For the past decade, blockchain, along with the recent ascent of non-fungible tokens (NFTs), have been hailed as revolutionary tools with the power to reshape the global economy, particularly in the context of property rights. In this chapter, drawn in part from the authors’ earlier work, the use of blockchains and NFTs in real property transactions is questioned by interrogating how the existing technologies work against the backdrop of the realities of real property transfers. Moving beyond the hype, the authors explain that a blockchain system would provide few if any benefits to the system of real estate transactions. Yet they think there is indeed a potential use case for blockchains and crypto technology when it comes to property rights. But, it is not in the world of real property – which our existing system has largely shown itself to be sufficient – but rather for intangible property. American law developed to deal with tangible assets, whether personal or real, owing to their historical prominence as primary wealth. But tracking and transferring rights in intangible property has always been underdeveloped. It is here, so we argue, that blockchain technology and NFTs might have the highest utility.

To the elemental question of what is the nature of intellectual property, the conventional answer is that it is ‘intangible’ and hence has no physical existence. This is because, it is said, there is a fundamental dichotomy between the immaterial subject matter that is protected by an IP right and its embodiment in some material object. This chapter revisits the elemental question and comes to the conclusion that the conventional view mis-states the position. In particular, while it is true that IP laws recognise something like the tangible/intangible duality, properly understood the rights granted by those laws do not attach to the immaterial subject matter; rather, they attach to the material object in which the subject matter is embodied. More specifically, while the class of things in respect of which IP protection may be granted includes intangibles, it also includes tangibles. Moreover, the things in that class are material – in that they are perceptible by a human sense.