Locke on Copyright

by on December 20, 2007 · 14 comments

Some commentators have defended copyrights as natural rights under Locke’s labor-desert theory of property. On that view, copyright qualifies as a natural right for the same reason that tangible property does: Because an author mixes herself, through her creative effort, in her expressions. Ayn Rand, Herbert Spencer, and Lysander Spooner represent prominent proponents of that justification of copyright.

That facially plausible extension of Locke’s theory does not, however, withstand close scrutiny. His labor-desert justification of property gives an author clear title only to the particular tangible copy in which she fixes her expression–not to some intangible plat in the noumenal realm of ideas. Locke himself did not try to justify intangible property. He appears, in fact, to have viewed copyright as merely a policy tool for promoting the public good. Modern commentators who would venture so far beyond the boundaries of Locke’s thought and into the abstractions of intellectual property thus ought to leave his name behind.


More pointedly, copyright contradicts Locke’s justification of property. He described legislation authorizing the Stationers’ Company monopoly on printing—the nearest thing to a Copyright Act in his day—as a “manifest . . . invasion of the trade, liberty, and property of the subject.” Even today, by invoking government power a copyright holder can impose prior restraint, fines, imprisonment, and confiscation on those engaged in peaceful expression and the quiet enjoyment of physical property. By thus gagging our voices, tying our hands, and demolishing our presses, copyright law violates the very rights that Locke defended.

Of all the theories of natural rights reviewed [in this chapter], Locke’s probably has the greatest likelihood of influencing present-day law. For all that, though, it runs little risk of convincing contemporary lawmakers or courts to forsake the prevailing, instrumentalist view of copyright. The Lockean labor-desert theory has only one viable road to practical and present influence—via original meaning. Many judges find appeals to the original meaning of constitutional language, such as that embodied in the copyright clause, quite persuasive. As our careful review of the historical record showed [earlier in the chapter], however, the Founders almost certainly did not regard copyright as a natural right.

[NB: The above text comes from chapter 2, § C.1 of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. You can find a PDF of the entire chapter, including footnotes, here. I welcome your comments.]

[Crossposted to Intellectual Privilege and Agoraphilia]

  • http://www.cato.org/people/harper.html Jim Harper

    It’s nice to have some expert discussion of how Locke looked at it. I did a non-expert ramble through Locke and intellectual property a couple years back.

    Because I think information is most analogous to property (but radically different in its properties), I’ve adopted the view that information is a form of property, but that it is abandoned if not concealed, to be made use of by any successor coming across it.

    Whaddya think of that?

  • http://www.cato.org/people/harper.html Jim Harper

    It’s nice to have some expert discussion of how Locke looked at it. I did a non-expert ramble through Locke and intellectual property a couple years back.

    Because I think information is most analogous to property (but radically different in its properties), I’ve adopted the view that information is a form of property, but that it is abandoned if not concealed, to be made use of by any successor coming across it.

    Whaddya think of that?

  • tom W. Bell

    Jim,

    I guess I wouldn’t object too much to that narrow formulation of the sorts of rights authors enjoy. Indeed, it pretty closely resembles so-called (but misleadingly so) “common law copyright.” I’m still a little wary of applying “property,” here, though, as that term comes freighted with implications that you would have to explain away. Better, I think, to use sui generis term (“author’s rights,” as some commentators called the common law version, for instance).

  • tom W. Bell

    Jim,

    I guess I wouldn’t object too much to that narrow formulation of the sorts of rights authors enjoy. Indeed, it pretty closely resembles so-called (but misleadingly so) “common law copyright.” I’m still a little wary of applying “property,” here, though, as that term comes freighted with implications that you would have to explain away. Better, I think, to use sui generis term (“author’s rights,” as some commentators called the common law version, for instance).

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    Excellent post.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    Excellent post.

  • http://www.cato.org/people/harper.html Jim Harper

    Of course, I was speaking about all information, not just works of authorship. For example, I own the fact/knowledge of what I ate for breakfast this morning. I could sell it to you or trade it with you under a variety of licensing terms. Were I to tell it to you without restriction, you could repeat/replicate it without limit, and I would have no recourse – like a piece of property I had abandoned.

    I’m not exercising any right particular to authors in controlling this “stuff” – I’m exercising dominion over my body and brain. So I think it is closer to a piece of property created and controlled by the intellect, or “intellectual property.”

    I understand that people load up terms with baggage, and we’ve had our debates here about the term “intellectual property,” but do we change the language to avoid the baggage, or work to get people past their baggage? The most neutral term for this “stuff,” not larded with baggage, is probably “cognitive and volitional product.” But what loon (other than me) is ever going to adopt that term?

  • http://www.cato.org/people/harper.html Jim Harper

    Of course, I was speaking about all information, not just works of authorship. For example, I own the fact/knowledge of what I ate for breakfast this morning. I could sell it to you or trade it with you under a variety of licensing terms. Were I to tell it to you without restriction, you could repeat/replicate it without limit, and I would have no recourse – like a piece of property I had abandoned.

    I’m not exercising any right particular to authors in controlling this “stuff” – I’m exercising dominion over my body and brain. So I think it is closer to a piece of property created and controlled by the intellect, or “intellectual property.”

    I understand that people load up terms with baggage, and we’ve had our debates here about the term “intellectual property,” but do we change the language to avoid the baggage, or work to get people past their baggage? The most neutral term for this “stuff,” not larded with baggage, is probably “cognitive and volitional product.” But what loon (other than me) is ever going to adopt that term?

  • Anonymous

    Steve R.: Thanks for the encouraging words!

    Jim: I understand your plight, and agree that it’s hard to find a suitable term, but I don’t think “property” will help. That carries legal connotations that don’t fit the subject very well. (You might check out the standard tests for “property” that I run through in chapter 3 of my book.) Maybe you could use “good,” a more neutral term and one well-established in economics, instead of “property.” If you insist on a legal term, I’d use “author’s rights” or “trade secret.”

  • Anonymous

    Steve R.: Thanks for the encouraging words!

    Jim: I understand your plight, and agree that it’s hard to find a suitable term, but I don’t think “property” will help. That carries legal connotations that don’t fit the subject very well. (You might check out the standard tests for “property” that I run through in chapter 3 of my book.) Maybe you could use “good,” a more neutral term and one well-established in economics, instead of “property.” If you insist on a legal term, I’d use “author’s rights” or “trade secret.”

  • http://enigmafoundry.wordpress.com/ enigma_foundry

    Of course, I was speaking about all information, not just works of authorship. For example, I own the fact/knowledge of what I ate for breakfast this morning. I could sell it to you or trade it with you under a variety of licensing terms.

    Wrong. Information is NOT protectable by copyright. Only the expression itself is protectable.

    So Whereas the sentence “I finished my Eggs Benedict in a hurry because I needed to catch the 8:05 train to the City.” could be covered by copyright, you have NO AUTHORITY to restrict the information itself, i.e., the fact that you did eat Eggs Benedict for breakfast, or that you take the 8:05 train downtown.

  • http://enigmafoundry.wordpress.com eee_eff

    Of course, I was speaking about all information, not just works of authorship. For example, I own the fact/knowledge of what I ate for breakfast this morning. I could sell it to you or trade it with you under a variety of licensing terms.

    Wrong. Information is NOT protectable by copyright. Only the expression itself is protectable.

    So Whereas the sentence “I finished my Eggs Benedict in a hurry because I needed to catch the 8:05 train to the City.” could be covered by copyright, you have NO AUTHORITY to restrict the information itself, i.e., the fact that you did eat Eggs Benedict for breakfast, or that you take the 8:05 train downtown.

  • http://www.cato.org/people/harper.html Jim Harper

    e_f, Tom: I think both of you are too fixated on copyright. I am talking about the natural state of affairs with information.

    I used the example of what I ate for breakfast (and in prior discussions the wearing of a yellow hat) because these things are obviously not subject to statutory protection of any kind.

    As to what I had for breakfast, even in the absence of any statutory protection, my authority to control it is total. (That’s not a hint, BTW.)

    That item of information is something I am 1) excluding you from getting. I am 2) using it to illsutrate this story. I would 3) sell it to you (alienate it) for the right price, in which case you would 4) acquire it. Thanks to a good memory, I can 5) preserve it in perpetuity.

    Tom, I use the term “property” precisely because of the legal connotations. “Good” doesn’t have *enough* of the legal connotations!

    I think it’s a stretch to say that I’m the author of the fact of what I had for breakfast, and it’s really not a fact used in trade, so I don’t think the other terms you’ve suggested fit at all.

  • http://www.cato.org/people/harper.html Jim Harper

    e_f, Tom: I think both of you are too fixated on copyright. I am talking about the natural state of affairs with information.

    I used the example of what I ate for breakfast (and in prior discussions the wearing of a yellow hat) because these things are obviously not subject to statutory protection of any kind.

    As to what I had for breakfast, even in the absence of any statutory protection, my authority to control it is total. (That’s not a hint, BTW.)

    That item of information is something I am 1) excluding you from getting. I am 2) using it to illsutrate this story. I would 3) sell it to you (alienate it) for the right price, in which case you would 4) acquire it. Thanks to a good memory, I can 5) preserve it in perpetuity.

    Tom, I use the term “property” precisely because of the legal connotations. “Good” doesn’t have *enough* of the legal connotations!

    I think it’s a stretch to say that I’m the author of the fact of what I had for breakfast, and it’s really not a fact used in trade, so I don’t think the other terms you’ve suggested fit at all.

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