Информационные объекты как имущество: опыт юрисдикций общего права и перспективы его имплементации в России

Abstract

The article is devoted to the study of the common law approach to the legal regime of economic values embodied in the form of objectified data (data objects or digital assets). The author focuses on the principal possibility and grounds for qualifying data objects as property, as well as their inclusion into one of the property classes. The analysis begins with an overview of the essential characteristics of property developed in the court practice and legal studies in common law jurisdictions. The author then considers the problem associated with the integration of data objects into the traditional dichotomy of personal property which include choses in possession and choses in action. It is noted that this integration is possible by introducing a third (non-traditional) type of property. The author provides a brief overview of some notable case law addressing the recognition of digital assets as property. The study shows that courts of common law jurisdictions recognise property rights in respect of digital assets, but they do not classify such objects as a specific class of property. Furthermore, there are opposite positions taken by courts regarding the possibility of keeping data objects in possession. In conclusion, the author gives a brief overview of some initiatives related to legislative developments of data objects’ regime as property in the United Kingdom and USA, as well as notes ideas and approaches that might be of interest in the context of the Russian law. In the author’s opinion, as in common law jurisdictions, the Russian legislators should recognize data objects as a special type of property, the appropriation of which is carried out through a specific right that is distinct from the right of ownership. When developing a new legal regime, they should also consider ideas of foreign colleagues related to the criteria for identifying data objects qualified as property.