Introduction To Property Law Accompanying Case Briefs Notes

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) exclusion 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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