The impact of digital transformation on changing legal nature of information in digital form

Paschenko Il'ya Yurievich ORCID: 0000-0002-1445-2126 Adviser to the staff, Election Commission of the Krasnodar Territory 350000, Russia, Krasnodarskii krai, g. Krasnodar, ul. Gimnazicheskaya, 30, - ilpa@mail.ru Other publications by this author

The famous Russian lawyer I.A. Pokrovsky wrote: "Little by little, however, the individual begins to appreciate intangible, spiritual goods, and the right begins to give them protection – at first partial, weak and unsystematic, and then more and more completely ..." ^{[11, p. 121]}. What has been noted quite accurately and after many years characterizes the peculiarities of legal regulation in Russia of certain categories and new phenomena that find their most direct manifestation in public relations, developing in the conditions of digital transformation.

The current period of social development is quite clearly characterized by the orientation of legal instruments to stimulate the digital economy, which is also one of the national priorities of state development in accordance with Presidential Decree No. 204 of May 7, 2018. As one of the most important tasks, the document emphasizes the need to create a system of legal regulation of the digital economy based on a flexible approach in every public sphere. In addition, it provides for the introduction of civil turnover based on digital technologies, which is associated with the expansion of areas of human information activity.

The prospects of digitalization of society in the context of ensuring public interests are discussed on international platforms. Thus, during the work of the 74th UN General Assembly (September 27, 2019, USA, New York), in the speech of the Minister of Foreign Affairs of the Russian Federation Sergey Lavrov, it was noted that "among the most important tasks of the world community is the development of generally acceptable approaches to the regulation of the digital sphere, understanding the processes associated with the creation of artificial intelligence". At the same time, the UN General Assembly has begun consistent work on the development and coordination of updated rules of responsible behavior of states in the information space (Promotion of responsible behavior of states in cyberspace in the context of international security: Resolution adopted by the UN General Assembly. December 22, 2018. New York, USA). It can be stated that there are no international rules, as well as relevant international treaties that take into account modern trends of digitalization in the private legal sphere, and little progress in discussing information security issues.

National legislation continues to change taking into account the digital transformation of society, and information in digital form (in the form of information in information systems and data collected for processing) becomes the subject of intersectoral regulation. Currently, new objects can be found in circulation, which are not just not named in private law legislation, but also do not have a clear legal regulation at all. The absence of mention in the legislation does not prevent them from becoming the subject not only of transactions, but also of disputes during the consideration of court cases, for example, on bankruptcy and other issues (Decision of the Ninth Arbitration Court of Appeal in case no. A40-124668/2017; Decision of the Tenth Arbitration Court of Appeal in case No. A41-94274/15; Decision Of the Vologda Region Arbitration Court in case no. A13-3814/2016). At the same time, digitalization demonstrates another trend – stimulating the process of the emergence of new objects. Their appearance is very difficult to predict, as well as to determine the specific form of embodiment and initially assess the economic value.

New objects for turnover, taking into account the existing practice, it seems possible to divide them quite accurately into two separate varieties.

The first group includes such objects that are familiar and traditional for turnover, but they acquire a new electronic form of consolidation within the framework of the relevant information system. Their properties in circulation do not change, but opportunities for participation in it are transformed – as a rule, they expand.

The second group includes those objects that directly arise in the information system and have initially or exclusively an electronic form of implementation. Such objects can be recognized as virtual property in the information system, cryptocurrency, user data, user content and other categories that are in circulation due to the possibility and interest of the participants in the relationship in performing actions in the electronic environment.

The differentiation of these groups of objects is extremely important, since digitalization does not have a decisive role for traditional objects: their form and opportunities for participation in turnover change, but not the essence and content. Consequently, regulation requires relatively minimal clarification regarding the possibilities of the object's participation in digital circulation (in information systems). For the second group of objects, it is necessary to form not just specific, but also new mechanisms of legal regulation, to define limits and restrictions for socially significant purposes, including for the protection of public and private interests.

It can be assumed that gradually, over time, traditional objects will increasingly find expression in electronic form, since digitalization inevitably leads to the consolidation and commission of legally significant actions in the simplest and fastest way. To do this, traditional objects need to be directly secured in the electronic environment through a system of individual rights. Such a transformation will not change their actual properties in any way, but will only simplify for the participants of the turnover the possibility of performing organizational and legal actions.

The emergence of new objects of turnover is due not just to the process of digitalization of society, but is associated with the development of economic relations, the search for useful benefits and new solutions for the existing technological order. The peculiarity of the digital economy is that it exists in a new reality in which the real and virtual worlds are inextricably linked. Many of the actions and actions necessary for the real world (economically and legally significant) are possible to perform and implement through the virtual world ^{[8, p. 6]}. In the conditions of the new economy, the priority is the way to meet the needs and interests that always allows you to achieve maximum effect in the optimal time. In the case of the development of the digital economy, their satisfaction is possible through the use of digital information, work with which is possible in various ways.

The information technologies on which the digital economy is based are designed to process and use a significant array of information in digital form (data). As noted in the research, information has always been important for the development of the economy, but before this information was not crucial for production and trade, fitting into the concept of "human factor" ^{[9, p. 69]}. In the digital economy, the influence of information on the production process acquires a fundamentally different force, since it is no longer connected with the person who possesses it, but is connected with technological aspects. Taking into account these circumstances, the issue of independence and turnover of information as an object of civil rights is being updated in science again ^{[3, p. 24]}.

In the domestic theory of law, the problems of classification of legal relations are sufficiently developed ^{[4, p. 94]}, in which special attention is paid to their division into absolute and relative. The separation of legal relations pursues not only theoretical goals, but also practical ones, since it allows you to accurately determine the rights and obligations of the parties, methods of protection and the application of liability measures. Absolute legal relations may have a property and personal non-property character. Accordingly, absolute legal relations of a property nature, in which a person is opposed by an indefinite circle of obligated subjects, are traditionally divided into real and exclusive, including intellectual rights regulating the results of intellectual activity and means of individualization equated to them. Information as an intangible object is inherently close to the system of absolute rights (however, it differs significantly from the varieties of absolute rights presented). There is no regime for regulating information in relations of a binding nature – a system of relative legal relations. At the same time, in the Soviet years of the development of legal science, the convergence of absolute and relative rights was noted ^{[2, p. 26]}. As a result, the complexity of attributing a particular subjective right to a certain category prevents the reasonable use in practice of such a technique as legal economy ^{[6, p. 107]}.

The issue of developing or choosing the optimal regime for regulating information in the context of digitalization is becoming not only a complex, but also an urgent scientific task. We believe that the information on the basis of which new objects of turnover arise in the electronic environment and the rights associated with them, including those defined by the rules of the information system, may just cause concerns about the use of legal economy tools by the legislator. However, new categories "pushed" into the existing framework of legal industry regulation are unlikely to fully allow for maximum economic efficiency and reflect their exact compliance with the real situation.

It is problematic to consider property regulation in relation to information due to the well-established legal theory regarding the exercise of property rights and limited property rights. The basis of the idea of property rights are things that are objects of the material world and corporeal objects in circulation.  In turn, information has the opposite characteristics: it has no material embodiment, except for the one that is necessary for perception, and is also permissible for use and transmission in an appropriate way (on a material carrier or in another way, including through the use of information technologies).

The level of modern development of information technologies demonstrates the fact that even the need for a material carrier among the participants of the real turnover is virtually absent. The parties to transactions in which it is necessary to transfer or provide certain information, as a rule, agree on the form and content of the information as an important condition. There may be a situation in which one of the parties transfers an object (a material carrier with information), which has value due to the information content recorded and stored on it. However, in the conditions of the digital economy, other methods will be preferred, including when transferring a large amount of data – access to information through cloud technologies, etc. Of course, the material carrier has a certain economic value, but it does not have a decisive significance in the relevant relations for the provision or transfer of information, since the goal pursued by the parties is related to the alienation of information of a certain content, and not with the possession of any object acting as a means of storing information or data. At the same time, it is worth mentioning that the concept of independence of information and its independence from the carrier has been developed theoretically for a long time ^{[5, p. 19]}.

Various means are used to transfer information, allowing it to be transferred from one information system to another, while preserving its digital form. Often, in transactions, information is transmitted by providing links or machine-readable codes that provide access to cloud storage and enable information activities. Modern information technologies have not reached a level at which a carrier would not be needed to carry out actions with information, it is in any case stored on servers, disks and other technical devices. However, for its transmission, especially by wireless or contactless means, a material carrier is not always required.

Returning to the question of ownership, it should be noted that it implies the traditional triad of powers: ownership, use and disposal. Considering the applicability of individual powers in relation to information, it is possible to notice the incompatibility of these categories for several reasons.

Possession refers to the actual "holding" of a thing. The peculiarity of information as an immaterial object by its nature is that it is impossible to "hold" it. The use of the term "possession" can be applied to information only conditionally ^{[10, p. 135]}.

In the modern realities of digital transformation, the features of human perception of information have not changed yet – it can be perceived in two objective states.

Firstly, in the human mind, information arises and is objectified by performing mental activity, finding direct reflection with the help of special means of fixation on various media. For example, information about a certain event can be captured by a person's senses, and then verbally or nonverbally transmitted to other persons. Such information gets value depending on the definition of its value by the participants of legal relations. It is noteworthy that in the first place there is precisely such information that can either be reflected on a material carrier or not have it in the absence of a need for it. As a rule, we are not talking about digital information, but such a form of information embodiment is not excluded.

Secondly, information can be on a material carrier initially - in the process of its creation with the help of special devices and technologies for the purpose of fixation. Accordingly, the process of transferring information to a material carrier can be both actual, when the transfer is carried out through physical actions (possibly through the use of special equipment), and programmatic, in the case of additional use of information technologies (software) for transferring information.

In relation to the nature of absolute legal relations in the electronic environment, the right to possess information may arise, from which the possibility of use and limited disposal follows.

The use of a thing implies its use for such purposes that would allow to obtain a useful effect from its turnover. In this sense, it can be noted that it is quite realistic to use the information for economic purposes. It is possible to carry out such actions that will bring profit to the owner of the information. For example, concluded contracts for the provision of information quite successfully allow the parties to benefit. Contractual relations on the issue of big data processing have become widespread in practice and are used in various fields ^{[1, p. 34; 12, p. 217]}.

The disposal of a thing implies the possibility of determining its future fate. With regard to information, it is difficult to take such actions that would lead to its destruction or complete alienation. For example, by destroying a material carrier, the user of information destroys the ability to access it. Is the information itself being destroyed? How can I make sure that there are no copies of it or a copy? Ambiguous questions for jurisprudence.

Information is not tangible, but it is perceived by the senses or with the help of technical means. Having performed certain actions with it, the owner gets different information. At the same time, it is possible to change its content and value. This does not exclude the separateness of information and the possibility of giving it such qualities that would allow, if necessary, to identify or distinguish it according to certain criteria. The process of individualization of specific information is particularly difficult, since it can be fragmentally isolated from the general generic totality, i.e. to form an image-a copy, a duplicate, or even to give a new content. Unique opportunities for processing digital information appear when using information technologies. These processes are not at all analogous to those that can be performed in relation to things.

The definition of fate has the most complex and ambiguous interpretation in relation to information, since, having information, it can be limited to dispose of. It is impossible to destroy it in the literal sense, but it is possible to change it at the will of the person who has the information. Changing its content is possible by processing and performing other actions, including operations using equipment and technologies. In addition, it is important to take into account the fact that it is permanently fixed in the memory of the one who got access to it. In the digital economy, it is often data that becomes the subject of relations, the volume of which significantly exceeds the possibilities of their perception and memorization by a person, but not processing and storage by special devices. At the same time, with the development of technology, the possibilities for storing and using information increase, as do the risks of unauthorized access to it without the consent of the owners or subjects of specific legal relations.

In fact, the right of use and limited disposal, as well as the right of access, is possible with respect to information. The right of ownership cannot be transferred, since the information remains in the memory of everyone who had the opportunity to get acquainted with them ^[7].

Thus, in the classical sense, the institution of property rights in relation to information is not applicable due to the modern understanding of the theory of property rights and the existing mechanism of legal regulation. Therefore, information cannot be owned in the sense of holding, but it can be used and disposed of taking into account reasonable restrictions due to its nature and the peculiarities of technological development of society. In addition, it seems more accurate to use the phrase "person in possession of information" instead of "person in possession of information".

Information has a certain multiplicative property, which is that it exists and can exist in the form of an indefinite number of copies. Getting into circulation in the form of an object, information loses this property in specific legal relations. It acquires a certain value, which is invested in it by the subjects of the relevant legal relationship (in a certain sense, discreteness).

Thus, for the parties to a particular legal relationship, information becomes individualized by virtue of its perception. Things, on the contrary, initially have a predetermined meaning for the participants of the turnover. Acquiring economic value, information becomes comparable with objects of a property nature. By itself, outside of circulation, information has no value for the digital economy.

It is impractical to establish a limited property right in relation to information due to the fact that the idea of a special form of perception of a thing is at the heart of legislative regulation and the domestic doctrine of property law. In addition, the differences between information and any thing in circulation with restrictions are too obvious. Information is not in circulation in the literal sense, but can be presented in it through other objectified forms.

Even formal disregard for the approaches of the domestic doctrine carries significant risks for regulation. The right of ownership of information allows you to grant broad powers, in particular the ability to freely dispose of those information that have constitutional and legal protection, have an impact on the quality and standard of human life. In the conditions of a modern market economy and digitalization, this can lead to neglect of legitimate interests, and in the conditions of unformulated state and general civil ethics on the use of digital information, to violation of the rights of even those citizens who do not even participate in the relevant legal relations. However, this does not exclude the problems that provoked court proceedings regarding aggregated and freely collected information on the Internet (the Ruling of the Intellectual Property Rights Court in case No. A40-18827/2017). A large volume of various data about citizens freely and illegally "circulates" in information and communication networks. Subjective rights have complex remedies that are related to civil law methods. The norms on the protection of information in circulation are additionally represented by articles of the Criminal Code of the Russian Federation (on computer information) and the Administrative Code (in the context of providing information).

This indicates the need to continue searching for the concept of regulating information and approaches to legally securing the rights arising on it in the context of the development of the digital economy.

In modern science, positions have been formulated according to which information cannot actually participate in circulation and be the subject of transactions, because specific property rights are used for these purposes (Rozhkova M.A. Information as an object of civil rights, or What needs to be changed in civil law // URL: https://zakon.ru ). The approach is formulated based on the norms regulating the peculiarities of the exercise of subjective rights, taking into account the current version of the list of objects of civil rights. In addition, the existing legal regulation of the results of intellectual activity and means of individualization implies the participation not of the objects themselves in circulation, but of a separate category of rights to them.

In this regard, the issue of determining the scope of available rights to objects in the electronic environment becomes relevant. An example can be given with a music album (a set of musical compositions created by the creative work of the author and placed in a special order), recorded on a CD or stored on a server, but available in a streaming service (software that allows streaming data in audio recording format). The physical media disk belongs to the owner, it can also be alienated with the compositions on it, which are subject to exclusive rights (subject to the restrictions provided). When streaming music, the user has no idea about the media (with which the person is not actually in contact). The information is distributed through cloud technologies, and the ownership and the possibility of exercising a certain amount of rights is determined based on the license agreement. The limitations are due to the use of an information system. In addition, if the presence of a carrier implies the possibility of constant use of the information stored on it, then access to the streaming service is provided due to other factors (subscription payment as a condition for obtaining access to information, the operability of the user's technical devices, the smooth functioning of the information system, etc.). Thus, a situation arises in which one and the same object has a different amount of rights.

Turnover is mediated by contractual and non-contractual relations of a binding nature (relative legal relations). The stability of turnover is ensured by the possibility of transferring property (tangible objects) and property rights (intangible objects) from one person to another. The value of turnover is based on the economic benefits of the transfer of objects on the basis of contracts and by virtue of other legal facts. Difficulties with determining the place and meaning of information in the system under consideration are related to the fact that it both exists in a certain form (objective reality) and forms the basis for the functioning of the electronic environment (virtual space).

In relation to information in the electronic environment, in our opinion, special information rights of a subjective nature may arise: the right of access and the right of disposal. The specifics of the exercise of these rights may be provided for by the rules of a specific information system, since there is no established regulatory framework for them.

In the current conditions, legislative and law enforcement agencies are following the path of artificially "embedding" new objects into the framework of existing structures to establish legal regulation. The problem is caused by the insufficient development of legal theory in relation to new objects of turnover, which the rapid process of digital transformation brings into public life. There is a need to develop a special system of information rights that would fully ensure effective regulation of the circulation of information or rights to it both in reality and in information systems. The search for a model for regulating digital information is conditioned not only by modern trends in the transfer of actions to the electronic environment, but also by the existence of intangible objects that have an informational nature and are represented in modern circulation.