Locke,Intellectual Property Rights,and the Information Commons |
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Authors: | Email author" target="_blank">Herman?T?TavaniEmail author |
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Institution: | (1) Department of Philosophy, Rivier College, Nashua, NH 03060, USA |
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Abstract: | This paper examines the question whether, and to what extent, John Locke’s classic theory of property can be applied to the
current debate involving intellectual property rights (IPRs) and the information commons. Organized into four main sections,
Section 1 includes a brief exposition of Locke’s arguments for the just appropriation of physical objects and tangible property.
In Section 2, I consider some challenges involved in extending Locke’s labor theory of property to the debate about IPRs and
digital information. In Section 3, it is argued that even if the labor analogy breaks down, we should not necessarily infer
that Locke’s theory has no relevance for the contemporary debate involving IPRs and the information commons. Alternatively,
I argue that much of what Locke has to say about the kinds of considerations that ought to be accorded to the physical commons
when appropriating objects from it – especially his proviso requiring that “enough and as good” be left for others – can also be applied to appropriations involving the information
commons. Based on my reading of Locke’s proviso, I further argue that Locke would presume in favor of the information commons
when competing interests (involving the rights of individual appropriators and the preservation of the commons) are at stake.
In this sense, I believe that Locke offers us an adjudicative principle for evaluating the claims advanced by rival interests
in the contemporary debate about IPRs and the information commons. In Section 4, I apply Locke’s proviso in my analysis of
two recent copyright laws: the Copyright Term Extension Act (CTEA), and the Digital Millennium Copyright Act (DMCA). I then
argue that both laws violate the spirit of Locke’s proviso because they unfairly restrict the access that ordinary individuals
have previously had to resources that comprise the information commons. Noting that Locke would not altogether reject copyright
protection for IPRs, I conclude that Locke’s classic property theory provides a useful mechanism for adjudicating between
claims about how best to ensure that individuals will be able to continue to access information in digitized form, while at
the same time also allowing for that information to enjoy some form of legal protection. |
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Keywords: | digital information information commons intellectual objects intellectual property John Locke Lockean proviso |
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