- Feb 2014
As intellectual property lacks scarcity, and the protection of it fails the Lockean Proviso, there is no natural right to intellectual property. As such, the justification for intellectual property rights arises from the social con tract, and in the case of the United States, the Constitution.
The justification for intellectual property from the social contract established by the US Constitution; it otherwise has no justification by natural right because it fails the Lockean Proviso.
As such, the conclusion is that intellectual property is not ‘property’ in the Lockean sense. If it were, then intellectual property protections would deserve no mo re policy debate than whether police ought to chase thieves. As it is not, the justification for intel lectual property must be sought in the social contract. As noted above, the social contract for the United State s, the Constitution, specifies in Article I, Section 8, Clause 8 that Congress may pass laws “ To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respec t ive Writings and Discoveries.” This background clarifies the discussion considerably : • There is no natural law basis for intellectual property rights • Thus, intellectual property rights must be provided for by the social contract. • The U.S. social contract as elucidated in the Constitution specifies a utilitarian basis for intellectual property rights (“to promote the progress... by securing for limited times...")
There is no natural law basis for intellectual property rights
Intellectual property rights must be provided for by the social contract
The US Constitution as a social contract specifies a utilitarian basis for intellectual property rights.
Property Status Conclusions and Implications Intellectual property is neither ‘scarce,’ nor does the taking of it leave “enough, and as good, left in comm on for others” (the Lockean proviso) (Long, 1995, n. pag.; Locke, 1690, Chap. V, Sect. 27).
Intellectual property is neither scarce nor leaves enough for the common good. It is not property in the Lockean sense.
Invention is a process that builds on prior thought, which is why the patent process INTELLECTUAL PROPERTY: POLICY FOR INNOVATION 9 requires disclosure of means and methods. For this reason, this paper will accept that intellectual property fails the Lockean Proviso, as suggested by Menell (1999, p. 129 ).
According to Barnett in Innovation: The Basis of Cultural Change : “No innovation springs full - blown out of nothing: it must have antecedents ” (1953, p. 7).
Innovation: The Basis of Cultural Change
The “romantic conception of authorship” mentioned earlier as a formative trend of the rights - based theory of intellectual property is evident in the first pe rspective: t he notion that ideas are individual achievements and of indeterminate origin (not reliant on a process of building) (Fisher, 1999, Sect. II. B).
For instance, if a certain individual owns the idea for airplanes, there are always ideas for gliders, helicopters, and devices yet unknown for other individuals to own. On the other hand, each idea is unique, so the taking of any idea as private property leaves none of that idea for others (Locke, 1690, Chap. V, Sect. 27). The first perspective would assert that there are always other ideas, while the second perspective would assert that ideas build upon each other, and that just because ideas are similar in one respect does not mean they are similar in other respects. Under the first perspective, the taking of intelle ctual property passes the Lockean Proviso, and under the second perspective, it fails.
On one hand, there are infinite ideas, and so the taking of one idea as private property clearly leaves “enough,” and debatably “as good” for others (Locke, INTELLECTUAL PROPERTY: POLICY FOR INNOVATION 8 1690, Chap. V, Sect. 27).
This statement seems to me a stretch-- a very far stretch.
What does it mean to have "infinite ideas"? And how do you arrive at the judgments "enough" and "as good" here?
Ideas don't exist in isolation; they are not individual fruits to be plucked from the world of thought. Ideas are built upon other ideas. They are embedded within each other, juxtaposed one next to the other, stacked, remixed; varied one from the other, sometimes as a derivation, sometimes an inspiration.
And in the face of this, what is the notion of "creation"? Given a certain base of knowledge, there are some natural next steps that can be built from those basic building blocks.
Here we have to disentangle the notion of discovery from creation. I think maybe that, in part, is the notion of patents vs copyright, but in the land of software we seem to have a tangled mess.
Here, there is disagreement about whether intellectual property violates the Lockean Proviso.
Does the notion of intellectual property violate the Lockean Proviso?
The limit of any property rights that can be claimed in this manner are defined in the ‘Lockean Proviso’ which states that the aforementioned process of establishing private property only operates “when there is enoug h, and as good, left in common for others” (Bogart, 1985, p. 828; Locke, 1690, Chap. V, Sect. 27).
Fisher points out that the rights - based, non - utilitarian theory is greatly influenced by two concepts: (1) the western ideology of property from Locke (that people are entitled to own the fruits of their labors, and should be rewarded in proportion to their contributions); and (2) the “romantic conception of authorship” of the divinely inspired individual genius or artist (1999, Sect. II. B).
The first is the soul of the rights-based theory
Keywords : anticommons, copyright, intellectual property, Lockean Proviso, patent, property rights, state of nature, trademark, utilitarian theory
- US Constitution
- common good
- intellectual property
- rights-based theory
- romantic conception of authorship
- utilitarian theory
- private property
- natural right
- infinite ideas
- non-utilitarian justification
- utilitarian basis
- state of nature
- Lockean Proviso
- prior thought
- property rights
- Fairness Theory
- social contract
- global context