The Fruits of Authorship: A Theory of Copyright

Abstract

Although philosophers have theorized for centuries on the foundations of tangible property, we largely have been absent from the legal scholarship on the foundations of intellectual property, much of which endeavors to apply theories of property to legal rights like copyrights and patents. But the fundamental differences between physical and intellectual objects—the latter being abstract, non-rivalrous, non-excludable, and sometimes expressive—raise a distinct class of complexities not adequately grappled with in this existing scholarship. In this dissertation, I explore the philosophical foundations of copyright law—the legal system granting rights in expressive or authorial works—using the best known (and most controversial) philosophy of property as a framework: namely, Lockean labor theory. 

I aim in this dissertation to make the following contributions. First, I defend a novel account of authorship and authorial works—the entities and activity that copyright law governs—that coheres with the defining structure of copyrights; differentiates them from both material objects (the subject of property) and functional inventions (the subject of patents); and rehabilitates and substantiates an idea about authors’ relationships with their works that is largely (and erroneously) dismissed as “romantic” by American intellectual property scholars. Second, I analyze the implications of this theory of authorship and its fruits for the nature of authorial rights—such as what exactly they give to authors or take from the rest of the world—and how they differ from both property rights and patent rights in normatively significant ways. Third, I use Lockean labor theory as a framework for developing a rights-based theory of copyright. I argue that the core idea of the Lockean framework—although deeply implausible as an argument for physical property rights—is actually a powerful foundation for a system of authorial rights, one that (i) avoids the many objections faced by Lockean theories of property and (ii) provides a more compelling justification than utilitarianism and other leading theories of copyright law. It follows that (i) if there is any domain in which the persistent Lockean intuition that we are morally entitled to the fruits of our labor ought to be taken seriously, it is the domain of authorial rights; and (ii) if authorial rights are, in fact, normatively defensible, then the Lockean story offers their best available defense. Finally, I sketch a partial blueprint for this imagined Lockean system of authorial rights, structured to avoid the damning pitfalls of Lockean property and instead assure the equal and adequate recognition of all authors’ rights. This includes a number of revisionary (and possibly) surprising implications for existing American doctrine, most of which call for aspects of copyrights to be narrower and weaker than they presently are, in order to take seriously the theory’s egalitarian structure and the non-economic nature of authorial rights themselves.

Keywords: legal philosophy, philosophy, law & philosophy, intellectual property, intellectual property theory, copyright theory, property theory, property, Locke, labor theory, jurisprudence, private law, private law theory, political philosophy, moral philosophy, aesthetics, metaphysics, speech