as the NFT field.

CryptoKitties brings players an unprecedented user experience. To start breeding digital cats, users need to deposit ETH in the game’s official wallet Dapper. There are two ways to breed new kittens: breed two of your own kittens or breed with your father-in-law (the father). Users can get their first kitten by buying goods in the market or bidding for kittens in the game’s “discount” system. Experienced CryptoKitties players are committed to collecting as many valuable digital cats as possible. The value of each kitten depends on its rarity. “Generation 0” is the rarest kitten, with a fixed supply of 50,000. This makes Gen 0 kittens scarce, and their value increases over time. In addition, kittens with low ID numbers are also regarded as rare kittens, including Exclusive cats or Founder cats, both of which can be traded at higher prices on the CryptoKitties market.

(5) CryptoPunks

CryptoPunks. CryptoPunks is one of the earliest NFTs, consisting of 10,000 unique characters or “punks”. Each punk is owned by one person, and the ownership is recorded on the Ethereum blockchain. These punks were provided for free during the initial release, and they were quickly claimed and traded on the market. Owned by more than 333,000 collectors. Users can buy and sell punk in markets such as OpenSea by installing the MetaMask Ethereum wallet. NFT data provider Cryptoslam revealed that CryptoPunks ranked 16th in the top 18 crypto collectibles sales, while CryptoPunk 7804 set the highest collectible price so far with a price of 4,200 ETH ($7.8 million at the time of purchase).

The experience that CryptoPunks brings is also unprecedented. The rarity of punk is based on its type, attributes and accessories. For example, males and females are the most common types of punk, while there are only nine types of alien punk. In addition, each punk has unique accessories, such as hats, glasses, etc. The value of each punk also depends on the number of accessories it has. Usually, two or three accessories are the most common, while the rarest punk has zero or seven accessories.

(6) Rarible

Rarible is a market for digital collectibles. Rarible is an NFT market created by Alexander Salnikov and Alexei Falin in January 2020. Due to its governance token RARI, Rarible has gained widespread popularity in the crypto community. Although the recent hype about governance tokens originated in the DeFi field, Rarible was the first NFT protocol to issue its own governance token. The launch of RARI is the first step towards the ultimate goal of Rarible: the creation of a decentralized autonomous organization for Rarible. As holders of RARI, users can submit system upgrade proposals and vote on them, including decisions on Rarible transaction fees and new features.

Rarible can provide new services for content creators and artists to distribute their own works. Rarible allows users to forge, buy and sell its rare digital collectibles and products, including digital art, domain names, DeFi insurance policies, memes and metaverse. The casting of digital collectibles in Rarible is relatively simple. Users can first upload the collection in any supported digital form (graphics, audio, etc.), and then add descriptions and pricing details. After that, users need to connect with their Ethereum wallet to approve the minting transaction. The NFT casting function attracts content creators and artists, who can publish trailers of their content, and can only provide users with the full version after purchasing the relevant NFT.

(7) Ethereum Name Services

Ethereum Name Services (ENS) is the leading domain name NFT. The Ethereum Name Service was established by the Ethereum Foundation in May 2017. It is a distributed and scalable naming system based on the Ethereum blockchain. The agreement has more than 190,000 registered names and has integrated more than 100 wallets and decentralized applications to date.

NFT provides a decentralized domain name transaction service. The local TLD (ie top-level domain) is “.ETH” on the ENS. These “.ETH” domain names are unique and irreplaceable. They are represented by ERC-721-compliant NFTs, and can be purchased and traded on NFT markets such as OpenSea and Rarible. They can be seamlessly inserted into the NFT market and wallet interface to enhance Integration of NFT and DeFi. According to OpenSea data, the Ethereum name service is the leading NFT in this field, with a historical transaction volume of more than 7,119 ETH ($12 million) and more than 31,000 owners.

2. NFT application service experience comes from the unique technical application characteristics of NFT products

Technically speaking, NFT (Non-Fungible Token) is a heterogeneous (or non-homogeneous) token, which is issued based on the blockchain NFT technology protocol such as Ethereum’s ERC721 protocol and ERC1155 protocol. Token of a specific ID, the ID can be attached with corresponding metadata. Since these metadata can point to a specific online or offline digital product, NFT can be used to represent a specific digital product, so it is called NFT digital product at this time , NFT products. In contrast, FT (Fungible Token) is a homogenized token. It is generally believed that FT is not associated with a specific digital product, and is usually used to represent a certain kind of equity certificate.

(1) Based on blockchain issuance, making digital products open, transparent and verifiable

NFT is issued based on the blockchain technology agreement. NFT is issued based on the blockchain network, and can represent the collections of the digital age and other specific digital products due to its distributed accounting, non-copyable, programmable, indivisible, irreplaceable, uniqueness and scarcity characteristics. The value of NFT is based on the verifiable digital ownership certificate of the blockchain, which can realize the value flow of different ecology.

(2) Based on the specificization of information, make digital products right, scarce, and unique

NFT can specialize information into digital products. An NFT with a specific ID can attach metadata, and the metadata can point to a specific digital product, which does not need to be anchored to a specific offline physical product. Developers can program the contract code on the chain to keep specific attributes from changing over time. Metadata is especially important for artwork or game props, because the value of artwork depends to a large extent on the provable scarcity of the original work.

NFT can provide proof of the owner of the digital product. NFT provides users with ownership and license management. NFT specializes digital products and clarifies the owner’s address, and can program and design product attributes to achieve interactive operations between different programs. Based on this, NFT can become a unique and tradable unique digital product with a clear owner, rich information, exclusive property. It can be said that the NFT technology agreement has become a tool to confirm the rights of digital products.

NFT can increase transaction value because it can confirm ownership. With NFT, the way to own digital media assets is exactly the same as the way to own digital financial assets. The tradable value of NFT ownership is reflected in its transferability. It can be resold to almost anyone in the world, which means it has a wider pool of potential buyers.

NFT can confirm the uniqueness and provability of digital products. Once a work is generated NFT and recorded on the blockchain, it is unique and cannot be copied. And based on the transparency of blockchain technology, people can also verify the authenticity of the NFT at any time. Although we can also view “Stealing Horse” on the Internet, it is not the same as owning it. Just like Bitcoin, although you may not need a real physical coin to “prove” the existence of Bitcoin, you need at least a wallet that can store Bitcoin so that you can “prove” your ownership of the assets you hold.

NFT can confirm the scarcity of digital products. Many NFTs are unique or limited, and even the creators themselves cannot copy them. Like the digital basketball card of NBA TOP SHOT, many fans hope to cherish such a card that cannot be tampered with and will not be damaged. The high sales of NBA TOP SHOT also proves that the scarcity value of NFT based on strong IP issuance is recognized.

(3) Based on programmable and designable, digital products are given value

NFT can program and design the attributes of digital products. Based on the specific data information and equity characteristics in the application scenarios of NFT, NFT can design more complex mechanisms through smart contracts, including forging, production process, exchange/redemption, random generation, etc. A very interesting example is that CryptoKitties integrates the reproduction mechanism directly into the CryptoKitties contract.

NFT can grant rights related to digital products. Some NFTs use physical items and personal rewards to increase the attractiveness of NFT transactions. Luka Garza, a top American college student basketball player, launched an NFT shortly after finishing his NCAA basketball career. It comes with a series of physical rewards: Garza broke the University of Iowa scoring record in the game on February 22. Autographed sneakers worn by him at the time; private meditation with Garza; dinner with Garza, watching movies, and playing games with Garza; and a lifetime VIP pass for any basketball training camp held by Garza.

NFT digital products are subjective. The different qualities of NFTs come from their different metadata, but these differences may be ignored due to subjective transaction requirements, which also conforms to the logic that value comes from consensus. From a purely technical point of view, the data of every FT including Bitcoin is not completely consistent, but this inconsistency has no effect on transaction demand.

(4) Based on new digital products, it brings a brand new experience

The above-mentioned digital product application based on NFT technology brings a brand new experience to users. NFT transaction cards are usually the most common application carrier for NFT products. They can be created based on different blockchain networks, and their metadata, such as images, can be stored, viewed, and transmitted through wallets that support NFT. NFT transaction cards can be given immutability and public verification of ownership, and exist based on the blockchain. Many platforms provide NFT creation, purchase and sale services. For example, some of the largest trading platforms currently include OpenSea, SuperRare, etc. Based on specific basic information, usage information, and transaction information similar to NFT transaction cards, NFT products can realize cross-ecological value flow and meet the transaction needs of different participants.

We believe that the development process of the digital economy is a process of industrial digitization, digital industrialization, and governance digitization. This is accompanied by asset digitization, digital assetization, as well as commodity digitization, financial digitization, and currency digitization. Judging from the current regulatory frameworks of various countries in the world, cryptocurrencies generally have several characteristics: currency attributes, commodity attributes, and securities attributes. These attributes are reflected in different types of cryptocurrencies, and sometimes even in different development stages of the same cryptocurrency. And in different application scenarios. Yao Qian, the first director of the Digital Currency Research Institute of the People’s Bank of China, pointed out that in the future, digital assets are assets with full information and data, and their basic assets and financial asset attributes are gradually merged into one, and they are gradually no longer like traditional financial assets and foundations. Fragmentation of assets. NFT products are mainly digital products and digital commodities, but they also have good circulation. To a certain extent, the application of NFT reflects the beneficial exploration of industry digitization and commodity digitization.

3. Comparative analysis of the legal nature of NFT products

Based on the above analysis, it can be seen that NFT products are issued based on the blockchain network, due to its distributed accounting, non-copyable, programmable, non-divisible, irreplaceable, unique and scarce collections in the digital age. Products or other types of specific digital products. Compared with other tokens, NFT has many unique attributes. In order to better understand the specific connotation of NFT, we might as well compare NFT and NFT products with related concepts. Through these framework comparisons, we may find that the basic characteristics and attributes of NFT products may be reflected in many different rights or products, but it is difficult to completely categorize them into a particular type of traditional rights or rights, or even to a certain extent. It is also difficult to completely fall into the traditional framework of existing legal attributes to regulate.

NFT and FT. NFT stands for Non Fungible Token non-qualified tokens, and FT stands for Fungible Token homogenized tokens. Compared with FT, the Token generated by NFT has a unique ID and has specific metadata attached, while FT usually does not have a unique ID and metadata and is only used as an accounting symbol. If every bitcoin has its own transaction history, for example, the bitcoin comes from the genesis block, and if the trader cherishes this particularity, then the bitcoin can also be regarded as an NFT. But ordinary traders don’t care about this, so Bitcoin is generally regarded as FT.

NFT products and currencies. Modern countries including China generally require legal tender to be used to pay all public and private debts within their borders. Because NFT is issued based on the blockchain, in practice, it is generally traded through the homogenous token FT based on the same blockchain. For example, most NFTs developed on the Ethereum network are traded through ETH. There are also some NFTs issued based on the alliance chain that support transactions through legal currency.

NFT products and securities. Securities is a collective term for a variety of economic rights and interests certificates, and also refers to specialized types of products. It is a legal certificate used to prove that the holders of coupons enjoy a certain specific rights and interests. Securities mainly include capital securities, currency securities and commodity securities. Securities in the narrow sense mainly refer to securities products in the securities market, including property market products such as stocks, debt market products such as bonds, and derivative market products such as stock futures, options, and interest rate futures. Generally, when we refer to securities, we usually refer to securities products in the securities market in a narrow sense. Securities are essentially financial products. All countries have strict regulations on what securities are and how to judge securities. The application and development of blockchain technology poses a challenge to the securities supervision of countries around the world. The US SEC currently believes that Bitcoin and Ethereum are not considered securities due to their relatively high degree of decentralization.

According to the newly revised “Securities Law of the People’s Republic of China” in 2019, within the territory of the People’s Republic of China, the issuance and trading of stocks, corporate bonds, depositary receipts and other securities recognized by the State Council according to law; the listing of government bonds and securities investment fund shares The regulations governing transactions, as well as the issuance and trading of asset-backed securities and asset management products, shall be formulated by the State Council in accordance with the principles of this Law.

According to the characteristics of specific digital products possessed by NFT, it belongs to securities in a broad sense, that is, it represents a specific commodity, and does not belong to a securities certificate with a certain future income cash flow.

NFT products and commodities. NFT is issued based on the blockchain, which is unique and non-copyable, and can be directed to the owner. It is very suitable for making game props, digital art, tickets, etc. into NFT products. Therefore, NFT is a blockchain tool for digital products or digital commodities. Although NFT can anchor product data information outside the network, it is mainly a digital product. As more and more physical goods are digitized, the application space of NFT may become larger and larger.

NFT products and digital assets. Regarding the specific connotation of digital assets, it has been repeatedly discussed since the development of blockchain technology, but there is still no consensus. There is a view that “digital assets are programmable control assets in the form of electronic data.” There is also a view that “when digital resources are released to the network through the blockchain, they will be confirmed, and the digital resources will become trusted digital assets on the blockchain, which can be used for circulation and transactions.” Yao Qian, the first director of the Digital Currency Research Institute of the People’s Bank of China, believes that “digital assets in the true sense should be native assets that contain full information and are displayed and circulated in digital form.”

NFT products have all the attributes of digital assets. Digital assets are designable and programmable assets that exist in digital form, including the digitization of traditional assets and the new programmable digital assets, and these two characteristics are intertwined. Generally speaking, there are two types. One is the digitization of traditional physical assets and equity assets. Physical or equity assets such as property rights, equity, debt, other property rights, and copyrights may gradually become digital assets. The second is programmable digital assets. With the in-depth development and integration of industrialization and financial innovation, the industrial products of uniform specifications produced in the industrial era can no longer meet the needs. People hope to obtain more personalized services suitable for themselves and digital assets that are digitally designed and programmable.

Based on the independence, interoperability, openness and transparency of blockchain information confirmation, as well as the characteristics of specific data information, NFT products provide an operation method for digital product confirmation. Since the development of the Internet, various digital assets have been traded and consumed through the Internet, including some irreplaceable digital assets such as domain names, event tickets, in-game items, and even comments, likes, and reposts on social networks such as Twitter or Facebook. Both will likely become NFT products.

NFT products and claims. Creditor’s rights (creditor’s rights) refer to the rights that the subject of rights possesses in the debt relationship that can require the subject of obligation to perform a certain behavior or not. The NFT can refer to specific owners and specific digital products, and does not constitute two The legal rights and interests relationship between the entities is a kind of rights to possess, dominate and dispose of in the legal sense, so what NFT holders have is not creditor’s rights.

NFT products and intellectual property rights. At present, most NFT products only provide proof of the owner, and what is being traded is the ownership of the “original” of the work. Famous NFT platforms including SuperRare have made it clear that the NFT traded does not include the intellectual property rights related to the work. However, in theory, under technically supportable conditions, the programmable and designable features of the contract can be used to realize intellectual property transactions through NFT, such as technical means to limit the playback time, playback mode, playback environment, and even playback objects.

How do NFT products protect copyright? Due to the lack of clear legal constraints, NFT’s existing technology cannot completely guarantee that the creator’s copyright is respected. For example, no one can prevent the first-hand seller from placing the same NFT on different blockchains for repeated sales. On the other hand, although the NFT technology can guarantee that no one can copy or transfer the NFT without the holder’s permission, it cannot control who is the first person to make a work into an NFT. For example, Swedish illustrator Simon Stålenhag, who has not published NFT works himself, nor authorized anyone, but found that one of his works has become a “MarbleCard” (a kind of NFT). The current NFT is extremely lack of supervision, which makes creators feel that their copyright is not being respected.

Under the conditions of decentralization, the rights and interests of copyright owners face new challenges. One of the ways that blockchain solves copyright issues is to operate collective rights management based on the community-based operation characteristics of blockchain. The use of collective management organizations (CMOs) by individual copyright owners may have problems such as lack of transparency, time lag in payment of royalties/authorizations, abuse of monopoly status, and inefficiency. However, the use of such individual copyright rights in NFT digital products It is possible to fix and trade in form.

NFT products and data rights. As a digital product, NFT’s own attributes and value are also established and described based on data, including its ID is issued through a contract, and its metadata storage also has important data rights. Regardless of whether the metadata is stored on the creator’s own server or hosted on a decentralized storage system, the technical means must pay special attention to the protection of the mapping relationship between NFT ID and metadata, and between metadata and specific products that exist. This is directly related to NFT. Use and transaction of products.

NFT products and virtual property rights. Article 127 of the Civil Code of my country stipulates: “Where the law has provisions on the protection of data and network virtual property, follow those provisions.” The Law Commission of the National People’s Congress previously stated that when interpreting this provision of the General Principles of the Indigenous Civil Law, the Civil Law The General Provisions need to provide for new types of civil rights objects such as data and network virtual property. However, in view of the complexity of data and network virtual property, limited to the chapter structure of the General Principles of Civil Law, how to define data and network virtual property, and how to specify the right attributes and content of data and network virtual property are difficult and controversial.

Although there are certain disputes on the concept of virtual property, the current consensus view is that the game props as virtual property are the carriers of the content of the online game service contract, but they have a certain degree of protection under the control of the players. Considering the nature and characteristics of NFT products, NFT product holders have strong control and control over NFT products, and the fact that NFT products are virtual property that should be protected by law is undisputed.

NFT products and property rights. In a nutshell, the property rights of NFT products include the following features. One is that it can be designed based on the content of its rights, which can realize the expansion of the use of digital assets; the other is that it is based on decentralized and distributed accounting, and it is impossible to achieve transaction records. Tampering; The third is based on decentralized smart contracts to achieve verifiability and automatic execution.

Unlike FT, NFT can easily issue tokens with specific numbers, and at the same time add descriptive metadata to the tokens. Developers can enforce it programmatically, and can only create a specific number of specific rare items. They can also enforce specific attributes not to change over time by encoding on the chain to maintain the stability and permanence of digital item attributes. Based on the above characteristics, NFT enables digital assets to obtain rights similar to property rights.

In essence, the use of NFT is still the use and consumption of objects related to its specific digital content, and because of its digital form, it has expanded the connotation of “things”. NFT products are likely to specify property rights that are difficult to specify under the original conditions of non-digital assets, or property rights that can be specified but costly, so that the connotation of assets is greatly enriched and the convenience of transactions is greatly improved. For NFT, its target is to directly point to a certain digital product, regardless of whether the product is online or offline, a programming language that can be designed and customized by humans and can be conveniently executed.

As far as the legal protection of NFT products is concerned, before a new type of right is created for protection, only the protection of property rights is the most suitable for its rights. Judging from the existing legal system of property rights, in addition to property rights, claims, intellectual property rights, inheritance rights, equity and other investment rights, as well as the legal protection of data and virtual property, cannot be targeted and effective for digital assets. Protection, because other property rights except property rights are special provisions based on the specific circumstances of the possession, use, disposal, and income of property rights; while NFT is a non-traditional form in a sense That is, things with unnatural attributes, but a kind of socialized form. This kind of socialization is embodied in the design and programmable, intelligent transaction execution and so on.

NFT products and cultural products. To apply for commercial Internet cultural activities, an application shall be submitted to the cultural administration department of the people’s government of the province, autonomous region, or municipality directly under the Central Government where it is located, and the cultural administration department of the people’s government of the province, autonomous region, or municipality directly under the Central Government shall review and approve it. Internet cultural products refer to cultural products produced, disseminated and circulated through the Internet, mainly including: (1) Online music entertainment, online games, online performance dramas (programs), online performances, online art, Internet cultural products such as network animation; (2) Cultural products such as music entertainment, games, performances (programs), performances, works of art, animation, etc., are produced and copied to the Internet and spread on the Internet by certain technical means.

Activities to provide Internet cultural products and services mainly include: (1) Activities such as the production, copying, import, distribution, and broadcasting of Internet cultural products; (2) The publication of cultural products on the Internet, or through the Internet or mobile communication networks Information networks such as those sent to users such as computers, fixed telephones, mobile phones, televisions, game consoles, and Internet cafes and other Internet service business places for users to browse, appreciate, use or download online communication behavior; (3) Internet Cultural product exhibitions, competitions and other activities.

Therefore, although NFT itself does not belong to the creation of Internet cultural products, it only provides a blockchain-based technical device for the product to indicate the owner and specific content, but if it is to be consumed and traded, it belongs to the framework of the regulations. Products should comply with relevant regulations and obtain relevant qualifications and permits.

Fourth, the legal regulation of NFT industry and platform related issues

So what issues should we pay attention to in NFT products and industrial applications, and how to carry out legal regulations? Let’s analyze it. On the one hand, we closely follow the market demand and application characteristics. On the other hand, we rationally and objectively face some new risks and challenges in the development of the NFT industry, and provide some prudent legal regulatory suggestions through these holistic and framework thinking. Of course These suggestions need to be continuously improved and mature in combination with practice to form a new development model and regulatory model.

(1) Basic issues of NFT industry application

NFT and industrial applications. NFT industry refers to related industries that provide services such as the issuance, transaction and use of NFT digital products. The development process of the digital economy is also a process of digital assetization, asset digitization and governance digitization. NFT is a useful exploration of asset digitization. We have already seen the combination of NFT with art, game props, content production, domain names and other fields. In the future, the combination of NFT with other industries may become a trend.

There are many factors that affect the application of NFT industry. One is the issue of technical standards. The technical standards of NFT are not rich enough. At present, the product attributes of applications that can be achieved through access control, transmission, and combination with applications are relatively simple, and there are relatively few wallets that support applications, which may limit the application of NFT. The second is the storage problem. From a technical point of view, the storage problem of NFT metadata has not been completely solved effectively. Currently limited by the storage capacity of the blockchain itself, only a small amount of NFT metadata is stored on the blockchain, and the others are generally stored in the NFT issuer’s own server and stored in a decentralized form, such as with the help of the Interplanetary File System IPFS. Storage needs to be perfected. The third is the issue of diversification of rights and interests. NFT is currently more important to solve the problem of the proof of rights of the owners of digital works, but how to realize the technical protection of other rights and interests, including intellectual property rights, may require further exploration.四是产业数字化程度问题。很多产业的信息化数字化程度还不高，发行NFT需要的基础设施不够，会造成应用阻塞。五是防范相关的非法活动问题。一些害群之马会利用NFT进行非法融资、诈骗等活动，而这需要更高的识别成本，也会影响NFT产业的正常发展。

（二）NFT平台相关问题

NFT平台应是一个商品交易信息聚合平台。基于NFT的数字产品性质，首先要明确，平台不是作为NFT交易经纪人，也不是作为金融机构、信贷机构、担保机构，公司平台提供的服务仅限于促进买方与卖方之间的交易，本身并不构成关于买方与卖方的加密货币资产或用户之间的任何协议，只是作为一个信息聚合平台。同时可能会提供一个服务于用户的NFT铸造服务，即使智能合约应用的过程更加通俗简易。

作为网站运营者需要办理ICP备案。域名备案是网站备案手续，无经营性与非经营性之分，只要是在国内运行的网站就必须办理备案。ICP备案可由网站所在的服务器托管商完成，托管商将相关数据提交到运营者服务器所在地通信管理局，通信管理局审核通过，将数据传给工业和信息化部，工业和信息化部核发备案号。

作为互联网信息服务者需要办理ICP许可证（互联网信息服务业务经营许可证）。ICP许可证由各地通信管理部门核发。经营性ICP经营的内容主要是网上广告、代制作网页、APP网站、有偿信息平台网站、游戏网站等。国家对经营性ICP实行许可证制度。经营者必须办理ICP许可证。ICP许可证是网站经营的许可证，根据国家《互联网管理办法》规定，经营性网站必须办理ICP许可证，否则就属于非法经营。

作为电子商务平台办理市场主体登记。电子商务平台经营者，是指在电子商务中为交易双方或者多方提供网络经营场所、交易撮合、信息发布等服务，供交易双方或者多方独立开展交易活动的法人或者非法人组织。这一定义涉及到了交易的各个环节，包括交易撮合、信息发布等。因此发行平台即使仅仅作为一个信息发布和聚合的平台，也有一定程度的可能被认定为平台经营者。平台经营者需要落实主体审核和信息公示义务，特别是平台经营者对平台内经营者主体身份和经营许可信息的入驻核验和定期更新义务。平台协议规则中有关进入退出平台服务、商品服务质量保障、促销规则、消费者权益保障、消费者信息保护等规定需要重点注意。平台经营者还需要履行商品和服务信息、交易信息保存义务。平台需要列明禁限售商品信息清单和禁限售商品信息。

作为经营性互联网文化活动平台，应当向所在地省级政府文化行政部门申请审核批准。虽然NFT本身并不主要是互联网文化产品的创作，只是为该产品提供一个基于区块链的技术装置，用于表明所有者与特定内容，但是如果要进行消费和交易，属于该规定框架下的产品应该要遵守相应的规定，取得相关资质和许可。

作为网络拍卖平台，应当向省级政府商务主管部门申请拍卖行政许可。如涉及文物拍卖需要另行取得省级政府文物行政主管部门许可。根据商务部推荐性国家标准《网络拍卖规程》，设立网络拍卖平台,应满足以下基本要求，一是有符合拍卖法等相关法律、法规、规章的规则；二是有保障网络拍卖业务正常开展的计算机信息系统,功能可包括:发布公告,拍卖标的网上展示,网络竞价,记录竞价过程,生成电子成交确认书,网上结算服务,网络与现场同步拍卖；三是有开展网络拍卖活动的业务流程,可包括:用户注册,拍卖主体资格审核,公告发布,拍卖标的网上展示,竞买登记,网络竞价及成交确认,网上结算,资料存档；四是有与所从事的网络拍卖业务和规模相配套的服务器、网络设施、技术人员、拍卖专业人员和资金；五是根据《互联网信息服务管理办法》,按照平台性质取得许可或备案。由于“荷兰式拍卖”、“英式拍卖”属于拍卖具体规则，在拍卖活动前公开即可。

作为区块链应用平台，需要向国家网信办申请办理区块链信息服务备案登记。区块链信息服务提供者应当在提供服务之日起十个工作日内通过国家互联网信息办公室区块链信息服务备案管理系统填报服务提供者的名称、服务类别、服务形式、应用领域、服务器地址等信息，履行备案手续。最高人民法院建设的司法区块链应用平台和中国人民银行建设的粤港澳大湾区贸易金融区块链平台，都是为企业提供相关服务的区块链平台。

NFT平台是否属于国务院建立的清理整顿各类交易场所部际联席会议制度清理整顿的对象？根据国务院于2012年发布的关于清理整顿各类交易场所切实防范金融风险的决定、同意建立清理整顿各类交易场所部际联席会议制度的批复来看，该部际联席会议的任务是“统筹协调有关部门和省级人民政府清理整顿违法证券期货交易工作，督导建立对各类交易场所和交易产品的规范管理制度，完成国务院交办的其他事项。”国务院办公厅根据国务院的决定发布的实施意见中明确“本次清理整顿的范围包括从事权益类交易、大宗商品中远期交易以及其他标准化合约交易的各类交易场所，包括名称中未使用“交易所”字样的交易场所，但仅从事车辆、房地产等实物交易的交易场所除外。”因此NFT平台进行的是数字产品交易，并非属于权益类交易、大宗商品中远期交易和其他标准化合约交易。

平台的其他相关义务。根据平台涉及的具体业务，平台同时要保证用户的隐私，提示区块链技术应用本身的风险，以及避免平台交易被用于洗钱等非法活动，厘清与版权保护的关系，以及说明争议解决办法等。如平台本身并不保有用户资产，例如资产都在链上、第三方服务器或去中心化存储系统中，也不保有用户资金，用户资金都在自己的基于区块链的钱包中，那么平台此类业务不具有金融属性和专业管理属性。

NFT与联盟链。部分具有运行智能合约功能的联盟链，通过公信力节点共建等方式取得广泛共识，具备在链上发行NFT的技术基础，这是利用区块链技术积极创新应用场景的体现。

平台NFT铸造服务。平台使任何人都可以更轻松地铸造NFT而无需具有部署智能合约的开发技能。微软（Microsoft）发行了Azure英雄（Azure Heroes）徽章，供Azure生态系统贡献者使用。商务部、财政部在2017年提出“大力支持供应链核心企业追溯系统创新升级。重点推进二维码、无线射频识别（RFID)、视频识别、区块链、GS1、对象标识符（OID）、电子结算和第三方支付等应用，推动追溯系统创新升级；推动大中型批发市场及大型商超、物流企业等开展信息化改造，鼓励商超利用GS1进行结算实现追溯功能，将产品追溯融入现有ERP系统，实现企业信息系统与追溯系统的对接；鼓励供应链核心企业线上线下融合发展，形成全渠道整合、线上线下无缝衔接的追溯网络。”发布相关数字产品在一定场景下使用，既是一种溯源应用，也属于不同质区块链积分的创新应用。如不涉及融资的特性，不存在欺诈以及其元数据能够保持功能稳定，应不具有金融属性，不存在实质性法律障碍。

平台用户数字钱包。中国人民银行早在2001年就在相关规定中明确，在不透支的情况下，现金卡可用作电子存折和电子钱包。国家发改委在2008年出台规定鼓励基础条件较好的电信运营商或内容服务提供商，广泛应用手机、个人数字助理和掌上电脑等智能移动终端，发展移动电子商务服务。一方面，在公共事业、交通旅游、就业家政、休闲娱乐、市场商情等领域，以手机钱包为基础，开展小额支付与结算服务；另一方面，利用手机的移动性及二维条码、RFID、各类智能识别技术成果，基于移动自动身份识别、信息交换、即时交易、货物发运与接收、移动支付等技术与系统，开展形式多样的自动交易服务。

深圳市人民政府在2018年有关加快发展战略性新兴产业的文件中提出，加快设立金融科技研究机构，突破数字货币钱包、智能合约验证及管理、金融大数据智能分析等关键技术，围绕区块链、智慧金融、金融风险管理等重点方向，加强金融科技创新应用，积极探索新技术应用场景，建设世界领先的金融科技中心。

无论是联盟链还是公链，只要有一定去中心化特性的底层基础链，能够运行智能合约，那么基于区块链和智能合约上产生的区块链资产，不管是UXTO或账户模式，我们可以用钱包来管理。由于本身并不存在融资特性，且如能保证其元数据存储功能稳定，且不存在欺诈，我们认为不存在实质性法律障碍。

NFT平台与可行性经营、非法经营。关于技术可靠性监管，区块链应用技术性比较强，并且传播性强涉及面广，对其产品应该具有一定的可靠性要求。比如中国网络安全法对有关网络产品和服务应该符合国家强制性标准要求，都属于这类关切。从项目运营角度来看，一是防范交易风险、数据作假、价格操纵、内幕交易以及技术风险；二是项目推广，是否侵害投资者权益，如是否涉嫌传销；三是项目宣传，对业务能力、功能等不能夸大宣传，以不切实际的口号发布消息。

NFT平台与税务。区块链NFT发行交易也应当遵守税法，并且与税务部门合作，使消费者更容易计算税金，避免负担。建议将结算与计账分开，履行税务相关义务。

NFT平台与信息保护及数据安全。和监管合作，优先考虑隐私和保护消费者。不应收集用户或分享用户信息或财务数据，除非是为了防止欺诈或犯罪活动。在数据隐私方面，任何添加到区块链上的数据都将受到整个系统一致的控制。我国审议中的个人信息保护法草案、数据安全法草案规定包括控制者问责制和数据最小化、数据主体控制、数据可移植权、设计的数据保护。个人信息保护法草案要求控制器负责确保遵守所有隐私原则，如合法性、公平性和透明度、目的限制、数据最小化、准确性、存储限制、完整性和机密性。此外，草案要求每个组织都能证明自己遵守了所有的原则。

在区块链上提供的数码身份管理解决方案，以归还用户个人资料的控制权为条件，透过数据，达致既定控制目标。在许可型区块链的情况下，用户可以使用自己的数字私钥下载数据，并从区块链上的一个数字身份管理平台转移到另一个。通过基于联盟链的去中心化身份技术，以及智能合约的访问控制技术既保障监管同时也保护用户隐私。

NFT平台与反欺诈反操纵反非法使用。我们需要做到资产的实名制以便于监管，因为支付可能用于商品、服务交易场景，也可能用于金融交易场景，而在一些金融或商品、服务交易中，很多时候往往可能会需要用户具有一定的资格或需要知道其身份。如只有实名认证其钱包内资产才能进行相关转账操作，如不实名认证只能接收数字通证。从这个意义上来说，DID加上实名认证是区块链基础设施。进行用户实名验证，保存有关用户资料和交易记录。

NFT平台与反洗钱反恐怖融资。实施保障措施，打击洗钱和恐怖融资活动，任何新的努力都必须符合反洗钱规则，我们不介意竞争。我们想要一个公平的竞争环境。进行用户实名验证，保存有关用户资料和交易记录，同时避免NFT产品价格无序。

NFT平台与智能合约监管。智能合约体现为代码，而典型的合同则是一份有着法律意义的文本。在智能合约的语境下，诚实信用、合同的履行和自动执行、违约责任都嵌入代码。建议建立健全基于技术、法律和业务角度的智能合约的事前审查、事中监督和事后处理机制。

NFT平台与跨境监管。任何基于区块链网络创建的钱包都可以与其他钱包进行交互，提供网络价值，在一些地区会有自己的钱包。区块链应用天然具有跨境特性。区块链作为信息技术设施，是全球交流的工具与载体。但是其使用者位于不同的国家与地区，其必然要适用不同的法律监管。例如互联网的接入与网络空间的治理也是类似。对中国而言，目前资本项目还未完全开放、人民币国际化仍在进程中，如何防止跨境交易冲击是亟需关注的。尤其是NFT加密性质和点对点支付能够绕过资本管制，削弱跨境资金监管的有效性，同时也加剧资本跨境流动带来的冲击。建议针对不同司法管辖区用户采用不同钱包和用户资质审查标准，同时建立一定的链上争议解决机制。

NFT平台与非法集资。由于NFT可特定化，可基于线上或线下的特定物品通过数字产品的形式发行NFT进行消费和交易，其商品属性是首要的和主要的，当然基于加密产品的特点也兼有一定的金融属性。尤其是从技术角度来说，NFT也是一种Token，而且基于NFT也可以进行类似资产证券化操作发行FT，那么这就与以往的ICO很像了，其中会有很多的合规问题。目前市场上已经出现了将一些代币非法融资项目包装成NFT的情况，这是投资者需要谨慎注意的。目前影响NFT健康发展的最大隐患就在于NFT被利用为非法集资的工具。从事NFT产业一定要严格遵守我国有关集资有关的法律法规规定，包括2017年9月4日人民银行等七部委发布的《关于防范代币融资风险的公告》，以及于2021年5月1日起实施的《防范和处置非法集资条例》中的规定。当然一般的NFT产业由于是联系特定的产品，正常而言并不会涉及集资融资问题。强烈建议避免利用NFT成为金融融资工具和传销工具。

NFT平台与资产证券化。资产证券化，则是根据某特定资产的未来收益发行证券出售给投资者，资产的原始权益人将该特定资产的未来收益权转让给证券化资产的持有人。具体到NFT与FT，我们可以认为每一个特定资产是一个NFT，根据该特定资产发行的证券类似于FT。平台如果无法做到所有交易现金流全链上运行，则应全面对接传统资产证券化操作；如所有交易现金流均可链上运行，则在确保安全基础上加强与微观监管机构沟通。

总之，NFT技术应用与产业发展汹涌而来，其所带来的应用场景和应用体验是前所未有的，或许开启了一个商品数字化、产业数字化、治理数字化的全新时代，但不可否认其所带来的挑战与风险也是前所未有的。这篇小文是我们根据对国内外NFT技术应用和法律规制经验的思考总结，给出一个初步的框架性的应用与法律规制思考，其中还有大量的深入细致的工作要做，希望本文能够启发业界和监管者的理性思考，使我们在沟通交流、思想碰撞中不断形成共识，既激励创新应用、鼓励产业发展同时又保障相关用户合法权益、产业发展利益和社会公共利益，探索出一条行之有效的实践模式，为更好地促进数字经济发展和探索有效的数字治理模式而努力。