Intellectual Property and John Locke’s Theory of Labor
55 Pages Posted: 19 Jul 2010 Last revised: 30 Sep 2019
Date Written: 2010
Recent hermeneutical scholarship on John Locke’s Two Treatises of Government has reinterpreted Locke’s justification for property rights. In this reinterpretation, (called here “productive labor theory”), labor is conceived as a moral interest in the production of new goods, previously unavailable to the political community, but likely to enlarge the advantages of members of that community.
This paper uses productive labor theory to justify several basic features of existing American intellectual property law more convincingly than other Lockean theories of intellectual property. Productive labor theory justifies property only in intellectual works minimally novel or distinct from existing common knowledge. Presumptively, productive labor theory justifies only the limited use rights associated with trade secrets, but it can justify the rights of exclusive control associated with patent or copyright if a given intellectual work is novel or original enough. Yet productive labor theory also justifies imposing on copyrights and patents duration limits not imposed on property in land or chattels.
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