The Moral and Legal Drivers for Future Land Reform in Scotland – Guest Post by Robert Sutherland

This is a guest blog post by the advocate Robert Sutherland of Terra Firma Chambers, being a worked up version of his talk The Moral and Legal Drivers for Future Land Reform in Scotland [1] delivered at the recent land reform conference held at the University of Aberdeen.

Introduction

In line with the title for the Conference, the intention behind this talk is to offer some thoughts on legal, historical and policy perspectives which have influenced the land reform agenda in Scotland. The topic of land reform is not unique to Scotland.  Throughout the world (and throughout recorded history) there have been, and continue to be, many examples of changes to legal systems regulating land ownership in order to bring about social and economic reform, in order to remedy problems attributed to existing patterns of landownership and land use.  A non-exhaustive list includes: Ireland, Finland, Sweden, the Soviet Union, Estonia, Albania, Egypt, Zimbabwe, India, Japan, South Korea, China, Brazil, Mexico, and Peru.  Some of these changes have been driven by political philosophy, others by a desire to achieve some practical benefit.  In some cases, the change has been significant and beneficial, and less so in other cases.  A frequent rationale for change has been in order to achieve an outcome that could be described as social justice.

Practical, moral and legal imperatives for reform

Land reform is typically an agricultural issue, and the usual driver for change is usually practical – too many people living in poverty in rural areas, not producing enough food to feed themselves or the country they live in.  Often there is an inequality in land ownership, which may be concentrated in private hands or in the state.  There can also be an inequality over how the land is controlled, so that the relationship between absolute owner and actual user requires to be rebalanced.  Sometimes the issue is about a misuse of a positon of power.  Ireland in the nineteenth century is an example of where a major transfer of landownership was successfully effected in order to reduce the concentration of ownership underlying the poverty and famine rife in the countryside.  The former Soviet Union is an example of where the abolition of private property and the collectivisation of farms was intended to address one set of problems, only to create greater ones which then required further changes to put right.  The fall of the Soviet Union has seen yet more change in the former Soviet Republics, with land being transferred into private ownership.

As well as these practical considerations, there have been moral and philosophical influences which have helped support or encourage the arguments for change.  In western Europe and in other parts of the world where the Catholic Church has significant influence, Saint Thomas Aquinas has been to support an argument that land and property should be treated as common property to be put to beneficial use.  In Summa Theologica (1265-1274) he said:

“It is natural for man to possess external things. Man has the power to procure and possess external things, but in doing so these should not be as his own but as common, and that they should be communicated to others in their need.”[2]

In his Second Treatise of Government (1690) John Locke wrote[3]:

“Section 26.

God, who hath given the world to men in common, hath also given them reason to make use of it to the best advantage of life, and convenience …. yet being given for the use of men, there must of necessity be a means to appropriate them some way or other, before they can be of any use, or at all beneficial to any particular man.

Section 51.

And thus, I think, it is very easy to conceive without any difficulty, how labour could at first begin a title of property in the common things of nature, and how the spending it upon our uses bounded it.  so that there could be no reason of quarrelling about title, nor any doubt about the largeness of possession it gave.  Right and conveniency went together; for as a man had a right to all he could employ his labour upon, so he had no temptation to labour for more than he could make use of.  This left no room for controversy about title, nor for encroachment on the right of others; what portion a man carved to himself, was easily seen; and it was useless, as well as dishonest, to carve to himself too much or take more than he needed.”

Locke went on to argue that individuals form societies and communities, and by doing so voluntarily put themselves in a position where they are ruled by the decision of the majority.  However, societies/leaderships/governments cannot arbitrarily take the possessions of any individual without their consent, and if they fail to protect the property rights of individuals they are liable to be overthrown.  According to Locke, government has no other end but the preservation of property (Section 94).

Historic drivers for land reform in Scotland

In a Twitter discussion with Malcolm Combe and others earlier this year about land reform legislation in Scotland I suggested that the Leases Act 1449[4] was the first Scottish land reform Act.  So far, I do not believe that anyone has come up with anything earlier than this.  But the Leases Act 1449 was not a solution to rural poverty:

“In Scotland the houses of the country people are small, as it were cottages, and the reason is this: they have no permanent holdings, but hired only, or in lease for four or five years, at the pleasure of the lord of the soil; therefore they do not dare to build good houses, though stone abound; neither do they plant trees or hedges for their orchards, nor do they dung the land: and this is no small loss and damage to the whole realm.  if the landlords would let their land in perpetuity, they might have double and treble of the profit that comes to them – and for this reason: the country folk would then cultivate their land beyond all comparison better, would grow richer, and would build fair dwellings that should be an ornament to the country.”[5]

Because of the poor quality of the land, a traditional agricultural practice that developed was to allow cattle to roam freely to forage for food after the crops had been harvested.  This practice was born of necessity, but was a further disincentive to tenants to improve their lands since the benefit was just as likely to be consumed by their neighbour’s cattle as much as their own.  This problem led to the passing of the Winter Herding Act 1686, which provided that heritors were required to herd their cattle in winter as well as in summer.  The penalty was half a merk for each beast found in a neighbour’s ground.  Apparently the Act was not a success,  In 1762 Adam Smith noted that country people were so wedded to the notion that property in land continues no longer than the crop is on the ground, that:

“as soon as the crop is off the ground the cattle are no longer kept up or looked after but are turned out on what they call the long tether; that is they are let to roam about as they incline.  Tho this be contrary to Act of Parliament …. there is no possibility of getting them to observe it, even by the penalty which is appointed to be exacted against it.”[6]

Recent developments

There has been much written elsewhere about the crofting and agricultural holdings legislation which originated in the latter decades of the nineteenth century and continued to evolve in the twentieth century.  My talk however is focussed on the drivers for land reform in Scotland in the twenty first century, and time constraints mean that I am going to skip over these important developments, and jump from the somewhat distant past to more recent developments.

The first piece of land reform legislation in the twenty first century was the Land Reform (Scotland) Act 2003.  This had its origins in a Labour manifesto commitment in the 1997 election on improving access to land.[7]  The 2003 Land Reform Act is in three parts, covering Access Rights (Part 1), the Community Right to Buy Land (Part 2) and the Crofting Community Right to Buy Land (Part 3).

In order to help understand more completely the underlying drivers for more recent developments it is necessary in my view to look at the Scottish Government Policy context.  An important change was brought about by the minority SNP administration’s approach to government from May 2007 onwards.  The Scottish Government set out a single overarching purpose for its government of Scotland – which is “to focus government and public services on creating a more successful country, with opportunities for all of Scotland to flourish, through increasing economic sustainable growth”.  Supporting that single purpose were 5 Strategic Objectives, 7 High Level Targets, 15 National Outcomes and 45 National Indicators.  This structure has given a focus and rationale for government which was new to Scotland, and set a benchmark which has been used to critique the actions of the Scottish Government, local authorities, and other users of public funds.  These policy goals set an agenda for government, acting as the driver for further change.

Of particular note are the objectives and outcomes.  Of the five Strategic Objectives, three in particular are relevant:

• Wealthier and Fairer

Enable businesses and people to increase their wealth and more people to share fairly in that wealth.

• Safer and Stronger

Help local communities to flourish, becoming stronger, safer place to live, offering improved opportunities and a better quality of life.

• Greener

Improve Scotland’s natural and built environment and the sustainable use and enjoyment of it.

The Community Empowerment (Scotland) Act 2015 has given the National Outcomes a legislative base, not just a policy one.  Of the National Outcomes published in March 2016, I would highlight the following as being particularly relevant to the land reform agenda:

• We realise our full economic potential with more and better employment opportunities for our people.
• We have tackled the significant inequalities in Scottish society.
• We have strong, resilient and supportive communities where people take responsibility for their own actions and how they affect others.
• We value and enjoy our built and natural environment and protect it and enhance it for future generations.
• We take pride in a strong, fair and inclusive national identity.

There are now 55 National Indicators set out by the Scottish Government, and there is also a General Economic Strategy:

• Supportive Business Environment;
• Learning, Skills and Well-being;
• Infrastructure Development and Place;
• Effective Government;
• Equity;
• Transition to a Low Carbon Economy

Major underlying themes that run through all of this policy are the effective and efficient use of land and property, economic and social community development, fairness and equity.  Concepts not unfamiliar to Aquinas and Locke.

Although not branded as ‘land reform’ legislation, there have been a number of other Acts of the Scottish Parliament since the Land Reform (Scotland) Act 2003 which have meet the criteria for typical land reform measures.  The Agricultural Holdings (Scotland) Act 2003 introduced the tenant’s right to buy (Part 2) and the right to diversify into other non-agricultural uses of land (Part 3).  The Crofting Reform (Scotland) Act 2010 introduced stronger measures on controlling the use of croft land with a view to ensuring that land was being actively used and was available for use by those who needed it (Part 3: Duties of Crofters and Owner-Occupier Crofters; Part 4: General and Miscellaneous[8]).  The Community Empowerment (Scotland) Act 2015 enshrined National Outcomes in legislation (Part 1) as already noted, and it also contained modifications to the Community Right to Buy legislation in the Land Reform (Scotland) Act 2003 (Part 4) and made provision for Asset Transfer Requests (Part 5).

The most recent piece of legislation has been the Land Reform (Scotland) Act 2016.  The key parts of the Act relevant to land reform issues are:

• Part 1: Land Rights and Responsibilities Statement
• Part 2: The Scottish Land Commission : Chapters 1 and 2
• Part 3: Information About Control of Land
• Part 4: Engaging Communities in Decisions Relating to Land
• Part 5: Right to Buy Land to Further Sustainable Development
• Part 9: Access Rights – makes changes to 2003 Act, mainly in relation to core paths

There was much debate about the potential impact of the 2016 Act as the Bill completed its passage through the Scottish Parliament.  Much of the detail to implement the 2016 Act has still to be developed.

The Future

The Scottish Government has stated that land reform in Scotland is a continuing process – and that land should be used to benefit the many, not the few.  Two non-legislative developments which set the tone for the future are The Land of Scotland and the Common Good, Land Reform Review Group Final Report, May 2014 and Getting The Best From Our Land: A Land Use Strategy For Scotland 2016 – 2021.  I am not going to be so rash as to try to predict the future, but in this year of the Rio Olympics I do wonder whether Brazil provides us with a principle upon which future development might be based which is consistent not only with current Scottish Government policy but which is also to be found in the works of Thomas Aquinas and John Locke.

Brazil is an enormous country, and very large parcels of land, often with unclear boundaries, are owned by multinational corporations.  It has an indigenous population which is poor and struggles to find agricultural land it can work.  Somewhat ironically, in a response to pressure from the United States in the early 1960s the then military dictatorship passed the Land Statute of 1964.  This Act set out the principle that land should be used effectively.  The principle of effective use of land was then enshrined in the 1988 Constitution of the Federal Republic of Brazil.  Article 184 provides that it is “within the power of the Union to expropriate on account of social interest, for purposes of agrarian reform, the rural property which is not performing its social function, against prior and fair compensation in agrarian debt bonds …”. Article 185 excludes (i) small and medium-size rural property, and (ii) productive property from expropriation, and provides that special treatment shall be guaranteed for productive property. Article 186 provides that the social function is met “when the rural property complies simultaneously with, according to the criteria and standards prescribed by law, the following requirements:

I – rational and adequate use;

II – adequate use of available natural resources and preservation of the environment;

III – compliance with the provisions that regulate labour relations;

IV – exploitation that favours the well-being of the owners and labourers.”

The beneficiaries of land redistribution are to be given title deeds which they will not be able to sell or otherwise transact with for 10 years (Article 189).   The acquisition or lease of rural property by a foreign individual or legal entity is also regulated, and in some cases requires to be authorised by the National Congress (Article 190).  Rural land upto 50 hectares may be acquired after five years of uninterrupted possession without objection by persons who do not own any other land (Article 191).

I am not intending to suggest that future Scottish legislation might or should copy Brazil.  The factual context for that legislation is quite different from Scotland.  What might be of interest to policy makers though is the principle that land should be used effectively.  A flavour of that principle can be seen in the Crofting Reform (Scotland) Act 2010, and in the Community Empowerment (Scotland) Act 2015 in relation to the community right to buy abandoned or neglected land.  What will be the next step?

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[1] This paper is based on notes for a talk delivered at the Aberdeen University Conference “Land reform in Scotland: legal, historical and policy perspectives” on 26 August 2016.

[2] II-II, Question 66, Of Theft and Robbery (1265-1274).

[3] Chapter V, Of Property.

[4] “Item it is ordanit for the sauftie and fauour of the pure pepil that labouris the grunde that thai and al vthiris that has takyn or sal tak landis in tym to cum fra lordis and has termes and yeris thereof that suppose the lordis sel or analy thai landis that the takaris sall remayn with thare takis on to the ische of thare termes quhais handis at euir thai landis cum to for sic lik male as thai tuk thaim of befoir . . .”

[5] John Major (John Mair), History of Greater Briton (1521).

[6]  Lectures on Jurisprudence, (i), 53.

[7] A useful overview of the law on access rights over land prior to the 2003 Act, and the scope of access rights set out in the 2003 Act, is provided by Tom Guthrie in Chapter 5 of The Promised Land : Property Law Reform, (ed. Robert Rennie) (2008).

[8] The amended Crofters (Scotland) Act 1993 now has various provisions to ensure that crofting land is used in a way that meets policy goals: s5AA/s19C(2)(a) – residence duty; s5B/s19C(2)(b), (3), (4) – duty not to misuse or neglect the croft; s5C/s19C(2)(c) and (d) – duty to cultivate and maintain; ss26A – 26K – Crofting Commission investigation and enforcement powers; s49A – Grazing Committee duty to report to Crofting Commission; s25(1A) and (1B) – issues relevant to decisions on public interest in making decrofting directions.

The panel featuring Robert Sutherland, second from the right.

Some reflections on the “Land reform in Scotland: legal, historical and policy perspectives” #AbdnLand event

This is a blog post offering some personal reflections on the public lecture and conference held at the University of Aberdeen on 25 and 26 August 2016.

This programme was probably the first big-ticket academic/practitioner get-together that “I” organised “myself”. That being the case, I had a heck of a lot of support for these events, which I should acknowledge at the outset.

Thanks go to:

• The School of Law, for underwriting the conference. This allowed me to proceed with booking the venue and organising catering etc. before knowing whether I would break even. Thanks also to individuals within the School for organisational support.
• Sponsors Stronachs and Terra Firma Chambers, which also helped ensure the events were viable.
• The wider university community, in terms of catering, AV, press releases and indeed giving a venue for the event. The PR was invaluable (see below), especially as I had no particular advertising budget. (That lack of budget also explains my tweeting and blogging about the event.)
• The intrepid student volunteers*, who helped with delegate registration, car park management and by generally being friendly faces pointing people in the right direction.
• All the speakers and participants.

It can be seen I got by with a lot of help with my friends. Now to become a bit more egotistical and offer my reflections on the proceedings. (Those wanting a flavour of the discussions on the day with a bit more substance and less navel-gazing are directed to this Storify story.)

I was happy with the public lecture. Calum, Jayne and I had delivered a similar lecture before and it was great to get the band back together. We might have another reunion tour at some point. Apart from one or two technology hitches, it went to plan and proceedings can still be viewed at the School of Law facebook page (in two parts: here and here).

Dr. Calum Macleod

Dr. Jayne Glass

Moving to the Friday, again I was generally pleased with how it all went, but I am about to list a number of things that might make it seem like I was not. Please don’t read too much into my reflections as a negative indicator of the day, rather this is an attempt to explain how things could have been even better for delegates and indeed me. (After all, reflection is important in the learning process.)

In no particular order:

1. I was over-ambitious with the programme. At one stage I somehow went from having a programme that I wanted to add content to to having a programme that was bursting at the seams but not quite suitable for rearrangement by breaking out into parallel sessions. (That would have tightened up proceedings, by having two sessions running in tandem rather then consecutively.) I am not sure who I could have pruned from the final programme as a whole as everyone brought something to day, but this meant things were already tight for time before events even started.
2. People often speak for longer than their allotted time. (I should know: I do this regularly.)
3. When people are asked to offer questions to the panel, some offer monologues instead of questions. I suspect land reform is a topic that especially encourages this. This meant the already tight discussion time was further compressed. Anyway, here is a flow-chart for future events:
   

   A handy guide to whether you should ask a question.

4. A lot of people leave conferences held on a Friday before proceedings formally finish. I suspect this is especially the case for conferences in Aberdeen if people have travelled from the central belt. Scheduling of the programme and catering should reflect that.
5. I didn’t enjoy the day enough. Don’t get me wrong, there were some great speakers and the associated networking was worthwhile, but I should have paid more attention to what was being discussed rather than worry about everything and trying to micro-manage things.
6. (A boring reflection, this one.) I didn’t need to book a roving microphone. The room was small enough to shout in and people had microphones fixed at their desk or the platform. Said roving microphone was ditched pretty quickly.
7. Self-publicity is all well and good, but sometimes you need to get the grown-ups involved. There is absolutely no way I would have found my way onto BBC Radio Scotland or got a mention in the local newspaper the Evening Express without a well-timed and suitably worded press release from the University of Aberdeen media team.
8. Never under-estimate how much preparatory time events like these need.

A final overall reflection is that it was great to be able to pull together a programme like this. My years of tweeting, blogging, talking, teaching and writing about land reform have not been in vain: I managed to assemble a strong cast of speakers and hopefully this will serve as a springboard for future discussion and research in the area.

The conference, this particular panel discussing landlord and tenant.

Professor Tina Hunter, looking at land reform in Australia.

Whether you came along to the event or were watching proceedings from afar on social media, if you have any further reflections you want to add please comment below.

*A quick word on the student volunteers. I realise asking students to volunteer can seem awful close to the dubious world of unpaid internships. In defence of the practice, I might note: a) students were under no obligation to assist and those who did not get involved won’t be penalised in any way; b) students were fed and watered throughout the day, and wined later in the day; c) students got the chance to attend a useful discussion for free, with associated networking opportunities; d) duties were not particularly onerous; and e) I volunteered as a student helper at a conference in 2005 and I found it to be a positive experience.

A Story about Highland Titles, a DMCA Notice and US Copyright Law

I wanted this blog post to be funny. Not every post about law can or should be entertaining to read, but this post owes its existence to a curious, chortle-inducing Twitterstorm about an aspect of Scots land law that took place on 11 February 2015. I used a website called www.storify.com to digest those events. That “story” – that is to say, the collection of Tweets sent by Twitter users (including me) and links to websites, augmented with some commentary by me – has accrued approximately 20,000 views online. That is quite a lot of traffic for content created by an academic lawyer about a quirky aspect of his own relatively small jurisdiction. It certainly caught the imagination.

Entertaining and informative is certainly something to aspire to in many academic circumstances. I am afraid this post is going to eschew the entertaining, for reasons that will become clear. As for the original story, despite its comedic undercurrent, it seems some people did not enjoy it. In fact, it now transpires that someone does not want the story to be at the web address it has been publicly available at any longer.

I can only speculate as to why this is, but I have a sneaking suspicion it is something to do with the fact that the story effortlessly, comprehensively and comprehensibly deconstructs the claims one business in particular made about the sale of so-called “souvenir plots” in Scotland, with a sprinkling of humour in the process. The business model in question relates to the sale of small parcels of land in Scotland. Such souvenir plots cannot be registered in the Land Register of Scotland, owing to a specific provision in Scottish land registration legislation. No registration means no landownership.

How do I know someone does not want the post to be at its existing URL? It might be something to do with an email I received from the company behind the Storify site, which informed me that it had received something called a DMCA Notice – also known as a Takedown Notice – relating to the story I published with them. At that stage I was not sure who had served the DMCA Notice: heck, it was the first time I had met the acronym “DMCA”. A crash course in American intellectual property law followed, largely via internet research. (Incidentally, DMCA stems from US copyright law, and stands for “Digital Millennium Copyright Act”.)

A quick, oversimplified lesson in IP law

Intellectual property rights come in various non-physical shapes and sizes. We will meet two such IP rights in this blog post: copyright and trade mark (or, in the US spelling, trademark).

Copyright is the right that the creator of a work (perhaps a book, a tune or an image) has by dint of creating that work. No registration is needed (in the UK).

Registered trade marks are slightly different, relating as they do to brand-building and requiring registration in a public register to make them enforceable. A trade mark could be a logo or a slogan. (In some circumstances, an action can be brought for “passing off” even where no trade mark has been registered. That is not relevant to this post.)

We will return to the distinction between copyright and trade mark later, but for present purposes it can be noted that the person who holds either of these rights can take steps when someone else infringes them, perhaps by seeking to use a creative work without the permission of the originator of it or by piggy-backing on the brand of another business.

The implications of this DMCA Notice

It can therefore be seen that the chosen mechanism to get my story purged was intellectual property law. Although I might be thought of as more of a traditional property law specialist, I am well aware that IP law is important and serves legitimate policy goals. As such, I did my best to comply with the email that explained a DMCA Notice had been served. This detailed what I needed to do to reactivate my story: quite understandably, the people behind Storify also care about IP law and they did not wish to take any chances after receipt of a DMCA Notice. The first thing that happened was to put the story into abeyance (i.e. it was converted into a non-public “draft” story). I was told I had ten days to serve a Counter Notice, without which the story would be deleted. Guidance and certain forms of words were provided to me to allow me to draft that Counter Notice, which I duly drafted and sent by email.

That leads on to why this blog post is not going to be funny. Even where the possibility of litigation in a foreign jurisdiction seems remote, discovering your Counter Notice must contain declarations made under penalty of felony focus even a lawyer’s mind (or perhaps especially a lawyer’s mind). The email I received indicated and my own research confirmed that, as a non-US citizen, the jurisdiction any litigation would take place in would be the place where the website was based: in this case, California.

I have never been to California. I have no particular plans to do so in these circumstances. Accordingly, this blog post is going to do absolutely nothing to encourage or pre-empt any further legal manoeuvring that involves those who seek to wipe the story or related content from the web or waste more of my time in the process of doing that. What this blog post is designed to do is educate readers about: a) US intellectual property law; b) how law and the internet (and particularly jurisdiction) can interact; and c) the steps the company Highland Titles Limited has taken to suppress legitimate commentary on their business model.

Ah, yes. It was Highland Titles who were behind the DMCA Notice, using a company called DMCA.com to serve it. I suspect many of you would have suspected that anyway. I only had circumstantial evidence of that to start with, as I had not seen the DMCA Notice sent to Storify. My suspicions were all but confirmed when I heard a similar DMCA Notice was sent to Automattic, the company behind WordPress, in relation to this loveandgarbage.wordpress.com post.

That notice was rebuffed by Automattic without the need for a Counter Notice. The “fair use” provisions of Section 107 of the relevant US copyright legislation were deployed to politely but firmly tell the person serving that DMCA Notice to go away. Storify deployed a slightly more cautious approach to the DMCA Notice relating to my story, which I am not going to criticise here. I simply raise the issue of that separate notice to highlight: 1) a pattern of behaviour where posts critical of Highland Titles have been targeted with whatever legal apparatus might even vaguely suit that task; and 2) that I was heartened I had more than a stateable case that my content was not breaching US copyright law.

(People who have followed this saga closely may recall that my story was copied then subtly subverted by someone who engaged in a (rather ineffective) first wave response to the #HighlandTitlesDay Twitterstorm, as detailed on my blog here. Further, after Dr. Jill Robbie (of the University of Glasgow) and I published an article in the Edinburgh Law Review in September 2015 on this topic, very similar (albeit skewed) wording appeared in literature sympathetic to Highland Titles’ interpretation of Scots law. With that backdrop, there is a certain irony in Highland Titles claiming the author of loveandgarbage or I have breached intellectual property law.)

What happened next can be gleaned from this chain of Tweets. In brief, I eventually steered the Counter Notice to the relevant legal contact and the story was duly restored, albeit I was also asked to amend my Counter Notice to more closely track the wording prescribed by US legislation and keep Storify’s ISP happy. At that stage I asked explicitly for sight of the DMCA Notice so I could make the statement that was asked of me in good faith. (This is when I discovered beyond doubt Highland Titles was behind the DMCA Notice.)

The timing of this blog post reflects me waiting a few days to see if anything else would happen. Thus far, nothing has, and the story has been back online for a week. I will do all I can to keep it there.

And what was the offending content nestled in my story? Forgive me for not setting out exactly what was identified in the DMCA Notice or what I said in my own Counter Notice (and related correspondence to argue there was no infringement). Tactically, it would make little sense for me to set my thinking out in public or allow others (i.e. Highland Titles) to develop thoughts about this affair before I need to. What I will say is that Tweets sent by the @Highland_Titles Twitter account and the screen-grabbed images thereof were mentioned in the DMCA Notice. This is the kind of thing that could be covered by the fair use provisions mentioned above.

There was also a reference in the DMCA Notice to trademarked material. My cursory research of US IP law tells me DMCA Notices are not for trademark breaches (note I am back to the US spelling), so therein lies another reason to resist this particular enforcement step. (The distinction is made clear on DMCA.com’s own website.) For reference, the trademark referred to in the DMCA Notice is Highland Titles’ logo (which is a registered trade mark in the UK). That features in a couple of the Tweets captured and automatically previewed in the story. Notwithstanding the seemingly incorrect trademark enforcement action route of the DMCA Notice in this particular situation, I am confident I can take steps to argue the content in my story is not in breach of IP law in any future trademark enforcement action, or at the very least I could take steps to slightly amend the story to be doubly sure enforcement would not be necessary. That is for another day.

Final observations

I warned you this blog post was not going to be funny. Instead, this post is a relatively detailed synopsis of this particular incident. I hope this serves the purpose of enlightening people as to how intellectual property law and the internet can interact. It might have the tangential effect of informing people how Highland Titles operates.

I am hopeful this is the end of this particular episode for my Storify story. If it is not, or if separate action follows, I am confident this experience will serve me well and allow me to defend my position robustly. This particular episode has also encouraged a number of people to offer me support in the event any further action takes place. Pride comes before a fall and all that, so I don’t want to sound too bullish, but if anyone connected to Highland Titles is reading this they should note my friends and I will be tooled-up and ready for any future shenanigans.*

Away from the Storify story, I would particularly look forward to any attempt by Highland Titles to send a DMCA Notice or instigate some other enforcement action against the Edinburgh Law Review, that being the peer-reviewed journal that carried the article by Dr. Robbie and me. That article explained and critiqued the relevant Scots law rule about souvenir plots and some of the underlying policy for it. I also look forward to any similar steps that might be taken against the online, open-access academic forum The Conversation, which carried an article by me on the topic earlier this year.

Finally, this whole incident has reminded me of the so-called “Streisand Effect”. Whilst I would not say I or indeed the Scottish Twitterati as a whole had entirely forgotten about this story, the steps taken by Highland Titles have given a reason to remind everyone of the events of #HighlandTitlesDay and the underlying legal position that still provides – unequivocally – that those selling souvenir plots are not providing ownership of the land they purport to sell.

*As it happens, I will be in the company of three people who have critiqued souvenir plots hawkers this Friday, as Dr. Douglas Bain and Catherine Bury (PDF) plus the aforementioned Jill Robbie will be attending a conference I have organised about Scottish land reform. Although there is no formal session planned about the antics of Highland Titles, the topic might just be spoken about over coffee.

A model for transparency of landownership in Scotland, drawing on letting agent registration

This is a quick and rather niche post on transparency of landownership in Scotland.

I have blogged on this topic before. As noted in that post, Part 3 of the Land Reform (Scotland) Act 2016 has provisions about transparency, which aim to provide more information than (say) the name of an overseas company and the address of a postbox in that company’s home country. Regulations are going to follow on from that legislation to flesh out that publicity driven scheme.

This post is inspired by my recent interaction with a statute that deals with letting agents in the private rented sector, namely the Housing (Scotland) Act 2014.

Section 30 of that legislation is about registration of letting agents. It provides that anyone who wants to be on that register must provide the Scottish Ministers with certain details. What an application must contain is extracted below. For present purposes, it is worth noting when an applicant is not a natural person (i.e. the letting agent is not a human being), the applicant must state “the name and address of the individual who holds the most senior position within the management structure of the relevant partnership, company or body”. Another stipulation for a non-human applicant is that the name and address of any other person (i.e. not just the senior position holder) who owns 25% or more of the applicant entity must be provided.

Might that be a workable model for non-humans seeking entry to the Land Register of Scotland?

For those that don’t know (and I hope all law students who have sat a module in property law are not in this camp), registration is a step that must be satisfied before ownership of land can be obtained in Scotland. (I have blogged and written about this before too, in the context of souvenir plots.) Making non-provision of that information something that denies entry to the Land Register would therefore deny the chance of landownership to a hypothetical information hoarder.

For reference, an extract of section 30, subsection (2) follows. According to that a letting agent application must:

(a) state the name and address of the applicant,

(b) state whether the applicant is—

(i) trading as a sole trader,

(ii) a partnership,

(iii) a company, or

(iv) a body with some other legal status,

(c) in the case where the applicant is a company registered under the Companies Act 2006, state the company’s registered number,

(d) in the case where the applicant is not a natural person, state the name and address of the individual who holds the most senior position within the management structure of the relevant partnership, company or body,

(e) state the name and address of any other person who—

(i) owns 25% or more of an applicant which is not a natural person, or

(ii) otherwise is (or is to be) directly concerned with the control or governance of the applicant’s letting agency work (whether or not the applicant is a natural person), and

(f) include such other information as the Scottish Ministers may by regulations prescribe.

It may be that someone has thought of this or a similar analogy already. (I had a cursory look around the internet using a well-known search engine and found nothing.) If anyone has done so, do point me towards such thoughts by commenting below.

Land reform in Scotland: legal, historical and policy perspectives

This is a signpost blog post, to direct readers of this blog to details of an event on 26 August 2016 at the University of Aberdeen that will take an interdisciplinary look at Scottish land reform. Further information can be found here.

The broad and rather ambitious aim of the event is to consider where Scotland is at the moment, how it got there, and where it should be going next as regards its land regulation, distribution and use. Getting a variety of perspectives and specialisms under the one roof will, I hope, generate some stimulating discussion and ideas for the future.

The one-day conference will follow on from a public lecture on land reform and the environment the previous evening (details of that here). The plan is for the conference to look into matters in slightly more depth than that lecture, yet not in such a way as to exclude people from any analysis as a result of being in the “wrong” discipline. As such, and much as I love legalese, I will try to keep it light (although there will still be plenty in the day for the lawyers to enjoy, I’m sure).

If you fancy coming along, it would be great to see you there. (Booking details can be found on the University of Aberdeen website.)

Finally, if you have something land reform related that you desperately want to get off your chest, do please drop me a line and I might be able to find a place for you in proceedings. Two people have done so even without that invitation and I think the day will be better for that.

I imagine there will be a write-up of events afterwards, either here or on the aberdeenunilaw.wordpress.com blog. Assuming I am not rushed off my feet, I will tweet proceedings from the @RuralLaw account.

*Update* Some important material that could inform discussion on the day has just been released by the Scottish Government and is available here. A number of the contributors to that impressive body of work will also be contributing to the event on 26 August.

Old Aberdeen, the setting for the conference.

Access to land, freedom of expression, and freedom of assembly: the endgame for the #indycamp

The #indycamp at Holyrood is on borrowed time. That much is clear, now that the Court of Session judgment of Lord Turnbull has been published. (See also the BBC News report here.)

I think it would be fair to say that sympathy for the indycampers has dwindled since the camp was established in November last year. (In this vein, see the recent blog post by Andrew Tickell.) Whilst others were steering the intrepid campers to legal arguments that might be worth following (including me and, much more importantly, the judge in the case), the indycampers appealed to religion and seemed to suggest that neither Lord Turnbull nor indeed any other judge had authority over them. With the patience of a saint (that being an appropriate appeal to religion), Lord Turnbull has side-stepped those arguments and essentially given the all clear for the Scottish Parliament to recover possession of the land.

There is much to be found in Lord Turnbull’s words, in terms of legal analysis and perhaps even a slight undercurrent of humour. I heartily recommend reading those words yourself. For the purposes of this blog post, I will extract a number of concluding paragraphs, beginning at paragraph 58, on the interplay between articles 10 and 11 of the European Convention on Human Rights (on freedom of expression and freedom of assembly respectively) and the rights of the landowner. (Note that “respondents” means “indycampers”, while “petitioner” means “landowner”.)

[58]      In essence the respondents’ position seems to be that their rights under articles 10 and 11 should trump both the petitioner’s right to possession and the rights of others to enjoy undisturbed use of the grounds.  This rather selfish or even arrogant approach was well illustrated in two ways.  First, by the way in which the respondents felt able to hold a barbecue and social gathering in and around the area of the camp which they openly advertised on social media.  Second, the affidavits provided, as taken along with the photographs, make it plain that damage has been caused to the grounds of the Parliament by vehicles being parked on the grassed areas and by other means.  In production 6/29 there are a number of photographs showing a significant number of motor cars and other vehicles openly parked side-by-side on the grassed areas of the Parliament and near to where the campers tents and caravans are located.  The photographs show vehicles parked on different days in January of this year and in March of this year.  These vehicles are all parked on the other side of the roadway from a public car park.

[59]      No explanation has been offered to explain this, to my mind, quite remarkable conduct.  It would be perfectly obvious to anyone parking their vehicle on the grassed area of the grounds of the Scottish Parliament that to do so would cause damage.  That conduct displays open disregard for the rights of others to enjoy the grounds in their undisturbed form.  There is nothing in the nature of any of the respondents’ protests or vigils which required them or anyone else to park any, far less so many, motor vehicles on the grassed areas of the Parliamentary grounds.  The adjacent carpark, although requiring payment, provides entirely adequate and suitable parking facilities…

[60]      In the whole circumstances it is clear to me that the petitioner has now established that the respondents’ activities on its property are interfering with its own rights and duties and with the rights of the public and that the order sought meets a pressing social need.

[61]      The officials of the Scottish Parliamentary Corporate Body have made it plain to the respondents that there are other opportunities for them to legitimately exercise rights of freedom of speech and assembly.  The officials remain open to negotiations with the respondents to permit the exercise of these rights through events such as meetings, vigils and protests, so long as these comply with the petitioner’s policy on such conduct.

[62]      The order sought by the petitioner does not substantially impair the ability to protest at the grounds of the Scottish Parliament.  It may interfere with the respondents’ wish to conduct their vigil in the manner and form of their choosing but they are mistaken in considering that they have an unfettered right to make this choice.

[63]      The interference with the respondents article 10 and 11 rights which would be caused by granting the order sought is targeted, limited and will not deprive them of the essence of their rights.  The balance which has to be struck in light of all of the circumstances I have identified comes down firmly in favour of holding that the interference caused by granting the orders sought is proportionate.

The emphasis (which is mine) at the end of paragraph 63 drives home that the one remaining string to the bow of the indycampers failed to twang. The (public) landowner was not being overzealous in seeking recovery in the circumstances. It was acting within the bounds of proportionality. As such, eight months of camping – if that is the correct word for it – is about to come to an end.

If Scotland ever does become independent from the rest of the UK, posterity might grant this episode of indycamping a footnote, but the real impact of it has been to provide entertaining column inches for the press and useful legal precedent for the future. For that, this blogger is grateful.

Gotta catch ’em all, but what about the law? Access to land and #PokemonGO

Aberdeenunilaw

This post is by Malcolm Combe

Amidst all that is going on in the world just now, I bet you a Jigglypuff you will have heard someone talking about Pokémon. You might not exactly know what this is, but you can still be affected, as this church in Glasgow discovered. You might have been bemused by the idea of people wandering around, smartphone in hand, chasing imaginary creatures in the augmented reality world of Pokémon GO. Or you might be an avid fan, so much so that you can identify with those who crowded into New York’s Central Park when a Vaporeon popped up.

This advance into augmented reality is a fun development for many and, it appears, a profitable one for Nintendo. That being the case, as the app has been rolled out across the world (launching in its native Japan today, as reported by BBC News). That…

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