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Justifications for Intellectual Property Part 2: Labor-Desert Theories

I know it's been a little while, but I want to finish this tutorial series rather than abandoning it and moving on to other topics. Of course, I would have liked to have finished it by now, but various research and teaching-related obstacles have kept me nose down in the Real rather than preparing content to be released into the internet. Nevertheless, I'm returning to routine, so I'm going to release this installment today, rather than wait for my usual MWF release schedule.

At any rate, let's pick up where we left off and talk about justifications for intellectual property rights. While the utilitarian justification discussed in the last post enjoys the status of having been enshrined in law, scholars and jurists have often brought in other property-justifying theories. Perhaps the most popular of these are Labor-Desert justifications, best exemplified by John Locke (the philosopher, not the character on Lost).

In his Second Treatise on Civil Government, Locke construes property as a natural right, an outcome of an agent's (God-given) ownership of himself. The argument goes something like this: God created humankind and put them on the Earth. As embodied beings, humans have physical needs, but the Earth is rich with the resources for fulfilling those needs. In effect, God gives the Earth to humankind in common, to use its resources to sustain themselves. Of course, in order to use those resources, an agent must remove supplies from the common for his own personal use. As such, Locke concludes that there must be a natural right to property because without it, the Earth and its resources would be useless to humankind.

For Locke, the natural right to property is nothing other than the right to appropriate common resources for personal use. In order to exercise this right, and agent must put in some work; he must actually go out into the world and gather whatever resources are required. As such, Lockean accounts of property are sometimes referred to as “Labor-Desert” account because an agent deserves a property right over those things that he has gathered or created through his labor. If one wants to minimize God's role in this system, as many contemporary scholars such as Robert Nozick do, the usual strategy is to invoke self-ownership. Since an agent owns himself (how that comes about, one typically has to leave aside because the answers wax theological), the agent owns his labor, the work that his body is capable of doing. If an agent chooses to labor over gathering food, he has created something of value, and by virtue of his labor being responsible for the value, becomes owner of the food gathered.

The property rights one generates through labor are not unlimited. Since God gave the Earth to all humankind, all agents have an equal right to appropriate. On that basic, Locke claims that the right to appropriate is limited by two conditions that scholars have come to call Locke's Proviso. The first condition is the “spoilage” or “waste” condition. Put simply, an agent is not justified in taking more than he or she can use before it spoils, rots, or is otherwise ruined. As such, agents have greater latitude in hoarding less perishable goods, with money being the least perishable. Secondly, an agent's appropriation must be such that “enough and as good” is left for others to do the same. The first part of the Proviso is often considered a very weak condition, something easy to satisfy and therefore not the subject of extensive consideration or discussion. The second part, of course, can be construed in a number of different ways. One can, at least in theory, read Locke as something of an egalitarian, or perhaps an egalitarian about opportunities. Many right-libertarian scholars follow Nozick's somewhat weaker rendering: an appropriation is only justified when it does not worsen the situation of any other agent.

To put all of that in a more condensed form: Labor-Desert justifications for property (in general) claim that property rights are justified by an agent's labor. If an agent works to create something of value, the agent deserves to own that thing in virtue of his work. Lockeans (and Neo-Lockeans like Nozick) construe some simple limits on this right, not letting the property go to waste and not worsening the status of others by the appropriation.

Labor-Desert justifications are, of course, justifications for property in general. The theory applies equally to tangible property and intellectual property. Scholars who apply these justification to intellectual property rights tend to emphasize the strong sense of ownership bestowed by a natural rights account. If I own the novel I have written because I have worked on it, then someone else infringing my copyright is an attack on myself. One would think that the strong sense of ownership would be somehow balanced by concerns about the commons, leaving enough and as good or not worsening the situation of others, but that's not often so.

The Nozickean reading, not worsening the situation of others, turns out to be a fairly weak reading of the Proviso. Nozick's reading construes the Proviso as calling for a Pareto-optimal situation. “Pareto-optimal” just means a situation that cannot be improved for any agent without worsening the situation of another. When one actually cashes out what it means to worsen an agent's situation, one finds a very different Proviso from the one that requires “leaving enough and as good.” For starters, an agent's situation is not necessarily made worse by losing the ability to appropriate a parcel of land, as long as the new owner intends to turn his land in a large farming operation by hiring hands to work the land. While the agent is no longer able to appropriate that land to make a living, he still has the opportunity to make a living by working for the other agent. It may sound like a raw deal, but Nozick and those who follow his reading claim that the agent is in the same position as before, and has essentially equivalent opportunities to secure a living.

When the Pareto-optimal reading is applied to intellectual property, one often finds a very diminished concern about the information commons. An author's copyright concerns his novel, not something already in the commons, so all other agents are still free to write their own novels. They simply have to rights to that particular novel, but they did not (and could not) have such rights before the novel was written, so the situation has not really changed. Likewise, fair use is often diminished in Neo-Lockean readings because fair use constitute exceptions to the natural property rights of the creator. Some Neo-Lockeans construe fair use and the expiration of intellectual property as extreme interference with personal property (see Adam Moore's Intellectual Property and Information Control for my favorite example).

In short, Labor-Desert justifications frame intellectual property rights as no different from rights to any other form of property. An author labors to create some product, a novel, an invention, etc, and by that labor, the author earns the right to own what he has created. Substitute “novel” for “hammer” and nothing changes. While this kind of simplicity seems desirable from the perspective of wanting a parsimonious theoretical framework, one can also justifiably ask whether treating intellectual property and tangible property the same way really makes sense. For starters, tangible goods are rivalrous; one person's use excludes another's use. Intellectual property is not the same way at all; reading one copy of a novel does not prevent anyone else from doing the same. By extension, my writing a sequel to your novel does not prevent you from doing the same, leaving the market with both an “author's sequel” and a “fan sequel.” Labor-Desert theorists treat the fan sequel as a form of free-riding, something Locke himself considers a strong violation. On the other hand, the fan has still put in a great amount of effort in writing the sequel, even if the groundwork is the product of another's labor. Why does the original author get a de facto monopoly on derivative works? One could instead say that the fan's labor entitles him to his contribution, not the original groundwork but at least the new material.

Of course, one might answer that concern from various perspectives, but to do that, we really should have all justifying theories on the table. Next time, I'll pick up with the last of the big three: the Self-Expression justification.


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