Redefining 'Property' in the Digital Era: When Online, Do as the Romans Did

39 Pages Posted: 20 Mar 2016

See all articles by Przemysław Pałka

Przemysław Pałka

Jagiellonian University in Krakow - Faculty of Law and Administration; Information Society Project at Yale

Date Written: 2016

Abstract

Through its conceptual framework, private law assumes a particular structure of the reality it aims to govern. With the digital revolution the structure of this reality has transformed. Law does not have terms and concepts to make sense out of it. This leads scholars and judges dealing with the new reality to confusion and inoperable conclusions. Law needs new concepts, but lawyers have neither a method nor the tools to create them. Firstly, the author proposes a method of internalizing new types of objects of 'property' into private law discourses. This method consists of three steps: terminological clear-up; 'mode of existence' lenses; and 'conditions-for-enforcement-backwards' analysis. The author presents and tests the method on two examples: personal data and 'virtual property'. Secondly, the author suggests a new categorization of objects of private law relations, including the new types of assets currently controlled and traded by legal subjects, abandoning material/immaterial distinction, and replacing it with a triad of res corporales, digitales and incorporales. Further, the importance of the distinction between objects ‘as such’ and their carriers is underlined. Finally, the author distinguishes between objects with primary and secondary mode of existence – the latter needing third party's action to be sustained, a positive obligation in the negative dimension of a potential property right – a complete novum for the private law ordering.

Keywords: Property; Personal data; Virtual; Legal methodology; Concept

Suggested Citation

Pałka, Przemysław, Redefining 'Property' in the Digital Era: When Online, Do as the Romans Did (2016). EUI Department of Law Research Paper No. 2016/08, Available at SSRN: https://ssrn.com/abstract=2749701 or http://dx.doi.org/10.2139/ssrn.2749701

Przemysław Pałka (Contact Author)

Jagiellonian University in Krakow - Faculty of Law and Administration ( email )

Krakow
Poland

Information Society Project at Yale ( email )

127 Wall Street
New Haven, CT 06511
United States

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