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Introduction To Property Law Accompanying Case Briefs Notes

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LAWS 301 - Test 1 Cases: Common law concept of property - bundle of rights Yanner v. Eaton; 1999; Australian CA Facts:
D was member of aborigine tribe
hunted and killed two juvenile estuarian crocodiles
ate part, and froze the rest
D was charged under Fauna Act for hunting sans licence/permit/certificate under the Act
D said s211 of Native Title Act applied
law doesn't restrict native title holders from carrying out a class of activities sans permit
purpose of satisfying personal, domestic, non
commercial needs
exercise in enjoyment of native title rights
each of the following class of activity (relevant =
hunting, cultural/spiritual activity)
NB: juvenile crocodiles are of "totemic value" to the tribe Arguments:
P said native title extinguished in face of Fauna Act
D said Fauna Act created legal regime inconsistent with rights of native title holders in Queensland

Judgment majority:
property is "bundle of [all] rights" re. thing
saying that the Act makes property belong to the Crown doesn't mean anything in itself
property doesn't equal ownership
can also mean any of the lesser sets of rights making up the
ownership is the biggest bundle of right (i.e. it is a grouping of every possible right/privilege)
here property conferred on Crown is not "full, beneficial or absolute ownership"
difficulty in identifying fauna owner by Crown (migratory birds passing)
difficulty defining "full, beneficial or absolute ownership" in relation to fauna
property right here not constantly exclusive in like with private property (e.g. license in open season)
seems reason for vesting fauna property interest in Crown was "necessary step in creating royalty system" (so legal fiction to help regulation)
the sections in question fall short of conferring complete ownership on Crown:
just rights to possession AND
right collect royalties off fauna taken
right to prohibit taking except where taker has license Judgment - minority (McHugh J):
the average person would say "property of the Crown" means ownership (ordinary meaning)
majority view only works theoretically

Common law concept of property - property in ideas Millar Facts:
Millar buys right to print Thompson's 'The Seasons' poems in 1729
in 1763, Taylor published copies Argument:
P said as property = value, and literary publications have value, literary publications are property
P said the value of literary publication depends on author having sole and perpetual right to publication
D said "a literary publication becomes no longer an object of property ? no longer exclusive private right
literary composition is of sole dominion by author as long as it remains a manuscript; pub ? prop. of world

Judgment - Mansfield:
common law gives author prop. right to copy of his work until printed and pub.
property in copy is equally incorporeal right to print a set of intellectual modes of thinking
publishers have perpetual right to publish work they acquired rights for
no amount of time would allow work to pass to public (become public domain)
moral argument (author should be able to reap the fruits of his own labour)
not permitting this can lead to misprinting/misinterpretation of his ideas
the Act restrains perpetual right to copy into a limited time right to the copy
BUT didn't take away common law right coz was lack of express statement to that effect Judgment - Yates' dissent:

1. property is acquired by occupancy:
invention is the defining/discovering of vacant property; labour is possessing and cultivating that property
occupancy of ideas?
some act of appropriation is required
common law: author prop. attaches to idea when it occurs/ he

writes it down
if another wants to publish ideas, he can be told no as are another's prop.

2. moral and equitable right to fruits of mental labour (Blackstone)
usurping this right ? usurper guilty of injustice
Mansfield disagrees to the scope of this statement:
every man entitled to the fruit of his labour only within fixed constitution of things and gen. rules of prop.
when owner monopolises property, injustice to mankind coz excludes natural/social right enjoyment
to balance, legislature gave author exclusive right for 28 years; after he has property in manuscript

3. possession/corporeality (property must be corporeal):
if property is to be a distinct possession, it has to be corporeal (visually distinguishable)
here property claimed is idea ? in the mind, not visible
draws attention to distinction between incorporeal right of person and object
here, publication profits depend on manuscript, so manuscript is property
but to prove perpetual right to profits, must prove perpetual right to ideas

4. exclusion:
author can't keep work to himself after publishing it (ideas open to the world)
voluntary publication is a gift to the public and restraining such a gift is meaningless (not possible too)
giving right to "mere perusal" (see keys to gate/opera ticket) only possible if copy lent, not publish for sale

5. identification:
how to set distinguishable marks on intellectual ideas?
author name on title page means nothing as done even if work gifted to public
BUT no name doesn't bar claim as if property is absolutely his, no occasion to add name to titlepage"

6. re. perpetual right to idea encourages publication ? intellectual advancement:
every reward has its proper boundaries; 28 years enough per statute, court can't oppose statute
establishing perpetual publication can take the opposite direction:
property right print can?right to suppress?abandon idea/nonpropagation
even if printing continues, but sale price is exorbitant, same effect
perpetual right to idea restrains natural right to discussion to aid learning
also retains right to lawful employment and earning by printing and bookselling (coz monopoly)
opens door for perpetual litigations

7. perpetual claim to ideas not warranted by the general principles of property:
cannot fall into a class of property (land or chattels);
not land; not chattel coz not goods and debts
right to bring action against those printing sans consent is vindictive (in personam not in rem)

(original) common law exists to ensure public benefit re. necessaries of life not intellectual improvement
original inventions (mech. and literary) begin on the same footing re. property
inventor and author both have the right to determine whether the world can see their creation
once mechanical invention is published, in face of no patent (manuscript) anyone can make the object
could make same moral arguments as for literary invention, but it isn't recognised; so ditto literary Issues with Yates' judgment:
agrees with statute of Anne's prot. of intellectual prop. BUT doesn't let it inform common law analysis
no distinction between absolute ideas and particular modes of expression
here right claimed was right to print ideas, printing being a particular mode of expression
this distinction seems to get around the conceptual and normative problems:
possession/occupancy (of a particular mode/way of saying things)
identification (of mode that is protected)
learning and knowledge (discussion is permitted, just not in that mode) Aftermath - Donaldson v Beckett:
HL overruled judgment in Miller
Lords voted against perpetual copyright
so property right to intellectual property is upheld only by statute International News Service v. The Associated Press (1918; USA CA): Facts:
two competing United States news services, INS and AP, were reporting in the US on WWI
business hinged on getting fast and accurate reports published.
following unfavourable reporting of British losses, INS barred from using Allied telegraph lines to report
effectively shutting down their war reporting
INS gained access to AP news through bribery, news bulletin boards and early editions of newspapers
INS members would rewrite the news and publish it as their own, without attribution
though INS papers had to wait for AP to post news first, newspapers in the west had no such disadvantage relative to their AP counterparts
AP brought an action seeking to enjoin INS from copying news
judgment for P Arguments:
D says posting on bulletin = publication = public property
D says no unfair competition coz. not trying to palm P's work off as its own

Judgment - Pitney J: Property in news matter:
dual character = substance of information (daily events) +
manner of comunication (literary quality)
agree that news has to be published quickly to retain its value
fair competition between parties: conduct business in way not unnecessarily or unfairly injuring competitor
here the question is re. rights of parties as between themselves, not the general public
so even though there mightn't be property in rem, news is quasi property; property between P and D
coz both rely on it to make a profit "at the same time in the same place"
in equity, the right to "acquire property by honest labour or the conduct of a lawful business" is protected just as much as right to guard property already acquired
here D acting to reap where it has not sown
this is interference into P's legitimate business = unfair competition in equity
so issue not solved using common law property
re. not unfair comp. coz. D not attempting to palm P's work off as its own
news matter differs from other cases in that it is "the mere material from which these two competing parties as endeavouring to make money, and treating it therefore as quasi property"
so difference is that:

D substituted misappropriation in the place of misrepresentation
so still selling P's goods as its own ( "habitual failure to give P credit; rewriting P's articles)
this is still palming off, just in the opposite direction
economic incentive to prevent misappropriation is to ensure people don't "stop sowing"
re. abandonment (question of intent):
P denies abandonment ? clearly no intent
court only delay D's right to publish info. so it doesn't encroach on P's benefit Holmes J :
publication of uncopyrighted combination of words doesn't ?
general public prevented from repeating them
even if took labour and genius to create combination
coz property doesn't arise from value, but from exclusion
so need to find some other ground to allow this restriction, i.e. unfair trade:
generally where D palms off his goods as P's, but the same effect is achieved here in opposite manner
coz news via P's enterprise and expense, BUTD saying was through D's enterprise and expense
also, coz P gets to western states after D, it will be assumed that P got his info from D
SO D is wrong BUT only possible ground is implied misstatement, which can be corrected by truth
so P is only entitled to D's being made to acknowledge P as source of informations Brandeis J (dissenting):
legal right to exclusion is an essential element of individual property
private property ? absolute right to exclude
pubic interest in property ? qualified right to exclude
product of mind costing labour + has value attached to it doesn't automatically ? legal right to exclude
general rule is than human productions become free for common use after voluntary publication
so property right in incorporeal productions only on exceptions involving creation/invention/discovery:
literary/dramatic/artistic creations with copyright attached
protections largely via statutes; some with patents
where courts interfere to prevent curtailment of P's right to enjoy incorporeal prod. it's only property right in the special sense
law doesn't protect news publications as property coz common law only protects form of expression, not actual knowledge/truth/idea/emotion; policy:
if news taken as having literary quality, only first publication of that news would be protected
after that, all property in news would cease
P says no, coz in each issue of each paper of AP members, restriction implied that the news won't be used gainfully in competition with AP or its members
no basis for restriction coz where publication is general, express words of restriction are inoperative
re. unfair competition due to "appropriation without cost to itself of values created by" P
may be inconsistent with sense of propriety BUT law has sanctioned such use but for above exceptions

in the exception, unfair competition was due to manner/means of conducting business
passing off
diversion of trade through coercion/inducing breach of contract/trust by enticing away P's employees
deliberate and wanton destruction of P's business
here, simply that the profits are unearned by D ? no element of equitable title/ breach of trust

VP Racing and Recreation Grounds CO. Ltd. v. Taylor; 1937; Aus. HC: Facts:
P owned Victoria Park, a racing track which charged admissions to people who placed bets on the races
racecourse surrounded by very high fence
D had a house and front yard adjacent to the course
D allowed radio broadcasting station to construct a five
metre high platform on scaffolding
station person could see into the course and broadcast races and info about horses posted at the ground
this facilitated unregulated offtrack betting ?
raceground attendance plummeted
P applied for injunction preventing said broadcasting on nuisance.BoCopyright, privacy, nonnatural use Arguments:
P said ontrack betting decreased due broadcasts as people prev. coming to track now on radio instead
P claimed Taylor was profiting at the expense of the plaintiff.
D says P's damage was in its role as entrepreneur not occupier of land ? no standing cause of action in torts
D said P's remedy either in erecting higher fence or appealing to legislature

though the injustice is obvious, would need to create new law by analogy to give P relief
but complexity of public impact today can ? private law by courts being unfair/injurious to gen. public
legislature better equipped to create new rights Judgment - Majority: Latham J:
not nuisance, coz no interference with P's use/enjoyment (more competing entertainment)
damage or harm not enough - must show right has been violated (not priv.)
value does not create property
any prop. in spec. metaphorical: based on legal principle that would exclude others from viewing /information related to spectacle
sic utere tuo ut alienum non laedas (your use shouldn't injure another's prop)
applies where law doesn't permit such damage
hard to see where P's right is violated (everyone entitled to look over fence; P can build higher fence)
re. D's unnatural use of his land ? damage to P's land/business:
essentially P's complaint would be the same if D had a high 2
storey house
so no connection between D's use of land and P's damage
re. P spent $ to create spectacle ? court to protect quasi
property in spect.:
no supporting English authority (preventing people from talking about entertainment created by P)
hard to fix precise meaning to "property in spectacle"
spectacle can't be owned in ordinary sense of the word
legal principle required for metaphorical property at best
even if spectacle = property, must show that describing such property is wrong, at least when widely disseminated (no authority supports this)
re. copyright infringement:
copyright not to give exclusive right to report fact, only protect publication of literary/artistic/scientific work
the is not the case here, BUT even if so, not shown that D infringed this copyright
policy makes it absurd to put copyright in noticeboard information (prevent pub. for 50 yrs from P death) Dixon J:
overlooking isn't nuisance
value doesn't create property rights; exclusiveness gives value
equitable remedy does protect intangible elements of value flowing from ind. skill/labour, BUT but these are "special heads of protected interests and not under a wide generalization"
right to prevent broadcasting occurrences seen on P's land doesn't exist in law
re. copyright infringement:

even if noticeboard list was copyright, repeating horses' names doesn't seem like an infringement
coz info. isn't "literary work" (which can be subject of copyright)
copyright re. racebook would go to goes to creator of info
no proof that these employees were in company's employ or book was written while in company's employ
also need (nonexistent) proof that broadcast by D amounted to performance of substantial part of work Judgment - Minority: Rich J:
man's right to use is land is qualified
acts invading neighbour's privacy only allowed where reasonable in circumstances of man and neighbour
spectacle is reasonable use of owner's land rights
giving neighbour unqual. right to watch/report spectacle restricts P's right re. spectacle more than generally understood
so need to balance P's property right to use land for profit with D's right to overlook from his land
widening of nuisance (nonnatural use that interferes with use and enjoyment, and appropriates value)
law responds to changing circumstances - broadcasting:
limits to privilege of overlooking (anticipating privacy?)
coz must protect contre complete exposure of acts is right indispensible to enjoyment of life Evatt J:
don't decide purely on doctrine look at facts at to see who is right/wrong
then manipulate doctrine to ensure this decision (realist)
re. P's damage was in its role as entrepreneur not occupier of land:
P's profitable conduct of business can't be disassociated from the land
damage to P's business ? diminution in land's value
nuisance protects rights to enjoy land, which D violates
re. D is P's competitor; so entitled protection in legitimate exercise of trade:
basis of competition is that both sides provide cust. g/s entirely on their own
company here incorporating P's entertainment with its own sans spending
proper application:
broadcasting company tried to reap what it hadn't sown
interference with P's profitable use of land at exact point where P reap profit ? divert big % of profit
conclusion is to allow appeal:
no general common law privacy; BUT no unrestricted right to spy on others
D's motive openly pursued/ is merely profitmaking, not direct spying, isn't defence
re. P can erect higher fence, D would then erect higher tower and so on Common law concept of property - property in human body + body parts: Judgment: Griffiths C.J:
general rule is that continued possession of an unburied human body except for burial is unlawful

Doodeward v. Spence; England, 1908: Facts:
P came into possession (by sale) of two headed child preserved in spirits

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