Appendix: Legal language
When working with legal advisers, it can be helpful to understand the terminology they use. In this section, we attempt to explain some of the key legal terms for ownership and deposit. This toolkit should not be considered legal advice. For guidance on specific legal matters, please consult a qualified legal adviser
In legal terms, privately deposited archive collections in physical format will usually be considered ‘corporeal moveable property’ (in Scotland) and ‘chattels’ or ‘choses in possession’ (in England, Wales and Northern Ireland). These are tangible things that can be physically possessed. Whilst incorporeal moveable property (in Scotland) and ‘chose in action’ (in England, Wales and Northern Ireland) are intangible things that cannot be physically possessed, including copyright and most other intellectual property rights. ‘Heritable property’ (in Scotland) or ‘Immoveable property’ (England, Wales, and Northern Ireland) refers to land, houses and buildings.
Scots law property categories. Reproduced from Alisdair MacPherson and Burcu Yüksel Ripley (2025). Digital assets in Scots law using a Scottish Parliament Copyright Licence.
What about archive collections in a digital format? This can present additional complexities. Although there is a lot of guidance in the archives and digital preservation sectors about intellectual property rights in digital collections, there is very little about whether they should be considered property. According to Alisdair MacPherson and Burcu Yüksel Ripley (2025) “There seems to be little doubt that digital assets can be property objects in Scots law. Property law in Scotland is expansive and recognises a wide range of property objects….While some digital items will be considered valid property objects in Scots law, that will not be true for all examples of what may be considered digital assets in a broader sense. There is some uncertainty as to where the current law would draw the boundary between digital assets that can be property objects and those that cannot.”
The Digital Assets (Scotland) Act (2026) makes it clear that digital assets should be seen as a type of property in law. The meaning of digital asset in the Act is described below.
“There is no agreed meaning to the term digital assets. It could be used to cover a wide range of digital items – from bitcoin to image files or in-game rewards.
However, the Bill would only apply to a sub-category of this group, commonly described as cryptoassets. To be caught by the Bill, a digital asset must:
- arise from an electronic system which makes it rivalrous – rivalrousness means that the use or consumption of the asset by one person limits its use or consumption by another
- exist separately from the legal system – assets which exist only because of particular legal rights (for instance, intellectual property or contract) are more appropriately recognised in other ways under Scots law.
In order to support rivalrousness, the electronic system behind a digital asset must make an immutable record of transactions. This has the effect of ensuring that the asset can only be used or spent once.
It would remain possible for other types of digital asset to be recognised as things which can be owned.
The Bill would not necessarily stop other digital items – out with the definition – being recognised as things which could be owned. This could happen through the process of the courts applying the general principles of the common law. The common law is the traditional law as developed by judges through their decisions in individual court cases.”
The Scottish Parliament (2026). Digital Assets (Scotland) Bill – consideration prior to Stage 3 briefing. Reproduced using a Scottish Parliament Copyright Licence.
Michels & Millard (2022) state that under English law information itself is not property, but that “digital files should not be treated like mere information.” They go on to argue that digital files “exhibit the characteristics of property and there are strong policy reasons for recognising property rights in certain contexts.” The Property (Digital Assets etc) Act 2025 (England, Wales, and Northern Ireland) makes it clearer that ‘digital assets’ can be seen as a type of property in law. However, the Act does not define ‘digital assets’ and the courts will determine how the law applies in individual cases.
In this toolkit, we have assumed there are property rights in deposited archive collections in digital format but recognise that further sector research and case law will be required to understand this.
In England, Wales, and Northern Ireland, the deposit of archive collections will usually be considered a bailment, with the depositor/owner the bailor and the archive service the bailee. The bailee has a duty to take reasonable care of the goods and return them in accordance with the terms of any contract.
However, in Scottish law the term contract of deposit is usually used, where a depositary is obliged to provide a secure place of custody and to exercise due care to prevent damage or loss in connection with the property. For more information, see Section 13.27 of Gloag and Henderson: the Law of Scotland, 15th edition (2022).
Ministry of Justice (2025). Property (Digital Assets Etc.) Bill: factsheet
J D Michels and C Millar (2022). ‘The new things: property rights in digital files?’, Cambridge Law Journal, Volume 81, pp 323 – 355
Alisdair MacPherson and Burcu Yüksel Ripley (2025). Digital assets in Scots law
Hector MacQueen (2022). Gloag and Henderson: the Law of Scotland, 15th edition.
The Scottish Parliament (2026). Digital Assets (Scotland) Bill – consideration prior to Stage 3 briefing
The Scottish Parliament (2026). Digital Assets (Scotland) Bill
Simon Schwarz (2012). Deposit, Max Planck Encyclopedia of European Private Law.
Thomson Reuters (2026). Practical Law