La loi applicable aux transferts de biens virtuels

Multi-player virtual worlds are three-dimensional games. Over the past few years, players have been engaging in various activities involving the transfer of virtual objects that they have themselves created or purchased in these virtual worlds and over which they claim ownership. The objects, called “virtual goods”, exist only in the online world and may take any number of forms (e.g. avatars, space ships, etc.). Although the market for virtual property has important economic, social and legal impacts on consumption, these “goods” are neither recognized by the law, nor protected by North American or European legislation or jurisprudence; only the licensing contracts drafted by the developers regulate their uses. However, conflicts that arise in this domain may grow very complex since virtual interactions give rise to a great variety of activities and create legal relationships between the cybernauts who meet in the virtual environment of cyberspace although they may be physically located on either ends of the planet. Thus, the adverse effects of these activities may manifest themselves outside of the cyber environment. Since the virtual world and the physical world are interconnected in these cases, we have to ask the following question: what law should apply to the transfer of the “virtual goods”? In order to answer contentious questions that arise under private international law, one must first go through the initial step of juridically qualifying the objects in question, here the virtual goods, in order to be able to assign them to a specific legal regime and to the specific conflict of laws rules that apply under that regime. Virtual goods – inherently immaterial – do not really exist: they are graphic representations of source code embedded in the software of the virtual world. Thus, the legal characterization of the virtual objects as “property” is controversial under civil law because it depends on whether one adopts a strict (traditional) concept of property law or a more expansive (modern) concept. Even if virtual goods were to be recognized under property law, since the conflict of laws rules applicable to property law place a lot of importance on the physical location of the property in order to determine the legal attachment, this renders the search for a solution to the conflict of laws in this area very difficult. Application of the principle of contractual autonomy therefore provides greater scope in determining property rights, but this solution may not be satisfactory to third parties. Thus, it is useful to turn to the contemporary doctrine that criticizes the general application of the rule of physical attachment to particular and novel contexts that present difficulties in determining the location of the property and instead applies the intellectual property regime which is specifically designed to deal with incorporeal goods. Copyright law is better suited to virtual goods as creations of the mind since its application is not hampered by the non-existence of the goods and because the conflict of laws rules applicable to traditional copyright law provide international protection for copyrights.

Keyphrases: virtual worlds, virtual goods, virtual property, private international law, conflict of laws, intellectual property