Digital Files Are Property in New Zealand

The Supreme Court of New Zealand has held that digital files in a CCTV system are property and could be stolen. Thus someone who accessed the system and uploaded the files to YouTube was convicted under the NZ criminal code for accessing a computer system without colour of right to obtain property.

The Court of Appeal had held that the digital files were not property, but the accused could be convicted of accessing the system to obtain a benefit, since he tried to sell the files before uploading them (not having found a buyer).

This seems like quite a change in the law. Would it have some impact here? Would the impact be in civil cases as well as criminal?

Canada’s law on unauthorized access bans access to computer systesm done “fraudulently and without colour of right”, but does not insist on a criminal motive beyond that. So the issue would not have arisen here in that context.

Views? Thin edge of wedge? Dead end? Property law rocked to its foundations?

Comments

  1. David Collier-Brown

    As data can be duplicated without removing the original from its owner, it is an exceedingly odd kind of “theft”.

    It’s certainly something that can be a wrong, but we’ve distinguished from theft, and characterized it as a breach of an exclusive right to copy that is granted to its author by the crown.

    In a system of logic, a wonderful way to get the answer you want is by sneaking a “category error” past your readers. If it doesn’t immediately get you the conclusion you want, you use it to get a contradiction, from which you can (pretend to) prove anything whatsoever.

    I fear our NZ cousins may have posed themselves an *interesting* problem.

  2. Sounds like our nations’ top courts would disagree on this.
    R. v. Stewart, [1988] 1 SCR 963 headnote:

    The wording of that section [theft, now 322(1)] restricts the meaning of “anything” in two ways: first, whether tangible or intangible, “anything” must be of a nature such that it can be the subject of a proprietary right; and second, the property must be capable of being taken or converted in a manner that results in the deprivation of the victim. Confidential information does not fall within that definition. Confidential information does not qualify as property for the purposes of [s. 322] of the Code. If protection is warranted for such information, it should be granted through legislative enactment and not through the extension of the concept of property or of the scope of the theft provision under the Code. Further, except in very unusual circumstances, confidential information is not of a nature such that it can be taken or converted. Information per se cannot be the subject of a taking. As for conversion, if one appropriates confidential information without taking a physical object evidencing it, the alleged owner is not deprived of the use or possession of the information but only of the confidentiality thereof. Since there is no deprivation, there can be no conversion. Confidentiality cannot be the subject of theft because it does not fall within the meaning of “anything” in [s. 322(1)].

    The unauthorized reproduction of copyrighted information, like the employer’s list, constitutes an infringement of copyright under [the Copyright] Act but does not constitute theft under the criminal law. The rights provided in the Copyright Act cannot be taken or converted as their owner would never suffer deprivation.

  3. We also discussed information as property here last year, in the context of an English case (not the same issue as in NZ).