A Lockean Theory of Intellectual Property
Hamline Law Review, Vol. 21, pp. 65-108, Fall 1997
44 Pages Posted: 7 Jan 2012 Last revised: 6 Mar 2018
Date Written: 1997
What follows is a brief introduction to the domain or subject matter of intellectual property, an examination of the most widely supported rule-utilitarian argument, a defense of a new Lockean model, and suggested revisions in Anglo- American intellectual property law based on the Lockean model. I will argue that incentives based rule-utilitarian arguments fail to justify anything remotely close to modern Anglo-American copyright, patent, and trade secret institutions. Moreover, rule-utilitarian moral theory is beset with a number of problems that undermine its initial plausibility. If I am correct, and rule-utilitarian models of intellectual property fail, justification for intellectual property rights must be found elsewhere.
In the most general terms, my hope is to change public policy and the way judges and lawyers think about protect- ing the creative efforts of authors and inventors. Rights to control intellectual works are not ultimately based solely on grounds of social utility. This is clear in the most trivial of case; independent of social utility, individuals have the right to control the contents of their minds. I will argue that we must recast institutions of intellectual property in a Lockean light, thereby providing a firmer foundation for rights and a closer fit with other rights found within the Anglo- American tradition.
Suggested Citation: Suggested Citation