79 Design Essay Short

Such inventions represent the rationally-guided, value-creating, productive labor that serves a flourishing human life in civil society, and this is why Locke highlights them as exemplars of his property theory.

Lockean Theory in Modern American IP Law The genius and success of Anglo-American property law is that it has recognized and applied the central idea from Lockean property theory that property rights secure , not just physical objects.

First, as a preliminary matter, my colleague, Eric Claeys, has shown that this critique results in part from foisting on Lockean property theory a deontological framework that is alien to Locke’s ethical and political theory.

It was also alien to the American legal actors who understood Lockean theory and implemented it in the law.

With respect to copyright, which was slowly coming into existence as a legal concept in the late 17th century, Locke expressly endorses it as a property right in 1695.

In an essay on the statutory printing monopoly granted to the Stationers Company by Parliament, Locke condemns such monopolies as violating the “property” in creative works that “authors” rightly claim for themselves.[11] In what might be a further surprising claim for many today who think copyright terms are too long, Locke writes in this 1695 essay that authors should have their property rights secured to them for their lifetimes or after first publication plus “50 or 70 years.”[12] The current copyright term is life of an author plus 70 years, which was set in 1998 by the much-maligned Copyright Term Extension Act.[13] And to be clear that Locke believes that it is in their literary works that can be freely alienated in the marketplace, he further proposes an amendment to Parliament that any new printing statute should expressly “secure the author’s property in his copy, or to his whom he has transferred it.”[14] The natural law ethical theory that informs Locke’s argument for property rights explains why he thinks his property theory applies to inventions and books.

For the sake of brevity, a few illustrative quotes must suffice.

In a patent lawsuit in 1845, an American judge wrote that “we protect intellectual property, the labors of the mind, productions and interests as much a man’s own, and as much the fruit of his honest industry, as the wheat he cultivates, or the flocks he rears.”[20] This 1845 judicial opinion appears to be the first use of the phrase “intellectual property” in the official American legal records.

This is why Locke himself expressly recognizes that copyright is property.

He also wrote approvingly of inventions and the technical arts as exemplars of the value-creating, productive labor that creates all property (contrary to oft-repeated, mistaken claims about Locke’s view of IP rights by some scholars today[4]).


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