Response to the Law Commission's Digital Assets Consultation Paper

In this document, we respond to the “Digital Assets: Consultation Paper” of the Law Commission of England and Wales. We welcome the Law Commission’s proposal to treat crypto-tokens as a new, third category of property. However, in our view, the proposal fails to provide sufficient legal certainty to holders of other kinds of digital assets. As a result, uncertainty persists as to applicable remedies, as well as under succession law. Further, we disagree with the Law Commission’s analysis on two specific points. First, the Law Commission considers that digital files are non-rivalrous. We argue instead that digital files are rivalrous to a degree and can be subject to exclusive control through logical access controls. Second, the Law Commission considers that email accounts, domain names, and in-game assets do not exist independently of the legal system. We submit instead that all three are technological things that exist separately from the contracts that govern them. We conclude that these other kinds of digital assets could be potential objects of property rights under English law