Defining virtual property in terms of the constitutional property clause
This dissertation critically considers the question of whether the concept of “virtual property” may be understood to be included as a form of property in the constitutional property clause. The reason for this problem is that there is no definition of the property concept in the constitutional property clause. South African courts have not yet given clarity as to whether virtual property may be included, recognised and protected or to what extent such protection could be. There are different approaches and opinions for defining the concept of property. The importance of extending property protection to virtual property lies in the fact that virtual resources have a real-world value. Currently in South African law virtual property exists only in theory and is by no means a legal reality. Therefore any argument towards recognizing virtual property lies in a theoretical rather than practical approach towards protection. The party who relies on constitutional protection for intangible property will have to prove the existence of the right and argue the reasons why the right in question should be protected in terms of the property clause. The constitutional protection that could be accorded to virtual property would be in terms of either an established category of intellectual property or a commercial property interest. If virtual property cannot be recognised as a thing according to South African private law because it is incorporeal, an exception to the rule could be created, if necessary by legislation. Otherwise, it could be accepted that the incorporeal aspect of virtual things, as an exception to the rule, does not have to stand in the way of their recognition as property. It is concluded that virtual property will be recognised reasonably easily as property for purposes of constitutional protection, in other words against state interferences. Virtual property could be protected against both private and state interferences in private and constitutional law.
- Law