Chapter 2: Which Rights in Which Things?

1. 
   Are there property rights in news? (No, for general public, yes between competitors)
   
2. 
   Can INS be restrained from selling news to its clients that it appropriates from AP? (Yes) AP has right of exclusion towards INS.
   
3. 
   Did INS’ conduct constitute unfair competition in trade? (Yes)
   

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  Is there property in news?
  
  • 
    Need to recognize dual character distinguishing between the substance of the information and the particular form or collocation of words in which the writer has communicated it.
    
  • 
    The news element – the information respecting current events contained in the literary production - is not the creation of the writer but is the history of the day.
    
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    So in the news element itself there isn’t a right of property recognized.
    
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    Also point out that news of current events may be regarded as common property. (cf. MacPherson)
    
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  Unfair competition in Business
  
  • 
    News question doesn’t matter because case turns around unfair competition in business.
    
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    Not dealing with restrictions on publication but with the very facilities and processes of publication.
    
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    Concerned with the business of making news known to the world.
    
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    Not about rights against the public but their rights as between themselves.
    
  • 
    Regard news as but the material out of which both parties want to make profits, must recognize for this purpose and between them as a quasi property.
    
  • 
    Court says you can’t consider this problem by considering the relationship between the defendant and the public but must consider the relationship between the two competitors in business.
    
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    By act defendant is admitting that it takes material that has been acquired by complainant by labor and which is salable for money, that the defendant is appropriating for money.
    
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  Abandonment
  
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    Contention that news is abandoned is untenable
    
  • 
    Abandonment is a question of intent, the AP association negatives this purpose.
    

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  There is no property right in a “combination of words” or just because there is an exchange value to those words and despite the fact that it took “labour and genius to make it.”
  
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  With respect to the unfair trade argument, the only reason why these cases are actionable b/c they tend to give the defendant an advantage in his competition with the plaintiff and that it is thought undesirable that an advantage should be gained in that way. Holmes J thinks there was an unfair advantage.
  
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  He views the case from the implied misstatement point of view; i.e. it can be corrected by stating the truth (acknowledgment of AP, or delaying the publishing of the AP acquired news for hours).
  

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  With respect to unfair trade, judge says that this doctrine has to do with the manner or means of conducting business. In this case, means were not objectionable; information is taken from papers brought in open market. INS did not seek to benefit from AP’s reputation. They are merely using this product without compensation; that they have a right to do so b/c the product is not property, and they do not stand in any relation (i.e. K or trust) to the AP. In addition, INS did not have to disclose the source of its news (b/c there is no K or law requiring acknowledgment).
  

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  Brandeis argues that this question is better answered by the legislature. Only the legislators can reconcile the effect of extension of property rights (private interest) and a corresponding curtailment of the free use of knowledge (public interest).
  

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  Quasi Property rights are possible.
  
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  Property rights are shown to adapt to current technological developments.
  

-Don’t forget to think about this case in relation to the idea of the fundamental right of property being the right to exclude. (Cf. Merrill)

1. how to justifying taking property from common to private.

Is Exchange value enough to make an intangible thing “property”.

“Property” reasoning of:

1. 
   Does VP have a right to exclude Taylor from reporting what he sees on VP’s land? If so, is there private nuisance with the use and enjoyment of the plaintiff’s land? (Held: NO)
   
2. 
   Can there be property rights in a spectacle? (Held: No)
   

• 
  If VP does not want T to see the race it should have built a higher fence but that the Cml Law does not recognize a “privacy” interest. He does not see any right that was violated or any wrong done to the plaintiff. No authority was cited to show that any general right of privacy exists.
  

• 
  VP is trying to claim a right in the creation of profit and that this is not property – cites Brandeis J from INS v. AP as accurately stating the English Cml Law position: “it is not because the individual has by his efforts put himself in a position to obtain value for what he can give that his right to give it becomes protected by law and so assumes the exclusiveness of property, but because the intangible right he claims falls within a recognized category to which protection attaches.” English law is clear that the natural rights of an occupier do not include freedom from the view and inspection of neighbouring occupiers or of other persons who enable themselves to overlook the premises. Occupier of land is, however, at liberty to exclude his neighbour’s view by any physical means he can adopt.
  
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  Substance of the plaintiff’s complaint goes to interference with the profitable conduct of its business and not with its enjoyment of the land. As evidenced by the law of copyrights (as special heads of protected interests and not under a wide generalization), British courts, unlike US courts, do not seem to recognize ‘broadcasting rights’ as quasi-property created by the enterprise, organization and labour (i.e. intangible elements of value, ‘value in exchange’)
  

• 
  this is a property right in the same way as hot news was property but only in relation to competitors. He frames the issue in the following way: “How far can one person restrain another from invading the privacy of land which he occupies, when such invasion does not involve actual entry on the land?” An improper or non-natural or use in excess of a right which curtails or impairs his neighbour’s legitimate enjoyment of his property is ‘tortuous and hurtful’ and constitutes a nuisance. A man has no absolute right ‘within the ambit of his own land’ to act as he pleases. Defendant’s rights are related to plaintiff’s rights and each owner’s rights may be limited by the rights of the other.
  
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  One of the prime purposes of occupation of land is the pursuit of profitable enterprises for which the exclusion of others is necessary either totally or except upon conditions which may include payment.
  
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  Right of view or observation from adjacent land has never been held to be an absolute and complete right or property incident to the occupation of that land and exercisable notwithstanding its destructive effect upon the enjoyment of the land of the other.
  
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  Rich is looking to the future and thinking about how these issues will play out when things like T.V are invented.
  

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  Desire for business profit and an almost reckless disregard of the ordinary decencies and conventions which must be observed between neighbours induced the broadcasting company to cause the loss to the plaintiff which has been proved in this case.
  
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  Defendants argue that the damage and loss to the plaintiff have been sustained by it rather in its character as racing entrepreneur than as occupier of land. But profitable conduct of its business cannot be dissociated from its occupation of the land, and damage to the plaintiff’s business is necessarily reflected by some diminution in the value of the land of the plaintiff.
  
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  Nuisance does not convey the idea of injury to the realty itself. It means rather an interference with some right incident to the ownership or possession of realty. Note that ownership or rightful possession necessarily involves the right to the full and free enjoyment of the property occupied.
  
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  Defendants are not engaged in normal trade competition (i.e. argument that ‘old school’ is replaced by ‘new school’, i.e. media). The defendant’s operations are conducted to the plaintiff’s detriment systematically and indefinitely.
  
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  England does not recognize any general right of privacy. BUT, not every interference with this right must be unlawful. England does not forbid one person to overlook the property of another. BUT, systematic watching can amount to civil wrong.
  

Yes, because the spectacle brings in the element of the spectator and thus an experience which is ephemeral. While this occurs upon the land it cannot be contained upon the land, particularly with the advent of new technology.

No, this is pretty obvious from the reasoning given by the dissenting judges in Victoria.