Thursday, December 20, 2007

Locke on Copyright

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 The Technology Liberation Front.]


Glen Whitman said...

Locke may not have embraced copyright, but I don't think those we invoke Locke are claiming that. Instead, I think they're appealing to the Lockean notion that what people really own is the product of their labor. Locke applied this notion to justify ownership of tangible assets by saying that we mixed our labor with the land. The copyright advocates are saying that an idea is, in some sense, pure labor; unlike a piece of land, it would not have existed were it not for your thought and effort.

Thus, the copyright advocate might argue that there is a better case, on Lockean principles, for copyright than for tangible property -- whether Locke admitted it or not.

Tom W. Bell said...

Glen: Yeah, that's basically what they argue--even that bit about IP offering a better case for Locke's theory. But I think Locke's opinion does matter, and that he was quite right to regard copyright skeptically. He didn't speak in terms of non-rivalrousness (alas) but he probably understood that tangible property alone merited special regard. And, whether or not Locke did or his latter-day follower do recognize it, the claim that copyrights do not borrow from pre-existing works is wildly inaccurate. Nobody creates in a vacuum.

Anonymous said...

The Lockean proposition of copyright really only establishes attribution: it 'attaches' a particular thing to a particular creator/author.

But attribution alone does not justify anything much. I may have made a shovel, but that does not then give me a right to dig anyone and everyone's garden with it. Attribution of authorship is merely the 'location' of some possible rights; it is insufficient to set the limits of those rights on its own.

And Locke understood this, which is why he clearly added the condition of "at least where there is enough, and as good, left in common for others". For a rule to be moral it must make sense more widely than for its primary participant. It must work overall for everyone. *That* is what sets the limits.

'Abstract goods' (i.e. the subjects of copyright) are nonrival. They behave fundamentally differently to material things. It means the tacit assumption that some similar restriction is implied immediately falters. And that is the end for the Lockean 'argument'.