Fishing rights in Iceland and New Zealand are good examples. In brief, these powers were three-fold and can be found provided for in any system of law regarding property in land or water: a power to use the thing or manage it ; b power to dispose of it to sell it or grant it ; and c power to take its yield e. Consider the fisherman in his role as the owner of a fishing vessel. He has all three powers over it: he can run it, sell it and take the profit from doing these things.
But now consider the same fisherman in his role as occupier of the fishery itself. This role does not give him powers to manage it or dispose of it. All he has is the third power, the law of capture: the power to take and keep the fish he catches. The absence of the first two powers deprives him of any incentive to look after the fishery. To illustrate, if he were the kind of fisherman who tried to manage and exploit the fishery with care and prudence, he would not be rewarded. Although his care might have made the fishery more valuable, he would never have the powers needed to capture this extra value.
His efforts would have a near-zero yield to him. That is why, lacking the necessary ownership powers, almost everyone in an offshore fishery finds it not worth while to look after it. In common-law countries, for example, he may hold an easement or a lease over a piece of land, or he may hold all powers over it, as a freehold owner.
The holder of a lease typically has more powers over the land than the holder of an easement, and the holder of a freehold has more powers than either of them. In other countries, there will be a similar range of kinds of property right.
If instead we think of all property rights as being made up of c haracteristics , then we can say that the differences between the rights is in the amounts of each characteristic that comprise them. Understanding these characteristics is helpful in itself. It gives an insight into what makes a particular property right suitable for the functions it performs.
Before turning to the fishery, consider a simple example.
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A person drives into a private parking lot and is given a ticket, or a check. The ticket is evidence of a licence. Like an easement and a lease, a licence is a type of right over land. It is a rather primitive kind of right, with little of the usual standard characteristics. Consequently, it gives the holder, the driver, few powers. He cannot grant the parking right to anyone else, nor choose how his part of the lot is to be used.
A licence to park can be considered a feeble property right having almost none of the characteristics of the right that is held by the owner of the lot. A fishing licence is much like a parking licence. It gives the fisherman a right of access to the resource and to do something there. To understand this here, it is essential to realize that an administrative fishing licence or permit as a kind of property right, one that had few of the characteristics of a right and that therefore offered few of the powers of right ownership.
To survey them, consider the right that a farmer has over his land. Any holder of this right to land gets the benefit of four different and potent characteristics. These characteristics are not abstract, they are tangible and conceptually measurable. Note that the three powers that ownership gives to the holder of a property right are not the same as the five or six characteristics, or dimensions, of a property right.
The powers can be likened to the outputs of a property right; while its characteristics are more like its inputs. The first characteristic is exclusivity , the freedom from interference by a holder of his enjoyment of his right.
The more legal interference, the less exclusive the right. Every kind of property right has some exclusivity, but none is completely exclusive. Consider a right to fish. The question to ask is, to what extent must the rightholder take into account the actions and decisions of his neigbours? If his right is like that of a fishfarmer over a pond, it may be highly exclusive.
If however it is like that of an Atlantic cod fisherman beyond the mile line, it has little exclusivity. Many open-access ocean fishery rights lack other characteristics, but they effectively have a long duration; even permanence. Other fishery rights, such as licences and permits have a short duration. What counts here is the effective total duration after automatic renewals have been taken into account.
The third characteristic is security or quality of title. Most holders obtained their rights by grant from an earlier right-owner. Much of so-called property law is devoted to resolving or preventing disputes about who has the better property title to a piece of land. But a grant is not the only way of getting a good and secure title. Under some systems of law, especially in a new territory, being the first user or appropriator entitles one to become the owner. Sometimes one can get title by just squatting on a piece of private, but unused, land. And one can get a right to use land, or to do something on it, by recourse to contracting with the owner, or even by paying him to disregard his rights to stop you from creating pollution or some other nuisance.
All these procedures may once have been traditional or customary, but have since been improved by registration arrangements, checked by the courts, and subjected to legislation. The final characteristic discussed here is transferability. In the past there was little need for ocean and offshore fishing rights to be transferable. They were not exclusive - anyone who wanted one could get it for almost nothing from the government. Why bother buying from a holder? But when offshore rights became more exclusive, transferability was wanted it may also be called assignability, marketability or exchangeability.
All degrees of transferability are possible. On land, most freehold rights are highly transferable and most leases are transferable with the permission of the landlord. But there are exceptions - some landlords will not allow their tenants to sub-let a house.
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In the fishery, when licences were just part of the system of biological regulation, licences were usually personal, and not transferable. It rarely mattered, for in those days anyone could get his own licence. Up to a point, they can choose the right with the characteristics they want. Generally speaking, the more of all characteristics a right has, the more it is valued and the more it costs.
Duration is valued because it allows the right holder to get the pay-off in later years from the investments he has made in the earlier years. In a fishery, it encourages the right-holder to make costly changes in the size and age structure of the fishstock that may result in larger and more profitable catches even if there must be an extended waiting period.
Exclusivity is valued because it protects the right-holder from interference with the fishstock and with fish catching. Quality of title is valued because it saves the right-holder from the costs of protecting and enforcing his rights to be fishing. Transferability is valued because it allows the holder to make the best use of his time and capital, by selling his right if he so wishes.
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Some analysts add other useful or essential characteristics, such as flexibility, enforceability and divisibility to this list of four, but they are not needed in this discussion. Now apply all this to the right of a fisherman over the fishery. Of the four characteristics of a property right, we find that his public right of fishing has: no exclusivity; long, but meaningless, duration; great security, for what it is worth; no transferability.
Thus, to put all these ideas together, to be like a farmer's ownership rights to manage, dispose and profit from his land, the fisherman's public right of fishing must be changed. His right must have more of two characteristics: exclusivity and transferability. A freehold or fee-simple right for example is rich in all four characteristics. A leasehold can be much the same, but with a shorter duration. A licence can be like a lease, but with little or no exclusivity or transferability.
Both these can be transferable and exclusive. All are very old, traditional, common-law types of ownership interest in land.
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Over the centuries they have been adapted for new purposes by their holders and these have been assimilated into the rights by repeated exposure in the courts. Owners have gone to the courts to resolve disputes about who owns a right to property, and what ownership entitles them to do with it. The court's decisions have gradually changed the characteristics of the various rights. For example, the holder of a lease originally had security against encroachment by his landlord, but not much security when others tried to dispossess him.
Today, thanks to refinement in the common-law courts, the title of a leaseholder is good against all the world. Other types of property right in land are quite modern and have been deliberately created by acts of the legislature. An interesting example is the strata-title condominium, an ownership right with carefully-limited exclusivity and transferability. A third type of property right in land, has been created by the legislature as part of its land-disposal and resource-management policies.
Examples are the mineral patent freehold , Crown grant, lease and claim.
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Governmental legislatures have also created a number of other resource-using grants, permits, leases, licences, reserves, titles and so on. It arose out of administrative laws, not land-disposal laws. Thus it can perhaps be likened more correctly to a dog licence or a building licence. They could not by licensing an offshore fisherman, give him all the three powers of ownership for they had not all the powers themselves. Both the good things and the bad things the vessel did while fishing were so dissipated over the entire fishery that it had no incentive to worry about them.
The stock was not his.
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Therefore he had little personal incentive to obey the regulations or to help to improve them. For the most part, the system forced him to adapt. From having to act as though he were a tolerated poacher, it gave him some powers to act as though he were an owner. There are three general powers of ownership: to manage the asset, to transfer or sell it, and to take the income from it. The ITQ certainly gave the fisherman the third power. Instead of merely allowing him to go out and compete with others until the TAC was reached, it entitled him to a definite fixed percentage of the TAC - that is to the yield itself.