Property and Data: A Confused Relationship

Abstract

This chapter looks at how the relationship between property and data can cause legal confusion when the two interact in blockchain-based digital finance. Two types of crypto-assets, payment tokens and asset tokens are introduced and potential ways to give transactions legal certainty are suggested. Four court cases are used to demonstrate how a poorly-defined relationship between property and data can give rise to legal confusion, and how this can affect the court’s approach to cryptocurrencies such as Bitcoin. An approach is proposed in which a distinction is made between property that consists of data, and data itself. This can help crypto-asset providers design internal data governance to protect both clients’ property and their data. The extent to which this approach is in line with the provisions under the proposed EU MiCA and GDPR is discussed.

Keywords: Blockchain, DLT, Crypto-asset, payment token, asset token, data governance, GDPR, MiCA

JEL Classification: K22, K11, K12, K23