The legal nature of digital assets

Thesis

This thesis explores the legal nature of digital assets from the perspective of property law. It discusses four questions that have been underexplored in the case law and literature in relation to digital assets: (1) the conceptual capability and normative desirability of recognising property rights in respect of digital assets; (2) when a property right in a digital asset ought to be acquired for the first time; (3) when one ought to be able to transfer such a right; and (4) the strength of such a right against third parties generally.

It argues, in relation to (1), that it is conceptually possible and normatively desirable to recognise property rights (in the sense of non-interference rights effective against the world) in respect of a digital asset. In relation to (2), an original property right should arise where one has positive and negative control of a digital asset plus an intention to exercise control over it on one’s own behalf. In relation to (3), the right should be transferred only when there is a change of control plus an intention to transfer the right. Finally, in relation to (4), the current law leaves a gap in protection in respect of digital assets, and it should not be filled by extending the chattel torts to them, but should rather be addressed by a new regime that (i) provides a remedy where one’s use of their digital asset has been intentionally or recklessly impaired, and (ii) allows one to recover control of a digital asset from a person with no property right or an inferior property right in it.

Authors: Liu, H

• DOI: 10.5287/ora-pzyydppzv
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: private law; control; acquisition of property rights; property law; crypto; possession; transfer of title; thing; personal property; interference; protection; digital assets
• Subjects: Control; Property; Possession (Law); Right of property; Personal property; Cryptocurrencies; Cryptocurrencies--Law and legislation