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
Date Written: January, 12 2009
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: Suggested Citation