THE JUDGMENT No. 11/2014 OF THE COMMERCIAL COURT No. 9 OF BARCELONA OF JANUARY 11, 2024 (VEGAP v. MANGO): THE FRUSTRATED ISSUE ON NON-FUNGIBLE TOKENS AND THE FRUSTRANT INTERPRETATION OF THE SPANISH COPYRIGHT

Abstract

It is, to a certain extent, inevitable that every technological innovation that leads to new uses of protected works and related rights will raise new legal issues in relation to Intellectual Property law. In fact, VEGAP vs. MANGO seemed to provide a first opportunity for a European court to analyse some consequences of this phenomenon in terms of copyright law. However, this was not really the subject of the case, which was brought by the collecting society VEGAP in relation to certain acts of transformation and subsequent exhibition (physical, digital and virtual) of the MANGO company's creations on a series of images whose original supports it had acquired years earlier. In short, the Commercial Court of Barcelona focuses on a problem of articulation between intellectual property rights and the rights of the acquirer of the material support of a work of art. Its reasoning relies on the fair use clause contained in Section 107 of the American DMCA, supported by the theory of innocent use of another's right and a different interpretation of the three-step rule contained in Article 40 bis of the Spanish IP Law, following the Supreme Court's ruling of 3 April 2012. The ruling issued casts a particularly discouraging perspective for the interests of right holders, and overturns some of the basic fundamentals of our discipline.