Unique, non-fungible NFTs generally are not (Article 2(3) and Recital 10 of MiCA). A large series of interchangeable items or a fractionalised NFT may be caught, so we recommend checking the classification before launch.
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NFTs: MiCA, Copyright and Marketplaces
NFTs: MiCA, Copyright and Marketplaces in practice
An artist minting a collection, a games studio selling in-game items or a brand attaching a digital certificate to a watch all face three questions. Does the project fall under MiCA? What rights to the work does the buyer get? And what duties does the platform selling the NFTs have? Unique, non-fungible NFTs are excluded from MiCA, but a large series of similar tokens or NFTs carrying a share of profits may well be regulated.
We prepare a regulatory memorandum explaining whether the exemption covers your project. Under the Slovak Copyright Act we set out licence terms: what the buyer may do with the work privately and commercially, and how resale royalties work. For marketplaces we draft terms of service and a notice and action procedure, and assess AML duties. For phygital projects we align the contract for the physical item with the terms of the digital token.
What we help with
- Assessing the MiCA exemption under Article 2(3) and Recital 10
- Licence terms for the work under Slovak Act No. 185/2015 Coll.
- Terms of service and privacy notice for an NFT marketplace
- Notice and action procedure under the DSA
- Contract structure for phygital NFTs
- Coordinating the legal review of the smart contract with a technical partner
Worth knowing
When the MiCA exemption does not apply
The exemption for unique NFTs does not cover a large series of similar tokens, an NFT split into fungible fractions, or an NFT granting a share of profits or voting rights. These are crypto-assets under MiCA or securities.
An NFT is not copyright
Under Slovak Act No. 185/2015 Coll., copyright belongs to the author. The buyer of an NFT gets the token and only whatever licence to the work the licence terms grant.
Marketplace duties
An NFT platform must comply with Regulation (EU) 2022/2065 (DSA) and, when selling to consumers, Slovak Consumer Protection Act No. 108/2024 Coll. If it also trades NFTs covered by MiCA, the need for authorisation must be assessed.
Phygital NFTs
Transferring an NFT does not automatically transfer ownership of the physical item. That requires a separate contract and delivery of the item.
Common questions
- No. Owning an NFT does not transfer copyright, only rights to the token and usually a limited licence to display the work. Commercial use requires an express licence.
- Yes, if it carries rights typical of a security, such as a share of profits or voting rights. Slovak Act No. 566/2001 Coll. then applies, including the prospectus requirement for public offers.
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This page is for general information, reflects Slovak law at the time of writing and is not a substitute for advice on your particular matter.