Acrewoods Library

Hughes sets up a familiar retelling of Locke's property argument, emphasising the following concepts/conditions:

Labour - mixing one's labour with the common is essential for enjoyment/use. Our labour, "our hands... energy, consciousness, and control" are our property.
- Relates to theories of personhood.

Enough and as good - "essentially... an equal opportunity provision leading to a desert-based, but noncompetitive allocation of goods".

Waste - one the one hand further appropriation might be justified by the potential waste of resources, even after each person has "enough". On the other, it might be unjustified for one person to appropriate something from the common if he doesn't make full use of it.

The common stock - exerting one's labour upon some appropriated good is supposed to "increase the common stock of mankind", but this can only be so if the product is tradeable.
- Another condition would be if the benefits were non-rivalrous despite the product being privately owned, e.g. certain information and services.

Labour and the production of ideas

He makes a distinction between the social and metaphysical answers to the question: Is labour required to produce ideas?

Paradigm cases make it seem clear, e.g. drawing plans for a new suspension bridge, writing a dissertation with extensive research and inventing the light bulb.
- This is his "social understanding", since it could still be the case that in each example the labour involved doesn't add any value to the ideas common, it may be re-presenting rather than producing ideas. One might ask how much of my dissertation is new information, what the value of my laborious presentation is, and therefore what ownership rights I have over the final product.

On the labour-avoidance view, which is really only compatible with an instrumentalist (rather than a normative) theory of property, we must incentivise labour because it's inherently unpleasant. But this is simply not true, the productive activity may be neutral or even pleasant, freely engaged in. It would be a case-by-case basis rather than a basis on kind that supports such an instrumental theory.
- Relates to Shiffrin's point about the "of a kind" condition.

On the value added labour view it is the "social value that 'deserves' reward, not the labour that produced it". This condition can be weak, as in some interpretations of patent law according to which the "'usefulness' or 'utility'" conditions require only "that the invention should not be frivolous or injurious to the well-being, good policy, or sound morals of society". The tradeable/non-rivalrous interpretations of the "common stock" condition provide an alternative frame for value added. The standard interpretation of patent law requires that "the average person schooled in the art would not consider the advance immediately obvious, but also would understand how the invention improves upon previously available technology", couching property rights in instrumentalist terms. But with copyright there is no value-added condition, and indeed any judgements on the matter would be highly subjective.
- For ideas as a kind, it can only be that an individual creates some value - whether for themself or others - through her labour that justifies ownership. To cover all cases, including those where the individual may not accord much value to his product but want exclusive ownership nonetheless, we must provide a metaphysical account of the value of labour mixed with the common. No social understanding will suffice for a normative theory.

Labour and the Idea/Expression Distinction

He sets up a rather curious productive process: first the creator has an original idea, then he executes or expresses it. But there are some missing steps.

The design of the innovative suspension bridge will employ many existing ideas, potentially both those privately owned and those in the common (public domain). Knowledge of everything from elementary geometry to complex mechanics, from material properties to existing designs with their strengths and flaws will be used.

Hughes notes that the idea/expression distinction can be made "at a gross level", in that we find Sir Arthur Conan Doyle's expression of the crime novel valuable not the idea of a detective solving mysteries. However it is easy to recast the question at a different level of detail, performing some literary analysis to explain the ideas that made Conan Doyle's work so valuable, at which point the distinction becomes more blurred.

Hughes suggests that the "idea/expression" dichotomy can be restated as "idea/execution", which makes it clear that the latter involves labour and can therefore be owned by desert, whilst the former doesn't and so requires an instrumental basis for ownership. Even if the distinction isn't always clear we tend to emphasise ownership of execution in property law.

The ideas common

The concept of the common in Locke is in fact strongest with ideas because:

1. The ideas common is practically inexhaustible. My extracting something doesn't prevent others from extracting something of a similar quality and quantity.
2. In another sense it is inexhaustible in that that my use of an idea in no way depletes from the common, nor prevents others from using that idea.
3. The creation of a new idea, if it enters the common, actually expands the common. Of course a Platonic conception of the common rules this out because there would be no new ideas, unless we distinguish between the Platonic common and the humanly-accessible common. Hughes says "putting X into intellectual commerce does not increase the common so much as it enhances the abilities of people to take from the common".

The question is what the commons contains. This has two components: what does it contain prior to any human labour, and what after labour (e.g. after copyright terms expire). Did we discover geometry or was it the product of a human mind? Likewise any poem, dramatic plot, mechanical model and musical composition.

For Hughes the common raises one central question: how should we distribute it to achieve the most beneficial use? Intellectual property rights turn on this question.

He returns to the non-rivalrous benefits of privately owned works with the example of patents, where the information is openly published even if it's use is exclusive to the owner. The common is thereby expanded in a sense because others may find inspiration to create (in the eyes of patent law) a new innovation within the published details of the granted patent. This makes ideas distinct from Locke's notion of increasing the common stock, because his argument depended upon a person trading the product at some point, whereas information may not require that; the exclusive publication of information, untraded, may inspire or enable the creation of other information that "are not 'attached' to their antecedent ideas as grain is attached to farmland".
- This, of course, is directly affected by rights over derivative works, e.g. in copyright law. So if Locke's theory doesn't obviously account for it then it would be necessary to extrapolate a sympathetic account.

There are two kinds of ideas that cannot be owned:

1. "everyday ideas such as thinking to wash one's car, to add paprika to a quiche for colouring, or to tell mystery stories to your cub scout troop". The reason Hughes gives is broadly instrumental - it would require too great a redistribution of wealth, they are too generally useful. But a normative reason could come from the point that it would violate the "enough and as good" condition.
2. "extraordinary ideas", both those that are discoveries about natural facts (such as the theory of electromagnetism) and those that are in "widespread public use" (such as architectural columns). It is the extraordinary importance of these ideas to society, the contingent fact that they appear as basic truths, that makes us deny property rights over them. Again, this can be normatively stated in terms of the "enough and as good" condition.

- But how on earth do we decide when an idea is everyday or extraordinarily important? What about folk stories with wide cultural currency, or inventions such as basic internet technologies that become "basic truths" within the period of their patents? Why should Newton be able to copyright a particular system of notation for calculus under current law but not calculus itself? The latter is clearly extraordinary, but would a standard system of notation not be likewise?
- Is "enough and as good" a sufficient guide, as Hughes seems to suggest?

Nozick suggests that patents may expire in recognition of the fact that somebody else might have made the same discovery shortly after the patent holder (in Anarchy, State and Utopia, need a page number).
- This doesn't apply to copyright, surely?

Another justification for expiration he offers is that initial ownership encourages or enables enrichment of the common, but perpetual ownership would slow enrichment. Therefore you strike a balance with a limited ownership term to maximise the common stock.

The non-waste condition

Two kinds of waste related to ideas:

1. As ideas get older they may have less social currency, particularly with obsolete technology and unfashionable or unfathomable cultural objects (see for example Becker). Hughes downplays this, in party by emphasising the scope for trends to regain cultural currency or have a contemporary reinterpretation.
2. The individual may have wasted their labour in producing an underutilised idea. Hughes suggests that the waste here is minimal and that an idea's value to the creator, apart from its social value, will remain constant. "With intellectual property, there is no waste to the individual because the act of 'consumption' is inseparable from the act of production". But isn't this as true of physical property? In Locke's example of spoilt food the farmer will have gained some benefits from the act of production, but the pertinent value of the food was its social or market value, just as it is likely that a great deal of intellectual property will be produced primarily for its social or market value.

Conclusion

Hughes concludes by dismissing the waste condition, and stating that a strong theory of intellectual property needs to combine the "enough and as good" condition with a Hegelian personality theory, which may be compatible with Locke's emphasis on the role of labour (see Rapaczynski).