The Lockean Justification For Copyright: An Argument Against

Harrison Ainsworth
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Here is perhaps the key expression of the ‘natural rights’ argument for copyright:

“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. The labour of his body, and the work of his hands, we may say, are properly his. 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 hath 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”

– Locke; ‘Two Treatises Of Government’; Book 2, Chapter 5 ‘Of Property’, Section 27.

This idea – we could call it ‘right to the fruits of labour’ – is at the root of an intrinsic moral argument for copyright. But on examination it appears inadequate to support that, and can be shown to be a morally inferior rule.

1600 words (10 minutes).



Lockean copyright only establishes attribution
The Lockean argument as adapted to copyright really only establishes one thing: attribution. It ‘attaches’ an abstract object to a person – the creator of it.
Attribution alone is insufficient
But attribution alone is insufficient to justify a rule or right. What counts is not merely who is acting, but the substance of the act – particularly how it affects other people.


Moral rules require universalisation
A moral rule is justified not simply for an individual, but as something that works for everyone.
Moral inquiry seeks essential knowledge
A moral inquiry wants to establish understanding about the matter in itself, that applies generally.
Moral evaluation rests on the real world
Moral propositions are evaluated ultimately on their real-world substance – real effects weigh heaviest.


Copying is a beneficial abundance
If I have something good, and you copy it, now you have something good too. And if I copy your things as well, we both have twice as much as before, and at no cost to either. That is an abundance, and a beneficial one.
Copying-restriction falls short morally

Copyright enables copies to pay for production. But there is nothing essential in this. Production can be supported in other ways.

Copyright benefits the ‘owner’. But this is not a universalised justification. Copyright also restricts other people.

Copyright, one might say, protects the ‘dignity’ of the author. But there is little real-world weight in this. The author's offense is imaginary or by convention, yet the benefit of copying is direct and substantial.

Copying-freedom is preferable
Considering the essentials of copying, and its substantial benefit, as a universal rule, allowing freedom of copying is superior morally.


The whole matter can be summed-up in a single question:

Why impose a restriction on a beneficial abundance? (where there is no need and no gain)

It seems impossible for a ‘natural rights’ position to give a satisfactory answer.


Authorship alone is insufficient

The problem starts with: what does ‘right to the fruits of labour’ mean? Does it mean the author should be paid for, and control, every conceivable use, consequence, and ramification of that labour? Should the author be paid whatever high sum they ask for every time anyone thinks of the product? Or be able to demand whatever strict control over whether anyone can even think about it at all? That should surely be absurd. But then why is that absurd and not other lesser rights? How are the limits set to what rights the author should be given?

The limit or character of rights implicitly assumed are those of the copyright system we have. But this cannot lead to a justification. Are not these copyright rights what is supposed to be justified by the ‘fruits of labour’ idea? It is circular.

Then it might be replied that the payment for copies stands in for or ‘represents’ the original labour. But again, this just points back to the author, without explaining the problem. The author and their labour is not in question. It is that ‘representation’, that structure added on that has not been justified.

It is said that someone owns the fruit of their intellectual labour as much if not more than any other property. This claim attempts to work by a subtle equivocation on the word ‘own’. Certainly that product is attributable to the author – the author owns it in that sense, but the implication of property-like restrictions does not automatically follow.

The answer is that there is nothing in authorship itself sufficient to justify any of these rights. Who acts, and how, is incomplete without what is done. A right to a kind of act depends on the substance of that act, not merely on its primary participant.

Copyright is not ‘labour-desert’

Even if authorship alone were in general sufficient, it seems to fail specifically in the case of copyright.

With no copyright, an author is still completely able to sell their labour. There is nothing in abstract goods that prevents that. You can make a deal, write something, and the buyer pays for the eventual product. It is only that without copyright it is not so easy to sell your labour, by means of copies, multiple times. But why should you be able to do that anyway? Why should you have that special privilege?

Is the possibility that the labour's result can exist in multiple copies due to the author? Where in authorship is it that makes the work copyable? Is it a special skill that is learned, or an extra effort expended? No. It is simply the way reality is. Information is copyable. So it is hardly ‘just desert’ that the author be paid specially for copyable labour. Every payment for a copy looks like a payment unearned.

An author does some work to produce a product. Their just desert is to be paid for that labour, and no more, and to be granted normal rights, and no more – just as anyone else.

Copy-restriction is inferior morally

Here is the last part of the first quote above, which often goes unmentioned:

“. . . , at least where there is enough, and as good, left in common for others.”

– Locke; ‘Two Treatises Of Government’; Book 2, Chapter 5 ‘Of Property’, Section 27.

We may grant any special privileges and call them rights, but that does not explain why we should. It may be a rule, but that does not make it a moral rule. A moral rule is not simply about you but about how it affects others too – how it works in general, as a system. This is a moral question, and so we must evaluate whether it conforms to a moral criterion.

To assess a rule's morality we must see how it universalises: so instead of thinking of the fruits-of-labour-payment-for-copies as being for you, consider if it were active for everyone. As well as you being paid for all your copies, you are also paying everyone else for all their copies. As well as you suing to stop others copying you, you are also being sued by others to stop you from copying. Everyone is charging for and/or preventing everyone else from copying.

It is suddenly not so attractive, but seems at least fair enough: like the restrictions we accept for material property. But we probably have some sense that it is not all we could hope for. That is because abstract goods have an essential difference: their copyability is naturally unlimited. There is an abundance that we are not realising.

There is no necessity that an author's labour actually be paid by copies. Abstractness does not remove the normal pay-for-labour possibility, but adds copyability as an extra. It is perfectly possible to be paid a single amount for that single amount of labour. And if that were done, everyone would be compensated, yet on top of that all would gain the freedom to copy and use as much as desired. That is certainly a benefit worth having, and it is available simply by choosing a different arrangement of paying for the labour.

We can still fully respect authorship – both in attribution and labour – but we can also fully realise the special possibilities and benefits that the abstract-instance relation provides. This is surely what we would will.

We should, where possible, enjoy the fruits of each others labour

The moral ideal is that we pay for the labour to create, and allow free copying of that creation. That is the form of system we would most want to have, based on the essentials of the phenomena, of abstract goods. To all gain from each other, at practically no cost, is a paradigm of morality. Of course, it might be that in particular circumstances we cannot arrange for that, and choose something else. But that would not be our wish, but rather a contingent constraint imposed upon us against our real choice.



   title:`The Lockean Justification For Copyright: An Argument Against`
   creator:`Harrison Ainsworth`


   description:`This idea -- we could call it 'right to the fruits of labour' -- is at the root of an intrinsic moral argument for copyright. But on examination it appears inadequate to support that, and is a morally inferior rule.`
   subject:`IP, copyright, anti-IP, anti-copyright, ethics, morality, Locke`

   rights:`Creative Commons BY-SA 3.0 License`