The Nature of Property

What is “property”? Who gets to “own” property, and why? What kinds of “things” get protected? These basic questions will be addressed in the practical context of controversies over ownership of news, sports scores, genetic materials and even human beings.

We’re going to start the term with “Introductions” (to me, to each other and to the course). The only reading you have to do for this is on the web. Explore this site, get to know about prezis, sign up for a Brightspace account, and, if you want, follow me on Twitter.

The title of our first class substantive class together is: “The Properties of Property.” Read pages 1-19 of the casebook. Basically, we’re going to ask ourselves, “what is property?” And we’ll do that by talking about the story of Yanner v Eaton (you’ll be grateful for the edited version in the casebook if you glance at the full-length version on the High Court of Australia’s website), in which the HCA was called on to interpret the meaning of the word “property” found in a potentially relevant statute. (Actually, whether the statute was or was not relevant to the case depended on the interpretation of the word “property.”)

Most of us began to assert our rights to exclude others from particular objects as toddlers. Western society, at least, seems solidly wedded to the idea of “I, Me, Mine“. But what does it mean to say something is “mine”? In this class, we’ll explore that question. The extracts of Thomas Merrill’s article in the casebook lay out a helpful taxonomy of schools of thought about the meaning of property, arguing that it must revolve around the right to exclude. I realize that Merrill makes reference to a number of property scholars who you’re likely not familiar with. Sometimes it helps to put faces to names, so you might want to quickly surf through these pages on BlackstoneHonoreHohfeldWaldron and GreyYanner v Eaton gives us a chance to put these scholars’ theories, and Merrill’s taxonomy, into practice.

As you’ll learn, the concept of “property” is not limited to physical objects. Through the film, Fire in the Blood, we’ll look at the intersection between property and human rights, specifically the relationship between international patent law and access to medicines in sub-Saharan Africa. This is a topic close to my own heart, as it connects directly with the work of a research partnership that I co-lead, the Open African Innovation Research (Open AIR) network.

Imagine no possessions. Is it easy if you try? In the second class, we’ll talk about why we have such a concept as property. Readings are on pages 29-41 of the casebook. In that context, again, many of you will be introduced to new names like BenthamHardinde SotoPosnerHellerHegelRadinReichNozick, and Locke. Those are just a few of the philosophers and legal scholars whose views on property you’ll get to know throughout the course. We’re going to dissect the main justificatory theories of private property along 2 broad lines: (1) those that see property as a creature of positive law and (2) those that treat property as a natural or “God-given” right. The former includes utilitarian theories, and perspectives from the sub-discipline of “law and economics” in particular. The latter includes theories premised on labour, personhood, freedom and related grounds.

The third and fourth classes address novel claims. To prepare for our discussion of property rights in information, I want you to read pages 41-51 of the casebook. Just from reading the INS and Victoria Park cases you may not appreciate that there are stories about real people and real businesses underlying the decisions. I’ll be sure to tell you during class about the fascinating behind-the-scenes history of INS v. AP.

For the final class in this introductory lesson, “Biotech & Property in Body Parts,” read pages 54-71. You also need to skim the patent at issue in the Moore case. After watching Fire in the Blood, I’m sure you’ve got questions about how patent law works. We’ll cover that, but remember, our primary objective during this lesson isn’t to learn the doctrinal nuances of intellectual property. We’re trying to contextualize the issues, and better understanding the basic principles that shape the rules we’ll study later.

Chapter 1 is a tough slog, especially if you don’t have a background in philosophy or political studies. If you’re confused, I’d encourage you to also read Chapter 1 of the supplemental textbook before or after class. It should help you get this stuff. You’ll need a firm grasp on these materials to have a good chance of success throughout the rest of the course.