On the Issue of the (in)Efficiency of the Modern approach to regulating relations regarding Digital assets for Protection of their Holders’ rights.

The amount and value of new digital objects appearing due to the ongoing development of information technologies and covered by the concept «digital assets» is growing at an impressive rate. More and more people are becoming holders of certain digital assets that have monetary value. However, the lack of a clear mechanism for regulating relations regarding digital asset leaves their holders vulnerable because their rights have little or no protection. Therefore, the purpose of this article is to analyze current approaches to the regulation of the rights of digital asset owners based on user and license agreements and case law in this area, as well as to identify the (in)effectiveness of the protection of rights to digital assets, and to determine the prospects for changes in this area. The following methods of scientific research are used in the work: dogmatic method; comparative method; method of legal and doctrinal analysis.

Currently, relations with digital assets are regulated by Terms of Service or EULA agreements. However, this approach has shown its ineffectiveness in protecting users’ rights. This article reveals why modern mechanisms for regulating relations regarding digital assets are imperfect for protecting their holders’ rights. Some data that indicates the opacity and complexity of user agreements is provided. Case law on protection of users’ rights to digital assets based on user agreements is analyzed. The case law analysis reveals that there is a recent tendency for courts to grant a greater degree of protection to users, despite the Terms of Service, even though the latter are most often understood as contracts that bind the parties and should be applied preferentially to the law. However, courts are limiting the unreasonably wide powers of developers in favor of users. The emerging situation shows the need to establish certain restrictions for developers at the legislative level, in order to protect users as a weaker party. The first step in this direction can be considered the latest European regulatory acts, such as Digital Markets Act and Digital Services Act. This paper analyzes the provisions of the aforementioned acts related to the new requirements for Terms of Service aimed at ensuring a balance between the rights of users and providers. The article also pays attention to the issues that arise due to the provisions of license agreements (EULA) regarding digital assets. In general, the conclusion is made that there is a need to change current approach to regulation of relations regarding digital assets. To ensure more efficient protection of the digital assets’ holders, the provisions of ownership should be applied to the relations regarding digital assets.