A Bundle of Blockchains? Digitally Disrupting Property Law

Abstract

Intellectual property has traditionally concerned itself with the ownership of inventions and expressions of ideas. Although the digitization of assets did create new challenges for enforcement, it did not fundamentally alter the nature of the property itself; if one traded in digital assets, one was simply trading in mere copies. However, the playing field was altered by the introduction of cryptocurrencies, which — for the first time — allow for actual transfer of digital assets. Legal scholars have already identified that cryptocurrencies (i.e., alternative currencies powered by blockchain technology, the most popular of which is Bitcoin) pose thorny issues for property law.

In this paper, I offer a conceptual framework to understand the blockchain as a departure from traditional intellectual property law. I review foundational ideas about intellectual property theory (Locke’s labour theory, Hegel’s personalty theory, Bentham’s utilitarianism, the modern common law legal fiction of the “bundle of sticks”, as derived from Hohfeld) and demonstrate that none of these philosophical bases are sufficient for a technology as revolutionary as the blockchain. Instead, I propose an alternative property conception, which invokes civilian masters Savigny and Duguit, and in particular, their views regarding patrimony.

Keywords: Bitcoin, blockchain, cryptocurrency, intellectual property, legal theory, property law theory, technology