Lockean Approach to Copyright Law

  Article Review on “Locke, Labour and Limiting the Author’s Right: A Warning Against a Lockean Approach to Copyright Law”   SUMMARY Copyright law, which mostly deals with the author’s right over a particular work against the general public is said to follow the Lockean theory of Labour which states of natural entitlement to the fruits of labour. This forms the basis of the argument and further criticism in the paper titled: ‘Locke, Labour and Limiting the Author’s Right: A Warning Against a Lockean Approach to Copyright Law’. The author, Carys J. Craig forms a basic contention that the Lockean Approach to Copyright law as such focuses only on the rights of the Author in relation to his/her work, while leaving out the important element of public interest. Following the Labour – Desert theory, which plays prominent role in the Lockean Approach, the author argues that privileges given to private rights over public interest is threatening the public policy goals of Copyright law. The article divided into three basic parts, deals with: 1. Basic concepts of Locke’s theory of acquisition and the Lockean labour model in context of copyright law. 2. Internal and External Critiques of the Lockean Approach to Copyright Law Copyright Law in general establishes a triadic relationship between the Author, his/her work and the general public. This triad is of importance in terms of justifying the need and the granting of Copyright Law, and is also the basis of the argument by the author against the Lockean Theory. She states that the link between the author and his/her work should not only be the sole reason for the grant of Copyright. Whereas, the relationship with general Public and the author’s intellectual product has an important role not only in increasing production of intellectual work, but also plays a significant role in cultural production and communication in the society. Copyright philosophy talks about a mutually dependent relationship between the idea of originality and independent work and theory of private property and natural right. The present article only focuses on the latter concept in connection with Lockean theory. John Locke’s theory of Acquisition of Property, also known as Labour Theory plays an important role as one of the modern day natural rights theory. It has found its way into the realm of Intellectual Property Rights – especially Copyright, as one of the justifications to grant protection of the intellectual creation to the creator against the general public. The root idea behind the theory is that: “People are entitled to hold, as property, whatever they produce by their own initiative, intelligence and industry” According to the theory, the original author is entitled to receive exclusive rights over his/her work for having put in mental labour into its creation. The basic two conditions or provisos to the above principle of right given by Locke are: 1. Enough good must be left in common for others 2. No person must take from the common more than he can use The “enough and good” proviso according to the author, is a precondition for proprietary acquisition. It states that a labourer must not worsen other’s position from his/her appropriation from the commons. This is not entirely applicable in the case of Ideas. The author quotes Justin Hughes that “One person’s use of some ideas does not deplete the common; and in fact the common actually expands with use”. The concept of “labour added” or the addition or creation of a work substantially similar to the original work is given as an example as the drawbacks of this Lockean Approach as the given addition or creation will be considered as infringement irrespective of its new content. Relying on Hughes, the author tries to bring in the argument that in the nature of ‘public interest’, Lockean Approach needs to be looked into before its application into the copyright realm due to its limitation on creativity and restrictive scope on owner’s right. . Copyright, at least in its present form does not hold the proviso of “good and enough” due to the circumstances as listed above. The author thereby, clearly makes a stand that the provisos or condition of the Lockean theory is not possible to be followed in Modern day Copyright Law. The author also brings about the classic debate of Copyright Law which is ‘who exactly will be considered as the owner of the final product?’ If one takes into account natural law thesis, property rights are given to the person over his intellectual product, ignoring the contributions made by those preceding him. The Paradox of this question is that, if the labour employed by the individual does not account for the total value of the product, will it justify ownership of the whole commodity? Thus, stating that intellectual works are necessarily the products of collective labour and therefore must be owned collectively. By treating Copyright or any Intellectual Property as a proprietary right, one not only shifts it into the private domain but also defines it along individualistic lines. The author promotes her support to the “pairing” of social interest along with private entitlement of Copyright. As the two are not opposed, the dualistic approach is said to be balanced. The author further goes on state that, Lockean theory on property, if properly understood has its own inherent limits. Natural Property right, as per Locke, are self limiting, thereby ensuring the protection of Public Interest. The author poses the question: “Whether Lockean Property Theory can be re-imagined to shape a Copyright system that furthers the policy goals (maximum creation and dissemination of intellectual works)?” The author though ready to accept that Locke’s theory could be understood and used in a manner that supports restrictions upon the individual owner’s rights while keeping in mind the interest of the public, especially in terms of waste and avoiding harm, she does not find it to be a practicable argument. The reasons for the same include that:

• However wide ranging the provisos of the Lockean approach might seem it is doubtful whether the Intellectual Property realm will be able to live in accordance or adequately meet the no harm and no wastage provisions.
• The Force behind Labour theory does not lie in the public interest domain.

Therefore, the argument of the author against the use of Lockean Property theory in the realm of Intellectual Property is not practically viable even if it does present an attractive picture. Thus, Locke identifies the relationship of Copyright and author similar to that of a land and its owner, whereby an infringement is treated as par as invasion/trespass. The author further discusses the Canadian Copyright jurisprudence by listing various rulings that show the rise of the utilitarian approach, which is said to be a start of the infiltration of Lockean perceptions of Natural Right to determine Copyright Policy. CRITICISMS John Locke’s theory though ambiguous offers important aspects and insights over ownership, use of natural resources and the relationship between the work and general public in large. The criticisms to the article are as follows:

• The author’s claim that the application of Lockean theory to intellectual property is unhelpful and harmful to the development of a sound and effective copyright system cannot be entirely accepted. Yes, it has its downfalls, but there are various positive approaches or impacts to the application of the Lockean theory in the realm of Copyright Law. Locke’s model in its essence provides unambiguous support to intellectual property rights.
• The restrictive use of proprietary rights over Ideas by the author overlooks the fact that by giving exclusive right over an Idea to an individual’s labour does not limit the knowledge accessibility to the public domain which can lead to the creation of new ideas. The exclusivity only restricts the profitability or the right to make profits over the particular idea. Thus, to state that by following the Lockean’s approach to give exclusive proprietary rights over an idea restricts the creation of new ideas would be far-reaching and untrue.
• The criticism cited by the author, quoting Palmer that Lockean theory on Intellectual Property rights restrain liberty is baseless; as every other proprietary right, the right to exclude others from ‘any profitability’ of the said product/idea will not amount to restriction of one’s personal liberty.
• The author bases her argument against the relationship between Lockean theory of Property and Intellectual Property by basing its non-applicability solely on the grounds of its contravention to the provisos laid down by Locke. To quote Wendy Gordon, in support of the Lockean approach, one can arrive to the conclusion that creators can have all rights in their original work as long as it does not harm to other person’s ability to create or draw such inference in their work.

CONCLUSION Copyright, shown normally as a rights-based individualistic phenomenon focused on protection of the creator’s work against the general public at large, must at the end operate in furtherance of the public interest in maximizing production and communication of intellectual works. The Lockean theory, as asserted by the author throughout the article, does not uphold the stated principle but steers us away from its general direction. The purpose of the paper had been to draw out the weaknesses of the Lockean Property Theory in connection with the Copyright domain. The concept of incentives based argument – that is in order to increase the creation of new ideas, substantial incentive, in this case, monetary compensation to the creator of such ‘idea’ is necessary. This forms the basis of the Lockean theory of “enjoying the fruits of one’s own labour”. The theory is not applicable on its own but is subject to two provisos – Namely the “Enough good must be left for others in the common” and the “No wastage” proviso. The above argument, which works amicably for the land acquisition or physical object ownership, fails to help in the realm of Intellectual Property. The Lockean Copyright Theory as criticized by the author focuses mostly on Copyright as a property based concept which deals with benefits to the author to his/her work in terms of labour applied by them which creates a problem to the public-author-work relationship under the Copyright Law. The author tries to prove of such danger in the article by drawing attention to the prevalence and repercussions of the Lockean rights based theory in context with Copyright law and thereby the necessitating the argument of ‘Warning’ against the said theory. It is clear from the present article that, through the positives and various criticisms, Locke’s theory has been misunderstood and misapplied. The ardent supporters of Private Property should note that Locke’s theory of Property is not the only theory applicable to Intellectual Property. Various other versions of Lockean theory view the ownership of property in terms of Utilitarian concepts that state the maximization of the welfare of the community Thus, the article concludes with the notion that the Lockean vision of property entitlement gives a problematic understanding of Copyright Law and there is a need to shift our focus back to relationship between the public and intellectual work that copyright is intended to promote. And while it has its basic criticisms, the author convinces that repercussions of the Lockean rights based theory are far reaching and points the need of the hour, in shifting away from the Lockean Approach. 1 | Page

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