SLATE VI: Data Objects As Property?

SLATE VI was presented by Professor Kelvin Low, the leading expert on cryptocurrency and virtual assets. Prof Low started by describing the paper that is the subject of the talk, “Data Objects: New Things or No-Thing More than Ignis Fatuus”, stemmed from the misapprehension amongst lawyers regarding the way technology works with regards to information in digital form, which the paper terms “data objects”. In the property law space, this is carried into the classificatory confusion regarding the definition of what constitutes property, because of a failure to distinguish between the stricter conception of property as in rem rights and the wider conception of property as wealth (which also includes in personam rights and abstract erga omnes rights). Prof Low illustrated this with a few examples regarding how in rem rights, abstract erga omnes rights and in personam rights are transferred, and demonstrated the difference between interference with the rights and infringement of the same rights. In a more introspective mood, Prof Low surmised that many of these mistakes could have been caused by the application of metaphorical thinking in the law, and a failure to understand the shortcomings of metaphorical legal reasoning. For instance, the case of Your Response Ltd v Datateam Business Media Ltd [2015] QB 41, a case about a dispute between parties about a subscriber database, could have been resolved as a contractual dispute turning on whether the parties’ obligations were interdependent or independent, without resorting to the law of possessory liens. Likewise, in the Michels and Millard paper, “The New Things: Property Rights in Digital Files”, which the “Data Objects” seeks to respond to, creating property “ownership” rights over data objects creates intractable issues such as whether B, who finds A’s password-protected file on his USB stick and consequently deletes it, is liable for damages to A (for her ostensible “property” rights over her file), notwithstanding that B, as the owner of his USB stick, has the freedom to do what he wants with his property. This led to the inevitable conclusion that the concept of property rights in data objects should be regarded as nothing more than a legal illusion – a will o the wisp.

The presentation was followed by a very dynamic exchange between Prof Low and members of the audience who raised questions about carbon credits, Banksy’s artwork on other people’s properties, bibles and works in the public domain. The discussion was moderated by A/P Daniel Seng, co-director of TRAIL, who was also the co-author of the “Data Objects” paper.