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Clearing the Rubbish: Locke, the Waste Proviso, and the Moral Justification of Intellectual Property

Public Affairs Quarterly, Vol. 23, No. 1, pp. 67-93, January 2009

42 Pages Posted: 12 Jan 2008 Last revised: 23 Feb 2009

Gordon Hull

University of North Carolina at Charlotte - Department of Philosophy

Abstract

Defenders of strong intellectual property rights or of a non-utilitarian basis for those rights often turn to Locke for support. This paper criticizes that move. My major claim is 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 is accordingly be that the spoilage proviso's neglect is undeserved, and that it deserves a more central place in our understanding of Locke.

In the first part of the paper, I attempt to resurrect the spoilage proviso. Part 2 rereads Locke's texts to explain why intellectual property would be a paradigmatic case of Lockean property. Part 3 attempts a conceptual clarification of waste in Lockean terms. The final part applies this analysis to some contemporary IP issues: to certain uses of IP to control access, to deadweight loss due to monopoly pricing, and to the possibility of anticommons scenarios. Each of these can be seen as "waste" in the Lockean sense, and thus each offers a counterweight to strong IP claims made in Locke's name.

Keywords: Locke, intellectual property, waste

Suggested Citation

Hull, Gordon, Clearing the Rubbish: Locke, the Waste Proviso, and the Moral Justification of Intellectual Property. Public Affairs Quarterly, Vol. 23, No. 1, pp. 67-93, January 2009. Available at SSRN: https://ssrn.com/abstract=1082597 or http://dx.doi.org/10.2139/ssrn.1082597

Gordon Hull (Contact Author)

University of North Carolina at Charlotte - Department of Philosophy ( email )

9201 University City Blvd.
Charlotte, NC 28223
United States

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