Developing constraints on property rights in the community interest: concepts of ownership and the limitation of property rights in land and copyright law

Abstract

There is a dominant ideology of property in land law, the ‘liberal model’, in which the rights of the property owner are perceived as being absolute. However, there is an alternative model, the ‘stewardship model’, in which property rights are intrinsically limited by obligations to the community. The community can be understood as having certain claims in respect of privately-owned land. The accommodation of these ‘community claims’ necessitates the imposition of constraints on the rights of the property owner. Whichever model of property is dominant will have a significant impact on the development of constraints on property rights that can accommodate the community claims effectively. Whilst Locke’s theory of property has traditionally been used to support the liberal model, a more holistic reading of this theory indicates a closer resemblance to the stewardship model. As such, its use to support the liberal model should be re-considered. Although various constraints on property in land do exist, the influence of the liberal model has meant that many of these constraints have failed to develop into tools which could accommodate the community claims effectively. In the context of copyright law the community has claims to access and use copyright works that are analogous to the community claims in the context of land. Copyright law has long been influenced by the law of property in land. It is currently being influenced strongly by the liberal model, which is undermining the development of limitations on the rights of the copyright owner which would be necessary to accommodate these community claims. It is suggested that the liberal model is, to some extent, being replaced by the stewardship model as the dominant ideology of property in land. The stewardship model provides a more sympathetic environment for the development of constraints on property rights that could accommodate the community claims effectively. If copyright law adopted the stewardship model as the dominant ideology of property, in place of the liberal model, this would facilitate the development of limitations in copyright law.