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in Tilburg Law Review


I RIFKIN, THE AGE OF ACCESS, New York 2000, page 3. 2 RIFKIN, page 4.

3 RIFKIN, ibidem. 4 RJFKIN, page 5. 5 RIFKIN, ibidem. � RJFK)N, ibidem. 6 RIFKIN, ibidem. 7 RIFKIN, page 6. 8 One chapter is headlined: "Access as a way of life", RIFKIN, page 115.

9 RIFIKIN, page 5. 10 RIFKIN, page 4. 11 I Although he sometimes seems to mix up both concepts. 12 MATTEI, L1G0, BASIC PRINCIPLES OF PROPERTY LAW, London 2000, page 8. 13 Virginia Bill of rights, Sect. 1. 14 Rifkin summarises the content of his book in an article for the Los Angeles Times, published on Monday, April 10, 2000 where he claims that ownership has become an outmoded concept. is FJFKIN, page 236. 16 RIFKIN, page 248. 17 RIFKIN, page 256. 18 RIFKIN, page 251.

19 RJFKIN, page 266. 20 �FKIN, page 236. 21 RJFKIN, page 236. 22 CHRISTOPHER REED, INTERNET LAW, London 2000, page 150. Z3 REED, pages 38 and 57. z4 REED, page 76.

2S RIFKIN, page 237. Unfortunately I do not have access to Mac Pherson's collective works, but only to a single book of him. 26 CRAWFORD MAC PHERSON, DEMOCRATIC THEORY, ESSAYS IN RETRIEVAL, Oxford, 1973. 27 MAC PHERSON, page 198, I quote from the German version. 28 MAC PHERSON, page 196. 29 RLFKIN, page 237. 30 MAC PHERSON, page 198. 31 MAC PHERSON, page 203. 3Z MAC PHERSON, page 200. 33 RIFKIN, page 240. 34 RIFKIN, ibidem. 35 DIETER SCHWAB. ART. EIGENTUM, IN: GESCHICHTLICHE GRUNDBEGRIFFE, PART II, Stuttgart 1975, page 79.

36 �FKIN, page 237. Even though, Rifkin does not seem to make a distinction between common and public property. 37 Here it has to be remarked that Mac Pherson's property theory dates back to the 1970ties, a time where a fully fledged network economy had not yet developed. Therefore his considerations do not primarily concern the forms of wealth transmitted by telematic devices. Immaterial revenues do in this context mean "revenues of enjoyment of the quality of life" (see RIFKIN page 238) such as: clean air and water and a healthy environment, services, employment or political participation. All those rights are already protected and most of them where it already when Mac Pherson came up with his property conception. It is not clear why they all should be put together under the notion of property. At this point it also becomes obvious that Mac Phersons theory is similar to what has been called "new property": "Also recently, with the development of the public law regulatory state, yet another entire area of legal relationships has been approached within the proprietary paradigm: the so called "new properties", entitlements on job security or on administrative licences which certainly share certain structural aspects of property rights." MATTEI, page 76. The single fact that single entitlements share structural aspects of property law do not justify their identification with the concept of property. All those issues should be and are dealt with in single legislations. 3$ On public property in general see: Otto Mayer, Der gegenwartige Stand in der Frage des ofrentltchen Eigentums, in: ARCHIV DES offentlichen RECHTS, Volume 21, 1907, pages 499-522. What Mac Pherson and Rifkin do not see either is the relevance of the distinction between private property and property as a institution of constitutional law, which should not be mixed up with the concept of public property. In constitutional law property also contains the function to provide access to social welfare. But this is only possible under a state legislation. On the German doctrine of "subjektives 6ffentliches Recht" where the institution of property can be counted in under certain aspects see: GEORG JELLFNEK, ALLGEMEINE STAATSLEHRE, Third edition, Berlin 1921, page 420.

j9 J.W. HARRIS, PROPERTY AND JUSTICE, Oxford 1996, page 156. 40 HARRIS, page 158. He asks: "Would the right to share in net social income be discharged entirely in kind, as in Red Land, or would citizens receive cash? If the latter, since the right is to be an enforceable claim, there will presumably be some paying - up agency bearing the correlative duty. Does that agency hold the money, pending payment, subject to a quasi-ownership interest, or does it retain no property-like discretion so that it is vested in a protected non-property holding?". Mac Pherson does not answer these questions. 1 This notion of property has already existed in the writings of the Glossators and has not emerged, as Mac Phersons explanations might suggest, in the seventeenth and eighteenth centuries. Even though he is right in claiming that the modern perception of property is heavily influenced by the conceptual changes of later natural law, which date back to the age of enlightenment. 'z See MATTEI, page 77.

°3 Antonio Gambaro, Perspectives on the codification of the law of property: an overview, in EUROPEAN REVIEW OF PRIVATE LAW, 1997, page 499. His starting point was the question why the topic of property law is of the least interest for the project of a European Civil Code. 44 Gambaro, ibidem. 45 MATTEI, page 83. 46 ]yIpTTEI, ibidem. 47 This should not be mixed up with the notion of "property rights" in general, which are an important issue in the discussions of problems related to access. But property rights do not culminate in just one concept, but are spread over the whole legal order.

48 At this point Rifkin only seems to have in mind telematics and computer networks as tools to transmit "culture". Another field in which the problem of "access" emerges in a legal context are genetic resources issues. As well in this field, a new form of wealth, other than "culture" or "lived experience" begins to create challenges for political actors. Genetic resources, defined in Art. 2 of the Convention on Biological diversity (CBD) as "any material of plant, animal, microbial or other original containing functional units of heredity" can not sufficiently be regulated under the headline of national property law. Thus, a "legislation of access" was called into being. See Peter-Tobias Stoll, Access to genetic resources and benefit sharing: Prospects for guidance by the CBD-System: Assessment - The current situation and shortcomings, in: EUROPEAN WORKSHOP ON GENETIC RESOURCES ISSUES AND RELATED ASPECTS - ACCESS, BENEFIT SHARING, INTELLECTUAL PROPERTY RIGHTS, EX-SITU COLLECTIONS, Berlin 2000, pages I 1 and 15. On the same topic: GLOBAL GENETIC RESOURCES: ACCESS, OWNERSHIP, AND INTELLECTUAL PROPERTY RIGHTS, editors: K. Elaine Hoagland and Amy Y. Rossman, Washington 1997. However, in the above mentioned publications the issue is mostly dealt with as a problem of international law. Therefore the authors address the rights and duties of states - not of individuals - concerning their sovereignty over natural resources. 49 For instance, as we have seen, in the legal questions described above (fn. 48) dealing with the access to genetic resources. so Commission of the European Communities, COM(2002) 263 final. 51 Communication, page 2. sz Communication, page 2. 53 Also the Italian authorities "Per le garanzie nelle communicazioni" have thought about the technical conditions in order to provide access for as many people as possible. Their scope is to come to decisions with the purpose of a wide spread "gamma di soluzione tecniche per l'offerta di servizi di accesso internet a larga banda, e si promuove una sempre maggiore concorrenza fra gli operatori". See . By enhancing the competition between internet providers, the prices can be kept lower, which will give more people the opportunity to take advantage of the new communication resources.

54 Communication, page 2. ss Communication, page 2.

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