'Enough and as Good' in the Intellectual Commons: A Lockean Theory of Copyright and the Merger Doctrine

48 Pages Posted: 8 Jun 2016

See all articles by Alexander Northover, Esq.

Alexander Northover, Esq.

Emory University School of Law; George Washington University

Date Written: 2016


Embedded in our national identity, the right to reap the fruit of one’s labor defines the quintessential American Dream. This ownership right seems so intuitively obvious that it needs no logical explanation, and thus John Locke’s foundational theory of property rights is often misinterpreted from the start. Locke’s labor theory of acquisition has perpetuated a kind of philosophical circuit split among scholars, relegating his ideas to a realm of partisan politics. These misinterpretations are unfortunate because, when properly applied, Locke’s property theory holds the promise of resolving complex issues in copyright law and theory.

In the tradition of Locke’s contextualist interpreters, this Comment examines Locke’s philosophy and its context with the aim of describing a theory of Lockean copyright that is compatible with the basic tenets of American copyright law. Because the Lockean copyright theory offered here accounts for both procedural and consequential goods, it has stronger prescriptive power than the current utilitarian model and can do more work. Also, because Lockean duties lend well to bright-line rulemaking, applying Lockean thinking to legal analysis can streamline litigation. As an example of Locke’s cash value to copyright law, this Comment expounds upon his thoughts on the natural law duties of property owners and the state’s role in mitigating transaction costs of private ownership to assign burdens of proof at trial. This framework is utilized to outline a potential solution to the circuit split over whether the merger doctrine should apply during the copyrightability stage or the infringement stage of a copyright infringement lawsuit.

Keywords: John Locke, Locke, copyright law, merger doctrine, idea–expression dichotomy

JEL Classification: D62, D63

Suggested Citation

Northover, Alexander, 'Enough and as Good' in the Intellectual Commons: A Lockean Theory of Copyright and the Merger Doctrine (2016). Emory Law Journal, Vol. 65, No. 5, 2016. Available at SSRN: https://ssrn.com/abstract=2791174

Alexander Northover (Contact Author)

Emory University School of Law ( email )

Atlanta, GA
United States

George Washington University ( email )

Washington, DC
United States

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