Ownership of Data: The Numerus Clausus of Legal Objects
From a comparative viewpoint, “ownership” at a formal level (i.e., technical-terminological), but even more so at a substantive level, already has a wide variety of meanings. It ranges from the fullest right possible with regard to tangibles (thus excluding intangibles as in German law) to the fullest right possible with regard to both tangibles and intangibles (as in French law) to an exclusive right to possession (as in common law, where we should, furthermore, distinguish between “estates” in land and “titles” to personal property). What has hardly been noticed is that the description of what is meant by ownership, although primarily aimed at delineating the content of that right, also characterizes the object of the right. The object of the right is thus a part of the right’s content. In other words, the right (ownership) and the object (tangible/intangible) have traditionally been connected; the object is a qualifier of the property right. This intersects with the civilian idea of a numerus clausus of property rights, which is thus buttressed by a numerus clausus of legal objects. The type of property rights is seen as limited, both with regard to number and content, and so is the type of objects related to those property rights. The digital revolution, with its rapid growth of digital data and incredibly fast expansion of interconnectedness and interoperability, thus makes us question both what can be recognised as a legal object (can it include “digital data” and if so, under which conditions?) and what the impact of the recognition of digital data as a legal object means for our understanding of ownership.
6 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 235 (2017).