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LOCKEAN PROPERTY AND LITERARY WORKS*

Published online by Cambridge University Press:  01 December 2008

Jonathan Peterson
Jonathan Peterson*
Affiliation:
Department of Philosophy, University of Toronto
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Abstract

This paper develops a Lockean account of literary property. Seana Shiffrin has recently argued, on the basis of an egalitarian interpretation of Locke's theory of property, that the Lockean view does not justify property rights in intellectual works. I argue that Shiffrin fails to take an important strand of Locke's view into account, namely, the view that makers have rights to what they have made. If this aspect of Locke's view is given its proper place, a plausible Lockean account of property in literary works can be developed. This account of literary property places us in a better position to appreciate both the strengths and weaknesses of the Lockean theory of intellectual property.

Type
Research Article
Information
Legal Theory , Volume 14 , Issue 4 , December 2008 , pp. 257 - 280
Copyright
Copyright © Cambridge University Press 2008

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References

1. William Enfield, Observations on Literary Property (1774), at 21–22. Facsimile in The Literary Property Debate: Eight Tracts, 1774–1775 (Garland Publishing, 1974).

2. A. John Simmons, The Lockean Theory of Rights (1992), at 223.

3. Mark Rose, The Author as Proprietor: Donaldson V. Becket and the Genealogy of Modern Authorship, in Of Authors and Origins: Essays on Copyright Law 23–56 (Brad Sherman & Alain Strowell eds., 1994), at 29. Martha Woodmansee makes a similar point regarding the historical development of ideas of authorship in Germany. See M. Woodmansee, The Author, Art and the Market (1994), at 42, 49–55. For another view of the development of copyright, see Brad Sherman & Lionel Bentley, The Making of Modern Intellectual Property Law: The British Experience, 1760–1911 (1999).

4. Rose, supra note 3, at 23–55, provides an account of these developments.

5. For a sympathetic but critical reading, see Hettinger, Edwin C., Justifying Intellectual Property, 19 Phil. & Pub. Aff.31–52 (1989)Google Scholar. For a proviso-based defense, see Moore, Adam D., A Lockean Theory of Intellectual Property, 21 Hamline L. Rev.65–108 (1997–1998)Google Scholar. Lockean accounts of the foundations of intellectual property law are also defended by Justin Hughes and Wendy Gordon. See Hughes, Justin, The Philosophy of Intellectual Property, 77 Geo. L.J.287–366 (1988–1989)Google Scholar; and Gordon, Wendy G., A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 Yale L.J.1533–1609 (1992–1993)Google Scholar.

6. Seana Valentine Shiffrin, Lockean Arguments for Private Intellectual Property, in New Essays in the Legal and Political Theory of Property 138–167 (Stephen R. Munzer ed., 2001).

7. John Locke, Two Treatises of Government (Cambridge University Press, Peter Laslett ed., 1960), at 286.

8. Id. at II.28.

9. Id. at II.26.

10. Id. at II.27, 33.

11. Adam Moore defends an account on which the proviso is a sufficient condition of acquisition for intellectual works. This is based on the idea that acquisitions that satisfy the proviso are Pareto improvements. See Moore, supra note 5, at 78–84. But a view that justifies acquisition of intellectual works solely on the grounds that appropriation of the work is a Pareto improvement is bound to be unsuccessful because it cannot forestall further Pareto improvements. If we grant that production of a literary work makes the creator better off without worsening the position of others (with respect to whatever baseline we choose), does that give us a case for the right to exclude? We have to say one of two things here: (1) Making the work available to everyone does not leave the creator worse off and does make others better off, so we ought to make it available to everyone. (2) If the case can be made that making the work common does leave the creator worse off, so that she would be a loser while others gain, then there is presumably some level of compensation for the creator that would make it efficient to make the work available to everyone. It is not at all clear why anyone would have a reason to object to this way of pursuing efficiency. Moore's view is actually more complicated. He assumes that laboring on an intellectual work grounds a “weak presumptive claim” to the work. This claim is not overridden as long as the acquisition of the work does not worsen the position of others. This idea of a presumptive claim has to do most of the work in his argument, since he would have to appeal to it in order to forestall further Pareto improvements. And the presumptive claim cannot itself be grounded in the idea that appropriation of the work is a Pareto improvement. If it were, it would not forestall further Pareto improvements. Therefore it seems to be incorrect to take the proviso, so understood, as a sufficient condition of appropriation for intellectual works.

12. Although I have something to say about the role of the proviso at the end of this paper, it is worth pointing out that the question of what sort of limits the proviso might impose on property in literary works arises only if literary works can be property. I primarily concern myself here with the case for thinking of literary works on the model of property at all. The question of the proviso and how it might apply only comes up once this question has been answered.

13. Locke, supra note 7, at II.31.

14. Id. at II.44.

15. Simmons defends a view that emphasizes man's natural-law right of self-mastery (of which self-ownership is only one facet) and construes labor as purposive activity with regard to the world; Simmons, supra note 2. Tully and Sreenivasan defend a more narrow view, the workmanship model, in which the intellectual activity of creation or making is central. James Tully, A Disocourse on Property (1980). Gopal Sreenivasan, The Limits of Lockean Rights in Property (1995).

16. Shiffrin, supra note 6, at 165. For the presumption of common ownership see id. at 157.

17. It might be thought that the right to exclude others is necessary for fully effective use, since it provides an incentive to put in the effort required to develop the work fully. I think that Shiffrin has a reply here, however: even if incentives are necessary in order to promote the full development and exploitation of the work, it would not necessarily follow that strong property rights are justified. Incentives that encourage the full development and exploitation of the work could be provided by mandatory royalty systems or other forms of compensation short of strong property rights. See Shiffrin, supra note 6, at 142.

18. Is the first point justified? This depends on what counts as using the work effectively. If my fully effective use includes my being able to derive an income from it, then I need to be able to exclude others. If my fully effective use includes only being able to appreciate, contemplate, and learn from the work, then I do not need to be able to exclude others from the work. It appears that Shiffrin does not regard use of the object as a means of income by the author as a part of the fully effective use of the object.

19. Id. at 142.

20. See Enfield, supra note 1, at 19.

21. Shiffrin raises and addresses this objection in her article. See Shiffrin, supra note 6, at 158.

22. Id. at 154.

23. Id. at 143. Shiffrin does not aim to reconstruct or defend Locke's own position but to provide us with “the most defensible reconstruction of the 2nd Treatise's argument for private appropriation.” The question that faces us here is thus not whether her view is Locke's view but whether her reconstruction is the only account of the moral implications of the original common that can claim to take it seriously.

24. Enfield, supra note 1, at 15.

25. Sreenivasan, supra note 15, at 115.

26. Id. at 43.

27. Id. at 46.

28. Shiffrin, supra note 6, at 143, 149.

29. Id. at 148.

30. Some interpretations of the no-ownership thesis build in moral considerations. The appropriate contrast here, however, is with a nonmoralized no-ownership situation.

31. Robert Nozick, Anarchy, State and Utopia (1974), at 174–175.

32. For discussion of the objections to the labor-mixing model, see Simmons, supra note 2, at 267.

33. Tully, supra note 15.

34. Sreenivasan, supra note 15, at 62.

35. Id. at 64.

36. Incidentally, no claim that God actually exists is required for the argument to go through. Furthermore, the claim is not that you must completely understand what you are doing in making something in order to have a right in it. Rather, “Locke's central criterion for determining whether someone has made something is whether he knows what that thing is in the sense of knowing its real essence.” Id. at 84. (In speaking of essences here, we must have Locke's empiricist theory of essence in mind.)

37. Id. at 75.

38. Locke, supra note 7, at II.6.

39. Sreenivasan, supra note 15 at 69–74.

40. Id. at 75.

41. The manuscript dates from 1694–1995. See John Locke, Political Essays (Cambridge University Press, Mark Goldie ed., 1997), at 338.

42. For the view that Locke did regard rights in literary works in these terms, see Justin Hughes, Copyright and Incomplete Historiographies: Of Piracy, Propertization and Thomas Jefferson, 79 S. Cal. L. Rev. 993, 1012 (2006).

43. See Locke, supra note 41, at 337, 338.

44. Id. at 338–339. Locke's aim in inserting this provision in the bill is to encourage the fulfillment of its requirement that copies of all books be placed in the universities. This implies that in his view, rules designed to foster the public availability of books are legitimate conditions on copyright.

45. The argument from equity is Enfield's, but it has clear roots in Locke's discussion of appropriation.

46. See Moore, supra note 5, at 77.

47. Recent scholarship on the subject challenges this view, however. Some scholars argue that the ex nihilo interpretation rests on an implausible view of literary works as the creations of solitary genius. Martha Woodmansee traces the development of this idea of books as the product of genius; Woodmansee, supra note 3, at 37. It may be that examples of true ex nihilo literary making are extremely rare. In that case, the ex nihilo interpretation of the maker's-right account would account for author's rights only in those rare cases. For the rest, we would have to rely on the second possible interpretation discussed below.

48. For Shiffrin's view on this possibility, see Shiffrin, supra note 6, at 161.

49. There are other important considerations in this matter that are distinct from concerns about full exploitation and human benefit. One of the most important arises from Lockean commitment to liberty and self-ownership. One could argue that property rights in literary works place unacceptable limits on the ways in which others may use themselves and their possessions. One way in which this might happen is if natural property rights in literary works prevented people from making use of their own independently created works. Suppose, for example, that you independently create a literary work that is exactly similar to one that is already in existence. Since you have not copied the work from the preexisting one, you have not attempted to reap where you have not sown. In this case, being prevented from using this work seems to be an unacceptable intrusion on your freedom. Fortunately, the Lockean view can avoid this problem by allowing for a defense of independent creation (a standard feature of copyright law). If you independently create a work that is similar to an existing work of mine, you are not prevented by my previous claim from using that work in any way. Since you created it, you will have a standard maker's-right claim to that work. The Lockean view prevents copying here, but it does not prevent people from working on and developing their own ideas. I am indebted to Matt Zwolinski for raising this criticism in a referee report for this journal. It is also worth pointing out that there may be other forms of liberty-based challenges to the Lockean theory on this matter. My argument in this paper is focused mainly on rebutting Shiffrin's benefit-based objection and does not aim to address liberty-based objections conclusively.

50. Wendy J. Gordon, Intellectual Property, in The Oxford Handbook of Legal Theory (Peter Cane & Mark Tushnet eds., 2003), at 630.

51. A.M. Honoré, Making Law Bind (1987), at 168.

52. Hoff, Joan, Researcher's Nightmare: Studying the Nixon Presidency, 24 Presidential Stud. Q.271 (1996)Google Scholar.