Intellectual property and John Locke

As the previous post noted, Locke loves the capitalism because it increases output of the stuff people need and like. And it with this in mind that the U.S. Constitution includes protection for private property, which is an integral aspect of Capitalism. There are many valid criticisms of Capitalism in general and of the conception of property in the Lockian sense, but that is beyond the scope of this writing. For Locke property boils down to labor, essentially he says "I worked to make this thing, therefore it is mine." He comes to this conclusion by theological and practical reasoning. God gave the earth to Adam to exploit and so all men are allowed to exploit it. It is only when the exploitation of resources by more than one man interact that society is needed. The problem with these views is that they come from a point in history when labor is scarce and resources are plenty. He even says that more men is better than more land.(P42 line21-22) To this day the Lockian conception of property is the closest to the common conception of property in the U.S. The more you work the more property you get, in theory at least.

This all breaks down horribly when applied to intellectual property. Intellectual property is not, and in many ways has never been, a scarce commodity. I can promulgate an idea without losing that idea. Yes, I lose control over the idea and what others can do with it, but unlike physical property it doesn't matter. With physical property control matters because one wishes to be able to use one's property, physically; and, with intellectual property one can still use the property even when others can use it. For example: If I go out and pick some berries, those are my berries because I did the labor to obtain them. I have the right to control over those berries because if I do not have that right then I am deprived of the berries in a real physical way, and cannot eat them. However, if I labor and produce a song and then let someone hear and that person thereby learns the song, possesses it, if you will, I still have access to all the immediate benefits of the song. I can still sing it to make myself happy. I can still sing it to make others happy. True, I cannot sell the song if it is allowed to circulate for free, but that presupposes that I should have a right to sell it in the first place.

The framers of the constitution understood this. They including in the constitution what would be the beginning of U.S. intellectual property. "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" from Article one section eight. Clearly they don't think that there is a natural right to control of intellectual property, it is instead a created right. It was necessary that they put this created right in the constitution because it had not before been enshrined in common law or legal code. It is however important to note that this section of the constitution is not protecting a natural right such as the first amendment, it is creating a legal structure which allows people control of their writings and inventions. This last point is important because more and more in contemporary times people have begun to think of intellectual property as a natural right, which it is clearly not. We can see even more that it is not a natural right if we look to the history of the world. Before the constitution, there was not a legal mechanism for enforcing these rights, because they do not exist.

Previous to the legal codification of intellectual property artistic creations and idea were either protected by secrecy, i.e. no one has access to the Mona Lisa long enough to copy it, or were open for public consumption, as in a folk song. Someone wrote all those songs we now consider traditional. Whiskey in the Jar was written by someone. We don't know who, but even if we did, they would have had no rights to control who sang it or wrote it out as sheet music because there were no laws about it at the time. Even Mozart had no rights to his music. How then can we say that intellectual property is necessary to increase the number of goods available in our society. It, in fact, reduces them. It reduces them because it makes goods less available by the restrictions it imposes and because it limits the ability of others to make alterations to those goods in a way that makes them better.