Although data, on its own, does not have a physical form and therefore does not fully conform to the classical definition of "movable property" under property law, it increasingly approaches the category of movable goods when considering its legal transaction capability, transferability, and usability similar to tangible assets.
Is data an object?
Although data, on its own, does not have a physical form and therefore does not fully conform to the classical definition of "movable property" under property law, it increasingly approaches the category of movable goods when considering its legal transaction capability, transferability, and usability similar to tangible assets.
The prevailing legal doctrine holds that all digital products containing data—particularly software—acquire the nature of goods when they are recorded on physical carriers such as CDs, portable storage devices, or computer memory. Considering that digital products are increasingly becoming the subject of legal disputes, it is indisputable that data now needs to be clearly classified. Indeed, recent rulings show that data is being evaluated within the legal framework applicable to movable property. For instance, in one of its decisions, the Court of Cassation considered the delivery of software source codes as a “delivery of movable property.”
In this regard, we are of the opinion that data—especially when it is embodied in a physical carrier or allocated to individuals through a system (such as software, databases, or computer programs)—should be evaluated within a flexible definition of goods that can respond to evolving needs. This evaluation should be conducted in a manner that does not conflict with the fundamental principles of property law, while also taking into account the unique nature of data.
How Are Data Delivery Disputes Resolved?
In today’s disputes concerning the delivery of data, the prevailing view is that the provisions of property law regarding movable goods should be applied by analogy. Accordingly, in cases where data delivery is required, it is first necessary to obtain a court judgment that includes a provision for the delivery or return of the data. Pursuant to Articles 24 and following of the Enforcement and Bankruptcy Law, court judgments concerning the delivery of movable property serve as the basis for enforcement proceedings with a judgment.
For example, in practice, a court ruling ordering the delivery of software source codes to the plaintiff has been evaluated within the scope of judgments concerning the delivery of movable property. In this context, it is evident that the concept of “movable” has been interpreted broadly to include digital content such as data, going beyond the classical definition of tangible movables. This judgment clearly demonstrates that digital content like data, although intangible, can be subject to enforcement proceedings under the provisions governing the delivery of movable property. Based on this, it can be concluded that when data is embodied within a software system, in a digital environment, or on a data carrier, its actual delivery may be requested through enforcement proceedings.
In practice, in order to initiate enforcement proceedings based on a court judgment, there must first be a ruling that includes an obligation to deliver the relevant data. This judgment must be submitted to the enforcement office to start the proceedings, and an enforcement order regarding the delivery of movable property must be sent to the debtor. If the debtor fails to fulfill the obligation, coercive measures such as forced seizure or coercive imprisonment may be applied. Within this framework, access to data can also be treated similarly to the delivery of a physical object. For example, the provision of a decryption key for an encrypted file or the transfer of a data set stored in a cloud system may be subject to enforcement, just like the delivery of a car or a physical key.
However, a key point to consider in this process is that the delivery of the data must be possible and specific. First, there should be no dispute regarding the ownership, access, or control of the digital content requested for delivery. Additionally, as emphasized in court rulings, the data must not include personally identifiable information, trade secrets, or banking secrets that are subject to special protection. Otherwise, a potential delivery order may violate the Personal Data Protection Law (KVKK) or other special regulations. At this point, the exceptions outlined in Article 28 of the KVKK must be carefully considered during the delivery processes.
Implentations On Eu And Switzerland Law
In the European Union, data is not considered “property” in the classical sense; personal data is regulated within the scope of personality rights under the GDPR, while non-personal data is governed in terms of access and sharing rights. Specifically, the “right to data portability” regulated in Article 20 of the GDPR relates not to the ownership of data but to the data subject’s right to transfer their personal data to another controller. Therefore, in the EU system, data delivery is generally addressed through granting access rights or providing the data in a portable format.
In Switzerland, ownership of data is not directly recognized under the Civil Code; however, control and access rights concerning personal data are regulated by the Federal Data Protection Act (DSG). For embodied data such as trade secrets or software, delivery is facilitated by applying the provisions of the Code of Obligations and the Enforcement and Bankruptcy Law by analogy. Switzerland has not established a separate concept of “data ownership”; instead, data delivery is enabled through contract law, unfair competition law, and enforcement law mechanisms.
As can be seen, in the European and Swiss systems, where data is not classified as property, this issue is addressed through special regulations granting access and usage rights to data, and by facilitating delivery through the actual transfer of access.
Conclusion
While theoretical debates will undoubtedly continue to grow with advancing technology and applications, it is critically important that these processes are managed flawlessly within the existing legal framework in practice. Digital data can be treated like movable property and subjected to enforcement proceedings with a court judgment, provided that its ownership between parties is undisputed and it exists in embodied forms such as software, databases, or source codes. Thus, data will no longer be merely a matter of contractual rights, removing barriers to its protection through enforcement mechanisms similar to those available for tangible goods.
Selin Su, Managing Associate
Ebrar Turan, Associate
Berfin Sarıhan, Trainee Lawyer