Legal Regulation of Reselling NFT Digital Works

Abstract： China is about to enter the secondary trading stage of digital assets. As the main trading behavior in the secondary market， NFT digital works resale behavior still has real difficulties such as fuzzy legal attribute of behavior， lack of profit distribution mechanism and the identity confusion of the whole trading platform. The resale behavior of NFT digital works still faces significant challenges， including the ambiguous legal attributes of such behavior， the absence of a profit distribution mechanism， and identity confusion within the trading platform as a whole. These practical difficulties are caused by the current resale mode of NFT digital works. The integration of works and digital carriers， the transformation of transaction mode and the regulatory vacuum of NFT trading market are the fundamental reasons for the practical difficulties of the resale behavior of NFT digital works. In order to avoid improper resale behavior to harm right holders and social public interests， suggest by clarifying data rights content， giving copyright owners limited rights， building NFT digital works trading platform rules， providing reasonable regulation of NFT digital works resale behavior and effectively promoting the circulation and development of NFT secondary trading market in our country.

Keywords： NFT digital works; right of reproduction; right of communication through information network; interest of pursuit

CLC： D 923 " " " " DC： A " " " " " " Article： 2096?9783（2024）01?0111?11

1 Introduction

On January 1， 2023， China's first national compliance digital asset secondary trading platform \"China Digital Asset Trading Platform\" was officially launched. The opening of the trading platform means that China will officially enter the secondary trading era of NFT digital works （NFT transactions between users and users）. NFT （Non-Fungible Token， non-homogeneous circulation certificate） is an ownership certificate driven by a smart contract， and protected by blockchain technology. Because it is distributed， tamper-proof， and traceable， the blockchain replaces our direct trust in the transaction intermediaries with our trust in the system. NFT breaks the traditional trading mode of digital works. Blockchain gives each digital work with a unique \"ID card\"， which not only distinguishes the identity between digital works， but also provides an effective tracking guarantee for the market circulation of digital works. Through NFT technology， digital works are transformed from replicable to strictly traceable replicable， which brings substantial improvement to the difficulties of copyright protection caused by uncontrollable dissemination and reproduction of digital works in the network environment. In essence， digital works are given scarcity and uniqueness by NFT， and NFT can be regarded as a certificate of ownership for the source of digital works[1]. In the process of transfer and circulation， NFT digital works are similar to paper media works， which are generally the transfer of the ownership of tangible or intangible carriers， but they do not necessarily mean the transfer of the copyright of the original works[2]. For example， in the game market， the NFT digital game products sold are generally occupied and used by players or consumers in a specific game environment， rather than transferring the copyright of the digital product itself. However， in some situations， some people will achieve the purpose of transfer and profit through resale， and the complex technology and resale behavior are entangled， resulting in many legal problems.

In December 2022， in the second instance of China's first NFT infringement case， the court determined that without the permission of the right owner the resale of digital works on the NFT digital work trading service platform constituted copyright infringement1. In this case， the perpetrator transferred the pictures posted by the right holder on the social media platform to the NFT digital work trading service platform for sale and profit. The court held that the resale of NFT digital works includes two aspects of reproduction， sale and information network dissemination. The damage consequences caused by reproduction have been absorbed by the damage consequences caused by the information network transmission to the right holder， and were identified as infringement of the right of information network dissemination. However， in the trading process of NFT digital works， not all resale behaviors are necessary for information network dissemination to copy. This case reflects that the transaction of NFT digital works shows a gradually important trend in the online market， but it also exposes the potential legal risks that the resale of NFT digital works may bring to copyright owners and social public interests. The complexity of the resale of NFT digital works leads to ambiguity in the process of legal characterization. The main reason is the close interdependence between the data and the works， the meaning and scope of the works are impacted by digital technology， and the rights and protection system of the data itself are still unclear. When the autonomy of will between the right holder and the parties agree the generally recognized \"royalties\" in the industry， the difference of interest distribution occurs due to the lack of clear legal basis. Therefore， it is necessary to further analyze the resale behavior of NFT digital works， further explore the nature of the dilemma， and put forward the institutional countermeasures to solve the problem.

2 The Realistic Dilemma of the Regulation of Reselling NFT Digital Works

Based on the legal norms and relevant laws in the field of NFT are still in the blank. The resale behavior of NFT digital works presents the realistic dilemma of regulation from three aspects： behavior itself， interest balance and third-party platform positioning， the ambiguity of legal attributes of resale behavior， the lack of profit distribution mechanism and the confusion of trading platform identity.

2.1 The Vague Legal Attribute of the Behavior

Different from the resale behavior of tangible carrier works， NFT digital works need to add the step of giving a single and invisible digital mark to the works in the resale process. Therefore， the resale of NFT digital works is phased behavior. In the first case of NFT infringement dispute， the court characterized the resale behavior in stages， including three stages of casting， release and sale. However， in the judicial practice， the legal definition of the resale behavior at different stages can not cover all the circumstances of the resale process， and there is some ambiguity and deviation.

First of all， not all the casting behavior of NFT digital works belong to the reproduction behavior in the Copyright Law. There are two ways of NFT casting. One is to upload the work to the NFT trading service platform as a whole， and the other is to upload the name of the work or external link to the NFT trading service platform. The essential difference is whether the work is fully launched on the NFT trading service platform[3]. From the technical level， these two kinds of uploading behaviors are analyzed. The former transforms the work into data and uploads it to the network service platform， while the data accompanying the work is given a specific value; the latter only forms a specific value on the basis of the name or introduction of the uploaded work. The casting behavior of uploading the works as a whole to the NFT digital works trading service platform is essentially to copy the works to the trading platform in the form of numbers， so that the copies of the works appear on the trading service platform. The first resale behavior in the NFT infringement case is to upload the picture works to the trading service platform through this kind. According to the provisions of Article 9 of the Copyright Law of China on the right of reproduction， the act of uploading the works to the NFT digital works trading service platform belongs to the act of copying the works in a digital way as stipulated in the Copyright Law， which is regulated by the right of reproduction. However， the casting behavior of only uploading the name of the works or the external link to the NFT trading service platform essentially does not copy the works to the trading platform in the form of numbers， and there is no copy of the works on the trading service platform. This kind of casting behavior does not store the works on the trading platform， and does not belong to the reproduction behavior in the Copyright Law， but is a registration behavior[4].

Secondly， there are defects in the determination of information network communication behavior in the release stage. In the first case of NFT infringement， the court held that the behavior of information network transmission can absorb the replication behavior of the casting stage， however this is not accurate. The release of NFT digital works must infringe the right of information network transmission of the original right holder， but not necessarily infringe the right of reproduction. Most of the behavior in information network communication involves replication， but not all of it requires the premise of copying works. Most of the information network communication behavior involves replication， but some information network communication behavior does not need to take the premise of copying works[5?6]. Publishing digital works are published on the NFT trading service platform to obtain its relevant information， and to attract the unspecified public to buy digital works， this promise of sales behavior is the second stage of the resale of NFT digital works. In combination with the above two different preparation behaviors， the actor may publish a complete work， external link or name on the online transaction service platform （the way of publishing the name is also called the \"blind box\" mode， and the actual content of the work only after paying consideration）. Releasing complete works and including external links before the smart contract or trading， can make work in the public network environment by the public in the selected time and place to direct or jump link indirect way for digital works， allow the public to access and interact with digital works in a selected time and place， either directly or indirectly through jump links. In this manner China's first NFT infringement actor infringement actor utilized a direct trading service platform to release digital works， thereby engaging in information network transmission behavior （in such way in direct trading service platform released digital works， constitute information network transmission behavior）. To \"blind box\" is to publish the name or introduction of the behavior， before the smart contract is established or the transaction cannot obtain the entire content. The public paid the consideration or intelligent contract automatic execution， and can also in the selected time and place for digital works， still accord with the Copyright Law Article 9 of information network transmission behavior. Therefore， the complete works are uploaded to the server in the form of replication for the release of NFT digital works for resale， it constitutes the information network dissemination behavior. In other words， the information network dissemination in the resale and release stage of NFT digital works is not the reproduction as a necessary precondition， and the reproduction behavior and its legal consequences should be evaluated separately， otherwise it is not conducive to some legal characterization that has not completed the release behavior.

Finally， there is confusion in the determination of transfer rights during the sale stage of NFT digital works. In the first NFT infringement case， the argument of the distribution of the Copyright Law and the first sales principle， the court held that NFT digital works \"ownership\" should not be understood as the Civil Law in the sense of ownership， and should be understood as the transfer of property rights between different civil subjects. However， according to the judicial judgment， the \"property interest\" does not have a clear name and scope， nor can it rise to a clear right. Some people hold a different view on the content of the rights transferred by the sale of NFT digital works， believing that NFT technology has stripped the transfer of copyright rights and only traded the dimension of the ownership of this \"article\"[7]. In essence， when the counterpart of NFT resale behavior is automatically generated after the counterpart pays the consideration， the ownership of NFT digital goods is transferred. To be clear， many countries and regions in the world generally believed that， from the perspective of the Property Law， copyright is an independent property right， including digital works. Many works may have multiple independent rights at the same time. Each right can exercise separately， authorization or transfer， namely the ownership of the object of the work can be separated from the copyright transfer or sale[8]. In the process of selling and transferring digital works， it is necessary to uphold the two differentiation of \"data-works\". Similar to the transfer behavior of traditional print works， the transfer behavior is only the transfer of \"data\" or tangible ownership， rather than the transfer of copyright together. Returning to the resale behavior of NFT digital works， the essence of the sale stage is the transfer of the \"ownership\" of the data， rather than the transfer of the copyright of the works. As a result， the copyright is still in the hands of the authors of the digital works. In conclusion， the sale in the resale of NFT digital works is the transfer of data ownership.

2.2 Lack of Benefit Distribution Mechanism

The profit distribution in the resale of NFT digital works involves the authors， NFT creators， buyers and platforms. Generally speaking， there are two kinds of benefits involved in the resale process： one is that the blockchain platform and the transaction platform receive the chain management fee （Gas Fee） and the platform management fee （or the platform cut）; the other is that the author and NFT creator get the use fee of the work （Royalty） from the resale. On-chain management expenses and platform management expenses are recognized by general users， but there are differences on the use of costs. In order to solve the problem of profit distribution of NFT digital works resale， many platforms have set up the \"royalties\" system in the secondary trading market of NFT digital works. NFT royalties is a mechanism to pay a percentage of the purchase price to the original NFT creators from the resale. The specific proportion is generally determined in a fixed or freely agreed way. Everytime NFT digital works are transferred， a certain \"royalties\" is charged from the buyer[9]. At present， in the relatively mature NFT secondary trading market， there is great controversy about the proportion and legitimacy of \"royalties\"： some people believe that the royalties can satisfy the interests of NFT artwork creators and fill the legal gap; but others believe that \"royalties\" still cannot protect the interests of original creators in the cross-platform resale[10?11]. Therefore， the rules of resale profit distribution of NFT digital works are not clear. At present， it only relies on the agreement between the platform and the transaction parties to balance the interests of all parties. Once the agreement is broken or involves the public interest， the legal consequences are diverse and complex， which may include three situations： Resale with the permission of the original copyright owner， resale without the permission of the original copyright owner and resale of works in the public domain. Three types of NFT digital works resale behaviors and legal consequences are as Table 1.

First of all， the resale situation permitted by the original copyright owner is relatively clear， and the licensee only has the rights stipulated in the license agreement signed with the right holder. On the NFT digital works trading platform， the smart contract in the transaction process stipulates that the resale area （including whether it can be resale in other trading service platforms） and the resale method after the license of the right holder. If the reseller violates the resale area and mode terms stipulated in the license agreement， the resale behavior may constitute a breach of contract.

Secondly， the resale behavior without the permission of the original copyright owner is divided into two categories， one is the resale of digital works not sold by NFT on the NFT trading service platform， and the other is the resale of digital works that have been sold by NFT. According to the above analysis， the resale of digital works not sold by NFT may constitute the copyright infringement of the right holder， including the right of reproduction and the right of information network transmission. If the work has never been published， the resale constitutes an infringement of the right of publication. Digital works that have been sold through NFT can be resold on the same platform according to the provisions of the platform. Even without the permission of the right holder， the resale behavior is still legal. However， if the actor casts new or similar digital works on the same platform or other platforms， it may still constitute copyright infringement.

Moreover， when the resale works are in the public domain， it no longer involves the distribution of copyright-related interests. The Copyright Law sets a protection period to limit and prevent the indefinite use of copyright， and the works that have passed the protection period will flow into the public domain. Works in the public domain can not become the object of copyright， and can be freely used by the public[12]. Anyone has the right to appreciate works in the public domain， so everyone can use works in the public domain to create NFT digital works， and it can be considered legal to NFT resale of works in the public domain. Even if a work in the public domain has been cast and sold by NFT， the creator of its NFT digital work has no right to prevent others from casting NFT with the same work. Therefore， the casting of NFT digital works in the public field does not mean that they have become the authors of the works. For example， in the more popular NFT market \"OpenSea\"， more than 3，000 NFT digital works search \"Mona Lisa\"[13].

2.3 The Confusion of Trading Platform Identity

The NFT secondary trading platform provides users with casting and display services， and allows users to freely purchase and resell NFT digital works on its platform. Different from the NFT trading platform which takes itself as the selling body， the role of NFT secondary trading platform is not the initial owner of the original works， but the role of the third party intermediary in the resale process of the works. However， there are differences on the definition of the subject types and responsibilities of NFT secondary trading platforms. One view is that NFT secondary trading platform should be regarded as both publishing institution and as trading intermediary platform; the other view is that NFT secondary trading platform can be regarded directly as an e-commerce platform and assume corresponding responsibilities[14].

The NFT secondary trading platform is regarded as a publishing institution or publisher， that is， the platform is considered to be the direct participant of the NFT digital resale behavior， and this behavior is the replication and distribution behavior stipulated in the Copyright Law2. As the casting stage of NFT digital works mentioned above in this paper involves reproduction behavior， the implementation subject of its reproduction behavior is the creator or resale of NFT digital works. The trading platform only provides the environment and auxiliary tools for casting， and is not the direct practitioner of copying behavior， but only the role of the helper. In addition， the digital carrier of the works in the resale process itself belongs to an intangible carrier and cannot form a tangible copy. The \"fixed\" referred to in the issuing right， whose object is a tangible object， and can only be a tangible copy[15]. This kind of digital intangible objects as the carrier of the transmission behavior can not fall into the distribution category. Therefore， on the one hand， the participation of NFT secondary trading platform in the resale process is not the direct actor. On the other hand， it is difficult to identify the resale behavior as the issuing behavior due to the intangible nature of the carrier， and the NFT secondary trading platform cannot be regarded as a publishing institution.

3 Legal Analysis of the Resale Model of NFT Digital Works

The regulation problem of the resale behavior of NFT digital works is mainly due to the lag of law to meet the rapid development of NFT trading market. Therefore， it is necessary to conduct in-depth legal analysis on the resale mode of NFT digital works in the current trading market， which is helpful to put forward perfect suggestions on the regulation system of NFT digital works resale behavior. From three perspectives the NFT digital work itself， trading patterns， and market and platform regulation-the reasons for the regulatory deadlock in NFT digital resale can be summarized as follows： the dichotomy between works and digital carriers， the shift in trading mode from \"platform-centered\" to \"copyright owner-centered，\" and the lack of regulation in the trading market.

3.1 The Integration of Works and Digital Carriers

NFT digital works in the transaction or resale process， is regarded as a single \"digital goods\" or \"digital collection\"， the goods are in the form of independent， specific， disposable and property without possession. Article 127 of the Civil Code stipulates the legal concept of \"network virtual property\" and \"data\". Digital commodities take into account the intangible and property attributes. Some people believe that NFT digital works should be classified as \"network virtual property\" in the sense of the Civil Law3. In fact， the scope of network virtual property is general， such as game accounts， equipment， skin， etc.， which are data collections stored on the carrier's server. In addition， the network virtual property is still in the seller market. Game equipment and skin are sold or provided by the platform or the operator， and users can buy， obtain or use them under their accounts. Since the platform or operator does not currently support the resale function， its virtual game equipment， skins and even stored accounts are not specifically marked or recorded on the chain， and the resale behavior are still private agreement transactions and the number is small. Therefore， it can be judged that the internal essence of protection under the scope of the form of network virtual property. For example， in Herms v. Rothschild， although the case did not mention the NFT digital works copyright protection， the judge in the answer Herms， that the iconic Birkin handbag NFT is infringing works or Rogers v. Grimaldi protected the first amendment of expressive art， think NFT just pointing to the location of the code， the digital image will not automatically become goods4. From this verdict， it is not difficult to see that NFT itself is only a directional data and code. When determining whether the intellectual property rights are infringed， it is necessary to separate the NFT digital work itself from the digital carrier. In the case and verdict of intellectual property infringement， using the network virtual property to summarize the NFT digital works as a whole may be in jeopardy. In order to highlight the technical characteristics of NFT digital works， that is， each copied work can have \"identity characteristics\" and then have \"scarcity\"， the works should be \"differentiated\" from their data carrier.

Similar to the works on paper， each NFT work has the characteristics of uniqueness and scarcity， belonging to a specific category. The classification of specific and kinds of things is meaningful only in transactions[16]. The distinction between specific objects and kinds of objects is not very strict. Digital works themselves are indistinct kinds of things. In order to facilitate transactions， people often specify some categories in indistinguishable categories. In NFT transactions， digital works are specially made from the same NFT works that cannot be distinguished due to technical marks， which have the unique attributes of specific things. Specifically， each NFT work will be marked by a unique sequence number or hash value， recording the attributes and basic information of the work to distinguish it from other NFTs. Although two NFTs may look identical on the outside， they are not actually the same item and may have different tag numbers， owners or transaction processes. In addition， the content that NFT works are tokenized with is a non-fungible coin that cannot be split and cannot be tampered with， and any transaction process will be transparently recorded. Therefore， NFT works， like the works on paper that can be circulated and traded in reality， are specified and unique in the transaction process. In web3， ownership and control is decentralized. Users and builders can own pieces of internet services by owning tokens， both non-fungible （NFTs） and fungible. Which gives the users property rights[17]. When defining the works on paper， tangible carriers can be easily separated from intellectual property rights， while the current NFT has similarities with the circulation and communication mode of paper media. Similarly， the invisible carrier of \"data\" of NFT works should be separated from intellectual property rights as far as possible. However， the construction of the data property rights protection system in China is still in the immature stage， and the data property rights cannot be directly used to give the \"ownership\" of the data to NFT digital works. Therefore， confusing the carrier of NFT digital works with intellectual property right and classifying it into \"network virtual property\" is the lack of data property right system.

3.2 The Transformation of the Trading Mode

At present， there are two main trading modes in the NFT trading market： \"platform-centered\" and \"copyright owner-centered\". The \"centered\" platform based trading mode， that NFT trading platform， as the creator of NFT digital works， sells NFT digital works cast on the platform to users after the license of the copyright owner of the works. This mode is common in the NFT primary trading market. After paying the copyright owner， the platform acts as the main role of the transaction， and most do not allow NFT digital works to be resold on its platform. The cost of the buyer during the transaction includes two parts： the payment of the miners for the blockchain computing power and the consideration for the digital works sold by the platform. \"Centering on the copyright owner\"， namely the NFT digital works creator or owner （original or following） free transfer to other buyers， NFT trading platform only as NFT digital works of the third party service provider， the original copyright owner can choose whether from the subsequent every resale extract a certain proportion of the royalties. Centering on the copyright owner， specifically the creator or owner of NFT digital works （whether original or subsequent）， there is the freedom to transfer to other buyers. The NFT trading platform acts solely as a third-party service provider for NFT digital works. The original copyright owner has the option to determine whether to receive a certain proportion of royalties from each subsequent resale. However， the fees in the transaction process are divided into four parts： the payment of the blockchain computing power of the miners， the use of the original copyright owner's works， the administrative expenses of the trading platform， and the consideration of the seller for the digital works. When the secondary market is opened， some trading platforms may allow the subsequent resale of NFT digital works on the basis of retaining such transaction mode， and extract a certain amount of platform management fees in the transaction process， but the \"copyright owner-centered\" mode remains the focus. （See the following figures for the two modes， Figure 1 and Figure 2）.

Among them， the use fee paid to the original copyright owner is the more common \"royalties\" system in the overseas NFT secondary trading market， but there is no clear legal basis for this system in China. Therefore， in China's NFT secondary trading market， it remains challenging to adopt the \"copyright owner-centered\" mode（Figure 2）， as well as the \"platform-centered\" mode（Figure 1） to activate the NFT secondary trading market.

On the one hand， if the platform intervenes in the transfer of each work and obtains the license to the copyright owner， it is not conducive to the convenience of the transaction， but also potentially increases the transaction cost. On the other hand， if the platform cuts off the license process between the platform and the original copyright owner， the connection between the original copyright owner or artist and their works are disconnected， and the partial benefit is not conducive to the creative incentive of the copyright owner.

3.3 The Regulatory Vacuum in the NFT Trading Market

At present， the domestic trading market mostly uses NFT \"digital collection\" to name NFT digital works. Prior to this， China has not officially opened the NFT secondary trading market， most NFT digital works cannot be resale temporarily， and are only for buyers to collect. China Limits the resale of NFT digital works， mainly to avoid NFT digital works linked to virtual currency in the transfer process， resulting in financial risks. However， based on the reality that the NFT secondary market in China is gradually opening up， it is necessary to combine the operation status of some overseas NFT secondary trading market with more users and large trading volume， it is necessary to summarize the practical problems under the NFT secondary trading market for China's reference and take corresponding preventive countermeasures.

The world's second-largest NFT collectible Bored Ape Yacht Club （Boring Ape Yacht Club）， available on the Ethereum blockchain and listed on OpenSea （the world's largest NFT trading platform） lost $2 billion in seven months last year， a significant 55 percent drop from its peak[18]. The reason for this outcome is mainly due to the NFT digital works trading market and cryptocurrency excessive binding. In the absence of strict regulatory policies， NFT digital transactions overuse cryptocurrencies， and cryptocurrencies have depreciated significantly affected by the stock market crash， leading to a sudden decline in the value of NFT digital works. However， the NFT trading market as a formed market， it is obviously difficult to rely on the power of the market itself to survive the stock market storm， so that it fell into a sustained downturn.

In addition， most countries and regions， including the United States， the European Union， Singapore， Germany and others， have not clearly issued relevant laws and regulatory documents on NFT digital asset trading market[19]. Therefore， the following legal problems may appear in the NFT secondary market： Initially， deceptive advertising can be easily made， （deceptive advertising can be easily made） cheating consumers， fraudulent purchase and other infringing acts in the trading platform. When NFT digital works are 1ly advertised or using the wrong information， buyers will lead to consume without knowing what they have purchased. Secondly， the risk of intellectual property infringement will be greatly increased， such as Herms v. Rothschild， Nike v. StockX and Yuga Labs v. Ryder Ripps， etc5. The current cases are all infringement disputes caused by the casting and use of NFT digital works on the platform without the permission of the intellectual property owner， while overseas lawsuits related to NFT intellectual property abuse and other intellectual property issues are still increasing[20].

4 Regulation System of Resale Behavior of NFT Digital Works

Through the analysis of NFT digital works resale behavior and legal consequences， to better regulate NFT digital resale behavior and prevent infringement risk， suggest effective for the root cause of the regulation dilemma， clear data property rights of digital author limited rights， improve the NFT digital works trading platform rules， effectively solve the NFT digital works in the process of resale， reasonable balance in the resale process between the interests between the authors and the buyers， from the market source to prevent NFT digital resale risk of infringement.

4.1 Clarifying the Right Content of Data Property Rights

With the development of digital economy， data has gradually become an important basic factor of production， just like the tangible things in daily life， with high economic value. Just as NFT digital works can be circulated in the market， it has certain value. In the process of transaction or transfer， it is inseparable from the invisible carrier of data， so the data becomes the object of transfer. Some scholars in the theoretical circle believe that the data itself has property attributes and should be protected by law and set the ownership of the data[21?22]. This kind of data ownership or property right can enable the right holder to exclusively control the possession and use of the data. Therefore， clarifying the content of data property rights， on the one hand， is conducive to the construction of China's data protection system， on the other hand， can bring more stable legal basis for ownership identification of NFT digital works transactions.

The object of the data property right is the data in the symbolic sense， which is clearly distinguished from the information and the material carrier， and the acquisition method is the original acquisition based on the legal collection behavior[23]. The data ownership is analyzed from the perspective of data binary structure， while data right exercise structure is based on the data carrier and the carrying information content as the starting point[24]. The generation of data carrying NFT digital works is the original and unique data generated by the casting process， which is clearly different from the attached works. The dual structure is applied to meet the concept of \"data-work\" of NFT digital works.

The subject of data property right forbids others from occupying， transferring and copying all its data through exclusive rights. Property rights include the right of use and the change of price. The right of use also includes the power of use， income and disposal[25]. Therefore， in the transaction of NFT digital works， the subject who enjoys the data property right of NFT digital works data has the right to use and transfer the data and works. In essence， the data owner of an NFT digital work can be regarded as the owner of a book. With ownership of a book， one can either choose to appreciate it， read it， use it as a mat， or even discard or resell it. By replacing the book with data， similar behavior can be implemented in a network environment.

4.2 Granting Copyright Owners Limited Interests of Pursuit

The right of pursuit originated in France， its purpose is to protect the interests of artistic creators， encourage artistic creation， and still obtain certain usufruct in the subsequent resale and transaction. Later， the right of pursuit was transformed to sales royalty right or resale right in British and American law countries[26]. Under the influence of the European Union's Pursuit Right Directive（Directive 2001/84/EC）， the right of pursuit has also appeared in the revised draft of the Copyright Law of China6. However， in China's art works market， the intervention of the right of pursuit seems to make the system cost greater than the actual benefits， and the entry of the right of pursuit should still be cautious[27]. However， in the trading market of NFT digital works， the \"royalties\" which are almost acquiesced by the industry has triggered a rethinking of the efficiency of pursuit rights in the trading of works.

As mentioned above， the \"royalties\" stipulated in the NFT digital trading market is essentially the embodiment of the realization of the right of pursuit， that is， the author has the right to share the proceeds for each resale of NFT digital works. In the face of the situation that the right of pursuit cannot be absorbed by the Copyright Law of China. In short term， it can be considered to recognize the rights and interests in the NFT digital environment and grant them to the authors of NFT digital works， allowing users to distribute benefits in an agreed way in the transaction process， so as to realize the legitimacy and legitimacy of NFT \"royalties\". For example， China recognizes the commercialization rights and interests as one of the prior rights and interests in the field of trademark， which reasonably solves the problem of the commercialization right， and effectively solves the problem of interest distribution between the author and users in the process of works and constituent elements7. Therefore， through judicial interpretation or administrative regulations， the legitimacy of the pursuit rights and interests in the NFT digital market can be affirmed， and the veil of the \"royalties\" system in the resale of NFT digital works can be removed to effectively solve the problem of interest distribution in the resale process of NFT digital work. The interest of pursuit can be determined by the author of the NFT digital work.

4.3 Build the Trading Platform Rules for NFT Digital Works

In April 2022， the Internet Finance Association of China， the Securities Association of China and the China Banking Association jointly issued the Initiative on Preventing NFT Related Financial Risk， which put forward proposals on the possible financial risks caused by NFT. In order to deal with the infringement and financial related risks in the NFT digital work trading market and regulate the illegal resale of NFT digital works， the NFT trading platform should improve the governance ability of the platform by improving the NFT digital works trading rules[28]. The rules of NFT digital works trading platform can be improved from the following aspects： First， the NFT digital works trading platform should clarify the ownership of the rights in the transaction to the platform users. The NFT digital works trading platform needs to make it clear to the user that once the consideration of NFT digital works is paid， the smart contract is automatically generated， the ownership of the data belongs to the user， and the ownership of the copyright still belongs to the author. Second， the NFT digital works trading platform should have clear filtering rules. In advance， users' personal information and privacy should be actively protected， and works or content that obviously violate the provisions of national laws and regulations or are prohibited to prevent prohibited works from entering the NFT trading market and cause bad social impact. Third， the NFT digital works trading platform shall abide by the national laws and regulations and the market and financial order. The platform should make it clear that virtual currencies are not applicable for trading and pricing behaviors. The platform reminds users to avoid direct or indirect investment， and prohibit users from committing criminal acts such as money laundering on their platform. Fourth， the NFT digital works trading platform should improve the transaction complaint review mechanism. The platform shall timely deposit the certificates and judge the complained transactions， warn and freeze the transactions violating the contract and the illegal resale behavior， and assist the judicial organs in the investigation of relevant cases.

5 Conclusion

NFT technology provides great convenience for the circulation and protection of digital works， but also brings great opportunities and challenges for the digital trading market. In the future， the resale behavior of NFT digital works will become the inevitable in the NFT trading market. The legal risks and regulatory problems brought by the resale behavior are the difficult problems we face in the NFT trading market. If not handled properly， it is likely to backfire on the NFT market. Over the past year， digital collections have caused a heat wave， but in later stages some domestic digital collection platforms shut down or closed secondary markets where digital collections can resell. The main reason is that China has not yet issued clear laws， regulations and policies. The transaction behavior and resale behavior of digital collections are still facing great risks. Therefore， it is urgent to establish the digital collection resale regulation system and its closely related data protection system. Only by clarifying the relevant system of NFT digital works， so that the trading behavior in the NFT trading market has a clear legal basis and guarantee， can the NFT digital work trading market operate stably and stimulate greater innovation vitality.

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NFT數字作品轉售行為的法律規制

張嵐霄

（中南財經政法大學 "知識產權研究中心，武漢 430073）

摘 " "要：我國即將進入數字資產二級交易階段，NFT數字作品轉售行為作為二級市場中主要的交易行為，尚存在行為法律屬性模糊、利益分配機制缺失和交易平臺身份混亂等現實困境。這些現實困境是由當下NFT數字作品轉售模式所導致，作品與數字載體的一體化、交易模式轉變和NFT交易市場監管真空是NFT數字作品轉售行為出現現實困境的根本原因。為避免不當的轉售行為對權利人和社會公共利益造成損失，建議通過明確數據財產權的權利內容、賦予著作權人有限的追續權益、構建NFT數字作品交易平臺規則等方式，合理規制NFT數字作品轉售行為，有效促進我國NFT二級交易市場的流通與發展。

關鍵詞：NFT數字作品；復制權；信息網絡傳播權；追續權益