"Clearing the Rubbish: Locke, the Waste Proviso, and the Moral Justification of Intellectual Property"
by Hull, Gordon (2009)
Defenders of strong Intellectual Property (IP) 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. The paper proceeds as follows. In the first part, I attempt to resurrect the spoilage proviso. Part 2 explains why intellectual property would be a paradigmatic case of Lockean property. On the basis of the preceding textual work, part 3 at- tempts a conceptual clarification of waste in Lockean terms, and part 4 applies that analysis to some contemporary intellectual property issues.
In answering the objection that, if gathering confers a property right on that which is gathered, "one may engross as much as he will," Locke claims the following: The same law of nature that does by this means give us property does also bound that property, too. "God has given us all things richly" ( 1 Timothy 6: 1 7), is the voice of reason confirmed by inspiration. But how far has he given it to us? To enjoy. As much as any one can make use of to any advantage of life before it spoils, so much may he by his labor fix a property in; whatever is beyond this is more than his share and belongs to others. Nothing was made by God for man to spoil or destroy (II, 3 1).4 The first thing to notice is that something like the spoilage proviso is embedded in God's initial grant of the world in common. Thus, the initial commons is "given to men for the support and comfort of their being"; in addition, God has given people "reason to make use of it to the best advantage of life and convenience" (II, 26). As many commentators have noted, this seems to entail a right of subsistence, and even an affirmative duty to provide such subsistence for those who cannot provide it for themselves. However, Locke's claim is stronger than this: it is not just our obligation to subsist, but to thrive where possible: the earth is to be put to "best advantage," (II, 26), since people were given the world "for their benefit and the greatest conveniences of life they were capable to draw from it" (II, 34). In short, we are to strive for the optimal productive use of the resources given us. Property is then justified as a legitimate means to achieve the optimal use of resources. (p.68)
KeywordsLocke, Early Modern Philosophy, Political Economy, Sustainability, Waste, Production, Property, Intellectual Property, Property Rights
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