The Legal Aspects of Blockchain Technology: Smart Contracts, Intellectual Property and Data Protection: Part I

This blog series is based on a chapter for the forthcoming book entitled “Essentials of Blockchain Technology”.  The chapter was written together with Martim Taborda Barata, LL.M., Senior Associate at ICT Legal Consulting International, and  lawyer registered at the Portuguese Bar Association. 

Blockchain is part of the future.  Some consider it a revolutionary technology and others see it as a solution looking for a problem. As we have seen time and time again, especially when it comes to law, new technologies often collide with existing regulations, which are often too slow or rigid to adapt to the innovative functionalities explored, and blockchain is no exception to this.

This blog series will examine  blockchain’s promised benefits from the legal perspective in order to provide a general understanding on how the technology is seen to interact with three major fields of law, namely:

  1. Contract Law: the implications that blockchain technology may bring for smart contracts.
  2. Intellectual property law: the potential benefits brought about by blockchain-based systems to holders and users  of copyright, registered and unregistered trademarks and designs, and trade secrets.
  3. Personal data protection law:  the contradictions between blockchain and
    the European General Data Protection Regulation.

Ever since the system underlying the “purely peer-to-peer version of electronic cash” described in Satoshi Nakamoto’s 2008 whitepaper was brought into reality in open source format, a massive amount of attention was provided to blockchain which has only expanded over time. In fact, we have seen the value of Bitcoin, the most famous form of cryptocurrency transacted over blockchain, peak at close to 20,000 USD towards the end of 2017  (and subsequently drop significantly, currently being valued closer to 4,000 USD as of early 2019).

Other than as a distributed ledger for cryptocurrency transactions, dozens of different potential use cases have been suggested for blockchain technology.  These range from data collection for public health purposes, executing and settling energy transactions, to setting up secure and transparent elections and tracking ingredients used in foodstuffs.

From 2015 to date, there has been a surge of patent filings for inventions related to blockchain, as recently reported by the European Patent Office in a dedicated conference on “Patenting Blockchain”. 

Some of the first questions that a lawyer may consider when met with novel forms oftechnology include “What potential benefits can this technology bring?”, “Which are the
legal implications of the use of such technology?” and “How will this be regulated?”. In the forthcoming chapter and present blog series we indeed ask such questions with reference to blockchain in a way that is meant to be comprehensible both for lawyers but also importantly, other types of professionals, by focusing on contracts, intellectual property and personal data protection aspects.



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