Clearing the rubbish: Locke, the waste proviso, and the moral justification of intellectual property

Public Affairs Quarterly 23 (1):67-93 (2009)
Abstract
Defenders of strong Intellectual Property rights or of a nonutilitarian basis for those rights often turn to Locke for support.1 Perhaps because of a general belief that Locke is an advocate of all things proprietary, this move seldom receives careful scrutiny. That is unfortunate for two reasons. First, as I will argue, Locke does not issue a blank check in support of all property regimes, and the application of his reasoning to intellectual property would actually tend to favor a substantially limited rights regime. Second, the attempt to understand intellectual property as an instance of Lockean property, though admittedly anachronistic, offers an opportunity to further our understanding of Locke's own thought. My major claim will be twofold: on the one hand, intellectual property would be an almost paradigmatic case of Lockean property; on the other hand, Locke's provisos—specifically the widely neglected spoilage proviso—would sharply limit the scope of any entitlements. My secondary claim will accordingly be that the spoilage proviso's neglect is undeserved, and that it deserves a more central place in our understanding of Locke. I will not here address whether Locke provides the right way to think about property, whether IP is a good idea, or whether property rights ought to include a right to destroy; my concern is to elucidate Locke's arguments and then to block this application of them
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