Natural Intellectual Property Rights and the Public Domain

AuthorHugh Breakey
Publication Date01 Mar 2010
Public Domain
Hugh Breakey
No naturalr ightstheory justi¢es strong intellectual property rights. More speci¢cally, no theory
within the entire domain of natural rights thinking ^ e ncompassingclassical liberalism, libertar-
ianism and left-libertarianism, in all their in numerable variants ^ coherently supportsstre ngth-
ening current intellectual property rights. Despite their many importa nt di¡erences, all these
natural rightstheories e ndorse somes etof members of a common family of basic ethicalprecepts.
These commitments include non-interference, fairness, non-wors ening,co nsistency, universali-
sability,prior consent, self-ownership, self-gover nance,and the establishme ntof zones of auton-
omy. Such commitments have clear applications pertaining to the use and ownership of created
ideas. I argue that each of these commitments require intellectual property rights to be substan-
tially limited in scope, strength and duration. Inthi sway the core mechanisms of natural rights
thinking ensure a robust public domain and categorically rule out strong intellectual property
If intellectual property rights are truly formed for a nonutilitarian purpose, asks
James Boyle pointedly, why should they expire?
Why indeed? Boyle’s rhetorical
question expresses a widespread sentiment in intellectual property commentary
and in the burgeoning literature on the public domain. Legal commentators, the-
orists and historians routinely characterise the ongoing legal controversy i n intel-
lectual property as being a contest between weak, utilitarian privileges, and
strong, natural property rights.
This characterisation is even starker in popular
discourse, where natural justice appears as a force perennially recommending a
Political Philosophyand TC Beirne School of Law, University of Queensland, Australia.Than ks to
Julian Lamonta ndRobert Burrell for invaluableinput and critique. I am gratefulalso to the editor and
the anonymous reviewersat the MLR for their helpful comments.
1 J. Boyle,ThePublic Domain:Enclosing theCommons of the Mind (New Have n:YaleUniversity,2008)
29. Note: my concern in this article is with all and only theories of natural rights (‘e ntitleme nt’
theories). I do note ngage with alternative justi¢cations for strong intellectual property rights as
might be made on the basis of, say, utility or e⁄ciency. By ‘intellectual property rights’ I refer
primarily to copyright,patent and designs law,though at times there maybe application to other
parts of intellectual property law, including trademark, the right of publicity, and plant protec-
tion acts.
2 See eg, P. Goldstein, Copyright’s Highway: FromGutenberg to theCelestialJukebox (NewYork: Hill &
Wang, 1994)11^17; B. Friedman,‘From Deontology to Dialogue:The Cultural Consequences of
Copyright’(1994^5)13 CardozoArts and Entertainment LawJournal157, 160;L. Pattersonand S. Lind-
berg,TheNature ofCopyright:A Law of Users’Rights (Athens, Ga:University of Georgia,1991)109^
110, 120, 141^152; Rehistory, see M. Rose, Authors and Owners:The Invention of Copyright (London:
Harvard Univers ity, 1993) 69^82; R. Deazley, On the Origin of theRight to Copy:Charting the Move-
mentof CopyrightLaw in Eighteenth-CenturyBritain(Oregon, USA: Hart, 2004) 42,140^143,158^16 4;
R. Deazley, Rethinking Copyright: History,Theory, Language (Cheltenham: E. Elgar Publishing,
2006) 31^39,49^55,64; see also the famous characterisation by SamuelJohnson in J.Boswell, Bos-
well’sLife of Johnson(Oxford: OUP, 1953) 546^547.
r2010The Author. Journal Compilationr2010 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2010)73(2) 208^239
shift just a little tothe right of where we are now ^ wherever ‘where we are now’
happens to be.
Yet there is a puzzle here. The overwhelming majority of natural rights treat-
ments of intellectual property in the last several decades have consistently called
for increased limitations on the scope, strength and duration of intellectual prop-
Why has this preponderance of opinion failed to persuade commentators,
lawyers and judges? The reason appears to be simply this: the natural rights rea-
sons for limitations on intellectual property can appear both controversial and
ambiguous. As a result, natural rights theories seem overly plastic, capable of
being manipulated, interpreted and construed in ways that can create all sorts of
diverse conclusions.
Worse, the project of limiting the claims of property can
seem an uphill battle in natural rights paradigms, as marginal aspects of natural
rights thought nee d tob e deployed against the strong, natural property rights that
hold default status.
These worries have a point. There is no conceptual necessity for a natural rights
theory to adopt, for instance, Locke’s spoilation proviso,
his social-utility consid-
his construal of labour,
his way of delineating the transformation of
natural property upon entry to civil society,
or even to accept the general nat-
ural-law constraints on the nature of owned objects.
Moreover, speci¢c interpre-
3 See, eg, the discussion in Boyle, n 1 above, 33^34 . Recent arguments in favour of the UK copy-
right term extension in sound recordings were thick with refrains of ‘fairness’,‘taking’,‘desert’ and
‘just reward’.
4 See authors referenced n 7^12 below. The shared template for most contemporary analyses of
natural i ntellectual property rights is J. Locke, Two Treatises of Government (NewYork: Hafner,
1947) esp Bk II ch 5.
5 R. Burrell and A. Coleman,CopyrightExceptions:The Digital Impact (New York: CUP,2005) 104;
Boyle n 1 above,261.
6 C. Craig, ‘Locke, Labour and Limiti ng the Author’s Right: A Warning against a Lockean
Approachto Copyright Law’ (2002^03)28 Queen’s LawJournal1, 55.
7 E. Hettinger,‘Justifying Intellectual Property’ (1989)18 Philosophyand Public A¡airs 31, 45; P. Dra-
hos, A Philosophy of IntellectualProperty(Hampshire: Ashgate,1996) 51.
8 J.Hughes,‘The Philosophy of Intellectual Property’ (1988^89) 77 GeorgetownLaw Journal 287, 319^
9ibid 301^311. Hughes inventively uses his notion of labour to justify the idea-expression distinc-
10 Friedman, n 2 above,162^167.
11 This move typically emphasises the non-rivalrous natureof ideas: their capacity to be used with-
out con£ict byeveryone. SeeT. Palmer, ‘Are Patentsa nd CopyrightsMorally Justi¢ed? The Philo-
sophy of Property Rights and Ideal Objects’ (1990) 13 Harvard Journalof Law and Public Policy 817,
855^861; J. Cahir,‘The Moral Preference for DRMOrdered Markets’ in Fiona Macmillan (ed),
NewDirectionsin CopyrightLaw (Chelten ham: Edward Elgar,2005) 24,43^44. Re limitations aris -
ing from the beginning of natural law in Greece and Rome:A. Ye n,‘Restoringthe Natural Law:
Copyright as Labor and Possession’(1990) 51Ohio State Law Journal 517, 522^524. Re later natural
law theorists such as Grotius and Pufendorf: H.Mitchell, TheIntellectual Commons:Towardan Ecol-
ogy ofIntellectual Property (Lanham, Md:Lexi ngtonBooks, 2005) chs 6, 8. Re Locke: G. Sreeniva-
san, The Limits of Lockean Rights in Property (NewYork: OUP, 1995) 99; R. Grant, John Lo ckes
Liberalism (Chicago: University of Chicago Press,1987)113. Similarly:T Je¡erson, ‘ThomasJe¡er-
son to Isaac McPherson’in A. Lipscomb and A. Bergh (eds),TheWritings ofThomas Je¡erson (1905)
Document 12, Article 1, y8, Clause 8; Marquis de Condorcet,‘Fragments concerning freedom of
the press’ (2002) 131Daed alus 57.
Hugh Breakey
r2010The Author. Journal Compilationr2010 The Modern Law ReviewLimited.
(2010)73(2) 208^239
tations of natural rights thi nkers, nomatte rhow attractive,
alwaysleave open the
possibility that perhaps a slightlydi¡erent yet cognate interpretation ^ emphasis-
ing some parts of the theory at the expense of others ^ would yield quite di¡erent
conclusions. Bolstering this concern is the presence of at least some natural rights
thinkers ^ including Lysander Spooner and Adam Moore ^ o¡ering arguments
for stronger intel lectual property rights.
Given these concerns it seems reasonable to suppose there is at leastone star in
the constel lation of existing natural rights theories justifying strong intellectual
property rights. I argue there is no such star.The prohibition against strong intel-
lectual property rights arises from the most basic machinery of an entitlement
regime as it applies to ideas.The result is secured by the very ¢rst questions that
natural rights theories of all ilks will immediately put to any proposed right: Is it
universalisable? Does it worsen the prior position of others? Is it consistent with
others’ rights? Does it grant powers to impose new duties without prior consent?
Can such duties be imposed across property boundaries? Do they interfere with
the basic natural rights reasons for having property i nthe ¢rst place? These ques-
tions re£ect foundational parts of natural rights perspectives and they inevitably
shape intellectual property rights just as they shape all other natural rights.
Together they provide the most straightforward answer imaginable to Boyle’s
challenge: Why are natural intellectu al property rights limi ted? Becauseother people
haverights too. Doubtless natural rights theories place the individual front and cen-
tre. But that is not the same thi ngas saying they place the author front and centre.
A natural rights theory focus ed primarily on the rights of authors is as no nsensical
an intellectual construct as a utilitarian theory that counted primarily the happi-
ness of £orists.
Since my intent is not to show that some speci¢c natural rights theory man-
dates a robust public domain, I largely eschew discussion of the various particular
justi¢cations (labour,
and so on) that might be put forwardfor nat-
ural intellectual property rights. Rather, I argue that a robust public domain can
be secured byconsiderations that applyto the nature of natural rights as such.Such
taproot commitments include consistency in application, non-interference, fair-
ness, non-worsening, universalisability, prior consent, self-governance, and the
establishment of zones of autonomy.
To be sure, not all natural rights theories
accept every one of this family of ethical precepts and conditions,
but they all
12 The class ic example remainsW. Gordon,‘A Property Right in Self-Expression:Equality and Indi-
vidualism in the Natural Law of Intellectual Property’(1992^93)102 Yale LawJournal1533.
13 L. Spooner,TheLaw ofIntellectualProperty(Boston: Bela Marsh,1855); A. Moore, Intellectual Property
and Information Control: Philosophic Foundations and ContemporaryIssues (New Brunswick:Transac-
tion Publishers, 2001).
14 I discuss a key labour-basedargument at text to n 36^37 below.
15 Though see n 17below.
16 For explanation of each of these natural rights commitments and their relationship to the public
domain, see, severally: non-interference: text to n 38^41, 69, 101, 125; fairness: text to n 68; non-
worsening: text to n 69, 73^76,91; consistency of application:text from n 42; robust universalisa-
bility: text from n 66; prior consent: text to n 95; self-governance: text to n 44^45, 71;
self-ownership: text to n 44^45, 96, 117^124; zones of autonomy (private property rights): their
structure: text to n 93^116; their natural rightsjusti¢cations: text to n 89^92.
17 Since below I refer to labour-based arguments in particular, and Lockean perspectives in general,
it is worth illustrating the ways these several large-scale conditions appear in arguments for nat-
Natural Intellectual PropertyRights and the Public Domain
210 r2010 The Author. Journal Compilation r2010The Modern Law ReviewLimited.
(2010) 73(2) 208^239

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