Problematic and Unnecessary? Issues with the Use of the Theft Offence to Protect Intangible Property

Sydney Law Review, Vol. 30, p. 575, 2008

40 Pages Posted: 13 Jan 2009

See all articles by Alex Steel

Alex Steel

University of New South Wales (UNSW) - Faculty of Law

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Date Written: January, 12 2009

Abstract

This article questions whether misuse of intangible property should fall within the scope of theft - an issue on which Australian jurisdictions are currently divided. It provides an overview of the traditional limitation of larceny to moveable property and some of the difficult issues of interpretation of the modern theft offence that are related to the inclusion of intangible property. It then examines in detail a number of forms of intangible property to see if any of them are capable of forming the basis of a theft charge. The conclusion made is that intangible property is either unable to form the basis of a theft charge, or if it can, the coverage of activities involving such a property right is either partial or highly uncertain. The article thus suggests that nothing of practical value is gained by extending theft to include intangible property, and that misuse of intangible property is best dealt with either by fraud or sui generis offences.

Keywords: larceny, theft, Theft Act 1968, tangible property, intangible property, choses in action, intellectual property

JEL Classification: K14

Suggested Citation

Steel, Alex, Problematic and Unnecessary? Issues with the Use of the Theft Offence to Protect Intangible Property (January, 12 2009). Sydney Law Review, Vol. 30, p. 575, 2008, Available at SSRN: https://ssrn.com/abstract=1326312

Alex Steel (Contact Author)

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

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