Ownership of Digital Assets and the Numerus Clausus of Legal Objects

Abstract

The classical approach to property law can still be applied to legal objects which have historically been accepted as such: physical things, particularly land and also movable property, monetary claims and intellectual property. Next to the numerus clausus of property rights, limiting their number and content, in the civil law strengthened by the unitary concept of ownership, the number and type of legal objects can also be characterised as a numerus clausus. The type of object is decisive for the type of applicable property right. An example can be found in, e.g., the new Dutch Civil Code in which ownership is defined as the most complete right concerning a physical thing. Consequently, if the thing is not physical, that particular object cannot be “owned”. This does not mean that no primary right (in the sense of the maximum of powers, rights, privileges and immunities) exists, but it is not ownership, but entitlement. The legal object is therefore the qualifier for the property right to be applied. In classical property law, if an asset could be qualified as a legal object, still no property right could exist if not a second leading principle had been fulfilled: transparency, demanding a specific description of the object concerned and publicity (balanced by the demands of privacy). After a comparative analysis of leading cases and particularly analysing the new article 567, par. 2, of the Luxemburg Commercial Code, it seems that – perhaps more implicitly than explicitly and more hesitatingly than boldly – data have been accepted as a new legal object. The difficulties seem more to arise from the requirement of specificity than, among other problems, from the classification of data as tangible or non-tangible.