All.Corporate & Commercial.Intellectual Property & Technology

What do you think "tangible property" is? Often it's described as property that can be physically touched. Just to confuse things: what about data? Can it be considered tangible property? Here's some (intangible) food for thought.

Generally speaking, Australia doesn't have a guiding authority on how data should be classified, other than from Switzerland Insurance Australia Ltd v Dundean Distributors Pty Ltd (1998). In that decision, the Court found that the corruption of computer data was physical damage as a result of a "change in the alignment of the magnetic particles on the hard disk of the computer"—not exactly broadly applicable to the concept of data.

File, print—the case for tangible

In just a few clicks, you can turn any page of data stored on your computer's hard drive into words printed on a very tangible piece of paper. If you flip this example and scan a handwritten page of information and then save it to your computer's hard drive, the file takes up space on your computer and can be edited, copied or destroyed—it can be "touched" or manipulated with the mouse controlled by your hand that, as determined in the above case, involves the alignment of physical magnetic particles within your computer. This is why some people believe data should be considered tangible property.

In its current controversial state, varying interpretations of data tangibility could potentially pose a threat to insurers and policyholders who make assumptions about the inclusion or exclusion of data from property damage provisions in insurance contracts. We expect the discussion will continue until an Australian guiding authority is handed down.

So, if it looks like data and it acts like it tangible?

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