something from the common and mix it with our labour, Locke said, we create an
object of property the boundaries of which depend on the extent of our labour and
the conveniences of life.
In their own determinationof those boundar ies the majority
judges di¡ered. ForWilles and Aston JJ literary propertycomprised the shallow right
to reprint an expression.
For Lord Mans¢eld it was more expansive: a right to protect
a published express ion, extending to a right of withdrawal, a right of integrity, and a
right to object to false attr ibution.
As a theory of copyright, Locke’s view of proper ty ¢nds little support among
While in one sense this is not surprising ^ since 1911 or earlier
copyright has derived exclusively from legislation
^ in another it is, for the the-
ory mapswell to contemporary cases.The reason is that while copyright atlaw is
a bundle of rights g rafted to certain expressive objects, it is ca st by the courts as
a duty of conscience not to reap from the skill and labour of authors.
4 John Locke,TwoTreatisesof Government(1690) ChapterV (‘OfProperty’) Section 36 (‘The measure
of property nature has well set by the extent of men’s labour and the conveniences of life . . .’).
5 n 1 above, 23 49; ibid, 226 (Willes J, describing literary property as ‘theright of the copy’);ibid,2342;
ibid, 222 (Aston J, describing literary property as ‘copy-right’).
6 n 1 above,2398^9; ibid, 252^3 (Lord Mans¢eld, de scribing literary property as the right‘toprotect
the copyafter publication’,derived fromthe natural right of an author (a) to‘[be] master of the use
of his own name’,‘co ntrol. . . the correctness of his own work’,‘prevent additions’,‘retract errors’,
and‘amend,or cancel a faulty edition’of his work (b) to ensure that others do not print, pirateand
perpetuate any imperfections, to the disgrace and against the will of the author’ or ‘propagate
sentiments under his name, which he disapproves, repents and is ashamed of’ and (c) generally
to reserve to him‘discretionas tothe manner in which,or the persons bywhom h is workshal l be
7 Compare the support it had among nineteenth century scholars and men of letters;an admittedly
extreme example being Charles Reade, who went so far as to describeYates J (for his views in
Millar vTa y l o r ) as a‘pettifogger’ and‘Satan’who had ‘founded a schoolof copyright sophists, rea-
soning a priori against a four-peaked mountain of evidence’: ‘I must undeceive mankind about
JudgeYates and his ¢tness to rule the Anglo-Saxon mind’ (Charles Reade, Readiana: Comments
on CurrentEvents (1883) Sixth Letter,171). For a recent scholarlyuse of Locke see B. G. Damstedt,
‘Limiting Locke:A Natural Law Justi¢cationfor the Fair Use Doctrine’ (2003)112 Yale LJ1179.
8 See Copyright Act 1911 (UK), s 31 (abrogating any literary property surviving DonaldsonvBeckett
(1774)2 Bro PC129,1 ER 837 (HL)).
9 See for example the frequency with whichcopyright infringement is described as plagiarism and
copyrightas protectingagainst the misappropriation of authorial labour and skill: John Richardson
rs vFlanders FSR 497 (Ch) (Ferris J, describing copyright infringers as plagiarists
and copyright as protecting labour and skill); IbcosComputers Ltd vBarclays  FSR 275(C h)
(JacobJ, suggesting as a good guide i n infringement enquiries the notionof an over-borrowingof
s skill, labour and judgement); HarmanPictures vOsborne  1 WLR 723 (Ch) 732
(Go¡ J, describing as ‘the true principle’ in infringement enquiries that ‘the defendant is not at
liberty to use or avail himself of the labour which the plainti¡ has been at for the purpose of
producing his work,that is, in fact, merely to take away the result of another man’s labour, or, in
other words, his property’ (quoting from a decision of Hall VCapproved by Lord Atkinson in
MacMillan & CoLtd vCo oper (1923)4 0 TLR186(PC)); Elanco ProductsLtd vMand ops FSR 46
(CA) (suggesting thatthe defendant ought to have sourced the informationfor its work from the
public domain rathertha n fromthe applicant’swork); Ravenscroft vHerbert and NewEnglish Library
LimitedRPC 193 (Brightman J,stating that a defendant must not appropriateto himself the
literary labours of an author); Designer’s Guild vRussellWilliamsTextiles Ltd [20 00] 1 W LR 2416
(HL) 2422,2422) (Lord Scott, describing as an underlying principle of copyrightlaw that a copier
is not at liberty to appropriatethe bene¢t of another’sski ll and labour); Baigent& L eighvRandom
House Group EWCACiv 247 (MummeryLJ, describing copyrighti nfringementas plagiar-
ism). Cf Navita ire veasyJet Airline Co  EWHC1725 at (Pumfrey J: ‘It is not su⁄cient to
say that the purpose of the act is to protectoriginal skil l and labour’).
An IntentionalView of the CopyrightWork
536 r2008 The Author. Journal Compilation r2008 The Modern Law ReviewLimited.
(2008) 71(4) 535^558