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.]