[Commons-law] Windfall rights - a fourth domain of property?

[sudhir krishnaswamy]

Hi All

This response is to some points made in the first mail that Lachlan sent in 
and Lawerence's reply. First a clarification and then a couple of 
suggestions

Was curious as to the use of the phrase 'fourth domain of law' - was that 
phrase connected to the three domains of property - land, movables and 
intellectual - and the fourth being digital OR is this an entirely different 
point. I will asssume that it's about the three domains of property for the 
rest of the mail!

Suggest that it would be better to organize property discussions around one 
distinction - between tangibles and intangibles. While tangible property 
rights are directly related to physical assets, intangibles are at least one 
step removed. Most doctrinal legal discussion adapt property law to this 
distinction

Then the point Lachlan raises is whether this conventional property doctrine 
can be extended into the digital space - this is a debate that continues 
more generally with respect to what are called cyberlaws. Thequestion posed 
is whether we adapt existing laws to cyberspace [a new transctional 
environment] or should we necessarily create new ones -that debate is alive 
and raging though the current trend as with the IT Act in India seems to 
flow in the latter direction

But the key contribution that this debate on new frameworks for the digital 
space - with a greater scope for the public domain - has been in upsetting 
what was largely taken for granted with property law in other spheres. The 
development of the open source concept to commodities like 'open cola' 
offers the promise of a complete overhaul of property doctrine generally. So 
for me that challenge lies in upsetting the current arrangements in property 
law and not the creation of a fourth domain as such.

A short comment on the windfall rights illustration - there is a long 
history of collection/picking rights in Indian forests. Previously these 
were administered by the feudal lords and presently the Government has 
substituted for them. However, these rights are no longer commons rights and 
instead are auctioned to the highest bidder!

Cheers
Sudhir

Cheers
Sudhir

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