May 26, 2023.- Alastria has presented the Practical Guide on Legal Aspects of NFTs, a document prepared with the aim of explaining in a simple way the legal particularities of this phenomenon around which there is some confusion. The guide is the result of the confluence of the work of the Art and Digital Culture sector and the Legal Committee of Alastria, with the collaboration of: Cristina Mesa, Ludovica Pellicano and Alejandro Padín from Garrigues; Blanca Cortés, Felipe López Valiente and Joaquim Matinero Tor from RocaJunyent, Iñigo Egea Pérez-Carasa from Cuatrecasas, Mariona Pericas Estrada from finReg360 and Diego Escalona Rodriguez and Cristina Martínez Laburta from Telefónica.
For the presentation event, a round table was held at the IMMUNE Technolgy Institute headquarters, with the participation of some of the authors of the guide, which was moderated by Cristina Martínez Laburta, one of the coordinators of the guide, together with Cristina Mesa. The event was also attended by Juan Jiménez Zaballos, CEO of Alastria, Pablo de Vargas (Auth4Art) and Verónica Cebrián (Telefónica), co-leaders of the Digital Art and Culture sector, and Ignacio Castillo, Managing Director of IMMUNE.
The legal particularities of NFTs explained
Cristina Mesa stressed that “what you acquire or don’t acquire when you buy an NFT will depend on the terms and conditions of use of the NFT. If intellectual property rights are not assigned, we basically acquire the same thing we buy when we buy a painting, i.e. the right to have it hanging in our home (exhibition rights)”. For her part, Mariona Pericas Estrada pointed out that “NFTs, as a general rule, are excluded from MICA, but the European authorities EBA and ESMA have the mandate to carry out a study of these markets to assess the need to regulate the providers and suppliers of these services. In order to know whether it falls under MICA, the regulation states that it is necessary to determine whether it is truly unique and its purpose, and insists that the substance and not the form must be taken into account”.
Anti-money laundering and sanctions implications of NFTs
Regarding taxation, Iñigo Egea Pérez-Carasa pointed out that “there is no specific tax authority regulation for #NFT. It is necessary to identify the operations that can generate taxation in the different actors (the creator, the investor and the platforms) that carry out different operations (sale, transmission and intermediation services) that generate income. And also to differentiate operations in the primary market from operations in the secondary market because there are significant differences in direct and indirect taxation”.
Cybersecurity concerns and NFTs
Meanwhile, Alejandro Padin explained that in the aspects related to privacy, “in the guide we have made an exact diagnosis of what the technology is and how it affects data, analysing how data is treated in the operation of blockchain and the transaction data itself, which in the case of NFTs would be the content of the NFT. We understand that there is a relationship with the data and privacy of who issues the NFT in the content of the NFT, but not in the operation of the blockchain. We must be cautious until there is a position from the regulator.
State laws governing virtual currencies and NFTs
Diego Escalona Rodríguez pointed out that “the utility of NFTs is not only in the technological part but in everything that is on top of it, technology makes it easier for us to add the functionalities we want.”
You can download the guide here: