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Article Excerpt
Abstract. This paper examines the question whether, and to what extent, John Locke's classic theory of property can be applied to the current debate involving intellectual property rights (IPRs) and the information commons. Organized into four main sections, Section 1 includes a brief exposition of Locke's arguments for the just appropriation of physical objects and tangible property. In Section 2, I consider some challenges involved in extending Locke's labor theory of property to the debate about IPRs and digital information. In Section 3, it is argued that even if the labor analogy breaks down, we should not necessarily infer that Locke's theory has no relevance for the contemporary debate involving IPRs and the information commons. Alternatively, I argue that much of what Locke has to say about the kinds of considerations that ought to be accorded to the physical commons when appropriating objects from it--especially his proviso requiring that "enough and as good" be left for others--can also be applied to appropriations involving the information commons. Based on my reading of Locke's proviso, I further argue that Locke would presume in favor of the information commons when competing interests (involving the rights of individual appropriators and the preservation of the commons) are at stake. In this sense, I believe that Locke offers us an adjudicative principle for evaluating the claims advanced by rival interests in the contemporary debate about IPRs and the information commons. In Section 4, I apply Locke's proviso in my analysis of two recent copyright laws: the Copyright Term Extension Act (CTEA), and the Digital Millennium Copyright Act (DMCA). I then argue that both laws violate the spirit of Locke's proviso because they unfairly restrict the access that ordinary individuals have previously had to resources that comprise the information commons. Noting that Locke would not altogether reject copyright protection for IPRs, I conclude that Locke's classic property theory provides a useful mechanism for adjudicating between claims about how best to ensure that individuals will be able to continue to access information in digitized form, while at the same time also allowing for that information to enjoy some form of legal protection.
Key words: digital information, information commons, intellectual objects, intellectual property, John Locke, Lockean proviso
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In the current debate about whether, and to what extent, intellectual property rights (IPRs) should apply to digital information, many philosophers (1) have appealed to John Locke's classic theory of property to support their respective positions. Perhaps not surprisingly, competing views have emerged as to how Locke's account of property ought to be interpreted with respect to IPRs. On the one hand, philosophers such as Child (1997) and Moore (1997) have argued, each on slightly different grounds, that Locke's property theory provides a justification for IPRs in the form of copyright protection. Kimppa (2005), on the other hand, has recently argued for an interpretation of Locke's theory that would not support IPRs for computer software programs. (2) And some philosophers, such as Scanlan (2005), interpret Locke's position to fall somewhere between these two views. (3) But others suggest that Locke's labor/desert theory of property is not applicable in the case of IPRs because of either one or both of the following reasons: (a) the kind of labor required to produce (i.e., either to create or discover) "intellectual objects" is fundamentally different from that needed to acquire (or to produce) physical objects; and (b) physical objects and intellectual objects are qualitatively different kinds of things, at least with respect to relevant characteristics pertaining to property rights. The main question I wish to consider in this paper is: To what extent, if any, can Locke's property theory accurately be applied to the current debate about IPRs involving digital information (4) and its implications for the information commons? (5)
1. Locke's theory of property: A very brief overview
In his Second Treatise, (6) Locke claims that property rights are justified because humans have a "right to their preservation" and thus have a right to "meat and drink and such things that Nature affords for their subsistence" (Sec. 25). Locke goes on to assert that "everyman has a 'property' in his own 'person' ... [and that] ... the labor of his body and the work of his hands ... are properly his" (Sec. 27). According to Locke, when a person removes something from the state of nature, he has "mixed his labor with it, and joined to it something that is his own, and thereby makes it his property" (Sec. 27). Because labor is "the unquestionable property of the laborer," Locke believes that "no man but he can have a right to what [his labor] is once joined to ..." (Sec. 27).
Perhaps Hettinger (1997, p. 21) best sums up Locke's view on how property is justly appropriated when he writes:
Locke's justification for property derives property rights in the
product of labor from prior property rights in one's own body. A
person owns her body and hence she owns what it does, namely, its
labor. A person's labor and its product are inseparable, and hence
ownership of one can be secured only by owning the other. Hence, if a
person is to own her body and thus its labor, she must also own what
she joins her labor with--namely, the product of her labor.
After providing an argument for what is required in the just appropriation of the various kinds of objects that reside in the commons, such as acorns and apples, Locke proceeds to explain how one can justly appropriate portions of the commons itself. He states:
As much land as a man tills, plants, improves, cultivates, and can use
the product of, so much is his property. He by his labor does, as it
were, enclose it from the common. (Sec. 32).
Of course, Locke does not believe that one's right to appropriate objects or to enclose a section of the common is absolute--i.e., without qualifications. For example, he imposes certain conditions and constraints as part of his justification for appropriation. One such constraint is sometimes described as the "no-waste" condition (Hughes 1997). According to Locke, one may take from the commons only as much as "any one can make use of to the advantage of life before it spoils" (Sec. 29). His most important qualification for our purposes, however, has to do with constraints on how much one can justly appropriate from the commons. This constraint is sometimes referred to as Locke's "sufficiency proviso"; however, we will refer to simply it as Locke's proviso. Complying with this proviso, one can remove objects from the commons only to the extent that there is "enough and as good left for others" to appropriate (Sec. 27). In a similar way, one can appropriate land itself by enclosing it from the commons only if there is enough and as good left for others to enclose (Sec. 33). Determining exactly what Locke meant by this phrase has proved difficult. Locke scholars have offered various interpretations, which range from "equal amounts of resources being left for others to appropriate" to a type of "no harm" principle in which no individual is left "worse off" because of an appropriation by others. A detailed analysis of the proviso, however, would take us beyond the scope of this paper. (7) In Section 3, we briefly return to some questions surrounding Locke's proviso in conjunction with our discussion involving an analogy between the physical and the information commons.
2. The role of labor in locke's property theory: Is it relevant for IPRs?
We have seen that the notion of labor is central to Locke's property theory. Many who believe that Locke's theory is also applicable to IPRs point to the role that labor plays in justifying the appropriation of physical property. They argue that, by extension, a person's labor provides the grounds for justifying the appropriation of intellectual property as well. For example, Easterbrook (1990) argues that intellectual property is "no less the fruit of one's labor than is physical property." At first glance, there is something intuitively appealing about this view. One could argue, for instance, that a great deal of an individual's labor...
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