"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.
Whether a property regime in land does, in fact, make better use of the resource is taken by Locke to be an empirical question with an overwhelmingly affirma- tive answer, as his repeated and increasingly extravagant comparisons to North American land use suggest. Indeed, this is a central feature of Locke's narrative: against those who claim that property rights regimes damage the commons, Locke claims that proprietized labor, in fact, gives back to the commons, and results in an increase to it; hence, "he who appropriates land to himself by his labor, does not lessen but increase the common stock of mankind" (II, 37). In contemporary terms, property regimes have positive externalities. (p.69)
KeywordsLocke, Early Modern Philosophy, Political Economy, Sustainability, Waste, Production, Property, Intellectual Property, Property Rights
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