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COPYRIGHT 2006 Harvard Society for Law and Public Policy, Inc.
I. INTRODUCTION: TWO FATAL FLAWS
A. The Ubiquity of Lockean Justifications in Copyright Discourse B. A Rejoinder to Contemporary Copyright Lockeans: The Two Fatal Flaws II. INDISPUTABLE LOCKEAN COPYRIGHT A. Liberty of the Press: Property in Authorial Commodities B. The Public Interest, the Stationers' Company, and the Limits of Perpetual Copyright III. NATURAL RIGHTS, LABOR, AND COPYRIGHT A. Definitions 1. "Property" 2. "Labor" 3. "Conveniences of Life" B. A Natural-Right Justification 1. Collective and Individual Rights Through Labor-Mixing a. Collective Labor b. Lockean Labor 2. The No-Harm Principle 3. Copyright and the No-Spoliation Proviso 4. Copyright and the "Enough and as Good" Proviso a. The Role of the Proviso b. A Literal Proviso for Intellectual Property IV. LOCKE, SOCIAL CONSTRUCTION, AND THE AUTHORIAL COLLECTIVITY A. Against Innateness B. Improvement or Creation ex nihilo? C. The Collective Formation of Ideas and Authorial Knowledge 1. Experience and the Transformation of Blank Slates 2. Simple Ideas and Complex Ideas 3. Idea Formation, Knowledge, and Communication 4. Authors as Lockean "Sociable Creatures" V. CONCLUSIONS
I. INTRODUCTION: TWO FATAL FLAWS
A. The Ubiquity of Lockean Justifications in Copyright Discourse
Two main factors consolidated the hegemony of John Locke's philosophy in copyright discourse. First, Locke's main theme of property ownership is based on a person's natural entitlement to the products of his labor. Second, scholars find in Locke's theory of property, and the limits he sets on what a laborer can come to exclusively own and control, a solid argument with which to solve contemporary problems in copyright. There are, however, three additional reasons why Locke merits detailed attention. First, many misconceptions of how to interpret Locke exist when we discuss copyright. Second, copyright scholars ignore Locke's explicit discussion of authors' rights and then invoke his general theory of property to justify the status quo. Third, Locke's epistemology and philosophy of the mind display important social constructionist overtones.
This Article argues that a comprehensive Lockean approach to copyright would provide significant recognition for the public role in the making of authorship and art. Locke's wider philosophy strengthens the argument for recognizing the role played by a society's shared pool of ideas and experiences in the creation of new works. Locke's property philosophy guarantees authorial rights, but it also acknowledges the collective role of the public in the creative process. When read together with several other of his writings, Locke's property philosophy highlights the mistakes embedded in contemporary Lockean approaches to copyright, eliminates inconsistencies in his theory of property, and supports a plausible vision of what copyright should be.
Modern copyright Lockeans repeatedly invoke Locke's natural right philosophy of property in discussions on copyright. (1) Although this phenomenon is interesting on its own, one need not map the many differences between scholars in the way they invoke Lockean justifications because one common problem affects the strength and coherency of their arguments: they base their analysis and vindication of copyright solely on the twenty-six sections of Chapter V, "Of Property," of the Second Treatise of Government. (2) These scholars also claim that Locke does not, either in the Two Treatises or elsewhere, address the issues of the intellectual commons, intellectual property in general, or copyright in particular. They also devalue the potential impact of Locke's philosophy on discussions of the sociality of copyright, authorship, and the creative process. In reaction, other scholars criticize the adherence to Locke because he is believed to have nothing to say about intellectual property, and argue that Chapter V justifies strong private rights which we should avoid in copyright. This latter perception is erroneous, but it is a perception on which a well established contemporary history of copyright theory is premised. What follows will illustrate and explain this point.
It seems plausible to use Locke's property theory to justify copyright because statutory and doctrinal innovations place private property rights at the forefront of the Anglo-American intellectual property system. This is particularly true since the main focus of his theory is "the reconciliation of strong private property rights with a common of materials available to all." (3) At the same time, Chapter V is applicable to intellectual property just as it is applicable, for example, to environmental and ecological regulation. (4) The problem in basing copyright justifications solely on Chapter V is that it presents Locke--who has been called first British Empiricist (5) or traditional naturalist (6)--as the undisputed champion of exclusive private property, legitimizing inequalities at the expense of public good. (7) This Article develops a normative conception of Lockean copyright and shows that any argument based solely on the commonly cited twenty-six sections of Chapter V is incomplete.
B. A Rejoinder to Contemporary Copyright Lockeans: The Two Fatal Flaws
In two landmark articles, Justine Hughes (8) and Wendy Gordon (9) introduced us to the lore behind Locke's property theory for matters of copyright discourse. Legions of commentators subsequently followed them, but they all confine their discussion to Chapter V of the Second Treatise. (10) Apart from two clear exceptions, (11) most other academic writings dealing with Locke and the justification for property rights in copyrighted materials follow this trend.
This selective reading of Locke has sometimes led to unfavorable judgments of his theory. Wendy Gordon, for example, argues that "the common explicitly discussed in the Two Treatises was the physical realm" (12) and asserts that "Locke's labor theory of property and allied approaches have been used so frequently as a justification for creators' ownership rights that Locke's Two Treatises have been erroneously credited with having developed an explicit defense of intellectual property." (13) Peter Drahos argues that "when Locke wrote on property[,] ... it was the ownership of physical rather than abstract objects that occupied his attention." (14) Anthony Reese remarks that Locke's tangible property "might not simply apply mutatis mutandis to intangible intellectual property." (15) Carys Craig claims that "Locke's labour theory is so commonly invoked in examinations of copyright doctrine that one might be forgiven for believing that he explicitly defended intellectual property rights." (16) And more recently, Richard Epstein asserts, "To be sure, Locke did not offer any explicit treatment one way or the other of intellectual property rights, which adds to his charm." (17) As argued below, these claims are misleading.
Another fundamental problem enshrined in contemporary approaches to Lockean copyright has been recently raised in a question posed and challenged by Craig: whether "Lockean property theory can be re-imagined to shape a copyright system that furthers ... maximum creation and dissemination of intellectual works." (18) Craig is concerned with the social and cultural aspects of our copyright regime and whether these aspects can be accommodated in a copyright law drafted close to a robust property rights system. She does not believe that Locke's theory can be refashioned in this manner because Locke's property theory clearly "carries the same threat of copyright expansionism." (19) This Article argues that her conclusion is partially incorrect. It is indeed difficult to reimagine Locke within the confines of the Second Treatise because in that work he was concerned primarily with the individual. It is wrong to assert that Locke subjected every type of property to the principle of exclusive ownership as envisioned in Chapter V of the Second Treatise, notwithstanding his acknowledgment of the difference between traditional property and intellectual and cultural property.
Locke's ideals of property and copyright, however, should be reexamined in light of his other works, particularly the philosophy of knowledge and his idea of authors' rights. Such scrutiny reveals that it is wrong to associate Locke solely with exclusivity and individualism. Indeed, this Article defends a collectivist and social approach to copyright, based on Lockean principles of ownership and knowledge creation. These principles support the view of authorial collectivity and the imposition of additional limitations on copyright ownership. (20) Debating these principles reveals the importance of Lockean approaches to copyright. The debate also shows that the ongoing academic dialogue on whether the justifications of our copyright system are solely utilitarian, or rather a merger of utilitarian and natural law justifications, is unnecessary because Locke's theory itself includes elements from both schools of thought. Debating these principles also proves that a shift from the stringent utilitarian approach--an approach capable of converting the public domain into a "fallow landscape of private plots" (21)--to the natural law approach is not inconsistent with the social objectives behind the instrumentalist objective of the Constitution's Copyright Clause, granting Congress the power to "promote the progress of Science and useful Arts" through copyright and patent. (22)
This Article argues that Locke's theory of property can be reimagined in three ways. First, Locke presents a clear vision of a system of authors' rights in which he balances private rights against public interest. Second, although Chapter V addresses traditional property, the chapter applies to intellectual property as well. Third, Locke's theory of knowledge in his Essay Concerning Human Understanding (23) has a social constructionist dimension. As a way to access these arguments, Part II of this Article reviews and examines Locke's letter entitled Liberty of the Press, in which he examines his ideals of authors and authorship. (24) Part III challenges prevalent Lockean conceptions of property and labor, and argues that Locke's property theory explicitly refers to intangibles. Part IV presents a social constructionist approach to Locke's ideals of property and authorship based on Locke's epistemology. Part V concludes the discussion and claims that Locke's writings offer much to contemporary copyright affairs.
II. INDISPUTABLE LOCKEAN COPYRIGHT
A. Liberty of the Press: Property in Authorial Commodities In a 1694 letter entitled Liberty of the Press, Locke writes that he is aware of the dilemmas and tensions inherent in any regime securing rights in authorial commodities. In particular, he is sensitive to the social and economic impact that a long-term right will have both on authors and on ordinary members of the community. The letter is the first time Locke attempts to reconcile the connection between self-constitution and property ownership. It is also the first time he explicitly refers to authorial entities, and the first time he introduces his vision of the limits a property institution must recognize in the field of authorial creations.
Liberty of the Press is a letter opposing the renewal of the Licensing Act of 1662. The Act was a punitive instrument for controlling printing and printing presses. (25) It restricted the number of printing presses and revived the pre-Civil War practice in which all publications had to be approved by a Licensor. "The Licensing Act," in the words of Lord Macaulay, "is condemned, not as a thing essentially evil, but on account of the petty grievances, the exactions, the jobs, the commercial restrictions, the domiciliary visits, which were incidental to it." (26) The Act lapsed in 1679, was renewed in 1685 for seven years, and was again renewed for an additional year in both 1692 and 1693. In November 1694, the House of Commons appointed a committee entrusted with reviewing laws due to expire. In January 1695 the committee recommended renewal of the Licensing Act. In February 1695, the House took a step back and appointed a committee to prepare a new bill.
Locke was able to influence the government's initiative through friends such as John Freke and Edward Clark who were members of the "College," a private club founded by Locke as a forum to discuss political affairs. Clark who was a member of the bill's committee, introduced the proposed bill in March 1695. A copy of the bill was sent to Locke, inviting his comments. Clarke informed Locke that, despite the title of the bill "for regulating the press," it was "so contrived that there is an absolute liberty for the printing everything that 'tis lawful to speak." (27) Locke was satisfied that Clarke was entrusted with introducing the bill, and in a comment he sent in March 1695 he articulated his support and suggested amendments designed to defend the rights and interests of authors, scholars, and other users.
Neither the bill nor the renewal of the Licensing Act made any progress, (28) resulting in the disappearance of pre-publication censorship disappeared in Britain in 1695. And, as Lord Macaulay asserts, with the expiration of the Licensing Act, "English literature was emancipated, and emancipated for ever, from the control of the government." (29) These words of satisfaction, and especially the term "emancipation," aptly characterize Locke's agenda. He elaborates the reasons for abolishing the Company's monopoly: enabling readers free access to literature and scholarship, and encouraging study and dissemination of information. He also puts forth his view about the kinds of authorial rights that should be granted, and distinguishes between these rights and the general right to property.
B. The Public Interest, the Stationers" Company, and the Limits of Perpetual Copyright
Liberty of the Press is composed of three papers: Locke's criticism of the Licensing Act of 1662; a draft Bill for Regulating Printing; (30) and Locke's comments on the bill. (31) Locke's critique of the 1662 Act is an attack on the monopoly of the "dull wretches" (32) of the Stationers' Company, and on pre-publication censorship and licensing policy. In his letter, Locke combines arguments for freedom of expression and social exchange, economic equality, common equity, and recognition of authors' rights. Raymond Astbury explains:
In his Memorandum, though Locke spelt out in detail the ill-effects on the book trade, and on authors and readers, of the monopoly system and the powers, and the abuse of power, of the Stationers' Company, most of his complaints reveal directly or by implication his concern for the intellectual, economic, and social freedoms of the individual.... and he linked [his] statement to an implied defence of the right to communicate new philosophical and scientific truths. (33)
Explicitly referring to authorial freedom and criticizing preprinting censorship, Locke remarks, "I know not why a man should not have liberty to print whatever he would speak." (34) Locke himself had a personal interest in scrapping the 1662 Act. His project to publish a new edition of Aesop's Fables as a Latin-English primer was rejected by the Company. The project was not published until 1703, although Locke worked on it during 1691. (35)
The idea of a limited-in-time property right in authorial works has a central part in Locke's vision of authorial rights. In his critique of the 1662 Act he rejects the perpetual right the Stationers' Company enjoyed, and remarks,
Upon occasion of this instance of the classic authors I demand whether if another Act for printing should be made it be not reasonable that nobody should have any peculiar right in any book which has been in print fifty years, but any one as well as another might have the liberty to print it, for by such titles as these which lie dormant and hinder others many good books come quite to be lost. (36)
Locke concludes:
That any person or company should have patents for the sole printing of ancient authors is very unreasonable and injurious to learning. And for those who purchase copies from authors that now live and write it may be reasonable to limit their property to a certain number of years after the death of the author or the first printing of the book as suppose 50 or 70 years. This I am sure, 'tis very absurd and ridiculous that anyone now living should pretend to have a property in or a power to dispose of the property of any copies or writings of authors who lived before printing was known and used in Europe. (37)
One may find two lines of argument in these remarks: an economic one and a social one. Locke emphasizes the economic side of his argument because his letter was mainly an attack on the monopolistic power of the Stationers' Company. For example, he declares that "the Company of Stationers have a monopoly of all the classic authors and scholars cannot but at excessive rates have the fair and correct editions of these books and the [commentaries] on them printed"; (38) that "whatever money by virtue of this clause they have levied ... I am apt to believe not one farthing of it has ever been accounted for to the king or brought into the Exchequer"; (39) and that the Act creates a situation in which "[t]he nation loses by the Act, for our books are so dear and ill printed that they have very little vent amongst foreigners." (40)
As an author himself, Locke was sensitive to securing "the author's property right in his copy, or his to whom he has transferred it." (41) He "complained about the Act as a scholar and book buyer." (42) In his amendments to the draft bill he adds "author" to the text so that is reads "no printer shall print the name of any person as author or publisher of any book, pamphlet, portraiture, or paper without authority given in writing." (43) A copyright lawyer of our times might associate this statement with the right of reproduction as well as with the Continental approach to the moral right of attribution. However, Locke clearly refers to the "penalty of forfeiting the sum" of money that should reach the actual rightholder, be it the author or the publisher. (44) To make sure that his commentary on the bill is not misunderstood, and that the property of the author is assured, the letter ends with this proposal:
[The act] shall vest a privilege in the author of the said book, his executors, administrators, and assigns, of solely reprinting and publishing the said book for [blank] years from the first edition thereof, with a power to seize on all copies of the said book reprinted by any other person which by virtue of this Act shall be forfeited to the said author, his executors, administrators and assigns. (45)
The social aspect is demonstrated by Locke's observation that the "patent" (copyright-like) clauses in the 1662 Act cause a loss to everyone. Locke identifies a triangle of beneficiaries: the government and its peers (46) or the private enterprise that enjoys exclusive powers; scholars and authors; and the public at large. He remarks that "[b]y this Act England loses in general scholars in particular are ground [down] and nobody gets [anything] but a lazy ignorant Company of Stationers." (47) Locke contends that the monopoly and excessive powers of the Company adversely affect the dissemination of knowledge and availability of classic authorial works, a policy that brings one to "starve for printing Dr. Bury's case or the history of Tom Thumb unlicensed." (48) The latter is further evidence that Locke was sensitive to the general public good: Tom Thumb was a popular "penny merriment," illustrated for the illiterate.
The fact that Locke's arguments have a social dimension is decisively demonstrated by his concern over two other issues: encouraging learning and limits to authorial rights. Under section 17 of the 1662 Act, "[t]hree copies of every book are to be reserved, whereof two to be sent to the two universities [Oxford and Cambridge] by the master of the Stationers' Company." (49) Locke is very skeptical about the application of this requirement, and writes,
This clause upon examination I suppose will be found to be mightily if not wholly neglected, as all things that are good in this Act, the Company of Stationers minding nothing in it but what makes for their monopoly. I believe that if the public libraries of both universities be looked into (which this will give a fit occasion to do) there will not be found in them hall perhaps not one in ten, of the copies of books printed since this Act. (50)
For Locke, encouraging education and dissemination of knowledge is fundamental. He appends to the section of the bill reading "[f]or the use of the public libraries of the said universities" language he believes will provide "for the better encouragement thereof." (51) Locke also views limiting the duration of an author's right as vital. Locke claims that the 1662 Act violates the three basic rights of "trade, liberty, and property," (52) because a perpetual right vested in the Company denies the author his property rights and violates his liberty to exchange and trade his property. In response Locke suggests a limited in time property right. (53) As Astbury explains,
Locke was especially concerned about authors' rights and he advocated the inclusion of a clause which stipulated either that anyone who printed an author's name on a publication without his permission should be liable to forfeit to the author all the copies he had printed, or that when copies of new books were delivered to the libraries, the King's Librarian and the Vice-Chancellors of the universities should issue certificates which in effect vested in the authors the sole right to reprint these books for a certain number of years after the publication of the first edition. In making this recommendation that authors should have the power to control the publication of reprints Locke anticipated the terms of the Copyright Act of 1709. (54)
It seems that when one reads Liberty of the Press one is tempted to crown Locke "the inventor of modern copyright." Scholars have praised Locke for being forward-looking and appreciating "that the world was changing." (55) Ian Shapiro, for example, remarks that Locke's works "are remarkable historical documents addressed to the turbulent political conflicts of Locke's day, yet at the same time they transcend that and many another particular context to which they have been deemed relevant." (56) Modern copyright systems are clear evidence that these remarks are accurate.
Locke's ideal of a limited authorial right addresses the public interest, property, and economic ambitions of authors and private undertakings; generally mirrors the social and moral dimensions enshrined in contemporary copyright laws, which limit the right for educational purposes and research; and resembles contemporary remedies allowing seizure of infringing copies. (57) Perhaps the most striking point is that in 1694 Locke predicted that which, allowing for some differences, over 300 years later has become the formula and the internationally accepted standard for the duration of copyright. Locke remarks that "nobody should have any peculiar right in any book which has been in print fifty years." (58) He supports a term of years copyright followed by a lapse into the public domain, because it would "be reasonable to limit [an author's] property to a certain number of years after the death of the author or the first printing of the book as suppose 50 or 70 years." (59)
An American copyright currently lasts seventy years after the death of the author. (60) Locke provides two alternatives: either fifty years after publication or fifty or seventy years postmortem. Although it sometimes has been said that Locke "is not a philosopher noted for his consistency," (61) his conception of author's right--which we now call "copyright"--is striking, clear, and certainly consistent with his general view on property and its limits. (62) Locke is attentive to the danger...
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