Mala Chatterjee, ‘Lockean Copyright vs Lockean Property’

John Locke’s labor theory of property remains the most persistent and well-known of property theories; but it has also been repeatedly and compellingly challenged by philosophers as implausible for hundreds of years. Nonetheless, in recent decades, a number of legal scholars have sought to connect Lockean theory to the question of what justifies intellectual property rights, all while largely ignoring these aforementioned philosophical critiques or their implications when applied to intellectual rather than physical objects. Philosophers, on the other hand – and notwithstanding spending centuries theorizing about property – have remained almost entirely absent in the debate surrounding intellectual property’s theoretical foundations. Those philosophers who have criticized Lockean property theory have thus not asked whether the otherwise resilient Lockean intuition might be salvaged in the domain of copyright, or whether a Lockean theory of the latter might avoid the problems faced by Locke himself while retaining the theory’s intuitive appeal. The normative questions surrounding Lockean copyright theory, though increasingly of scholarly interest, thereby remain largely unanswered by the existing efforts of scholars.

Going against the state of legal and philosophical discourse and bridging an important dialectical gap between the two, the present Article defends the view that a Lockean copyright theory is in fact far more plausible than such a theory of property, for it avoids the most devastating objections that Locke’s property theory has been faced with. In other words, this Article demonstrates that theorists who embrace Lockean property theory but have never taken seriously Lockean copyright are mistaken, as well as that theorists who reject Lockean property theory must nonetheless begin taking Lockean copyright seriously. In so doing, this Article further demonstrates the doctrinal and practical significance of this theoretical conclusion: for if a Lockean copyright emerges as favorable, then it has profound and surprising revisionary implications for our thinking about and designing of copyright law, in particular by requiring copyright grants to be far more limited than they presently are under US law. The Article outlines and defends three such revisionary doctrinal implications: namely, a) that transformative fair use must be regarded as a robust limitation on copyrights rather than an affirmative defense to claims of infringement; b) that the derivative right must be abolished; and c) that the moral right of integrity must be abolished. The Article thereby demonstrates that – in order to determine the correct scope and structure of copyright law – we must tackle the philosophical questions surrounding copyright theory and Lockean rights far more carefully than they have yet been explored.

Chatterjee, Mala, Lockean Copyright vs Lockean Property (July 20, 2019).

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