Herman T. Tavani
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.
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Index Terms
- Locke, Intellectual Property Rights, and the Information Commons
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Reviews
Brad D. Reid
John Locke (1632-1704) had a major influence on the founders of the US. Locke’s famous statement of the inherent right to own property was “life, liberty, and estate” (estate meaning property). Tavani applies Locke’s theory of property to the current debate concerning intellectual property rights (IPR). Philosophers and those interested in the future of intellectual property law will find this discussion of interest. Tavani begins this study with an overview of Locke and recent discussions of Locke. Locke believed that one has a right to the fruits of his labor, items he has “mixed his labor with.” Of particular interest is 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.” While it may appear to be an easy extension of Locke to the modern IPR environment, critics assert that there are many categories of labor and that “mixing one’s labor” is an indeterminate concept. As one critic, Norick, wrote: “If I own a can of tomato juice and spill it into the sea so that its molecules (made radioactive, so I can check this) mingle evenly throughout the sea, do I thereby come to own the sea or have I foolishly dissipated my tomato juice__?__” The author’s response is to ask “how much emphasis we should place on the role of labor per se in Locke’s theory.” In fact, there are two specific questions one must answer: “Does a particular law or policy diminish the information commons by unfairly fencing off intellectual objects__?__ Are ordinary individuals made worse off as a result of that law or policy when they can no longer access information that had previously been available to them__?__” Legislation such as the Copyright Term Extension Act and the Digital Millennium Copyright Act restricts the information commons. For example, digital storage and access to books is not as available as legally unrestricted technology would permit. This, however, does not mean that Locke would reject copyright laws since Locke would “endorse the ‘cultivation’ and thus the enclosing of some of the information commons.” Nevertheless, Tavani concludes that copyright laws “are unjust to the extent that they make ordinary individuals worse off by unfairly diminishing the information commons.” The paper concludes with an extensive list of references. Readers will find this presentation very interesting because it illustrates how humans wrestle with similar fundamental questions regardless of the time and place. Online Computing Reviews Service
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