Constitutional Analysis of Intellectual Property

This article analyses the Constitutional Court’s treatment of property interests in the face of state regulation to gain an understanding of the type of state interference that is justifiable in terms of section 25(1) of the Bill of Rights. This is done by examining the Constitutional Court’s dicta relating to the meaning of deprivation and how these inform the meaning of property in the constitutional context. The methodology that the Constitutional Court has formulated to assess if state interference complies with the provisions of section 25 is explained to show the type of state regulation that has been found legitimate. We then consider how this understanding of constitutional property and the state’s legitimate exercise of its inherent police power interact in the setting of intellectual property by contrasting the various policy objectives underlying the different statutory regimes governing intellectual property. This theoretical analysis is then applied to two contemporary examples of feasible state interference with existing intellectual property interests, namely the proposed plain packaging measures which severely restrict the use of tobacco trade marks, and a fair dealing exception allowing the use of copyright works for the purpose of parody. These examples serve to illustrate the context and manner in which intellectual property interests may come before the Court and the necessary differentiation with which these interests should be treated. The appropriate judicial assessment of the true impact that state action could have on vested property interests is explained and contrasted with the balancing exercise that is employed at the earlier stage of policy making. This discussion is concluded by highlighting some of the interpretational issues that will arise and how some constitutional values could be curtailed in the absence of legislative intervention.

distinct enquiries, namely whether the deprivation is for a public purpose or in the public interest (which is an implicit requirement); 19 whether the deprivation is authorised by law of general application; whether the deprivation is effected in a procedurally arbitrary manner; 20 and whether the deprivation is substantively arbitrary. As we show below, each of these distinct enquiries will apply, albeit slightly differently, to the determination of whether or not a regulatory deprivation of intellectual property complies with section 25(1). It is therefore useful to understand how they are applied in the context of corporeal property before undertaking this task in the context of incorporeal property.
The authority requirement primarily ensures that any deprivation is properly authorised by law of general application. Authority is the threshold requirement; unless it is met, the deprivation is unlawful. The authorising law can be any 19 Van der Walt Constitutional Property Law 225. 20 This requirement is not stated explicitly in s 25(1) but was formulated in FNB para 100; see Van der Walt Constitutional Property Law 264. legitimate source of law, including the common law, 21 but formal legislation is obviously included. It must also be law of general application, which excludes socalled bills of attainder and informal sources such as departmental circulars. 22 Section 25(1) implicitly requires that the alleged deprivation must be for a public purpose or in the public interest, which section 25(2) explicitly requires in cases of expropriation. 23 The deprivation in question must be justifiable in terms of this reading of the property clause when determining whether the deprivation is either substantively or procedurally arbitrary as set out by the Constitutional Court in FNB.
The Court evaluates if there is a generally sufficient reason for the allegedly infringing provision (or other source of deprivation) when considering the impact that it has on the property rights, which ensures that any interference with existing rights is at least intended to bring about a socially beneficial change. 24 This logically implicit prerequisite, an iteration of the constitutional mandate that law should foster positive change, guards against whimsical or capricious regulation of property rights that does not serve the broader interests of society, at the expense of property owners. Deprivations that are aimed at achieving one of the state's core functions, like public health and safety, will self-evidently be legitimate, but a higher level of scrutiny may be appropriate when the regulation falls in a category of state functions that are less obviously legitimate. 25 Likewise, the requirement that the deprivation is brought about by law of general application aims to guard against interference with the rights of specific owners, which could clearly also be capricious.
There are only a few instances where property owners would have direct recourse to the property clause where the deprivation is suspected of being procedurally 21 See Thebus v S 2003 6 SA 505 (CC). 22 Van der Walt Constitutional Property Law 232-234. 23 FNB para 64; Van der Walt Constitutional Property Law 225. 24 The public-purpose enquiry is not necessarily distinct in the sense of being raised earlier in time. The courts mostly consider this aspect as part of the general arbitrariness test, namely when determining what the purpose of the deprivation was: FNB para 100. 25 Van der Walt Constitutional Property Law 228. arbitrary, 26 none of which are relevant for our current purposes. Accordingly, we devote the remainder of this section to the question of substantive arbitrariness.
The substantive arbitrariness element of the third stage of the methodology aims to prevent the deprivation of property rights where the purpose and the intended outcome of the regulatory regime do not justify the loss or diminution of entitlement(s) suffered by the property owner. This is typically the most gruelling stage of the constitutional assessment of deprivations, as it demands that a "complexity of relationships" be considered to determine the likely effect that the deprivation will have on the rights of property owners, considered against the background of the regulatory scheme. 27 The central question comes down to if the relationship or interaction between the source of the deprivation, the ends it seeks to achieve, the nature and extent of the deprivation and the impact of the restrictions it imposes constitutes a sufficient reason for the deprivation. The substantive arbitrariness inquiry tries to answer this question by embarking on a contextual investigation guided by questions as to the nature of the property rights, the purpose of the deprivation, and the various relationships involved (such as the identity of the property holder, the nature of the property, and the nature and extent of the deprivation) to ascertain whether the deprivation complained of can be justified according to the array of factors propounded in the FNB decision. These factors are of varying importance, depending on the relevant source of law, the nature of the property right, the importance of the conflicting interests, and the application of the particular law. The Court requires the impact of the deprivation to be justified by the purpose it sets out to achieve and requires the reasons for the deprivation to be weighed against the entitlements that the property owners will consequently be deprived of. The closer the connection between the deprivation and 26 Van der Walt 2012 Stell LR 91-92. The most obvious candidates for a procedural arbitrariness enquiry would be deprivations of property brought about directly by legislation, without any administrative action and without judicial oversight. Such deprivations of intellectual property interests can occur as a result of statutory regulation of intellectual property interests, but it is difficult to speculate about their occurrence in the absence of concrete examples. the reason for it, the stronger the justification for the deprivation will be and the less likely it is to be found arbitrary.
The threshold set by the word "arbitrary" as employed in this step does not constitute a doctrinally concrete standard that can be applied to every case that presents itself. Rather, it is adopted as a flexible concept that takes account of all the relevant factors in the particular instance, as well as the larger constitutional scheme that the South African Bill of Rights fits into. 28 This may seem obvious, but it does mean that the standard of justifiability in intellectual property cases may (and probably will) differ from that in traditional property cases because of the scope of the different considerations involved. In some instances, the combination of factors enunciated by the Court in FNB will justify a lower level of judicial scrutiny, closer to mere rationality review; in others, something closer to full proportionality review may be required. In the context of traditional property cases, the Court has applied the standard by undertaking a contextual investigation regarding the nature of the right, the person(s) whose property is likely to be affected, the purpose of the deprivation and, importantly, whether there is an appropriate relationship between the means employed and the ends sought to be achieved. 29 These factors, also advanced in FNB, are aimed at establishing if there is sufficient reason for the deprivation to save it from being substantively arbitrary. The Constitutional Court has subsequently in certain other cases focused the emphasis of its investigation on the question of whether there is a rational connection between the deprivation and the purposes it seeks to achieve, downplaying the complex interplay of factors propounded in FNB. 30 This approach can be misguided in some cases, where it misses the point of the original factor-laden investigation, namely to contextually establish the strength of justification that is required in the specific instance, but in suitable cases a mere rationality review could indeed be (and has been found to be) sufficient. The elements that make up the true impact on the property owner could cause the threshold to gravitate either towards a rationality-type enquiry on one end 28 Van  of the spectrum, or a proportionality-type investigation on the other. This obliges courts to analyse the full interplay between the myriad of relevant considerations before determining the required strength of the justification. Naturally, applying a "thin" rationality test will be appropriate where the purpose of the deprivation is quite important, while the deprivation is so slight that nothing more is necessary. 31 Where the deprivation falls beyond this minimal level of infraction or where the purpose of the deprivation is not all that evident, a "thick" proportionality-type standard is designed to ensure that property owners do not bear an excessive burden without just compensation, a standard that requires the Court to delve deeper into the contextual milieu of the deprivation. 32 If the reason for the deprivation is unquestionably significant and the impact on the owner's property benign, a rationality-type enquiry may suffice, but in other cases a proportionalitystyle investigation will be necessary to determine if the deprivation is really necessary and how important the public purpose that it serves actually is. However, even this evaluation still falls short of the full-blown, second-stage proportionality test resorted to when a deprivation is found to be arbitrary and must then, according to the fourth step of the methodology, be justifiable in terms of section 36(1) of the Constitution to be saved from unconstitutionality. 33 The context of the Court's dictum in constitutional property cases reveals the manner in which section 25(1) protects property owners. Firstly, property owners are protected by the formal requirements: any deprivation of property must first and foremost be properly and formally authorised by law of general application that serves a legitimate regulatory purpose. Secondly, the level of scrutiny of regulatory deprivations varies according to the significance of the regulatory goal and the seriousness of the deprivation. When the incident of ownership that is affected is slight, the public purpose involved is overwhelmingly important, or when the deprivation is not enduring, rationality may be a sensible standard to revert to; but 31 Van der Walt Constitutional Property Law 255. 32 Van der Walt Constitutional Property Law 237-241. 33 However, this second investigation will likely not save a deprivation that has been found arbitrary in any instance, as the applicable standard of justification will necessarily be higher.
when the deprivation has more far-reaching consequences or is for a less-obviously legitimate public purpose with a dubious chance of achieving its aims, it is prudent to adopt the more vigorous proportionality standard to bring the legitimacy of the regulation under stricter scrutiny. The discretion left to the court in this regard should be exercised with due regard for the factors propounded in the FNB decision to afford some degree of certainty without compromising the flexibility that is required in these cases. 34 Thirdly, the procedural and substantive arbitrariness test ensures that a deprivation of property is not disproportionate. A contextual test guarantees that the effect of the deprivation is commensurate with its legitimate regulatory goal.
What happens if a deprivation is arbitrary according to the test? According to FNB it is unconstitutional and invalid unless it can be justified in terms of section 36(1).
However, that is unlikely because the procedural or substantive considerations that would render a deprivation arbitrary would also prevent it from being justified in terms of section 36(1). It is therefore improbable that a regulatory deprivation that is found to be arbitrary could be saved by section 36 justification. More importantly, however, the FNB approach suggests (and subsequent decisions seem to confirm) that an arbitrary regulatory deprivation cannot be saved by judicially converting it into an expropriation and demanding compensation. 35 Finally, according to the FNB test a deprivation that is either not arbitrary or, if it is arbitrary, is justified in terms of section 36(1), could be reviewed further in terms of the requirements of section 25(2), since expropriation is a subset of deprivation according to FNB. However, since there is no common law authority for expropriation in South African law and since IP rights are almost exclusively created and regulated in legislation, the expropriation issue in IP cases would mostly come up in the form that it adopted in Agri South Africa v Minister for Minerals and Energy 34 Van der Walt Constitutional Property Law 256; Roux "Property" 24. 35 Known as regulatory taking in US law or as constructive expropriation in South African literature; see in general Van der Walt Constitutional Property Law 347ff. See the discussion below.
(hereafter AgriSA), 36 namely as a question as to whether legislation could either bring about expropriation directly, without administrative action, in terms of the mere promulgation of legislation (this was held not to have been the case according to the Minerals and Petroleum Resources Act 28 of 2002, 37 but not excluded generally); or, secondly, whether South African law could accommodate constructive expropriation, where the state does not formally expropriate but the regulatory deprivation is said to have such dire effects that it needs to be treated as expropriation and compensated. In the main judgment in AgriSA the Constitutional Court either precluded or severely qualified this possibility by stating that expropriation is characterised by the acquisition of the property. In the absence of acquisition (either by the state or someone else) there can be no expropriation.
Given the fact that the state would seldom acquire intellectual property interests through regulatory legislation, there seems to be very little chance of constructive expropriation in this area. police power), in the case of regulatory deprivations of intellectual property it is likely that other human rights will also be involved. 39 However, the purpose of the property clause must be kept in mind when applying it to intellectual property interests. One obvious factor that sets intellectual property apart from land and one of the causes for a property clause being included in the Constitution is that land was previously the subject of extensive state abuse by The rights to freedom of expression and health care are often invoked as justification for limiting rights in copyright and patents respectively. 40 An argument to this effect could be made in relation to traditional knowledge, but that falls beyond the scope of this paper. 41 AgriSA case.
relevant to the determination of whether state regulation is justified or not should be tailored to the nature and purposes of intellectual property.
One consideration that should feature prominently in the constitutional inquiry as  A number of things set intellectual property apart from corporeal property and these considerations are crucial to the proper application of the property clause to intellectual property. The most obvious difference is that the objects of intellectual property rights such as copyright and patents are non-rivalrous and non-exhaustive, meaning that the objects of the rights can be enjoyed by more than one person at any given time and will not be extinguished or diminished by their use. 45 This is in stark contrast to corporeal property. The implication is that the rights in intellectual property are the only things that can be exploited. While an object of property can be physically enjoyed as well as commercially exploited, the only way to meaningfully use an invention or creative work is to exploit the rights commercially.
If the intellectual property owner wanted to enjoy her property only privately and not exploit the economic rights awarded to her, state interference with the rights would be of no consequence because the object of the rights can still be enjoyed by the author or inventor. This is clearly not true of corporeal property, where the right of exclusion is essential to the proper private enjoyment of the property. The exclusionary nature of the rights in corporeal property is therefore different from rights in intellectual property. This leads to the next distinction -the raison d'être of the property rights regime governing intellectual property. Without exclusive rights in creative works and inventions, there will be no incentive to create such objects (or so the theory goes). Exclusive rights in trade marks again serve a different function, which is taken up below. For constitutional property purposes, this means that the purpose of the system of rights is markedly different from that governing corporeal property, which is designed inter alia to regulate scarcity. 46 It follows that certain rights will be more easily regulated than others, depending on how integral they are to the future creation of similar objects. 47 As alluded to above, the rights in 44 Davies Copyright and the Public Interest 237. 45 Mossoff "Introduction" xvi; Boyle Public Domain 19-20. 46 Posner Economic Analysis of Law 30-35.
Eg, as shown below, the right to prohibit certain adaptations of a copyright work is less integral to the incentive to create than the right of reproduction.
intellectual property are primarily of an economic nature, 48 which must also be taken into account, especially when they conflict with civic rights such as equality or privacy. Any deprivation of intellectual property rights must therefore be conducive to maintaining an adequate incentive to promote a culture of creative and scientific innovation to ensure the sustainability of the intellectual property regime.
These factors are highly relevant to determining if a limitation of intellectual property rights will in fact serve the public interest. Sometimes the public purpose inherent in a limitation will not be clear immediately and a thorough investigation of the aims of the regulatory measure must be undertaken. In some instances, however, the public purpose that is sought to be achieved will prima facie constitute a robust justification for the deprivation. One example is the current debate on the constitutionality of plain packaging legislation in the context of trade marks used in relation to tobacco products to promote better public health. 49 In such a case, is a rationality standard sufficient to take account of all the relevant implications of the deprivation? The summary nature of a rationality enquiry would suggest not. For a rational link to be sufficient, the public purpose would have to be very strong and the deprivation not very extensive, which is arguably not the case with the proposed plain packaging legislation.
With trade marks, the purpose of awarding rights is again different to both corporeal property and other forms of intellectual property. Trade marks primarily serve a distinguishing function, 50 designed to enable consumers to make an informed choice between different products of the same nature. Some argue that the value of a trade mark can also be constituted by acquired value in the visual elements of a mark. 51 48 The moral rights of an author of a copyright work would be one exception, but these rights have no bearing on the legitimacy of state regulation because they are not concerned with the use, enjoyment or exploitation of the property. will be legitimate if it can be said to be effective in its aims. Only once the policy has been implemented and legislation has been promulgated accordingly does the more complicated section 25(1) exercise of balancing take place with due regard for the complexity of relationships propounded in FNB. This is where a particular legislative instrument or provision may be found to be in conflict with the section 25 requirements. This means that the relevant existing property interests must be considered when policy is being debated and the potential impact that the proposed scheme will have on them recognised, but it does not mean that the proposed scheme should be criticised or abandoned merely because it will bring about a deprivation of these interests. Instead, it should be considered whether the regulatory scheme under discussion will bring about an arbitrary deprivation of property and, if it does, whether its impact can be mitigated to save it from being unconstitutional on this ground after it has been implemented.
The factors propounded by Ackermann J in FNB 53 suggest that the Court (and by implication the state when debating policy and drafting legislation) should take into account, before implementing the invasive measures, if less invasive means are available to achieve the intended outcome when the effects of a deprivation are conceivably severe. Although the state is not required to consider less invasive means when pursuing an expropriation, this is justified by the fact that just and equitable compensation is due to the property owner in the case of expropriation. 54 When the government regulation does not amount to expropriation but still limits the use, enjoyment and exploitation of the property significantly, and strict scrutiny is appropriate, it follows that if less invasive means are available to achieve the same purpose with similar efficacy but less restriction on property rights, this should be pursued before the state is permitted to restrict property rights. Even though the stated government purpose of combating the deleterious effects of tobacco products on public health is legitimate and compelling as an aim, the complexity of relations Various foreign governments have delayed or abandoned their plans to introduce plain packaging measures, citing a lack of sufficient evidence that regulation of this nature will have the desired impact. 55 The problem with adopting the more cursory rationality standard of review in this case is clear: it allows the state to pursue legitimate aims without ensuring that the means will be effective to achieve the ends, or will even have the best chance out of all of the available options of achieving the objectives, when these objectives are overwhelming in terms of public policy decisions. The propriety of this reasoning is therefore open to questioning, as it could allow burdensome and ineffective regulation. For this reason, once regulatory legislation of this nature has been implemented the court should take all factors into account in its contextual analysis before deciding on the suitable standard of justification. A study of the efficacy of plain packaging will be more advantageous if undertaken before the proposed measures are adopted, as this will present direct evidence of the likelihood of the regulation's achieving its intended goal. Relying on previous studies undertaken by tobacco or anti-tobacco lobbies would not be sufficient to establish the likelihood that such statutory regulation will be effective, given their obvious agendas. 56 Similarly, diverging conclusions drawn by foreign governments would not be helpful either. An independent study should be commissioned by the Minister of Health to establish the likely effects on intellectual property rights and the likelihood of the measure's being effective before such a measure is adopted. This would substantially improve the chances of such an action being found non-arbitrary when it is implemented and challenged before the Court, as it inevitably will be. 55 The United Kingdom decided to delay adopting plain packaging legislation until evidence could be presented that it would be effective. If no such research is conducted, a myriad of factors will inform the evaluation of arbitrariness. One important factor could be the tobacco industry's contentions of the increased likelihood of counterfeit cigarettes being passed off as a particular brand, 57 and smuggling these counterfeit products could feasibly become easier. 58 It has also been contended that plain packaging legislation will increase price competition between tobacco proprietors, which could have a counter-productive result by making these products more affordable and thus more available to the youth market. 59 These factors, as well as the risk of non-compliance with international obligations, 60 should inform the proportionality-type inquiry in the context of arbitrary deprivation. This is what is meant by "a complexity of relationships" that must be considered within the stricter scrutiny that proportionality entails, to avoid a simplistic determination of the impact that the deprivation that a rationality review would allow could have on the rights of the property owner. This is not to say that a regulatory scheme that brings about a deprivation of property interests is necessarily constitutionally flawed. Only if the deprivation is arbitrary will it be constitutionally invalid. This is precisely what the focus on a complexity of relationships seeks to establish by forcing courts to consider the nature and extent of the deprivation, the purpose that it seeks to achieve, and the nature of the property. The culmination of these factors will point to whether or not the regulatory scheme is constitutionally assailable because it is not justified and therefore arbitrary. The mere fact that a deprivation will result is no cause for alarm.
The methodology will not always require such rigorous scrutiny of the regulation.
Turning to copyright, a fair dealing exception for the purposes of parody serves as a good example of a case where a rationality standard can be safely adopted as the 57 The situation regarding counterfeit goods is regulated by the Counterfeit Goods Act 37 of 1997. converting the right to prohibit the parodying treatment of a work to a privilege allowing any person to do so) is not problematic for constitutional property purposes, as rights acquired before the constitutional dispensation may be subjected to new or more stringent regulations and control of their use and exploitation. 64 The realignment of private rights to effect a better alignment with the public interest is exactly what section 25 enables. 65 All that is required in such cases is that the effect of the new or additional regulation should not be disproportionate in the sense that it should be properly justified and therefore should not amount to regulatory excess. 66 One of the most important functions of the constitutional property clause is to authorise and legitimate state regulation that would promote constitutional goals. 67 The substantive arbitrariness investigation is intended to determine if the deprivation in question contributes to constitutionally acceptable aims. Accordingly, it must be justifiable in terms of the provisions of section 25(1). 68 The exception would deprive owners of a particular right (the right to object to the derivative, transformative use of their works for purposes of creating a parody) only in certain circumstances, and the extent of the deprivation would therefore be very limited. The relationship between the means employed (the exception) and the ends sought to be achieved is of paramount importance; the more loosely connected they are, the closer to the proportionality end of the spectrum the justification needs to be. The purpose of copyright law itself must be considered in conjunction with the guarantee of freedom of expression in section 16 of the Constitution, and the two must be reconciled if possible. In this regard, it must be borne in mind that copyright law strives to achieve a balance between incentivising authors to create works for public benefit and limiting the rights granted to these authors in the public For present purposes, the questions of whether there was authority for the deprivation, whether the deprivation was brought about by law of general application and whether it is procedurally arbitrary can be glossed over. If the exception is promulgated by properly enacted legislation, neither of these questions will pose any difficulty.
themselves. They serve as means to promote the creation of valuable works and should extend no further than is necessary to achieve this goal and appropriately reward authors. Limiting owners' rights to prohibit parody could serve this purpose by allowing critical and non-critical transformative uses of copyright works to flourish. Removing the barrier of consent that currently prevents such uses would show a very strong relationship between the means to be employed (the statutory provision that exempts the parodying use of copyright works) and the purpose of the provision (encouraging potential creators to engage in the creative process and promoting the value of free speech). This would tie in with the third factor that Ackermann J set out in FNB, namely the relationship between the purpose of the deprivation in question and the person whose property is affected. The affected parties would obviously be copyright owners, regardless of whether they intend to exploit their works for commercial benefit or not. Interestingly, copyright owners who do not wish to capitalise on their works will have their economic (as opposed to moral) rights affected to a similar degree to those who do wish to exploit their works for economic benefit. This is evident from the fact that parodies do not impact on the market for the original, or compete in the same market as the original. 69 This particular application of the right to authorise an adaptation would not meaningfully add to or detract from the incentive to create, and would therefore leave the prevailing model of copyright law largely untouched. Accordingly, the deprivation in question would have a benign relationship with the exploitability of the works, regardless of the owner's commercial intent.
The Constitutional Court made the sweeping statement that, generally speaking, when the property in question is of a corporeal nature a more compelling purpose will be required to justify the deprivation. 70 More tellingly, if the alleged deprivation While the parody of works that have been made available to the public is clearly an embodiment of the constitutionally guaranteed right to freedom of expression, as reflected in the Laugh It Off decision, the legislature should not be fooled into thinking that section 16 of the Constitution affords adequate protection in the context of copyright. The principle of subsidiarity precludes this right from being invoked in the absence of a specific legislative provision that gives it embodiment, save for where the Act is alleged to be unconstitutional. In the Laugh It Off case the defendant was able to rely on an existing provision in the Trade Marks Act, which, informed by section 16, proved a valid defence that he had in fact not infringed the property rights of the trade mark proprietor. This cannot be the case in a copyright action, as a parody will not easily fit into the structure of any of the existing exempting provisions. Trade mark owners are protected from the dilution of their marks, while copyright owners are protected from any unauthorised uses of their works that are not explicitly exempted. Accordingly, the court will not be able to apply section 16 directly to exempt users' conduct, regardless of the legitimacy of the parody, and must merely apply the statutory content and limitations that the The above analyses show that constitutional property case law can be helpful in determining the legitimacy of state interference with intellectual property rights, but not without the requisite differentiation. The purpose of the various systems of property rights must be kept in mind when considering how they interact with the property clause, and the underlying rationales for awarding rights should direct the standard of justifiability that state regulation must meet. The different underlying objectives of the statutory regimes governing copyright and trade mark law respectively illustrate this point in the context of intellectual property. Due emphasis on the purpose of awarding property rights in immaterial objects will ensure that the incentives that these rights provide are kept intact and the function that the property regime serves in society is maintained. The property clause can be a guiding force in ensuring that intellectual property interests are given due regard when unrelated policy objectives compete with vested interests in intellectual property. Markedly different considerations will necessarily be relevant in copyright and trade mark law respectively, and it will be interesting to see how the Constitutional Court applies the methodology propounded in FNB to issues of intellectual property. It is imperative that the Court does not get caught up in the strictures of property language, but rather recognises it as a useful analogy that conveys the importance of the rights in question and the place they have in ordering relationships in society. The same basic function of ensuring that state interference with vested (intellectual) property rights can still be served if the property clause is understood in this way.