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

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