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.
In the gold case, Bob mixed his labor with the land by creating a gold mine (even if the mine is not very deep).
More fundamentally, why should we think that a successful theory of property should cover the case of ‘intellectual property’ at all? Despite the content-holders’ propaganda campaigns, it seems just radically implausible to me that copyright and patent rights are genuine forms of property similar to tangible property. The cases are not even a little bit similar. That’s not to say that copyright and patent protections are not good public policy, but it seems that the moral status of the two are not at all the same. What makes Locke’s theory plausible/intuitive is that, even in a state of nature, ‘I’m using that right now’ seems like a good reason for you not to take it (whatever it is) away from me, but, as Locke argues explicitly, we wouldn’t be able to make the kinds of plans we need to make in order to survive if I only counted as ‘using’ things I was currently physically holding onto. But when you use my idea, you don’t take away from me anything that I’m using. Furthermore, the concept of copyright dates only to the 17th century and, according to google ngrams, the phrase ‘intellectual property’ only really started to gain currency in English in the 1980s! By contrast, nearly every culture has, from prehistory, had some conception of property rights over tangible things (though there are differences from culture to culture about what sorts of tangible things can be owned).
In the gold case, I was trying to set it up so that you did mix labor with something, but not with the thing you intuitively come to have ownership of. Then we need an account as to why you have ownership of this thing that you didn’t mix labor with. My thought was that what would explain the intuitive ownership right would be something along the lines of discovery.
Here’s a rationale for the labor-mixing idea: When I mix my labor with a previously unowned resource, thus producing a product, the resultant product contains something of mine. In particular, it contains my labor. And that’s *my* labor, dang it. Mine! But–oops!–my labor can’t be separated out from the product. So, the only alternatives, apparently, are for me to get to keep the whole product (and thus lay claim to the previously unowned resource, as well as my labor) or to give up the whole product (and thus lose both my labor and the previously unowned resource). And the Lockean can argue that the lesser evil is (always?) to keep the whole product.
But it seems to me that that kind of rationale won’t work for discovery (whether of something abstract or something concrete). Bob’s discovery of the gold doesn’t (yet) involve Bob’s mixing his labor with the gold (as you seem to grant).
David, that’s interesting. I always assumed that anyone appealing to Lockean-style mixed-labor theories must have some way to account for acquiring property that you don’t literally mix your labor with. Intuitively, we can do this right? Suppose I build a fence around a small plot of land, and then build a house on that land. I do this without ever technically setting foot on what will soon be my front year. I think I have some right to the half-acre of land between the fence and my front door, I’m sure Locke would think so too. But I haven’t even set foot on that piece of land.