Writing for the Library of Law & Liberty, George Mason University Professor of Law Adam Mossoff presents a Lockean theory of intellectual property.
In this article, Mossoff draws on John Locke’s “moral theory” of property rights to explain and justify modern intellectual property rights. He writes:
Today, the dominant justification for intellectual property (IP) rights is a broadly framed utilitarian theory. But this was not always the case, and nor should it be. Both utilitarian and labor-desert theories offer robust normative justifications for IP rights, and historically they were both called upon by courts and commentators.
Unfortunately, widespread misunderstanding about labor-desert theories abounds today, especially in IP scholarship (see here and here). This essay thus details how a moral theory that justifies the right to property according to productive, value-creating labor equally justifies IP rights as property rights. This is John Locke’s property theory, and while his property theory is not the only labor-desert theory, for ease of reference, I shall refer to it as the “Lockean theory.”
Of course, in a short essay, one cannot explicate every premise or respond to every reasonable counterpoint deserving of a response, and thus what follows is only an outline of the Lockean justification for IP rights. It will also detail how this theory guides the design and application of the legal rules and institutions charged with the protection of IP rights in civil society, just as it did historically (see, for example, here, here, and here), despite incorrect claims to the contrary.
For the full article, see here.