The Making of a New Copyright Lockean
Zemer, Lior, Harvard Journal of Law & Public Policy
I. 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
A. 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. …