John Locke’s Labour Theory: A Justification of IPRs
Since the Lockean theory of appropriation has been highly influential in formulating policies, making laws, and interpreting the laws, it is very important to make a normative study on the subject matter to understand the motion and the justifications of Intellectual Property Rights. This paper aims to make a brief examination on the Lockean theory of labour with special reference to IPRs. The first section focuses on the evolution of the natural right of appropriation from the state of nature as observed by John Locke. The second section tries to throw light on the important aspects of property entitlements and its nexus with IPRs. The third section lays emphasis on the Lockean proviso which stipulates important guidelines for understanding IPRs. The last section focuses on the relationship between the provisos and the current intellectual property laws in India. The paper concludes by making some important observations on the analysis that has been made on the Locke an theory of appropriation.
While analysing the justifications for the intellectual property rights, it is, undisputedly, important to make a normative study of the theories that centres on intellectual property. As observed by Professor William Fisher, of Harvard University, the term "intellectual property" refers to a loose cluster of legal doctrines that regulate the uses of different sorts of ideas and insignia.Thus, the subject, in itself, makes it inseparable from the jurisprudence of natural property rights. Among the theories, John Locke’s labour theory (hereinafter referred to as ‘Lockean theory’) has been playing a significant role in shaping States’ policy with respect to the protection of the intellectual property rights.The idea that a person has a natural right to enjoy the fruits of his intellectual labour is based on the formative rationale of Locke that labour provided the basis for property. This doctrine forms the epicentre of this paper as the Lockean theory regarding property rights is deemed as the organising principle of the ideas and justifications, herein, set out.
The Lockean theory, also termed as ‘the theory of unilateral appropriation’, ‘the labour theory of ownership’, or ‘the labour theory of property’, postulates that the human beings can use labour to establish their rights over the natural resources which creates a moral obligation upon others to respect these rights. He observed: “The labour of his body and the work of his hands, we may say, are strictly his. So when he takes something from the state that nature has provided and left it in, he mixes his labour with it, thus joining to it something that is his own; and in that way he makes it his property.”Lockean theory of appropriation was found to be influential than the social agreement, as propounded by Hugo Grotius, since the former argued that the labour that is exerted upon the resources creates greater morally binding restrictions than any social contractual obligations. Furthermore, this version of the labour theory renders a great backing to the intellectual property rights of the creators. Therefore, it is pertinent to make an analysis on the labour theory propounded by John Locke in order to understand the normative justifications of IPRs.
1.The Theory of Appropriation
John Locke’s state of nature sets off with plentiful natural resources which has no sovereign, trade, or finance. According to him, the first person who employs his or her labour to the resources available has the sole right to appropriate it without anyone else’s consent. And that person may be the farmer, who alters the land through his labour, and he/she only has the right to appropriate it, but the hunter who uses the land without making any significant alterations to the land will not have any right to appropriate it. The justifications for this theory of appropriation, as propounded by Locke, can be categorized into five points which are descriptive in nature. Firstly, when a person owns his/her labour and mixes the things which are not owned with his/ her labour, h/she becomes the self owner of the property. Secondly, the value of the property increases and improves only when labour is mixed with the property. Thirdly, the fact that the labour improves the value of the property empowers the person with some sort of desert claim over the property. Fourthly, these resources which are improving due to the labour effectuate more resources available to others for usage and exploitation. Lastly, the person who has the right to appropriate the resources has an unconditional right to make their own livelihood. Though it is universally understood and accepted that all the natural resources present on the earth at the beginning of the state of nature is common to the mankind, the individuals cannot have equal private property on earth.
2.Lockean Property Entitlements
The entitlements can be categorised into three points. Firstly, the owner of the property has the right to use the property without causing any harm. Secondly, the owner has the right to transfer the property. Thirdly, the owner has the right to exclude anyone from the usage of the property. The analysis of these entitlements is provided below:
a. Right to use one’s property
Locke’s theory argues that the owner of the property has the right to appropriate, consume, or use the property without causing any harm. He observes: “[The earth's fruits and beasts] being given for the use of Men, there must of necessity be a means to appropriate them some way or other before they can be of any use, or at all beneficial to any particular Man. The Fruit, or Venison, which nourishes the wild Indian . . . must be his, and so his, i.e. a part of him, that another can no longer have any right to it, before it can do him any good for the support of his Life.”The phrase ‘without causing any harm’ connotes the restriction that the natural law imposes on the property owner. Thus, the owner of the property has the right to enjoy all the benefits drawn from the property; the owner is obliged to share the property to others who are in need of the resource.These restrictions are applicable to the intellectual property subjects. For instance, the idea behind placing the patents in the public domain after the term of duration is to make the patent holder exercise the right without causing any harm to the others in the society.
b. Power to transfer the property
Lock’s state of nature contains the sale or exchange of goods.While saying this, it is particularly argued that individuals cannot chose to sell themselves as it is violative of the natural law.And thus, individuals cannot sell those elements that are essential to their lives, but can sell things that they appropriate. The owners of the intellectual properties unlike the physical property cannot divest themselves of the right fully as IPRs are intangible in nature. But these properties are transferred as the creators would impose a restriction upon themselves, by means of a contract, from using the IPRs, and vest all the rights and duties to someone else.
c. The right to exclude others
An owner of the property has the right to exclude others from interfering with his/ her property. This right is considered as a right against the total world, and it imposes a correlative duty on others to respect the right. It is often argued that the "essence" of property is "the right to exclude others." In case of the intellectual property rights, the owner can exclude others from using his/her product. And anyone who violates this right is causing harm to the right exercised by the owners by virtue of the natural law.
Locke argues that these intellectual property entitlements can be enforced in a civil society. The state is responsible to enforce the natural law, and in the state of nature these IPRs become a legal right which shall be enforced.
The Lockean theory of appropriation has limitations, which are well known as ‘the provisions'. Locke states the proviso as:"Labour being the unquestionable Property of the Labourer, no Man but he can have a right to what that is once joyned to, at least where there is enough and as good left in common for others." The public has the right to the property available in common and, the labourer cannot claim the natural right over it. The best example would be the ideas that remain in the public domain; it can utilized by anyone, and no one has a right over it. Thus these provisos help in drawing a line between the labourer’s claim to the property in the civil society and the public’s claim to the property in common. These limitations can characterized into three major points.
The provisos are discussed in the following sub-sections:
a. The waste limitation
The Lockean theory propounds that an owner, who appropriates the property, should not waste the resources or consume more than that is necessary. This limitation, apparently, make certain that there is fundamental equality that is given to all, as the property owner is bound to take only what is required. In the state of nature, no owner is allowed to perish the property uselessly.Thus, the proviso, for example, might restrict a misanthropic inventor of a cure for cancer from destroying her notes.
b. Limited protection to public
This proviso emphasises that there is only limited protection to the members of the public. If the right of the individuals those available in the common are not violated by the owners’ property right, then these individuals would have no right to claim against the owner, and the owner could assert their property rights against them without any burden. Furthermore, even regarding the individuals whose freedom from property-based restraints may be guaranteed by the proviso, the proviso gives such individuals no entitlement to affirmative societal intervention on their behalf.
c. The enough-and-as-good proviso
Locke argues that appropriation is valid, “at least where there is enough, and as good left in common for others”.The idea behind this proviso is that the owners will have the right to that property only if such grant of property does no harm to the public or the others’ ability in using or consuming any property that is available in common. Only harms that fall within the common is prevented. Those harms to rights outside the ambit of the common will not invalidate property under the proviso.
4.Relevance With IP Laws
The Indian Copyright law provides copyright protection for the expression of the ideas and not the ideas per se. It is held that the violation of the copyright is confined to the form, manner, arrangement, and expression of the idea by the creator of the copyright work. The Lockean provisos prevent a creator from owning abstract ideas as such ownership would harm the subsequent creators. The idea behind such a restriction is that the ownership, if granted over these fundamental ideas, then it would potentially divest others in discovering it, which is available to them otherwise. For example, if ownership in the idea of a travelogue were given to the first person who thought of making such a compilation, then the portion left for others to discover in the common would be significantly small and thus prevents them from making a inventive step in the compilation of the travelogue. Granting such a right of ownership would infringe the Lockean principle of equality of creative liberty.
Furthermore, if the general ideas are granted with the ownership rights, then it would create a restrictive impact on the physical world.For instance, anyone in the world might have thought of making butter from the curd instead of milk. If such an idea were to be granted with ownership, then the entire domain of making butter through curd will be monopolised by the thinker. Parallel to the Lockean thought that an appropriator cannot appropriate the entire world and engross all the natural resources, the creator or an inventor is also barred from conquering the physical world with his/here abstract ideas.
Satisfying the Lockean proviso, the copyright law ensures that the copyright does not empower the owner, by virtue of the exclusive rights granted, to prevent others from rediscovering the ideas.For instance, the idea of agriculture, horticulture, or animal husbandry were to given the ownership rights, then the first farmer would have the monopoly rights over most of the farmland cultivation techniques. Thus, the imaginary line namely ‘harm’ demarcates the right of ownership granted to the appropriators from the right of the others, including the subsequent creators, and those who rely on the property in common.
There are a few inferences that could be drawn from the analysis made on the Lockean theory of appropriation. Firstly, it connotes a narrow approach to the intellectual property rights to the extent that the IPR holders are not vested with a natural right that can be justifiable by means of desert claims. Secondly, the owner of IPRs has a right to claim remedies only in cases when there is damage or loss that is caused by violation of such right. In other words, only when another person, who violates this right by subsequent use or consumption, causes damage to the owner, the owner of the IPRs would be empowered to assert the claims to remedy. Thirdly, to sum up the above two, the creators do not ‘deserve’ the complete exclusion rights but only a subset of the positive law rights that is claimed by them. Thus, the Lockean theory is very pertinent to make any important decisions or examination regarding the intellectual property rights as the analysis can be a guiding lamp to the legislators and the judiciary in discharging their duties.
·Barbara Arneil, Trade,Plantations, and Property: John Locke and the Economic Defense of Colonialism, 55 (4), JOURNAL OF THE HISTORY OF IDEAS 602 (1994)
·David Schmidtz,.When Is Original Appropriation Required?504-18, THE MONIST, (October, 1990)
·Jeremy Waldron, THE RIGHT TO PRIVATE PROPERTY, Oxford: Clarendon Press, (1988)
·John Locke, SECOND TREATISE OF GOVERNMENT, (Jonathan Bennett ed., 3rd edn., 2008)
·John Locke, TWO TREATISES OF GOVERNMENT, 285-302, (Peter Laslett ed., 2d ed. 1967)
·John W. Yolton,Locke on the Law of Nature, 67 PHIL. REV. (1958).
·Karl Widerquist,Lockean Theories of Property: Justifications for Unilateral Appropriation, 2 (1), PUBLIC REASON 3-26 (2010).
·Lawrence C. Becker, PROPERTY RIGHTS: PHILOSOPHIC FOUNDATIONS, London: Routledge and Kegan Paul, 1977.
·Morris Cohen,Property and Sovereignty, 13 CORNELL L.Q. (1928)
·Morton Gabriel White, THE PHILOSOPHY OF THE AMERICAN REVOLUTION, (Oxford University Press, 1st edn., 1978)
·Robert Nozick, ANARCHY, STATE, AND UTOPIA, (New York: Basic Books, 1974)
·Waldron. J., THE RIGHT TO PRIVATE PROPERTY, Oxford: Clarendon Press (1988)
·Wendy J. Gordon,A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 Yale L.J. 1533, (1993)
·Wendy J. Gordon,An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory, 41 STAN. L. REV. 1343, (1989)
·Wesley N. Hohfeld, FUNDAMENTAL LEGAL CONCEPTIONS, 50-64 (Walter W. Cook, ed., 1923).
·William W. Fisher,Theories of Intellectual Property, NEW ESSAYS IN THE LEGAL AND POLITICAL THEORY OF PROPERTY, (Cambridge University Press, S. Munzer ed., 2000)
# William W. Fisher,Theories of Intellectual Property,New Essays in the Legal and Political Theory of Property, (Cambridge University Press, S. Munzer ed., 2000)
# SeeMorton Gabriel White,The Philosophy of the American Revolution, (Oxford University Press, 1st edn., 1978)
# John Locke, TWO TREATISES OF GOVERNMENT, 285-302, (Peter Laslett ed., 2d ed. 1967)
# Karl Widerquist,Lockean Theories of Property: Justifications for Unilateral Appropriation, 2 (1),Public Reason3-26 (2010).
# John Locke, Second Treatise of Government, (Jonathan Bennett ed., 3rd edn., 2008)
# Supranote 4, at 6
# Waldron. J.,The Right to Private Property, Oxford: Clarendon Press 161-62 (1988)
# Id. SeeBarbara Arneil,Trade, Plantations, and Property: John Locke and the Economic Defense of Colonialism,55 (4),Journal of the History of Ideas602 (1994)
# Lawrence C. Becker,Property Rights: Philosophic Foundations, London: Routledge and Kegan Paul, 35-39 1977.
# David Schmidtz,.When Is Original Appropriation Required?504-18,The Monist, (October, 1990)
# Supranote 6
# Supranote 4, at 6-7
# Wesley N. Hohfeld,Fundamental Legal Conceptions, 50-64 (Walter W. Cook, ed., 1923).
# Supranote 3
# In the Second Treatise, Locke presents the no-harm obligation as the first element of the law of nature: "[N]o one ought to harm another in his Life, Health, Liberty, or Possessions." LOCKE, supra note 3, at 271. There is also a duty of self-preservation.
# In the First Treatise, Locke writes: But we know God hath not left one Man so to the Mercy of another, that he may starve him if he please . . . he has given his needy Brother a Right to the Surplusage of his Goods . . . so # Charity gives every Man a Title to so much out of another's Plenty, as will keep him from extreme want, where he has no means to subsist otherwise. LOCKEId., at 170
# See Supranote 3, at 294-95, 299-301
# John W. Yolton,Locke on the Law of Nature, 67Phil. Rev. 491 (1958).
# Morris Cohen,Property and Sovereignty, 13Cornell L.Q.8, 12 (1928)
# See Wendy J. Gordon,An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory,41 Stan. L. Rev. 1343, 1435-65 (1989)
# Supranote 3 at 288
# Jeremy Waldron, THE RIGHT TO PRIVATE PROPERTY, Oxford: Clarendon Press ,109-24 (1988)
# "[H]e wasted not the common stock; destroyed no part of the portion of the Goods that belonged to others, so long as nothing perished uselessly in his hands.” SeeSupranote 3 at 299-300
# Wendy J. Gordon,A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 Yale L.J. 1533, (1993)
# Supranote 24
# Robert Nozick, Anarchy, State, And Utopia,84–86, (New York: Basic Books, 1974)
# R.G Anand vs. M/S. Delux Films & Ors, 1979 SCR (1) 218
# Supranote 29, at 181-82
# Supranote 26
# Unlike patent and trademark law, which can prohibit the use of independently created, identical products, copyright law prohibits only those acts which involve substantial copying of the copyright owner’s work.SeeS.K # Dutt v. Law Book Co and Ors AIR 1954 All 570 Para 12 and ESPN Star Sports v. Global Broadcast News Ltd and Ors 2008 (36) PTC 492 (Del)R.G. Anand v. Dulux Films AIR 1978 SC 1627, para 46
# Supranote 26, at 32