Mind the Gap: The Status of Digital Files Under Property Law

Abstract

This paper explores the property status of digital files under English law. Since digital files do not fit the definition of things in possession, nor of things in action, we argue that users are unlikely to have a property right in their files. This may have various legal consequences, including for rights of access and compensation in commercial disputes, as well as under succession, copyright, and criminal law. We consider whether the law should be amended so as to extend property rights to cover digital files and conclude that this is not necessary, since solutions can be found under contract law or by introducing specific, sui generis legal provisions as appropriate.

Keywords: property law, digital files, information ownership, cloud computing, possession, tort of conversion, liens of possession, succession, estate, copyright law, criminal law, theft

JEL Classification: K1, K10, K11, K12, K13, K14, K36, O34, P14