Labor as the Basis for Intellectual Property Rights

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  • Labor as the Basis for Intellectual Property Rights

    Bryan Cwik

    Accepted: 16 September 2013# Springer Science+Business Media Dordrecht 2013

    Abstract In debates about the moral foundations of intellectual property, one very popularstrand concerns the role of labor as a moral basis for intellectual property rights. This idea has agreat deal of intuitive plausibility; but is there a way to make it philosophically precise? That is,does labor provide strong reasons to grant intellectual property rights to intellectual laborers? Inthis paper, I argue that the answer to that question is yes. I offer a new view, different fromexisting labor theories of intellectual property, which I call the productive capacities view. Thisview gives us a way to make sense of the idea of labor as the basis for intellectual propertyrights, as well as a tool for critically evaluating existing intellectual property institutions.

    Keywords Property . Intellectual property . Patent . Copyright . Labor

    1 Introduction

    In debates about the moral foundations of intellectual property (IP), one very popular strandconcerns the role of labor as a possible basis for intellectual property rights (IPRs).1 There is agreat deal of intuitive appeal to this idea. It seems (emphasis on seems), for instance, that anyonewho is responsible, through his or her labor, for adding value should capture (at least a share of)that value. Property rights ensure that I benefit from my labors, and that, to paraphrase Locke,those that desired the benefit of anothers Pains are forbidden from actions that prevent myenjoyment of those benefits (Locke 1988: 291). IP seems to do the same; since the products ofintellectual labor are so easy to access, copy, and use without consent, IPRs seem necessary tosecure the benefits of those products for their creators. If I write a good novel or song, isolate auseful organic compound, or create a new drug or a new machine, I should be entitled to the

    Ethic Theory Moral PracDOI 10.1007/s10677-013-9471-y

    1These kinds of Lockean considerations are often cited in the legal literature on IP (for examples, seeGordon1993; Yen 1990; andMerges 2011), and are widely discussed in the philosophical literature as well (see Fisher 2001;Hughes 1988; Palmer 1990; Shiffrin 2001, 2007; Moore 1997; Wilson 2009; and Mossoff 2012). The US SupremeCourt has even cited considerations about labor. For example, in Ruckleshaus v.Monsanto, 467 US 986 (1984), 10021003: This general perception of trade secrets as property is consonant with a notion of property that extends beyondland and tangible goods and includes the products of an individuals labour and invention.

    B. Cwik (*)Rock Ethics Institute, Pennsylvania State University, 206 Sparks Building, University Park,PA 16802, USAe-mail:

  • benefits derived from it, and should be protected from expropriation by governments or freeriders. What holds for land and material objects should hold, mutatis mutandis, for novels,movies, songs, drugs, and machines.

    Is there a way to make sense of the notion that labor is a sound basis for IPRs? Can thekinds of considerations about labor that are used to argue for old-fashioned property rights inland and material objects apply to IP as well? In this paper, I will argue that the answer toboth questions is yes. I will present and defend a new view, distinct from existing labortheories of IP, which I will call the productive capacities view, which can make sense oflabor as a basis for intellectual property rights. In the next section, I will cover somepreliminaries, talk a little about what it means for something like labor to be the basisfor IPRs, and then examine some other labor theories of IP in section 3. I will present myown, new view in sections 4 and 5, and argue in section 6 that it provides a strong argumentfor IPRs.

    A caveat: though the arguments for IPRs I consider here are broadly Lockean, in thatthey depend on considerations about labor and the connection between labor and propertythat are in the Lockean tradition, I do not discuss or offer a full-blown Lockean theory of IP,for two reasons. First, such a view would have to bring in the full apparatus of Lockestheory, including discussion of the famous provisos against over-appropriation and spoilage,and it would have to discuss the well-known objections to a distinctly Lockean theory of IP.2

    Second, as I will detail in section 2, there are important differences between the kind of viewI offer here and a Lockean theory of IP. Here I restrict myself to discussing the positive casefor IPRs, on the basis of intellectual labor. The goal is to give an argument for IPRs on thebasis of labor, not to give a full-blown Lockean theory of IP.

    2 What Does a Labor Theory Have to Show?

    There are a number of different legal institutions that are collected under the term intellec-tual property right. In general, we can think of an IPR as an exclusive, transferable right touses of things such as literary and artistic creations, architectural works, inventions, formu-las, designs, and symbols. For ease, I will use the term ideas for all these items. DifferentIPRs give holders different privileges; for instance, the holder of a copyright has exclusiveprivilege to reproduce the copyrighted work in copies or phonorecords.3 What privilegesare given vary; copyright gives holders a different set of privileges than patents, andcopyrights in different countries will have different conditions, be subject to differentlimitations, and so on. The basic idea, however, remains the same: an IPR is an exclusive,transferable right to uses of the subject of the IPR (that is, ideas).4

    What I mean by a labor theory is any view in which labor is either the sole or thedominant moral basis for property. The moral bases of property are, according to LawrenceBecker, a set of facts about the human condition: facts about human needs, propensities,and behavior from which (together with judgments about values, duties, and virtues) moralarguments for and against property rights can be built up (Becker 1980: 188). Becker makesa distinction between, on the one hand, the moral basis of property, and moral arguments forproperty. There are multiple arguments for property that can be made on the basis of labor:

    2 For these objections and difficulties, see Shiffrin 2001; Hettinger 1989; Wilson 2009; and Hughes 1988.3 17 U.S.C. 106.4 What I say in this paper applies more readily to copyright and patent than it does to trade secrets andtrademarks (one obvious wrinkle is that trade secrets are not transferable).

    B. Cwik

  • labor-mixing arguments, arguments from self-ownership, and desert-for-labor arguments, toname a few.5

    Any labor theory has to solve two problems, in order to justify property. First, any labortheory has to explain exactly what it is that is special about labor, which makes it the basis for aclaim to property. Call this the distinctiveness problem. One way to state the distinctivenessproblem is Robert Nozicks famous remark about pouring tomato juice into the sea (Nozick1977). Lockean-style labor-mixing arguments hold that labor justifies property because, inlaboring, I mix something I have a right over (my labor) with something I dont (items I laboron). In order to respect my rights over my labor, we have to recognize rights over those items.Nozicks remark, that laboringmaywell just be a way to lose these rights (over my labor), ratherthan gain rights over what I labor on (in the sameway that pouring tomato juice into the ocean isa way to lose rights over the tomato juice, not gain rights to the ocean), is a challenge to the ideathat mixing what I have a right to with what I dont is what is distinctive about labor.

    Second, a labor theory has to explain why it is property rights, as opposed to somethingelse, creators and inventors are entitled to. To see this, consider a desert-for-labor argumentfor IPRs.6 On such a view, laborers deserve benefit from the creation of some work, becauseit was their labor that brought it about. Labor justifies property rights because grantingproperty rights ensures that creators and inventors can secure a set of benefits that theydeserve. Supposing that laborers do deserve some benefit on the basis of their labor, why is itthe particular benefits secured by property rights that they deserve? Why not, as Becker(1993) argues, offer prizes, or build statues, or give tax rebates, to those who bring aboutsomething of value? Why is it the benefits that come from property rights, and not prizemoney, statues, or passes to the front of the line at the DMV, that are called for?

    In short, the idea that labor establishes a desert claim is not sufficient justification for propertyrights, because (a) its not clear why it is the particular benefits that are generated by propertyrights, and not some other set of benefits, that are deserved, and (b) for any benefit named therelikely is a plausible alternative mechanism for providing that benefit other than a property right. If,for instance, we hold that laborers deserve financial reward for their work, we could alwaysprovide that financial reward in the form of tax breaks, prize money, or government stipends,instead of granting property rights to secure it. Call this the underdetermination problem.7

    3 Some Existing Labor Theories of Intellectual Property

    Existing labor theories of IP deal with these two problems in different ways. One strategy isto give a Lockean style labor-mixing argument for IP. Gordon (1993), Yen (1990), and Child

    5 There are a lot of questions that can (and should) be asked about this way of individuating labor theories ofproperty. For example, we need to give an account of what it would mean for labor to be the dominant moralbasis for property, in a view that cites multiple moral bases,


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