The making of a new copyright Lockean.

• Author: Zemer, Lior

1. INTRODUCTION: TWO FATAL FLAWS A. The Ubiquity of Lockean Justifications in Copyright Discourse B. A Rejoinder to Contemporary Copyright Lockeans: The Two Fatal Flaws II. INDISPUTABLE LOCKEAN COPYRIGHT A. Liberty of the Press: Property in Authorial Commodities B. The Public Interest, the Stationers' Company, and the Limits of Perpetual Copyright III. NATURAL RIGHTS, LABOR, AND COPYRIGHT A. Definitions 1. "Property" 2. "Labor" 3. "Conveniences of Life" B. A Natural-Right Justification 1. Collective and Individual Rights Through Labor-Mixing a. Collective Labor b. Lockean Labor 2. The No-Harm Principle 3. Copyright and the No-Spoliation Proviso 4. Copyright and the "Enough and as Good" Proviso a. The Role of the Proviso b. A Literal Proviso for Intellectual Property IV. LOCKE, SOCIAL CONSTRUCTION, AND THE AUTHORIAL COLLECTIVITY A. Against Innateness B. Improvement or Creation ex nihilo? C. The Collective Formation of Ideas and Authorial Knowledge 1. Experience and the Transformation of Blank Slates 2. Simple Ideas and Complex Ideas 3. Idea Formation, Knowledge, and Communication 4. Authors as Lockean "Sociable Creatures" V. CONCLUSIONS I. INTRODUCTION: TWO FATAL FLAWS

   1. The Ubiquity of Lockean Justifications in Copyright Discourse

      Two main factors consolidated the hegemony of John Locke's philosophy in copyright discourse. First, Locke's main theme of property ownership is based on a person's natural entitlement to the products of his labor. Second, scholars find in Locke's theory of property, and the limits he sets on what a laborer can come to exclusively own and control, a solid argument with which to solve contemporary problems in copyright. There are, however, three additional reasons why Locke merits detailed attention. First, many misconceptions of how to interpret Locke exist when we discuss copyright. Second, copyright scholars ignore Locke's explicit discussion of authors' rights and then invoke his general theory of property to justify the status quo. Third, Locke's epistemology and philosophy of the mind display important social constructionist overtones.

      This Article argues that a comprehensive Lockean approach to copyright would provide significant recognition for the public role in the making of authorship and art. Locke's wider philosophy strengthens the argument for recognizing the role played by a society's shared pool of ideas and experiences in the creation of new works. Locke's property philosophy guarantees authorial rights, but it also acknowledges the collective role of the public in the creative process. When read together with several other of his writings, Locke's property philosophy highlights the mistakes embedded in contemporary Lockean approaches to copyright, eliminates inconsistencies in his theory of property, and supports a plausible vision of what copyright should be.

      Modern copyright Lockeans repeatedly invoke Locke's natural right philosophy of property in discussions on copyright. (1) Although this phenomenon is interesting on its own, one need not map the many differences between scholars in the way they invoke Lockean justifications because one common problem affects the strength and coherency of their arguments: they base their analysis and vindication of copyright solely on the twenty-six sections of Chapter V, "Of Property," of the Second Treatise of Government. (2) These scholars also claim that Locke does not, either in the Two Treatises or elsewhere, address the issues of the intellectual commons, intellectual property in general, or copyright in particular. They also devalue the potential impact of Locke's philosophy on discussions of the sociality of copyright, authorship, and the creative process. In reaction, other scholars criticize the adherence to Locke because he is believed to have nothing to say about intellectual property, and argue that Chapter V justifies strong private rights which we should avoid in copyright. This latter perception is erroneous, but it is a perception on which a well established contemporary history of copyright theory is premised. What follows will illustrate and explain this point.

      It seems plausible to use Locke's property theory to justify copyright because statutory and doctrinal innovations place private property rights at the forefront of the Anglo-American intellectual property system. This is particularly true since the main focus of his theory is "the reconciliation of strong private property rights with a common of materials available to all." (3) At the same time, Chapter V is applicable to intellectual property just as it is applicable, for example, to environmental and ecological regulation. (4) The problem in basing copyright justifications solely on Chapter V is that it presents Locke--who has been called first British Empiricist (5) or traditional naturalist (6)--as the undisputed champion of exclusive private property, legitimizing inequalities at the expense of public good. (7) This Article develops a normative conception of Lockean copyright and shows that any argument based solely on the commonly cited twenty-six sections of Chapter V is incomplete.

   2. A Rejoinder to Contemporary Copyright Lockeans: The Two Fatal Flaws

      In two landmark articles, Justine Hughes (8) and Wendy Gordon (9) introduced us to the lore behind Locke's property theory for matters of copyright discourse. Legions of commentators subsequently followed them, but they all confine their discussion to Chapter V of the Second Treatise. (10) Apart from two clear exceptions, (11) most other academic writings dealing with Locke and the justification for property rights in copyrighted materials follow this trend.

      This selective reading of Locke has sometimes led to unfavorable judgments of his theory. Wendy Gordon, for example, argues that "the common explicitly discussed in the Two Treatises was the physical realm" (12) and asserts that "Locke's labor theory of property and allied approaches have been used so frequently as a justification for creators' ownership rights that Locke's Two Treatises have been erroneously credited with having developed an explicit defense of intellectual property." (13) Peter Drahos argues that "when Locke wrote on property[,] ... it was the ownership of physical rather than abstract objects that occupied his attention." (14) Anthony Reese remarks that Locke's tangible property "might not simply apply mutatis mutandis to intangible intellectual property." (15) Carys Craig claims that "Locke's labour theory is so commonly invoked in examinations of copyright doctrine that one might be forgiven for believing that he explicitly defended intellectual property rights." (16) And more recently, Richard Epstein asserts, "To be sure, Locke did not offer any explicit treatment one way or the other of intellectual property rights, which adds to his charm." (17) As argued below, these claims are misleading.

      Another fundamental problem enshrined in contemporary approaches to Lockean copyright has been recently raised in a question posed and challenged by Craig: whether "Lockean property theory can be re-imagined to shape a copyright system that furthers ... maximum creation and dissemination of intellectual works." (18) Craig is concerned with the social and cultural aspects of our copyright regime and whether these aspects can be accommodated in a copyright law drafted close to a robust property rights system. She does not believe that Locke's theory can be refashioned in this manner because Locke's property theory clearly "carries the same threat of copyright expansionism." (19) This Article argues that her conclusion is partially incorrect. It is indeed difficult to reimagine Locke within the confines of the Second Treatise because in that work he was concerned primarily with the individual. It is wrong to assert that Locke subjected every type of property to the principle of exclusive ownership as envisioned in Chapter V of the Second Treatise, notwithstanding his acknowledgment of the difference between traditional property and intellectual and cultural property.

      Locke's ideals of property and copyright, however, should be reexamined in light of his other works, particularly the philosophy of knowledge and his idea of authors' rights. Such scrutiny reveals that it is wrong to associate Locke solely with exclusivity and individualism. Indeed, this Article defends a collectivist and social approach to copyright, based on Lockean principles of ownership and knowledge creation. These principles support the view of authorial collectivity and the imposition of additional limitations on copyright ownership. (20) Debating these principles reveals the importance of Lockean approaches to copyright. The debate also shows that the ongoing academic dialogue on whether the justifications of our copyright system are solely utilitarian, or rather a merger of utilitarian and natural law justifications, is unnecessary because Locke's theory itself includes elements from both schools of thought. Debating these principles also proves that a shift from the stringent utilitarian approach--an approach capable of converting the public domain into a "fallow landscape of private plots" (21)--to the natural law approach is not inconsistent with the social objectives behind the instrumentalist objective of the Constitution's Copyright Clause, granting Congress the power to "promote the progress of Science and useful Arts" through copyright and patent. (22)

      This Article argues that Locke's theory of property can be reimagined in three ways. First, Locke presents a clear vision of a system of authors' rights in which he balances private rights against public interest. Second, although Chapter V addresses traditional property, the chapter applies to intellectual property as well. Third, Locke's theory of knowledge in his Essay Concerning Human Understanding (23) has a social constructionist dimension. As a way to access these arguments, Part II...