###### tags: `lexDAO` `active project`

# resale, sudoswap, first sale doctrine

## context
## superstar effect in fine art collectables
## halo effect with celebrities
## group identity - collective trademarks
## NFTs, speculative exchanges, creative economy
## Platform cooperativism

# Problem Analysis

## drllau interpet = everyone add your 10 cent (after inflation) then merge

hence no constructive or resulting trust as the "smart contract" stipulate royalty is a mere "memorandum of wishes" and actually granting such royalty is a purely discretionary choice. Therefore IMHO the contract is illusionary. because the subject matter of "royalty" despite wording is never a property right in the first place. Unilateral wishes are not enforcible at law unless a loop-hole lawyer figures out a liability regime (starving artist yadda yadda moral rights . ... perhaps the Europeans @pmgangi might have different perspecive in using art in disparanging manner)

correct @"omen" as to the legal analysis. There is no formal relationship between the original artist and ownstream secondary sales which is enforcable ... a different smart contract might be designed differently, say and autoburn is triggered if certain conditions are not met (so more a temporary peek before any rights are transferred. ... Hmmm .. that sounds like most SaaS software nowadays ... annoyware until you pay them enough to shut up and get on with work.

[20:46] pmgangi: In EU law there is the notion of droite de suite which has been legislative established for some specific physical artwork. Here is the same idea, but established by way of private contracts, which sounds to me like feasible if the buyer in the secondary is correctly bound by T&C or TOS which reserves the payment of the royalty ( but technically is not a royalty but rather a related right) for the artist or for artifact

# Solution

## pmgandi droit de suite
## drllau waiverable property right

is the IP fixed into a work (like CD) ...if not then copyright may not apply. If fixed onto the IPFS file system and having a unique pointer, what does this mean? Is it property (as per anglo-saxon law), if so what are the properties that make it exchangable? Or more precisely exchange the control of the license (right to display)

Doite de suite has some analogy to the Canadian art laws, specifically exibition rights and subsequent gallery resales. May be influence of the Quebecans
[20:57] drllau: EU also adds in moral rights which is missing in US
[20:58] drllau: I've done some previous research on celebrity rights and avatars ... let me dig it up
[21:01] drllau: not inconsistent with the US new uniform commercial code chp 12 which talks about rights over information on chain. cf ICC incomterm which is ownership over the documents of the goods being shipped, not the goods per se

the problem is that the droit is jurisdiction specific which under international law then makes it subject to challenge. Somehow you need to convert it to contractual arrangements ... cf the variable interest entity (cough Enron cough) and assert privity to future DEXs. ... my broadbrush-strokes
- right to exhibit ... the payment due to be able to display ???10+??? NFTs at a single temporal-spatial cluster ... this can be waivered for private ego-displays but by default catches OceanSea et al. To escape paying the upfront fee, they'd accept the digital droit as levy on future sales
- right to display (as avatar) ... some neo-sumpetary rules, don't deface, use in morally offensive ways ... based on EU moral rights, there is continengency to burn upon return of the original base mint fee (so speculative element is at risk)
- celelbrity rights which acrue to the current possessor of the NFT, eg used for brand endorsement etc
- doctrine of first sale can be translated as a one-off extinguishable right to print a very high quality version of the current avatar ... after that it is "fixef" in that can't acceept more accessories
[02:58] drllau: we may need to tweak the ERC721 a little or put into a new EIP standard to make it enforceable by codeslaw

[03:03] drllau: to make it compatible with copyright, we put all these droits into the virtual frame (paradata) and lump it into the adjacent rights category (eg stream, rental etc) so 100% compatible with Berne ... but with enforceable extras :-)

# Global jurisprudence - Failure points Avatars with Copyright

## EU (pmgandi) - Fair Limits
## US ??? Fair Use
## Commonwealth (me anglo-saxon) Fair Dealings
## India (???Shaswata???)
## China (ren fa)

# Alternative legal regimes

## Neo-sumpetary (me)
## US celebrity rights
## EU moral rights
## India
## China (cf book elegant offence)

# Refactoring the ERC721

## Exhibition, Display, Performance rights (me)
## US first sale (fixed work)
## China chops - personalty

# Proof of Concept

## redo the LexArt NFTs currently on sale
## project for the IP working group
## references

https://youtu.be/suRfqKJrRWY

https://zeneca33.substack.com/p/letter-30-creator-royalties-in-nfts

https://twitter.com/fulldecent/status/1559000183060439041

https://youtu.be/hTbcw0rhLto

https://eips.ethereum.org/EIPS/eip-2981

https://github.com/ethereum/EIPs/issues/2907

https://en.wikipedia.org/wiki/First-sale_doctrine

https://www.nolo.com/legal-encyclopedia/the-first-sale-doctrine.html

https://www.justice.gov/archives/jm/criminal-resource-manual-1854-copyright-infringement-first-sale-doctrine

https://www.ala.org/advocacy/copyright/dmca

https://www.aallnet.org/advocacy/government-relations/federal-issues/copyright/

https://deliverypdf.ssrn.com/delivery.php?ID=571066117002115067015068111080113090093008047064079009011006095003119018124063127033108035033064097074119068005020083055080010006100094118126126123089006025090036064078095115070104080110118029092026069117127113102078111098068126084023084090017&EXT=pdf&INDEX=TRUE

https://www.stuff.co.nz/entertainment/arts/129603422/artists-to-get-5-of-resale-price-of-artworks-under-new-royalty-scheme

https://lawsnap.substack.com/p/the-united-states-of-america-banishes

# History of Copyright Protections (United States)
Current U.S. Copyright law lends its history to the 1710 Statute of Anne of England. This is widely recognized as the first copyright law in the world, which ensured that all rights and responsibilities for production and reproduction of a work of literature were vested with the author for the length of the statute. Specifically, the statute provided the author with 14 years of protection and a subsequent 14 years (revested) if the author was still living when the first term expired. (https://www.historyofinformation.com/detail.php?entryid=3389#:~:text=It%20was%20enacted%20in%20the,any%20book%20already%20in%20print., accessed 08.16.2022)

It is interesting to note that as part of the rights granted to authors', they were also required to produce 9 copies to be sent to each of the main universities in England and Scotland as well as to the Royal library and to the government for research, educational use, and historical archives. (https://avalon.law.yale.edu/18th_century/anne_1710.asp, "Statute of Anne. 1710. Accessed 08.16.2022")

The intent behind this statute and those that followed was to shift the ownership of creative works from the printing houses to the authors. Prior to this statute authors were forced to publish through printing houses by selling their rights to their intellectual property. They were not due any royalties or payments for their work and they were not permitted to self-publish.

Far from being a "natural right", it appears clearly in the text to be a "pragmatic right" as a bargain between the authors and society at large. (https://rkip.ca/2015/04/17/early-history-of-copyright-part-2-the-statute-of-anne/. Accessed 08.16.2022.) The doctrine did however, establish a paradigm shift in how rights were conferred to authors. Namely, that the rights to the intellectual property were imbued immediately upon the author at the moment they were created.

# History of First Sale Doctrine
In 1908