The fourth post in a series. In post I, we outlined a 10,000 – okay, 100,000 – foot view of the legal history of intellectual property in law. In post II, we covered some of Hegel’s writings from “Elements of the Philosophy of Right”, the Cambridge Text edition… specifically the first three parts of Section I: Property. Part III covered the last section of Property and Hegel’s chapter on Contract. Today we’ve set the wayback machine a bit farther, and we’ll talk about Locke. Tomorrow (time permitting), I’ll actually write a post that explains what I think of all this week’s postings.
As with the section on Hegel’s writings, before moving into Locke’s Chapter V: Of Property, it is necessary to note some of the preceding context. From Chapter II: Of the State of Nature (§6 lines 5-25, edited for brevity):
“The State of Nature has a law to govern it, which obliges everyone: And Reason, which is that Law, teaches all Mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions… by like reason when his own Preservation comes not in competition, ought he, as much as he can, to preserve the rest of Mankind, and may not unless it be to do Justice on an Offender, take away, or impair the life, or what tends to the Preservation of the Life, the Liberty, Health, Limb or Goods of another.” Locke notes further in §13, “That it is unreasonable for Men to be Judges in their own Cases, that Self-love will make Men partial to themselves and their Friends. And on the other side, that Ill Nature, Passion and Revenge will carry them too far in punishing others.” Man willingly puts himself into Society to avoid the State of War (described in Chapter III), because “For where there is an Authority, a Power on Earth, from which relief can be had by appeal, there the continuance of the State of War is excluded, and the Controversie is decided by that Power.” (§21, 5-10)
Civil government is thus a structure to prevent the inherent drawbacks of the State of Nature, but a just civil government must conform still, in some sense, to the principles of the Law of Nature. The practical implications of this are explored more fully below.
Chapter V: Of Property
Locke begins by noting early in the chapter, “God… has given the Earth to the Children of men, given it to Mankind in common. But this being supposed, it seems to some a very great difficulty, how any one should ever come to have a Property in any thing”. The whole of Chapter V proceeds to explain how this can be so; indeed, how it follows from Natural Right. Spoiler alert: property increases self-preservation, generally; this is the root of the defense for private property.
The State of Nature
Locke begins by noting in §27, “Though the Earth, and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person. This no Body has any Right to but himself”, continuing “Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joined to it something that is his own, and thereby makes it his Property. It being by him removed from the common state Nature placed it in, it hath by this labour something annexed to it, that excludes the common right of other men. For this Labour being the unquestionable Property of the Labourer, no Man but he can have a right to what that is once joined to, at least where there is enough, and as good left in common for others” (5-13). Men have a property in themselves, and men own the fruits of their own labor as being a product of themselves. In this, Locke’s notion of acquiring property is not entirely dissimilar to Hegel’s notion; both assign the basic relationship of the man to the item, his positive acquisition of it by his own means, some importance to the act of ownership.
In addition to the limit already explicated (“at least where there is enough”) Locke further limits this later, in §31: “The same Law of Nature, that does by this means give us Property, does also bound that Property too. God has given us all things richly… But how far has he given it to us? To enjoy. As much as any one can make use of to any advantage of life before it spoils; so much he may by his labour fix a Property in.” Finally, from §33, “No Body could think himself injur’d by the drinking of another Man, though he took a good Draught, who had a whole River of the same Water left him to quench his thirst.” Thus, in the state of Nature, no man should begrudge another access to plenty.
From this beginning, it seems that Locke would give the entire concept of intellectual property fairly short shrift. A fairly rudimentary argument could be made that copying a book or an invention, like taking water from the stream, causes no harm to the author or inventor, should they be considered the owner of the stream. Man has a duty to his fellow man and the commons, and should not horde the works of his mind just as he should not horde the apples from the tree. However, as yet Locke has discussed only the barest, most rudimentary form of existence here – the state of Nature – not any form of civilized society, and thus further reading is required. In §36 (33-40) Locke makes this clear: “This I dare boldly affirm, That the same Rule of Property… would still in the World… had not the Invention of Money, and the tacit Agreement of Men to put a value on it, introduced (by Consent) larger Possessions, and a Right to them; which, how it as done, I shall, by and by, shew more at large.”
Locke continues to make this case in the following paragraphs. First, in §37, he notes that the value of labor increases the value of land: “… in the wild woods and uncultivated wast of America left to Nature, without any improvement, tillage or husbandry, a thousand acres will yield the needy and wretched inhabitants as many conveniences of life as ten acres of equally fertile land doe in Devonshire where they are well cultivated”. In the state of Nature, a man laying claim to a thousand acres would be seizing more than he could ever use, and thus be unjust… but in Society, a man with a hundredth share of that could produce more than he could ever use.
In §38, Locke notes that this indeed must come part and parcel with advanced societies, as cities led to men to “set out the bounds of their distinct Territories, and agree on limits between them and their Neighbors, and by Laws within themselves, settled the Properties of those of the same Society” and he concludes this chain of logic in §40: “… if we will rightly estimate things as they come to our use, and cast up the several Expenses about them, what in them is purely owing to Nature, and what to labour, we shall find, that in most of them 99/100 are wholly to be put on the account of labour.” It can easily be imagined that Locke would find the post-industrial, modern world to affirm his point much more strongly, as the plow, the pick, and the wagon have been replaced by the combine, genetically modified crops, dynamite, and the international shipping and rail network.
Paragraphs §41-§43 describe the many ways in which Man, through Labour, adds value to the basic things of the Earth, summarized well in lines 13-20 of §43: “For ‘tis not barely the Plough-man’s Pains, the Reaper’s and Thresher’s Toil, and the Bakers Sweat, is to be counted into the Bread we eat; the Labour of those who broke the Oxen, who digged and wrought the Iron and Stones, who felled and framed the Timber imployed about the Plough, Mill, Oven, or any other Utensils, which are a vast Number… must all be charged on the account of Labour, and received as an effect of that: Nature and the Earth furnished only the almost worthless Materials, as in themselves.” While the matter of works of the mind is not brought clearly into this conversation, it is clear at least that they would be likewise charged to the account of Labour, as the tools and their design are included. He concludes this affirmation in Paragraphs §44: man is… “the great Foundation of Property; and that which made up the reat part of what he applied to the Support or Comfort of his being, when Invention and the Arts had improved the conveniences of Life, was perfectly his own, and did not belong in common to others.”
The mention of “Invention and the Arts” is worthy of notice. It is clear from this last paragraph that Locke recognizes that it is not only the additive power of labor in making individual things improves the quality of life, but Invention and the Arts, the workings of the mind, and yet they themselves are not attributed to a class of labor in the detailed descriptions of labor provided.
This can be attributed to two likely explanations. First, one can argue that Locke would regard including “Invention and the Arts” as “labor” to be a fundamental class error. This would likely be the position of Aristotle – the acts of invention and the arts are simply not labor the way that tilling the fields are labor or mercantilism is labor (or art), nor is it equivalent to politics. These are all, in and of themselves, different activities. Indeed in Aristotle’s eyes, seeking payment for art or invention would be likely considered to devalue them, polluting them with mercantilism. But I digress, Aristotle is outside the bounds of the post. The second explanation is that Locke does not regard this sort of labor as particularly different in the sense that it requires special acknowledgement. It is certainly the work of a man; it is labor of a sort. It produces output, which belongs to the creator to the extent that the particular society has settled those properties by its laws, much like land; we are, after all, no longer in the state of Nature, but in civil society.
The final concept of note in this chapter is money, which is described fully in Paragraphs §46- §50. Here Locke first notes that money is not unjust under the state of Nature; a man possessing a nonperishable item has “invaded not the Right of others, he might heap up as much of these durable things as he pleased”. In fact, the existence of money enables Man to keep something that “by mutual consent Men would take in exchange for the truly useful, but perishable Supports of Life”, which allows him to enlarge his possessions, while simultaneously freeing up the bounty of his labor for others to consume before it perishes, improving life for all. Locke concludes: “This partage of things, in an inequality of private possessions, men have made practicable out of the bounds of Societie, and without compact, only by putting a value on gold and silver and tacitly agreeing in the use of Money. For in Governments the Laws regulate the right of property, and the possession of land is determined by positive constitutions.”
The final sentence provides some clarity for those seeking a justification for intellectual property rights under Locke, just as those who would attempt to seek a justification under Hegel. There is no precise natural right to intellectual property, just as there was no precise abstract right to intellectual property. The proper grounding for intellectual property in Locke is in government and the law, in the consent of the governed, in the implicit agreement of belonging to civil society.
Chapter XI: On The Extent of Legislative Power
Since the proper grounding of intellectual property (if any) would be in the law, an examination of the legislative branch is necessary to see if such an encoding would violate the boundaries of legitimacy.
Locke opens §134 by declaring: “the first and fundamental positive Law of all Commonwealths, is the establishing of the Legislative Power; as the first and fundamental natural Law, which is to govern even the Legislative it self, is the preservation of the Society, and (as far as will consist with the publick good) of every person in it.” If it is judged necessary to preserve the Society, with the consent of the governed (as described in Chapter VIII as the majority rule), the bounds of the Legislative power are broad indeed.
Paragraphs §135 through §137 provide the first boundary on the Legislative: it cannot be arbitrary, and it “hath no other end but preservation, and therefore can never have a right to destroy, enslave, or designedly to impoverish the Subjects.” Paragraphs §138-140 provide boundaries on taking Property, declaring that no Government can take Property from the governed without their consent, “i.e., the Consent of the Majority, giving it either by themselves, or their Representatives chosen by them.” (§150, 4-7) Finally, the last limitation is described in §141, that the Legislative cannot cede the authority to make laws to any other body.
Within these bounds, there is ample justification for intellectual property to be recognized. Protection of copyright or patent or trademark can be justified as necessary to preserve society and being consistent with the public good, by providing incentives for the inventor and author. Without the inventor, the production of the land is barely that above the state of Nature. Locke sees no difficulty with income disparity; should the inventor or author gather particularly large piles of money, this is not unjust provided it is not causing some sort of resource scarcity. There is explicit recognition that the public good exists, and that Arts and Invention are some sort of class different from natural Property, but this does not prohibit the Legislative from recognizing them as such within the boundaries described.
As can be seen from the above, there is room for some concept of intellectual property in both frameworks of political thought. Indeed, the modern concept of intellectual property is something of a hybridization of the two. The basic concepts of the public domain undoubtedly originates from Locke’s recognition of the public good, and the concept of fair use is tied into Hegel’s recognition of the inner property of the spirit that is transmitted along with the physical instance of a working of the mind. Of the two frameworks, modern intellectual property is more closely aligned with Locke, as it is less obviously objectionable in some of its particulars to Locke’s framework than Hegel’s. Granted, of course, that both thinkers may entirely revise their frameworks in light of the developments of the last three centuries of political history.
Hegel would likely find the existing grounding of copyright and patent as the “property” of the creator, to be sold entirely to another, objectionable and legally dubious when it comes to enforcement. With the state of patent lawsuits in the modern economy it would be hard to contest that enforcement is not indeed a matter of dubiousness. Hegel would likely find the current length of copyright term to be excessive, outside the scope of reasonably rewarding the works of the mind.
Locke, on the other hand, with a greater reliance on the will of the majority and the Legislative, would likely find modern copyright law permissible in its present form, albeit perhaps focused too much on the creator and less on the commons. On the other hand, Locke is clearly impressed with the additive value of labor, and as technology improves the additive power of labor, new technological advances actually can add more value than existing ones, so perhaps he would place even more emphasis on the legal protections of the creators.
What is lacking in Locke is particular notice of the academic institutions of knowledge. While Art and Invention are noted, no specific references are made to the idea of learning inside the context of a learning institution, as they are in Hegel. This may be as much a note about the two historical backgrounds as it is a note about their respective political theories. While Locke clearly has an idea of a commons, and clearly has an idea of human intellectual progression, it gets no particular reference in the Second Treatise. Thus, it is difficult to say what sort of emphasis Locke may have placed on the idea of Fair Use.