Tuesday, March 29, 2011

Who Owns Sunlight?

I had never thought about who owns sunlight until I read an interview with Professor Stuart Banner of UCLA Law School. Professor Banner has recently published a book, American Property: A History of How, Why, and What We Own, which, according to the publisher's blurb, is the "first comprehensive history of property in the United States." Banner's central thesis is that the nature of property has changed over time, and was once linked to ownership of tangible things. This is not so today, when ownership of intangibles such as ideas, HTML code, genetic material, artistic styles, and methods of making traditional medicinal remedies is accepted. Banner asserts that notions about what is property have been changing for centuries.

The nature of property, he argues, has been shifting for centuries, as society and technology change. Some types of property have vanished, like commons laws that stretch back to the first North American Colonies, while new ones have emerged, like ownership of the airwaves.

Banner is careful to point out that, through all those shifts, the real constant hasn't been what property is or how you can prove ownership, but what our property does for us. Our modern social definition of property ... took shape around the turn of the 20th century as a "bundle of rights." It has since evolved into a "set of relationships" among people, businesses, the state, and the land.

Banner uses sunlight to illustrate the notion of property as a bundle of rights. Elevated train lines that were built in some cities blocked the sun from buildings that abutted the lines. The buildings' "owners ... stated that it was an infringement of their property rights" to have the sunlight taken away, and they sued, in many cases successfully. The idea that the owners had a property interest in the right to receive sunlight would have been unthinkable a generation earlier.

Asked about the "burgeoning issues in property law," Banner pointed to the "use of aspects of traditional culture, art forms, medicine." Specifically, "Australian Aboriginal art with the lines and dots" is "traditional artistic style that groups came up with over long periods of time, so now groups are litigating for that style to be property of that people."


Betsy McKenzie said...

How ironic & funny that you post the link to Boston Globe & I post a link to the NY Times. We have this mixed up, I think. I read this interview with great interest. I was just more taken with the NY Times Darnton essay because it made a link with the string from the Google Settlement Agreement & HathiTrust.

Marie S. Newman said...

I have a foot in both camps, having been born in Boston but now living in New York. I am glad you posted Darnton's essay. I meant to, but didn't get around to it. He's one of the most thoughtful commentators on information, access, etc., around, and I always find his essays to be compelling. Interesting implications for our online catalogs.