Contemporary forms of

Property
 What is property?
Art. 40, Constitution of Kenya
 What is property?
Art. 260, Constitution of Kenya
 What is property?
Property may take different forms, and may be described from different
contexts

Tangible vs intangible

Movable vs immovable

Real vs personal

Public vs private vs community

 Contemporary forms of property
Intellectual property

Money

Data

Human body

Spectrum space
 Intellectual property
• What is intellectual property?

• Extensional definition- lists ‘traditional’ and ‘ newer’ areas:

• Copyright
• Trademarks
• Patents
• Designs
• Geographical indications
• trade secrets
• plant breeders’ rights
• integrated circuits
• Traditional knowledge

Very abstract objects or things that many people need, use and depend on!
 Intellectual property
• Intensional definition

Art. 2 of the Convention establishing World Intellectual Property Organization

Metaverse?
 Intellectual property
• Intellectual property rights?
• rule- governed privileges that regulate the ownership and
exploitation of intellectual property provided certain criteria is met
• Nature of rights in intellectual property

• Not absolute- limited in scope, 3rd party rights

• Transferability- licensing arrangements

• Other?
Money
 Money
What is money?
• A medium of exchange, a unit of account, a store of value
Legal tender by a government decree (fiat), hence ‘fiat money’

• Digitization of ‘fiat money’. Not changing its inherent characterizes

and that it is by government decree.

• Is cryptocurrency, (a) property and (b) money?

Data
 Data
What is data?
- any information recorded by electronic or digital means and is retrievable,
whether perceivable to a human or machine
- personal information (personal data)
- industrial data (non-personal data)
- factual data
- fictional data

- no privacy or data protection laws expressly define which entity owns

personal information
 Data
- Traditional view has been to see data through access rights lens.

- Recent shifts:
1. New data privacy laws

2. Businesses approaches towards the collection and use of their customers’

personal data

3. Technological advancement on the pace of processing data

“….. data has now become a new kind of property—an asset that is created,
manufactured, processed, stored, transferred, licensed, sold, and stolen….”
JEFFREY RITTER AND ANNA MAYER
 Data
- Creation of data as an object of property is established through
contracts, where companies in boiler- plate contracts one-sidedly
stipulate that individuals agree to data collection to access the
service being offered.
- Property in data also comes about discreetly when it is stipulated
that the free flows of data need to be weighed against privacy rights
of data subjects
- to perceive data as property, a useful starting point is the fact that
data is now being commodified through ever- expanding intellectual
property laws, as well as through contracts packaging pieces of data
into pieces of trade
Human body
 Human body
Should the human body be viewed as property, such that each person
owns or has title to himself?

Is it demeaning for human beings to think of themselves or their bodies

as property?
 Human body
Munzer in, A theory of property:
- Two-pronged approach in analysis of whether there are property
rights in body parts:
1. listing of rights persons have with respect to their bodies.
2. Assessment on whether these rights amount to ownership.

- Findings:
1. Too many incidences of property are lacking in making a strong case for
property rights in the human body. E.g limited nature of transferability;
absence of liberty to consume or destroy.
2. 2. People do not own, but have some limited property rights in their bodies.
Some prohibitions against the body-torture, slavery, assault, etc
3. Some of the property rights in the body are weak and others are strong.
 Human body
- Viewing body rights using a bundle of sticks framework, certain sticks
may qualify as property rights though in a limited sense

- Right to use is limited by certain prohibitions against excesses

- Right to transfer is restricted in many ways: only gratuitous, (blood, certain

organs, limbs, etc)
Spectrum space
 Spectrum space
- A range of of all possible electromagnetic radiation used for public broadcast,
microwave communication, satellites, defence, etc.

- A form of public intangible property.

- Spectrum space management models vary

1. property model
2. commons model
3. Command and control model
 Spectrum space
Property model
- Advocates for allocating private rights over spectrum space.
- Richard Coase advocates for establishment of a spectrum market in
which people interested in the spectrum could buy, sell, subdivide or
aggregate space in order to achieve an efficient allocation.
- Spectrum rights should be determined by a pricing system and
allocated to the highest bidder.
- Claims that this model ensures efficiency in use and discounrages
hoarding.
 Spectrum space
Commons model
- Spectrum regarded as common property of the people and managed
in a cooperative manner with government playing minimal role in
governance or dispute resolution.
- Rules on access and use made by the users
Werbach:
“…scarcity of spectrum does not justify government control, but
rather, it is exacerbated by it..”
Supercommons: Towards a unified theory of wireless communication.
 Spectrum space
Command and control model
A regulator
- makes allocation and usage decisions
- Licences pursuant to conditions and intervenes when breach occurs

Claims that this model is inefficient at limits innovation

Lawrence Lessig: “Liberating spectrum from the control of government
is an important first step to innovation in spectrum use”
The future of ideas, 2002
 Spectrum space
Spectrum management in Kenya

- Command and control model

- Court has recognized spectrum space as public property: Royal
Media Services Lts vs AG & Others (Petition No. 346 of 2012): “…
spectrum is a scarce public resource allocated by the CCK in order to
ensure utilization in a co-ordinated manner so as to benefit the
public as a whole…”
- See also: Red Lion Broadcasting Co., vs FCC -395 US367 (1969)
- Observer Publications Ltd vs Campbell Mickey Mathews and Others
(2001) 1o BHRC 252