Is virtual real? : an assessment of whether property in virtual reality should be subjected to property laws of Kenya

Abstract

There are various forms of property recognised in Article 260 of the Constitution of Kenya, 2010. The list provided therein is exhaustive of the property groups given. The development of technology in the 21st Century has seen the invention and growth of gaming and virtual reality spaces. These technological advancements have enabled people to interact in fictional alternate universes, embedded in computer code. In the goal geared towards mimicking real life, developers of these spaces include the ability of users to have assets with which they can utilize in the virtual worlds and transact with fellow users. However, the developers have over the past two decades maintained their stance on ownership of these assets, stating in their EULAs and TOS agreements that all Intellectual Property in the spaces belong to them. With numerous cases regarding these virtual assets, between users and developers occurring around the world, arguments against this stance have been made, with scholars making arguments for virtual assets to be granted property rights. This study aims to show how granting of property rights to virtual assets is impractical and therefore cannot be granted the said rights. It will assess the understanding of property in different legal regimes and highlight the main gap present in the question of whether virtual assets should be granted property rights. The results of this study will highlight a framework under cybercrimes that will seek to protect the users’ interests in their virtual assets unauthorized access, and interference as a step towards the building of a property rights-based system for virtual assets.