What we mean by ‘property’

18 Property Law

2.1.2. Conceptualising ‘things’

Cunningham, Stoebuck and Whitman also ascribe to the unthinking non-lawyer the assumption that property is about tangible things only. As they point out, this is not true. While there must be some ‘thing’ in respect of which a property right subsists, it need not be a tangible thing. The ‘thing’ may exist only at the highest level of abstraction. You can have a property right in a song or in shares in a company, and you can have a property right to the flow of water in a stream or to the passage of sunlight through a window or (conceivably) to a pension or to welfare payments, just as much as you can have a property right in a brick, a car or an area of land. We saw in Chapter 1 in relation to property in human bodies and body parts that the law recognises property rights in some things but not in others, and that the decision that a legal system will make as to whether a particular thing can be the subject of property rights is likely to be dictated by pragmatic and principled considerations of varying and fluctuating weights.

If there are good reasons to treat particular rights as property rights, the conceptualisation of the appropriate ‘thing’ will rarely provide an obstacle. However, perceived practical difficulties in enforcing the rights may be seen as a problem. We see several examples of this in Chapter 9. In Victoria Park Racing v. Taylor (1937) 58 CLR 479, for example, the High Court of Australia decided that a racecourse owner who organised horse racing at race meetings did not have the exclusive right to view, report or otherwise exploit the race meetings – he had no right to prevent a neighbour from commercially exploiting the event by broadcasting commentaries on the races on the radio. The court had no conceptual difficulty in accepting that a spectacle such as a sporting event might be the subject of a property right, but one of the reasons why it refused to recognise such a right was the practical difficulties it envisaged in enforcing it. They took the view (perhaps misguided, as we see in Chapter 9) that such a right could not be adequately vindicated by the law except by prohibiting everyone else from overlooking the event, even casually from the top of a bus. This they considered to be impractical, and a strong argument against accepting that a property right could exist in a spectacle such as a horse race.

2.1.3. Distinguishing property rights from other rights relating to things

We have just established that there are some things in respect of which a legal system will not recognise property rights. But, even if a particular thing can be the subject of property rights, it does not follow that all rights in relation to that thing will be property rights. What distinguishes a property right in a thing from other rights in the same thing is the breadth of enforceability of the right. We designate as property rights those rights that the law will uphold against people in general (either the whole world, or everyone except a specified class of exceptions). A right that the law will uphold, but only against a specific person or persons, is not a property right. The simplest of examples is the car hire example given in Chapter 1.