• Real Rights (in particular Usufruct and Bare Ownership, see: XXX below)
• The articulation of real rights (property/UF/NP/Indivision) and copyright.

In this section, we only deal with the – sufficiently complex – articulation between copyright owners and owners of a digital work (NFT).

According to Bernard Van Brabant’s typology (Vanbrabant, B., “Les conflits susceptibles de survenir entre l’auteur d’une oeuvre et le propriétaire du support”, Ing.-Cons., 2004/2, p. 91.), the conflicts between the owners are of 3 kinds:

• The author opposes the owner’s desire to modify or destroy his property
• The author wishes to externalize his paternity by a tangible sign on the support
• The author and the owner of the work disagree about the disclosure of the work.

Mr. and Mrs. Ducadre have a magnificent collection of paintings of which they gave the bare ownership to their children about ten years ago with a life usufruct reserve. The beautiful paintings of the Ducadre couple still adorn their house because they have kept their right of usufruct, which includes the right to use (usus) the thing until their death. The rights distributed are of a different nature, on the one hand the Ducadre spouses hold the usufruct, and on the other hand, the children are holders of a bare ownership right.

While usus and fructus are crystallized in the usufruct, abusus is materialized in the right of bare ownership. These two rights, resulting from the dismemberment of the right of ownership, are real rights, they are transferable and alienable as such.

Matthieu FAIN, Heritage and works of art – Selected issues – 1st edition 2016 – page 39..

We consider here TWO particular dismemberments to the possibilities offered by the new technologies and thus the NFT’s.

To continue in the footsteps of Mr. and Mrs. Ducadre, we keep the example of parents and their children/heirs.

1. The parents keep the UF (Usufruct) of their NFTs which they can enjoy alone or with others (exhibitions, loans to museums, reproductions,…) – they transfer the NP (Bare Ownership) to their descendants. The children can realize capital gains on successive sales of this LOS without depriving the parents of the pleasure of enjoying the work of art. At the parents’ death, the children recover full ownership and with it the full present value of the work of art. This system is particularly interesting in terms of inheritance tax (see below);
2. On the contrary, the parents preserve the NP to realize their capital gains and to continue to enrich themselves during their lifetime. Their children can enjoy the work as well as derive rights from it, including series of NFTs (old lithographs), making it available for exhibitions and other events, or, and this is where the magic of digital technology operates at full speed, by CROSS-REFERENING the work with others of the same artistic register (plastic works) or not (musical works crossed with graphics or videos or static works made animated). Is it not quite natural that the “young generations“, digital-native show themselves more versed in these new technologies for which the only limit is the imagination? These “variations”, “evolutions” and “crossings” enrich the work (requiring or not the authorization of the NP according to the contractual provisions) and can lead to a QUASI-USUFRUIT regime.

There is a variant to the right of usufruct: the quasi-usufruct. The latter has the particularity of covering consumable goods, such as wine and money, which are consumed by their first use and must be returned at the end of its exercise in the same quantity, quality and value (or their estimation). The doctrine is unanimous on the fact that it is possible to extend quasi-usufruct by agreement to non-consumable movable property such as a collection of works of art. The obligation attached to the quasi-usufruct is that it is necessary to return, at the end of the exercise of this right, the same quantity, quality and value. It is necessary to distinguish between the collection of works of art, taken here as a universality, and the isolated work of art. The collection, even if its content varies according to the sales and purchases, will remain a collection whereas a work of art, taken in isolation, if it is replaced by another work of art, will not answer any more the obligation to return the same quality. It is indeed difficult to attribute the same quality between two paintings of two different periods, while a collection taken as a whole will remain of the same quality.

Excerpt from: Matthieu FAIN, Patrimoine et œuvres d’art – Questions choisies – 1re édition 2016 – page 40.

Finally, a philanthropic artist who does not forget himself can very well keep the NP and make capital gains on (re)sales while leaving the UF to a museum – the buyers/investors own the NFT but the UF to show it to the public stays with the museum.