The probative value of the data saved on the blockchain

blockchainStarting from the analysis of the application of the technology blockchain the protection of copyright will address the issue of probative value of the data saved on blockchain. The function of timestamp certificate turns out to be very useful in all those cases where there is a need to affix a certain date. The immutability of the data and the signature with asymmetric cryptographic keys bring the data stored on block chains closer to IT documents regulated by the CAD and from eIDAS regulation. These data may have probative value former art. 2702 of the civil code or are they left to the prudent evaluation of the judge?

The use of technology blockchain for the management of Intellectual property has been theorized by many doctrines, this is because the function of timestamp combined with that of hashes make the tool very versatile for certifying the certain date and the originality of a piece of data. Furthermore, this technology would eliminate the critical issues due to the centralization of record keeping (for example the corruptibility of the entity, etc.) and to the nature of the evidence (deterioration, loss, etc.). Bearing in mind that the current means of registration are all based on a certain date (for example the notarial deposit, the SIAE deposit and registered mail), the advantages in terms of costs and durability of the application of the blockchain in this field. In fact, recently the SIAE has decided to use the so-called NFTs (Non Fungible Token) to protect copyright. This according to the institution is the first step in the adoption of a broader platform based on blockchain.

This example introduces us to the possibility of using the above characteristics, adapting them, to every case in which it is necessary to certify the originality of a data (file, document, etc.) or to obtain a certain timestamp for probative purposes.

So what is the probative value of a data entered on a blockchain?

A first answer could be that of an atypical test. In fact, although there is no article in the civil system of the scope of the 189 cppthe jurisprudence (Court of Reggio Emilia, 1 December 2014, n. 1622), underlining the non-existence of a closing provision in the sense of a numerus clausus of evidence, it is pending for the admissibility of atypical evidence also in the civil trial.

If we shared this approach which rejects the typicality of the evidence in the civil trial, we could admit the data saved on the blockchain like the simple assumptions (former art. 2729 of the Civil Code) or some test topics (former art. 116 cpc). Having said this, it must be noted that the doctrine does not agree on the fact that a simple presumption or argument of proof is enough in order to base the judgment of the judge. Indeed, for a part of it, the atypical trials would have a weak efficacy and would have to be confirmed by other typical trials. After that it is clear that if the presumptions are characterized by a non-trivial technical or scientific nature they will have greater weight. In this case the problem shifts to the fact that the blockchain being a relatively new and complex technology, it will often require the judge to use a technical consultant to assess the probative weight of this type of evidence. It is clear that you need to have considerable confidence in the consultant’s expertise in the matter.

In conclusion, for evidentiary purposes the admissibility of the data saved on the blockchains, their probative force, however, at the moment would be somewhat uncertain.

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If you think about the functioning of the two main types of blockchains, i.e. those permissionless and those permissioned, further considerations can be made.

In blockchain permissionless access is free and users act on it in a manner pseudonym completely distributed And decentralized. For this reason there is no prior identification of participating users. Although usually these platforms (think of that of bitcoin) guarantee a high level of security, integrity and immutability of the data, the latter could not be traced back, not even in principle, to the computer documents regulated by CAD (art. 24 and 25) and from eIDAS regulation. Despite the use of asymmetric cryptographic key signatures is intrinsic to the functioning of the blockchains, also type permissionlessthey do not guarantee primarily identification of the subject e secondly demonstrating the sole possession of the credentials (and therefore not the identification of the agent subject) by the person who carries out, for example, a transaction, would make the data saved on them admissible in the process only by way of atypical tests.

In permissioned blockchain access is not free and participants are previously identified. Even the operation of the entire system is less decentralized, in fact it usually provides that the nodes are in a hierarchical relationship with each other. The characteristic of being able to attribute to superordinate and identified nodes powers validators and the fact that the users they are identifiedcould allow for greater compliance to the existing legislation on the matter digital signatures And documents IT of the data saved on one blockchain thus accomplished. If the cryptographic signatures created in this way turn out to be comparable to those regulated by the CAD (and in fact they are because the Prime Ministerial Decree of February 22, 2013 in art. 55 establishes the principle of freedom to create advanced electronic signatures; also the technical 57 could easily be respected) one would be faced with computerized documents that the law considers, from a probative point of view, identical to the private writing (pursuant to article 2702 of the Civil Code). In this case the data could have the efficacy of full proof until the lawsuit of forgery.

Returning for a moment to the protection of Copyrightpredict a permissioned blockchain for this purpose it would be an innovative and efficient solution.

In conclusion, it should be noted that the art. 8-ter of the Simplifications Decree 2019 introduced into our system the first normative definitions of blockchain And smart contracts. It should be noted that this legislation is currently not implemented due to the failure of the AgID to issue the implementing technical legislation. The inclusion of this non-operational regulation, according to some, may have introduced a gray area regarding the use of these innovative tools. In fact, since there is specific but not implemented legislation, it may not be possible to use the currently existing one (CAD, eIDAS) in order to guarantee a more certain protection to those who use systems and applications based on blockchain.

The Legislature inserting article 8-ter in the cauldron of Simplifications decreeinstead of boosting the innovation factor, it has only contributed to amplify that uncertainty that we wanted to “simplify”.

For a more in-depth analysis of the topic, seeArticle freely downloadable in pdf.

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The probative value of the data saved on the blockchain