One of the issues, that’s most interested me so far in the Ethics and Technology class I’m teaching is how someone comes to own intellectual property.
The traditional Lockean view about how someone comes to own physical property is roughly that by mixing your labor with a previously unowned resource gives you ownership rights over that thing. There are a number of puzzles and problems with how this works, but I think a lot people find it intuitive that some kind of special rights come into play when someone is the first person to mix their labor, even people (like me) who think there should be some restrictions on what the person is entitled to do with that resource.
It’s difficult to apply this reasoning to intellectual property, yet a number of philosophers have tried to do this. The problem is that intellectual property is not a physical object of the sort that the above Lockean reasoning most clearly applies to. What we typically think you have rights to when you write a novel, is not just the physical objects you mixed your labor with. Assuming that novels express abstract propositions, we think you have rights to the manner in which those abstract propositions are expressed. But how do you get ownership rights on abstract entities? You don’t mix your labor with abstract entities at all?
I’ve been trying to come up with an account that is Lockean in spirit, and I think there is a way to do this by thinking about intellectual property in terms of discovery rather than creation.
However, we flesh out Locke’s mixing-labor theory it should account for how people can come to have rights over physical objects they discover that they have yet to mix their labor with. If a Bob is digging for gold and unearths some gold, but has not yet mixed his labor with the gold, intuitively he has some rights to that gold.
Where philosophy of art, metaphysics, and philosophy of language intersect there are interesting issues about the ontology of fiction and interesting questions about what works of fiction are. One popular view is that works of fiction are sets of abstract propositions. But you don’t create abstract sets of propositions. If you don’t create abstract sets of propositions, then it seems odd to say that artists and writer’s create works of fiction. They create things that semantically express fictions, but strictly speaking they don’t create the works of fiction themselves. A popular way to deal with this worry is to embrace the idea that author’s don’t create fiction, rather they discover them. Works of fiction are discovered via the creative process.
With this view about fiction/artwork we can say something plausible about how ownership rights might apply to abstract entities. Artists don’t mix their labor directly with the abstract entitites, but they do set out to discover them. They also invest time, effort, and resources in that discovery process, much like a prospector invests time, effort, and resources searching for gold. Once the prospector finds it, even if she hasn’t yet come into physical contact with it, she has some claim on it.