Digital Assets, Digital Content, Crypto-Assets, Data and Others: Are We on the Road to a Terminological Confusion?
Abstract
For a while, legal literature has been trying to deal with the phenomenon of host of “things” being represented in a digital form and carrying a value (either economic, social, or other) to the users. Therefore, notions such as digital assets, virtual assets, virtual property or res digitales started to appear across the legal literature. The understanding of these notions varied and instead of finding similar traits, many authors tried to coin their own notion and definition. And although the phenomenon described by the legal scholars had the same ground (it being an object with a value in a digital representation), the notions did not always cover or describe the same phenomenon. There was also never an agreement on whether this phenomenon should be covered by an analogous use of the current legal institutes, or whether a new concept (e.g. a control) that would better reflect their nature should be introduced. At the same time, consumer law came up with digital content, although the concept and the context of this notion slightly differs from the academical notions of virtual property and digital assets.
With the new EU digital legal framework, we can observe that the lawmakers continued with the notion of digital content. Moreover, we can see terms such as digital services or data finding its new terminological life. The new notions, however, come with many issues concerning their systematic inclusion under the existing legal institutions and the Members States are left to decide their own systematic. Therefore, we can observe that there are many notions and definitions trying to embrace the digital reality, both in the field of academic works and in the new framework.
The aim of this paper is an analysis and comparison of the notions in the legal literature and in the current digital framework. Specifically, the author would like to analyze and compare how the legal theory concerning digital assets/virtual property/data complies with the current notions in the new EU digital framework, whether the context and aim of the regulation is the same as the one in the legal theory and how the new notions interact with the classic institutes of (in)tangible things or copyrighted works. This will be observed from the view of the Czech law.