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 to make the following contributions. First, I develop a theory of expressive or authorial works, including what differentiates them from both physical objects and functional inventions (the subject of patents). I then analyze what this theory brings to light about the nature of authorial rights, such as what exactly they give to authors or take from the rest of the world, and how they diverge from both property rights and patent rights in normatively significant ways. Next, I argue that the core ideas of Lockean labor theory—although deeply implausible as an argument for physical property rights—actually offer a compelling justification for authorial rights, one that (i) has a stronger positive foundation than any of Lockean property theory's dominant interpretations; (ii) avoids each of the damning conceptual and normative objections that Lockean property has faced; and (iii) grounds a right that better captures the nature of expression and authorship than any of copyright’s other leading normative theories. It follows from this 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. In so doing, I tease out 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