Acrewoods Library

Kimppa starts by asserting that (p.68):

1. Locke bases his arguments for property on self-ownership.
2. Ownership is necessary because resources are scarce, which isn't true of immaterial resources.
3. No one is deprived of ownership if someone else owns the same immaterial resource.

The first statement is undoubtedly true, though he doesn't follow it through. The second statement is one view of his arguments for private property, much like Shiffrin's argument, but needs justification. The third statement simply underdevelops the concept of ownership, neglecting the exclusive management rights that we might think of as an integral part of the concept.

On deprivation

Kimppa backs up his second and third statements with references to Locke, e.g.:

"He that ... subdued, tilled, and sowed any part of it, thereby annexed it to something that was his proerty, which another had no title to, nor could without injury take from him" (II sec.31)
- note both the "no rights" and "harm" arguments

"Every one ... ought ... 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." (II sec.6)

On enough and as good

The standard interpretation in the immaterial context is that the immaterial common is infinite, so my appropriation of a particular part will always leave enough and as good for others. An alternative interpretation is that the act of appropriation wouldn't leave enough and as good of that particular appropriated object (p.73).
- But this seems a bad reading of Locke since he was concerned with leaving enough and as good, so others would be able to appropriate their own property. He didn't consider the fact that immaterial objects are non-rivalrous and so wasn't concerned with my eating an apple depriving others of that same apple.

Kimppa argues that the waste and spoilage proviso clearly rules out full ownership rights because it would be wasteful for only one person to use a product when all could use it simultaneously (pp.74-75).
- Why should it "perish" in the possession of one, surely it is just less well used than it might otherwise be? Again, is Locke not more concerned with delimiting our appropriation to that which we need and find convenient, rather than putting tough instrumental conditions on our ownership? Landowners would be under constant scrutiny for any inefficient use!

The FSF liberalist case

The FSF fits into Kimppa's (mis)representation of Locke's theory of property because they are also concerned with freedom of use (including modifying and sharing); they advocate that anyone should be able to "do with it as he or she pleases" and that we shouldn't impose artificial scarcity on software through IPRs (p.76).

He plays heavily on the non-rivalrous nature of software and the artificial scarcity created by IPRs (pp.76-77).

He erroneously claims that consequentialist arguments concerning the potential benefits of full ownership cannot be a concern for a liberal theory, which itself must value freedom (p.75, pp.77-78).

Education, for Locke, has three functions: to build a sound and healthy body, to install virtue in the mind and soul, and to develop a particular cultural and intellectual awareness (pp.7-8).

Connections with other works

There are three principles that bridge Locke's Essay and his book on education (pp.11-17):

1. Custom settles habits of thought;
2. There is a natural association of ideas;
3. Languages shouldn't be learnt by rote, since they were made by common usage not by rules.

The connection between the Education and the Two Treatises is virtue as linked with rationality, sociality and humanity (pp.13-14).

The physiognomy of the mind

The goal of the educator is to guide the child into rationality, which will enable the child to take command of his wants and desires and to act virtuously (p.23).

Just as law "is not so much the Limitation as the direction of a free and intelligent Agent to his proper Interest" (II sec.57), education is intended to equip a child with rationality and virtue, which are the very essence of humanity. Virtuous behaviour is acting in concert with our nature, heeding natural laws revealed to us through scripture and reason, and thus enlarges our freedom (pp.28-30).

Virtue cannot simply be taught, it "must be instilled by custom, practice and example" (p.31).

Virtue and method

Some of Locke's thoughts on particular subjects may simply be reflections of the period in which he worked, the society in which he lived, rather than any principle central to his work (p.69). See, for example, his thoughts about painting!

"A virtuous character... is not only a condition for humanity; it is a condition for learning as well" (p.70)

Locke thought that children should learn through practice rather than by rules, and that occasions for practice should be made where they don't present themselves naturally. Practice 'will beget Habits in them, which, being once established, operate of themselves easily and naturally' (§ 66).
- establishing the habit of, for example, examining source code, seeking guidance from an artist or reproducing another's work and publishing for critique, seem like good habits. Though of course they would be bad activities if they habituated a lack of respect for private property.

The business of a tutor `is not so much to teach him all that is knowable, as to raise in him a love and esteem of knowledge; and to put him in the right way of knowing and improving himself, when he has a mind to it' (§ 195).
- Learning by practising copyright violations and thereby improving oneself seems a clear beneficial use that Locke would have supported.

It bears mentioning that Locke held a very dim view of amateur painters, claiming not only that `ill painting is one of the worst things in the world` but moreover that those without a natural inclination and the skills required would waste their time with such a `sedentary recreation'; they'd be better off engaging in serious study or sports (§ 203).

Locke criticises those who are not skillful in more arts than one, and praises those who eschew `the common, vicious, useless, and dangerous pastimes' in favour of finding `time enough to acquire dexterity and skill in hundreds of things' (§ 208).
- He seems to hold learning the arts in high esteem, especially if it doesn't interfere with `serious study' and a moderate amount of recreation.

What is private property?

There are three basic kinds of property, each of which is organised around a particular idea that gives the various associated rules coherence:

• Private property, organised around the abstract principle that "each resource belongs to some individual", meaning in the most abstract sense that each resource is correlated with a particular individual who is in a privileged position; ownership is peculiar to this system of property. The rights and responsibilities conferred by ownership may then vary (pp38-39).
• Collective property, organised around the principle of collective interest, that is the allocation of material resources "is determined by reference to the collective interests of society as a whole". To be "completely specified" such a system needs a conception of the collective interest and procedures to apply that conception to particular cases (p.40). British Leyland was an example at the time of writing (p.44).
• Common property, a system in which "each resource is in principle available for the use of every member alike". No societies have this as their dominant form of property; it persists in special cases such as public parks, and in philosophy as a speculative "state of nature" before political society is formed. With finite resources a means of allocation is still required.

A coherent and relatively simple organising principle is required so that a layman may go about his everyday business without detailed legal knowledge and without unknowingly violating others' property rights. So although the concept of "ownership" in the private property system is rather thin, it provides us with an organising principle that forms "the main basis on which [laymen] learn to apply the property rules of their society" (pp.42-43).

Any given society is likely to mix and match property systems as appropriate in each given context. For example, in Britain clothes are private property, roads are collective property and water is common property. Factors affecting the context-sensitive decision include: (1) the relative political power of the competing factions (e.g. increased privatisation indicates a declining socialist faction); (2) pragmatic solutions that may override or obscure organising principles; (3) some kinds of resource are more amenable to particular property systems, as the examples for Britain above illustrate; (4) private property rights enable owners to produce new property arrangements that may mimic the others, for (my) example Creative Commons / Free Software licenses imitating common ownership within the system of private property (pp.44-45).

It is necessary to elucidate the meaning of "ownership" beyond the abstract account given above. Honoré sets out a list of the common features, rather than necessary or jointly sufficient conditions, of ownership. An owner will have:

1. A right to the possession of X;
2. A right to use X;
3. A right to manage X (that is, determine the basis on which X is used by others if it is so used);
4. A right to the income that can be derived from permitting others to use X;
5. A right to the capital value of X;
6. A right to security against the expropriation of X;
7. A power to transmit X by sale, or gift, or bequest to another;
8. The lack of any term on the possession of these rights etc.;
9. A duty to refrain from using X in a way that harms others;
10. A liability that certain judgements against him may be executed on X;
11. Some sort of expectation that, when rights that other people have in X come to the end of their term or lapse for any reason, those rights will, as it were, "naturally" return to him;

Ownership is a stable concept, in the sense that it can be applied in law and other contexts, but its content is contested so there are multiple conceptions, which may draw from the above list and other related rights, powers, liberties, duties, etc. (pp.47-53).

Locke's discussion of property

Waldron argues that, understood in the context of his project to defend the bourgeois against the English monarchy, Locke saw property rights as "among the rights that men bring with them into political society and for whose protection political society is set up". Even though Locke "certainly believed" that "the existence of private property serves the public good", Waldron claims it isn't what motivates Locke's theory of property. Property rights are natural in the sense that we acquire them on our own initiative "and not by virtue of the operation of any civil framework". Ownership rights are a historical entitlement, not something that the state can abrogate or reorder to serve some collective goal (pp.137-138).
- This doesn't invalidate instrumental justifications for the institution of private property, so long as the essential nature of the ownership is natural and isn't distorted by civil frameworks.

Tully thought that Locke subscribes to a conventionalist justification for private property based upon consent, that is to say that men settled upon respecting each others' right to property by convention to avoid quarrels and conflict between individuals and communities. Waldron thinks this is a "completely mistaken" interpretation of Locke. "Certainly there are important conventionalist strands in Locke's discussion -- in his account of the invention of money, of the preservation of the commons, and of the regulation of property relations under civil government... [but] for all these conventionalist strands in his thought, Locke nevertheless committed himself firmly to the position that private property rights could be established in a non-conventionalist way". Such property rights would be vulnerable to counter-claims about their fairly reflecting conventions and would become tied to particular civil frameworks, whilst Locke wants natural rights whose details are incontestable (pp.152-153).

In arriving at private property rights, it is also important to understand the nature of the common. It is not a "rights vacuum awaiting the acts of acquisition that would establish exclusive rights" as Nozick thinks, in which nobody is wronged by acquisition because nobody has any claim over any part of it. Whist Locke didn't believe we had inalienable common rights - our labour legitimately "excludes the common right of men" (II sec.27) - he also said that people have a natural right to sustenance and the use of resources for our greatest convenience. We are born with common claim-rights that are abrogated in particular resources through the act of labour, and these are justified in part because without them "the Common is of no use" (II sec.40). Against Tully, who thinks that appropriation consummates or realises the original common property in human use, Waldron emphasises the fact that we move from a genuine common ownership (not a vacuum) to a genuinely private ownership that brings the common, in particular resources, to an end (pp.155-157).

The nature of Lockean property is as follows: is nature is "that without a Man's own consent it cannot be taken from him" (II sec.193). Clearly this would describe the position of a tenant, albeit temporarily, so private property on the state of nature needs further elaboration. When some person has "property in" a resource that is a common property right permitting anyone to make use of the resource. A resource being the "property of" a person denotes private property, and there the owner has exclusive use, that is "my right now excludes any entitlement which anyone else might have to use to otherwise deal with it against my will". Private property is subject to three important qualifications: (1) "Locke's concept of used... does not comprehend wasteful or negligent destruction"; (2) The rights of subsistence override any person's private property rights; (3) the proprietor has a duty to benefit himself and his family, though nobody else (pp.157-162).

There are two interpretations of the claim that we need to appropriate the common to use it. The first is that natural resources are of no use whilst held in common, and can only be used exclusively. Leaving aside food, clothing and other personal items this is clearly a nonsense; a community could collectively manage a plot of land just as, given an appropriate ratio of land to people, common land could support a community. A more plausible interpretation emphasises God's command to make beneficial use of his grant, and so private property rights may provide an instrumental case such as the benefit of incentives or the more efficient cultivation. It is still, however, possible that, if a community could make more efficient use of some land then Locke would be committed to endorsing collective or communal ownership rather than private (pp.168-171).

A further attraction for a Lockean theory of intellectual property is that it avoids the problem of initial exclusion, whereby somebody must exclude others from a section of the common before they can mix their labour and so come to own it (pp.173-174), stating the problem not my attraction point). If we consider that an individual will not, in the case of copyright, exclude others from the intellectual common when producing some new work, and that the exclusive portion of result of their work will be entirely their own labour (since copyright won't afford exclusive rights over the common portion), then it is clear that intellectual labour involves no initial nor lasting exclusion of the common.

Locke maintains that a creator acquires "the utmost property" in what he creates (I sec.39), and that "every man has a Property in his own Person" (II sec.27). Waldron notes that Locke uses 'person' not 'life', 'body' or other simialar words chosen by his contemporaries, and that 'person' has a specific meaning in his wider philosophy. Personality is constituted by the creative activity of a free and conscious agent. It is conceivable that a person "owns" her labour insofar as the labour is attributable to her, and that she will in some sense "own" the product of her labour (pp.177-181). In the case of intellectual products where copyright excludes others only from the creator's labour, the only coherent sense in which the labour is contained in the product is the use-value brought about by the labour. The creator's personality isn't literally embedded in the product, though the product's qualities may reflect it.

There are three alternative interpretations of "mixing one's labour" offered:

1. Identification - an individual expresses himself through labour and so becomes emotionally attached or spiritually united with the product of his labour. If someone else were to make use of the product without his consent it would amount to that other individual having a right to his person, which is clearly out of the question. See Rapaczynski for problems with this strong, expressive view of personality. Waldron poses another problem, which is that for identification to entail a sense of ownership, it must be accompanied by an expectation that the ownership will be respected. This cannot be sustained prior to the establishment of private property rights, and so such rights cannot be based upon it.- With copyright publishing - Shiffrin's "act of release" - makes it difficult to expect full property rights. Certainly we might expect a limited sense of ownership, insofar as we expect reasonable attribution, but expecting exclusive use rights based upon our identification with the product seems a stretch, especially if we reject the expressive sense of personality for the abstract legal sense (pp.194-198).
2. Creation - Waldron criticises Tully's claim that man acts as a creator in the same sense as God, making a new object out of old through labour just as God created the world. But as creators' rights are absolute they couldn't be constrained by Locke's waste and "enough and as good" provisos; this problem is compounded if we engage in "God-like creation". Waldron says: "nowhere does Locke give any indication that he wants to connect his labour theory of use-value with any doctrine of creators' entitlement" (pp.198-200)- If intellectual products are, conceivably, created ex nihilo, do they not confer absolute creator's rights?
3. Desert - There are three questions that Waldron thinks need an answer before a desert interpretation could work:
   1. Why is labour good? The problem here is that it is only the initial labour on a plot of land that confers ownership, whilst subsequent workers (such as those employed by the owner) will gain no such rights. Moreover, if labour is a pious and proper activity then it seems odd that an idle employer would gain the full value of his workers' labour (pp.202-204)- But this of course doesn't apply to copyright, so the value of labour and its connection to ownership seems unproblematic.
   2. Why should labour be rewarded, as opposed to being noted, praised or approved? We most plausible reason is that, as Locke suggested, labour is onerous and so the promise of compensation will motivate people to produce rather than benefit from another's pains (p.204).- Even though much labour, especially intellectual, is enjoyable or fulfilling, it is still clear that attribution, praise and approval wouldn't often be sufficient incentives to create major works that require considerable labour.
   3. What reward is appropriate? Locke would surely suggest that the individual deserves nothing less than full private property rights over the product. An immediate problem with this is that private property rights mean the worker will gain the full value of his product and of the appropriated section of the common, whilst society would seem to gain none. Locke's arguments about cultivation increasing the common stock mitigate this, but as a purely consequentialist account (ignoring Locke for a moment) it seems odd that we would give such strong rights to the worker when weaker rights might suffice as an incentive. Furthermore, Locke says that appropriation is required to make beneficial use, so it seems impossible for him to then justify private property rights as a reward connected to that beneficial use; that is, the person is being rewarded in order to make the use beneficial.

"The property of labour cannot outweight the fact that natural goods were intended by their creator to be used". We can only appropriate the common stock insofar as we can put it to use, and anything else remains or re-enters the common. But Waldron interprets this as a very generous proviso, in that almost any use (including, where necessary, destructive) is sufficient so long as the owner doesn't deliberately reduce the use-value or make no use at all. Only when the goods perish or lose their use-value do we lose ownership (p.207-208, 218-219).

The idea of self-ownership

How can we interpret Locke's claim that "every man has a Property in his own Person. Thus no Body has any Right to but himself." (II sec.27)? Which of the nine aspects of ownership listed by Honoré does self-ownership entail?

Nozick expresses a minimal intuition in line with Locke's quote, that nobody may make use of or take posession of my person without permission, and that I owe none of my body nor talents to anybody (pp.398-399).

Waldron reconstructs Nozick's, Cohen's and Sandel's argument for the connection between self-ownership and resources as follows: the active self is a bundle of talents and abilities over which nobody but the owner has any right. The self has capacity not only to act but also to use resources to improve the material conditions of the world, and nobody would act if such an improvement for oneself wasn't guaranteed. If the fruits of their labour were taken away from them then their ownership of their talents and abilities would be worthless (p.401).
- First this discounts the notion that labour, the exercise/realisation and probable development of a person's talents and abilities, may be of worth.
- Second, with intellectual products the fruits of their labour aren't taken away by open publication, it is the potential revenue from exclusive control that is never granted

Waldron defends Rawls against Nozick and Cohen by appealing to the distinction between the natural distribution of talents (which is neither just not unjust, just as-is) and the social institutions within which these talents and abilitities are nurtured and exercised (which may be just or unjust). Waldron claims that there is no sense in which one might exercise these talents and abilitities, nor reap the benefits in so doing, apart from social arrangements and institutions (pp.403-404).
- It is possible to exercise a poetic talent and appreciate the results apart from any social arrangements and institutions. But open publication wouldn't interfere with that. The nature of the benefits reaped with the aid of copyright, and of the act through which talents and abilities are exercised, in a social context are altogether different. Personal use of intellectual products involves self-development and entertainment, with obvious benefits. Social use involves distribution (either open or licensed), with benefits acruing to one's reputation, social relations and bank account. In other words, one may exercise and reap benefits apart from social arrangements (and so one could defend an absolute self-ownership apart from civil frameworks) but those acts and benefits aren't germane to the copyright debate. For Locke is is enough that those civil frameworks enlarge the freedom in terms of our natural attributed (cf Tully).

Sharing somebody's intellectual products without permission would only be coercion, according to Nozick's understanding, if it had consequences attached apart from the normal and expected course of events. But how can there by any such course of events outside of a civil framework? (p.405)
- If there is any "normal" course of events with regard to intellectual products, it is surely sharing freely? A civil framework is required to enforce private property rights within society.

Owning a talent, as opposed to benefitting from it in some civil framework, is for Waldron therefore the capacity to "plug in or relate to any of an array of possible social structures to produce various levels of benefit, for himself and others". We are free to publish our work, or to withold it, but a civil framework that affords no exclusive rights to the creator wouldn't in any way abrograte that creator's right to self-ownership (pp.405-406).

He begins with a very brief and unexceptional overview of Lockean property theory. Then he moves to two problems with labour in the context of intellectual products:

The indeterminacy of labour

"For Locke, a property right is partly based on the premise that labour is often an unpleasant and onerous activity", but with intellectual products this is far from clear. "An idea may simply come to someone while she is taking a walk or relaxing at the beach. Furthermore, she may enjoy composing a poem, a literary work, or a software program as a form of recreation and thus would not associate such an activity with labour." There can be difficulties in determining the quantity and quality of labour required for justified ownership of physical products, and with intellectual products the indeterminacy of labour is even greater.
- Can physical work not also be pleasant? Why else would people tend allotments, take pleasure in crafts and so on? Intellectual products simply seem slightly more indeterminate, and so critics of Tavani could reply that the objection is overcooked. Never mind if the labour was pleasant or difficult to quantify, the fact remains that the creator laboured to produce the work.

Mixing one's labour and original acquisition

Nozick pointed out two flaws in the labour theory. To begin with, if I spill a can of tomato juice with a radioactive signature into the sea, "do I thereby come to own the sea or have I foolishly dissipated my tomato juice?" (Nozick 1974, pp.174-175).
- Should there be a determined quantity or quality of value added to the common before I can appropriate it? In the digital context one can imagine a benevolent computer virus that seeks out flaws in publicly downloadable software and fixes them. By adding value to these different products, is the creator of the virus entitled to some kind of property right? If you clean up an old recording, removing a few glitches for example, then current copyright law entitles you to property rights over the resulting recording. These are adding value to private property, not the common, though. Software that generates art is a better example, where the artist labours to produce the software but then plays no further role, yet can produce huge quantities of work that he will then own.

There is another worry about original acquisition, i.e. can we trace the exchange of property rights back to an original and justified appropriation of the common? If not then it would seem that "Locke's theory (like any entitlement theory based on original acquisition) is irrelevant to contemporary debates about property rights" (p.90). Scanlan, however, points out that in the case of copyright no record of original acquisition is needed, and besides the length of the property terms mean that the original appropriation of the common was relatively recent.
- What about orphan works whose owners are unknown? Also the indeterminacy of attribution, where it is unclear who actually added what value to which chunks of the common to get a resulting work.

Copyright violating the "enough and as good" proviso

Whilst the "tragedy of the commons" described by Garrett Hardin is a familiar boost to Locke's theory of property, Heller points out that there may be a "tragedy of the anti-commons" which can result in an under-consumption and underutilisation of resources - violating Locke's waste proviso. Copyright and related laws may actually be enclosing too much of the common (p.90)

But before we can discuss the over-enclosure or otherwise if the information common we need to clarify a few weaknesses in the analogy between the physical and the information commons. The first, obvious difference is that the information common is non-exclusionary and non-rivalrous. The second is that it has potentially infinite extension, since any non-Platonist characterisation would admit that human endeavour expands it. In the case of contemporary copyright Himma (2005, p.7) seems correct in claiming that the public domain of expired works is "stocked by and only by the activity of human beings". However, it can still be eroded by means such as the law, technology, social practice, etc. and as such is analogous with the physical common in a repsect relevant to Locke's theory of property.

Tavani posits two questions that can be asked of any particular policy or law related to intellectual property:

1. Does that law or policy diminish the information commons by unfairly fencing off intellectual objects?
2. Are ordinary individuals made worse off as a result of that law or policy when they can no longer access information that had previously been available to them?

Applying these questions to two recent laws passed in America (DMCA and CTEA) they suggest that "the spirit" of Locke's proviso is clearly violated because the information common is eroded and the public is clearly made worse off. So at the very least his theory seems to offer us guidance for questions of property and intellectual products.

Himma, K. (2005) 'Information and Intellectual Property Protection: Evaluating the Claim that Information Wants to be Free', APA Newsletter on Philosophy and Law 4: 3-9

For Locke property is not an inalienable right; we are clearly free to exchange our products and property. Rather, no one may deprive us of our "capacity to appropriate", this is our inalienable property right. But there is a worry about how one can transfer ownership. (p.306)

The right of ownership doesn't come from a functional unity between owner and owned, which would allow somebody to exchange property merely by ceasing to make use of it. Rather, ownership is gained by a particular individual by virtue of the application of one's labour to an object. Exchange must then constitute "a positive act of releasing the object and the cancellation of the corresponding right to exclusive use". (p.306)

But how can one do this by a mere act of will if we opt for a strong interpretation of Locke's theory, according to which the owned object becomes "a part of the owner", and the act of appropriation joins "something of one's own to the object through the application of one's labour"? Labour has two distinct functions: an exercise of physical force, which all animals are capable of, and a "spiritual operation which endows things with value". Through the latter "it is the quality of the owner's very personality that is embodied in his property". (p.307)

There is an important divergence from Marx here, since for Marx our concrete person, including social characteristics such as class, is embedded in our products, whereas for Locke "the nature of one's holdings is independent of one's concrete personality... the personality embodied in property is ... a legalistic, abstract, and ahistorical self". (p.307)
- So for instance appropriation and exchange doesn't alienate us from the products of our labour, as it must for Marx

But this causes problems for the value-added labour theory. If my labour only results in an abstract and legalistic tabula rasa being embodied in the product then my title can only be one of exclusive use based upon my humanity, rather than being a particular property right as such. We are each individuals, and thus when we exchange goods we do so as (in the eyes of property rights) essentially anonymous proprietors; "the difference between men as proprietors is purely numerical". So it is not that I "release" an object, "remove my personality" or "undo" my labour when exchanging it, but rather than I simply cancel my right to exclusive use through contract or some other legal mechanism. The object remains essentially the same, it has the same value, it is just claimed by another. (pp.309-313)

This creates a distinction between use and exchange value, and commits Locke to the view that the latter is intrinsic and "expresses the homogeneity of human labour", whilst the former is "merely subjective and unstable". (p.313-314)
- Can, then, this "personality theory" interpretation of the labour condition be compatible with Hegel and the doctrine of moral rights, as suggested by Hughes?.

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).

`To justify a person's appropriation of a thing, two conditions must be met: First, things _of that sort_ must be susceptible to justified private ownership. Second, the person must satisfy the conditions necessary to appropriate that specific thing'. Shiffrin contends that many attempts at Lockean justifications of IP ignore the first condition, and that taking it into account `Locke's view does not endorse Lockean appropriation of most intellectual products' (p143).

For Shiffrin it is the natural duty of self-preservation coupled with the conditions of effective use that justify appropriation and private property. Labour plays a subsidiary role, justifying appropriation by one individual rather than another.
- This relates to Rapaczynski's point about the self-ownership of labour argument being only in an abstract, legal rather than a concrete, expressive sense.
- But Locke does say that "labour, in the beginning, gave a right of property... upon what was common" (II sec.45)

Locke emphasises that all property in the state of nature is owned in common by all humankind. We have a right to subsistence and a grant from God to make beneficial use of the world. Sometimes subsistence or beneficial cannot be done when holding items in common, and in these cases we are justified in appropriating those items for our own exclusive use. This much is congruent `with the underlying motivation of the common grant' (pp145-147).

=> perhaps go with angle that a more sophisticated account of `beneficial use' might justify a free culture-style strenthening of the commons? Private ownership is only justified where it is required for beneficial use?

=> obj wrt IP, can we have a concept of a Lockean intellectual commons, given that all intellectual products were initially products of labour rather than God's grant?

All individuals initially have equal claim to appropriation of the commons. Labour adds value to an item and thus gives the labourer a stronger claim. `The "enough and as good" and waste conditions ... ensure that appropriation does not disadvantage the equal rights of others to appropriate some goods and to use others' (p.147).

One puzzle is why Locke would emphasise subsistence when he has already required that individuals make beneficial use of a thing to justify their appropriating it. Isn't the subsistence claim redundant? Shiffrin offers an interpretation according to which subsistence constitutes one of many kinds of beneficial use, the most basic. Other kinds of beneficial use arise when we mix our labour with something from the common, thus preventing the waste of and realising the productive potential of the common. There is an important step here, pertinent to IP: It is the `_nature_ of the thing to be used' (my emphasis) rather than `the contingent decisions and psychological features of the labourer' that determines if beneficial use requires private appropriation. Thus the nature of agricultural land, which is undoubtedly wasted (though not worthless) if left uncultivated, gives us a duty to cultivate it, and that in turn requires exclusive use.

=> can one rephrase the duty in terms of it simply being more positive to develop creative potential, to consume and share cultural artefacts, than to not bother? Does that make intellectual products satisfy the conditions of ownership?

The most beneficial use of an idea usually doesn't require exclusive use. In fact Shiffrin suggests `there is a social presumption that ideas and expressions are the object of open dialogue, exchange and discussion. Attempts to control, suppress, manipulate or monopolise ideas and information run counter to the intellectual spirit of open public discussions that promote learning and appreciation for the truth' (p.156) Exceptions to this include unfinished work whose development would be impeded by premature distribution, and those works that we might never want widely distributed such as private letters and diaries.

=> don't social conventions, encompassing all from academics sharing unfinished papers online to the most intimate relations between creator and audience as those in the case of private letters, adequately cover those exceptions?

Shiffrin makes an important distinction between the creator's distinctive use of an idea or expression and his/her appropriate of it. The former has value and doesn't necessarily depend upon the latter, and the value may in fact be greater without appropriation (viz appropriation for things of a kind justified if beneficial use depends upon it) (p.160).

A common interpretation of Locke viz IP is that, in mixing our labour with ideas in the commons we come to own our expression. Individuals own those things that exist without us in common, since we have equal moral status, but since we each own our labour we must automaically come to own our expressions of ideas. But Shiffrin emphasises the importance of the commons in Locke's thought, and suggests that products of our labour become part of the commons `when their nature does not require exclusive use, to symbolise the equal moral status of individuals'. Whether or not this is the most accurate intepretation of Locke's thought it has a few attractive features. Shiffrin notes that `exclusive use is generally unnecessary for its proper use and ... its full exploitation commonly depends upon nonexclusive use' (p164). It may be the case that appropriation is required during the creation of an expression, but once produced exclusivity interferes with beneficial use.

Expressions `are properly viewed as becoming part of the common for two reasons. First, their nature is like the nature of other things properly left in common, that is, compatible with joint use. Second, their becoming part of the common jibes with the motivation of Locke's account of property - that things should be shared, equally, unless there is a strong reason to do otherwise' (p164)

=> obj wrt use, does she mean `use' in the same was as Locke does in the agricultural example? The farmer makes transformative use of the common and adds value. Shiffrin seems to be talking more about people using expressions once created, analogous to people eating the farmer's vegetables. But what about productive use? To pick up on her example of the landowner with a path, imagine that the landowner is actually quite poor and struggles to pay for the upkeep of the paths. If no other funding were available, would the landowner not be justified in charging for use and excluding ramblers with inappropriate footwear or behaviour, so as to preserve the path and guarantee its most beneficial use? Is that a good analogy to any IP? Possibly not since what IP requires continuous funding to persist?! OK, how about a landowner who needs capital to create the paths, and once that is done the land sustains itself lending it to nonexclusive use. Perhaps the landowner should be granted some form of renumeration from ramblers, as with the US copyright system for music. But could he justify appropriating the land and arbitrarily excluding use as he pleases, as copyright holders are able to do in most fields? So intellectual products as a kind don't require appropriation for use (broadly defined), even though in some cases it might be one of many ways to fund creation, and perhaps in some cases the only viable way or the way that enables the most beneficial use.

=> if expressions enter the commons, then an argument against consequentalist arguments for state-granted monopolies could be mounted on the basis that further beneficial use doesn't affect the creator, i.e. doesn't abridge his/her rights as an individual in the way that is commonly supposed when abuse of a person's property abridges their labour and thereby themselves

If accepted, Shiffrin's arguments suggest that a Lockean approach to IP would deny any natural right to exclusive ownership of intellectual products. Moreover, whilst leaving open the possibility of other defences for ownership, one would need `strong and well-supported reasons to override the value of the tangible symbol of equality manifested by the common ownership presumption'. Beyond the symbolic, her arguments also provide many bases for objections to consequentialist ownership arguments, if we take the concept of `beneficial use' to be central as she suggests we should. The burden of proof is put fully on the shoulders of IP apologists.