Lockean Copyright versus Lockean Property

Abstract

Locke’s labor theory, the most familiar of property theories, has faced centuries of philosophical criticism. Nonetheless, recent legal scholars have applied it to intellectual property while overlooking these philosophical critiques. Philosophers, on the other hand, are largely absent in IP theorizing, thus not asking whether Locke’s resilient intuition is salvageable in copyright’s domain. This Article argues that Lockean copyright is actually far more plausible than Lockean property, for it can avoid the most devastating objections the latter faces. It then defends a surprising doctrinal implication of this theoretical conclusion: that a workable Lockean copyright favors rights far more limited than those of present U.S. copyright law.

Keywords: philosophy, legal philosophy, law and philosophy, intellectual property, property, copyright law, copyright theory, property theory, political philosophy, moral philosophy, intellectual property theory, legal theory, jurisprudence