Блокчейн, смарт-контракты и авторское право

In October 2018, the European Parliament passed a resolution on
distributed ledger technologies that recognized blockchains’ potential to disrupt
copyright and creative industries. The aim of this article is to examine blockchain
technologies and provide an assessment of their disruptive potential upon the legal
sphere of intellectual property, and in particular copyright in the music industry. In
order to do so, this article will start off by clarifying that the blockchain does not
exist, because there are several different types of blockchains and, accordingly,
different legal and regulatory issues are involved. After identifying the type of
permissionless blockchain that is analysed in this article — that is permissionless,
turing complete, open, distributed, peer-to-peer, transparent, tamper resistant and
censorship resistant –, we move on to identify the definitional and non-definitional
features of blockchain technologies. For the blockchain to unleash its disruptive
potential, it must be clarified whether it complies with existing laws and whether
new regulations are needed. Should existing regulations be found insufficient, only
then a serious discussion around new regulations could be started and this should
take into account the necessity not to stifle innovation, the level of development of the relevant technologies, the importance of involving all the stakeholders and to
place the discussion at a supra-national level. The focus of this aricle is to critically
assess whether public permissionless blockchains can be used to disrupt intellectual
property law by resolving some of the problems in copyright law, with particular
regard to the issues of copyright registration, infringement, and transactions. It will
be shown how the blockchains can resolve the registration issues by allowing forms
of tamper-resistant, censorship-resistant, user-friendly, and privacy-friendly copyright
registration. As to infringement, the blockchains can prevent it by making it easier for
copyright owners to track the use of their works and for music consumers and new
intermediaries such as Spotify and iTunes to identify the owners, seek a license, and
pay the royalties. Finally, smart contracts could be used to automate licensing and
as forms of digital rights management, but this could be criticised from an efficient
breach perspective, as well as by pointing out the difficulties of this technology in
coping with copyright exceptions or defences. It is perhaps too soon to conclude
that a 10-year-old technology will ultimately disrupt copyright, but there are already
some indications that the Ethereum-type blockchains’ features will radically change
copyright by fixing some of its most urgent problems.