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Locke, intellectual property rights, and the information commons
Tavani H. Ethics and Information Technology7 (2):87-97,2005.Type:Article
Date Reviewed: May 14 2007

John Locke (1632-1704) had a major influence on the founders of the US. Locke’s famous statement of the inherent right to own property was “life, liberty, and estate” (estate meaning property). Tavani applies Locke’s theory of property to the current debate concerning intellectual property rights (IPR). Philosophers and those interested in the future of intellectual property law will find this discussion of interest.

Tavani begins this study with an overview of Locke and recent discussions of Locke. Locke believed that one has a right to the fruits of his labor, items he has “mixed his labor with.” Of particular interest is Locke’s proviso. “Complying with this proviso, one can remove objects from the commons only to the extent that there is ‘enough and as good left for others’ to appropriate.”

While it may appear to be an easy extension of Locke to the modern IPR environment, critics assert that there are many categories of labor and that “mixing one’s labor” is an indeterminate concept. As one critic, Norick, wrote: “If I own a can of tomato juice and spill it into the sea so that its molecules (made radioactive, so I can check this) mingle evenly throughout the sea, do I thereby come to own the sea or have I foolishly dissipated my tomato juice?”

The author’s response is to ask “how much emphasis we should place on the role of labor per se in Locke’s theory.” In fact, there are two specific questions one must answer: “Does a particular law or policy diminish the information commons by unfairly fencing off intellectual objects? Are ordinary individuals made worse off as a result of that law or policy when they can no longer access information that had previously been available to them?” Legislation such as the Copyright Term Extension Act and the Digital Millennium Copyright Act restricts the information commons. For example, digital storage and access to books is not as available as legally unrestricted technology would permit. This, however, does not mean that Locke would reject copyright laws since Locke would “endorse the ‘cultivation’ and thus the enclosing of some of the information commons.” Nevertheless, Tavani concludes that copyright laws “are unjust to the extent that they make ordinary individuals worse off by unfairly diminishing the information commons.”

The paper concludes with an extensive list of references. Readers will find this presentation very interesting because it illustrates how humans wrestle with similar fundamental questions regardless of the time and place.

Reviewer:  Brad Reid Review #: CR134270 (0804-0404)
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