2 Lockean Property and Literary Works

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Legal Theory, 14 (2008), 257280. Printed in the United States of AmericaC 2008 Cambridge University Press 0361-6843/08 $15.00 + 00

doi:10.1017/S1352325208080129

LOCKEAN PROPERTY AND

LITERARY WORKS

Jonathan Peterson

Department of Philosophy, University of Toronto

This paper develops a Lockean account of literary property. Seana Shiffrin has recentlyargued, on the basis of an egalitarian interpretation of Lockes theory of property, that

the Lockean view does not justify property rights in intellectual works. I argue thatShiffrin fails to take an important strand of Lockes view into account, namely, theview that makers have rights to what they have made. If this aspect of Lockes viewis given its proper place, a plausible Lockean account of property in literary workscan be developed. This account of literary property places us in a better position toappreciate both the strengths and weaknesses of the Lockean theory of intellectualproperty.

Labor gives a man a natural right of property in that which he produces:

literary compositions are the effect of labor; authors have therefore a naturalright of property in their works.

In this various world, different men are born to different fortunes: one inheritsa portion of land; he cultivates it with care, it produces him corn and fruitsand wool: another possesses a fruitful mind, teeming with ideas of every kind;he bestows his labor in cultivating that; the produce is reason, sentiment,philosophy. It seems but equitable, that a fair exchange should be made ofthese goods; and that one man should live by the labor of his brain, as well asanother by the sweat of his brow.1

It is an important aspect of our cultural life that we think of literary works andworks of art on the model of property. The goal of this paper is to explorethe grounds for thinking of objects of this sort as property. The questionof property in a work of art or literary work would be straightforward if itwere simply the question of property in the physical materials out of whichthe work is made or that serve as its medium (the paper and ink of the

I am indebted to Colin MacLeod, Arthur Ripstein, Gopal Sreenivasan, and Sergio Tenen-

baum for discussion and comments on drafts of this paper. Earlier versions of this paper werepresented at the University of Toronto Workshop in Ethics and Political Philosophy and at theCanadian Philosophical Association Annual Congress in Toronto. I would also like to thankthe editors ofLegal Theory, Professor Matt Zwolinski and an anonymous referee for valuablecomments on this paper.

1. WILLIAMENFIELD, OBSERVATIONS ONLITERARYPROPERTY(1774), at 2122. Facsimile in THELITERARYPROPERTYDEBATE: EIGHTTRACTS, 17741775 (Garland Publishing, 1974).

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258 JONATHAN PETERSON

manuscript, the paint and canvas that are the materials of the painting).In that sense, literary and artistic works do not raise any special problemsof property. If material objects can belong to persons, then these objectscan belong to persons. The question that this paper addresses is, rather, aquestion about property in the work or expression that the artist or authorhas created. My subject is roughly the sorts of objects that are at issue in thetheory of copyright, but here I will focus in particular on literary works. Iwant to consider whether literary works admit of being property.

According to A. John Simmons, there is a widespread intuition that la-boring on something gives one a special claim to it.2 It might be intuitive injust the way that Simmons suggests that authorship of a literary work or cre-ation of a work of art grounds a property right in that work. But authorshipneed not be understood in proprietary terms. As Mark Rose points out, theidea that the relation between author and work is proprietary marked animportant historical development in the understanding of authorship andof literary works.3 In this process of historical development, John Lockestheory of property played a central role. Lockes account of property hadan important influence in the legal and cultural debates that contributed tothe development of the modern understanding of authorship. His accountof private rights to land and physical objects was applied to literary works bythose interested in defending a natural property right in literary works andin identifying the author as the bearer of this right.4 Lockean argumentssupporting the view that literary works can and should be understood ona proprietary model have also been defended in the recent literature oncopyright.5 The main task of this paper is to investigate how far a Lockeanaccount of property in literary works can be defended.

The application of a Lockean account of private property to intellectualworks has recently been challenged by Seana Shiffrin. Shiffrin argues thatthere are reasons stemming from the egalitarian motivation of Lockestheory to deny natural property rights in intellectual works. According toShiffrin, the Lockean idea of an original common establishes a background

2. A. JOHNSIMMONS, THELOCKEANTHEORY OFRIGHTS(1992), at 223.3. Mark Rose,The Author as Proprietor: Donaldson V. Becket and the Genealogy of Modern Author-

ship, inOF AUTHORS AND ORIGINS: ESSAYS ONCOPYRIGHT LAW2356 (Brad Sherman & AlainStrowell eds., 1994), at 29. Martha Woodmansee makes a similar point regarding the historicaldevelopment of ideas of authorship in Germany. SeeM. WOODMANSEE, THEAUTHOR, ART ANDTHEMARKET(1994), at 42, 4955. For another view of the development of copyright,seeBRADSHERMAN& LIONELBENTLEY, THEMAKING OFMODERNINTELLECTUALPROPERTYLAW: THEBRITISHEXPERIENCE, 17601911 (1999).

4. Rose,supranote 3, at 2355, provides an account of these developments.

5. For a sympathetic but critical reading, seeEdwin C. Hettinger,Justifying Intellectual Property,19 PHIL. & PUB. AFF. 3152 (1989). For a proviso-based defense, seeAdam D. Moore,A LockeanTheory of Intellectual Property, 21 HAMLINEL. REV. 65108 (19971998). Lockean accounts ofthe foundations of intellectual property law are also defended by Justin Hughes and WendyGordon.SeeJustin Hughes, The Philosophy of Intellectual Property, 77 GEO. L.J. 287366 (19881989); and Wendy G. Gordon,A Property Right in Self-Expression: Equality and Individualism in theNatural Law of Intellectual Property, 102 YALEL.J. 15331609 (19921993).



Lockean Property and Literary Works 259

presumption of common property that expresses the equality of persons.6

On Shiffrins version of Lockean theory, private property in an object ortype of objects is justified if exclusive use of that object or type of objects

is required for the full exploitation of such objects for human benefit.This Lockean account does not justify private property in intellectual workssimply because exclusive private possession of such objects is not requiredfor their full exploitation. Thus they should remain in common. I will tryto show that Shiffrins argument pays insufficient attention to the moralfoundations of Lockes account of common and private property. If we payattention to these foundations, a case for property rights in literary works canbe developed on Lockes own terms and consistently with Lockes egalitarianmotivations.

The bulk of the paper is dedicated to developing this case for Lockeanproperty. I begin, in Section I, by reviewing the general outlines of Lockestheory of property. In Section II, I explain Shiffrins reasons for rejectingnatural property rights in intellectual works. I raise a number of objectionsto Shiffrins interpretation in Section III. In Sections IV and V, I turn tothe positive Lockean account of property rights in literary works. Finally, inSection VI, I indicate what I take to be the best objection to the Lockeanview. The crux of this objection is that the Lockean view cannot explain thedistinctive limits on literary property rights that our intuitions support. This

formulation of the objection captures the intuitive problem with Lockeanliterary property more accurately than Shiffrins account does. The goal ofthis paper is thus to allow us to see more clearly both what the Lockean viewgets right and what it gets wrong in thinking about private rights in literaryworks.

I. LOCKES THEORY OF PROPERTY

At the beginning of his discussion of property in Chapter Five of theSecond

Treatise, Locke claims that his project is to show how Men might come tohave apropertyin several parts of that which God gave to Mankind in com-mon, and that without any express consent of all the Commoners.7 As iswell known, Locke begins from the idea of an original right in commonwith all others. Locke argues that the original common right is establishedby God, who grants the earth to mankind to be used for human preserva-tion. This gift of the earth to humans can be known on the basis of the lawof nature. The fundamental law of nature (itself rooted in considerationsabout Gods purpose for creation) is the preservation of mankind. From

this it follows that persons have a duty of self-preservation and a further

6. Seana Valentine Shiffrin, Lockean Arguments for Private Intellectual Property, inNEWESSAYSIN THELEGAL ANDPOLITICALTHEORY OFPROPERTY138167 (Stephen R. Munzer ed., 2001).

7. JOHNLOCKE, TWOTREATISES OFGOVERNMENT(Cambridge University Press, Peter Lasletted., 1960), at 286.




duty to preserve others. On the basis of this duty, all persons equally possessa right to self-preservation. Since the right to self-preservation is a right tothe means of self-preservation and since the means of self-preservation liein the earth, each person has the right to those means in common withothers. The common ownership of the earth is thus derived from the fun-damental law of nature through the fact that it (the earth) can serve as ameans of self-preservation.

If we begin with original common ownership, then, as Locke points out,there appears to be a problem in explaining how individual property rightscould ever be justified. Exclusive property rights in parts of the commonseem to violate the rights of others who also have a right to the common.As many commentators point out, the problem is to show not merely thatexclusive rights are possible but that they are possible without obtaining theconsent of everyone. Locke solves this consent problem by bringing togetherseveral considerations. He aims first to show that appropriation out of thecommon without universal consent must be possible and then to explainthe way in which appropriation may take place without violating the rights(or legitimate claims) of others. In answering this second question, Lockedevelops several natural-law background constraints on appropriation thatserve to make acts of appropriation consistent with the rights of others.Within the scope of these constraints, one can appropriate particular objectsfrom the common by laboring on it.

Locke shows that appropriation must be possible by drawing out theimplications of the law of nature and the purpose of the common grant.The purpose of the common grant is self-preservation and human benefit.If universal consent were required for appropriation, the earth would notbe used in the way that God intended and that the natural law licenses.If such a consent as that was necessary, Man had starved, notwithstandingthe Plenty God had given him.8 It follows that universal consent cannot bea necessary condition of appropriation. Locke appears to hold that it is astraightforward implication of these considerations that appropriation outof the common is possible. His argument depends on the idea that sincethe fruits of the earth are intended for human benefit, there must be a wayfor particular persons to appropriate them in order to benefit from them:there must of necessity be a means to appropriate them some way or otherbefore they can be of any use, or at all beneficial to any particular Man.9

Locke seems simply to assume that in order to benefit from a particularpart of the common, I must be able to exclude others from it. As manycommentators have noticed, this claim does not hold in all cases, since forsome objects, the power to exclude others is not a condition of beneficialuse. It is not clear whether Locke recognizes this and whether he would

8. Id.at II.28.9. Id. at II.26.




have limited the scope of his claims about the possibility of appropriationin accordance with it.

Given that appropriation out of the common without universal consentmust be possible, Locke argues that appropriation can take place withoutviolating the rights or legitimate claims of others if the act of appropriationsatisfies certain background constraints. There are two basic limitations onthe power to appropriate in the Lockean theory. The foremost of these isthe enough and as good condition or proviso. According to the proviso,an act of acquisition can be justified in the absence of universal consent if itleaves enough and as good for others.10 I assume here that in the absenceof universal consent, the proviso is a necessary condition of the legitimacyof particular acts of acquisition.11

When we come to consider literary works, the question arises whether theproviso applies in this domain as well. It might be thought that the provisoapplies in the case of property in literary works just as well as in the caseof private property in land. But as shown below, this is not obvious. If thejustification for property in literary works does not derive from their rolein self-preservation, then a proviso may not be needed. Even if the provisodoes apply in the case of literary works, it may impose only a very weakconstraint on appropriation. The proviso gets most of its practical bite inthe case of land from the fact that land is a scarce resource. If scarcity doesnot apply in the case of literary works, then even if the proviso applies, it willhave much less effect in constraining the space of possible appropriation.12

10. Id.at II.27, 33.11. Adam Moore defends an account on which the proviso is a sufficient condition of

acquisition for intellectual works. This is based on the idea that acquisitions that satisfy theproviso are Pareto improvements. SeeMoore, supranote 5, at 7884. But a view that justifiesacquisition of intellectual works solely on the grounds that appropriation of the work is aPareto improvement is bound to be unsuccessful because it cannot forestall further Paretoimprovements. If we grant that production of a literary work makes the creator better off

without worsening the position of others (with respect to whatever baseline we choose), does

that give us a case for the right to exclude? We have to say one of two things here: (1) Makingthe work available to everyone does not leave the creator worse off and does make othersbetter off, so we ought to make it available to everyone. (2) If the case can be made thatmaking the work common does leave the creator worse off, so that she would be a loser whileothers gain, then there is presumably some level of compensation for the creator that wouldmake it efficient to make the work available to everyone. It is not at all clear why anyone

would have a reason to object to this way of pursuing efficiency. Moores view is actually morecomplicated. He assumes that laboring on an intellectual work grounds a weak presumptiveclaim to the work. This claim is not overridden as long as the acquisition of the work does not

worsen the position of others. This idea of a presumptive claim has to do most of the work in hisargument, since he would have to appeal to it in order to forestall further Pareto improvements.

And the presumptive claim cannot itself be grounded in the idea that appropriation of the

work is a Pareto improvement. If it were, it would not forestall further Pareto improvements.Therefore it seems to be incorrect to take the proviso, so understood, as a sufficient conditionof appropriation for intellectual works.

12. Although I have something to say about the role of the proviso at the end of this paper,it is worth pointing out that the question of what sort of limits the proviso might impose onproperty in literary works arises only if literary works can be property. I primarily concernmyself here with the case for thinking of literary works on the model of property at all. The




A second limitation on acquisition is the spoilage limitation.13 This is theidea that you may acquire only as much as you can use, or that acquisitionis illegitimate if what you have acquired ends up going to waste. I assume

here that the spoilage limitation is not superseded by the advent of money.The point of the introduction of money is not that the spoilage limitationno longer applies. It is that money does not spoil, and so you can keep moreand acquire more while still satisfying the spoilage limitation.

Against the background of these two constraints, Locke provides anaccount of appropriation in terms of the ideas of self-mastery and self-ownership. Man is Master of himself, and Proprietor of his own person andthe Actions or Labor of it.14 This grounds the possibility of obtaining exclu-sive rights to particular parts of the common by laboring on it. In laboring

on the common (for example, by gathering acorns or clearing and cultivat-ing a field), one adds something that is ones own and which provides thebasis for excluding others. The problems facing this aspect of Lockes vieware well-known, and a number of interpretations of it have been defendedin the literature.15 What must be pointed out here is that if it is successful,the labor argument establishes that someone who has annexed his laborto an object has a reason to complain if others interfere with his use of it.

I turn now to Shiffrins account of Lockes theory of property and to herreasons for thinking that it does not support private property in intellectual

works.

II. SHIFFRINS ARGUMENT AGAINST INTELLECTUAL

PROPERTY

Seana Shiffrin has recently argued that the Lockean theory of propertydoes not justify natural property rights in intellectual works. According toShiffrin, the framework of Lockes theory of property incorporates an egal-itarian concern that places limits on justifiable appropriation. In particular,

she holds that only certain kinds of objects can be appropriated. Individualexclusive property in objects of a particular kind can be justified only whenexclusive possession is required for the full exploitation of those objectsfor human benefit. In the case of intellectual property, the conditions thatjustify exclusive possession or appropriation are not met. While Shiffrins

question of the proviso and how it might apply only comes up once this question has beenanswered.

13. LOCKE,supranote 7, at II.31.

14. Id. at II.44.15. Simmons defends a view that emphasizes mans natural-law right of self-mastery (of

which self-ownership is only one facet) and construes labor as purposive activity with regardto the world; SIMMONS, supranote 2. Tully and Sreenivasan defend a more narrow view, the

workmanship model, in which the intellectual activity of creation or making is central. JAMESTULLY, A DISOCOURSE ONPROPERTY(1980). GOPALSREENIVASAN, THELIMITS OFLOCKEANRIGHTSINPROPERTY(1995).




argument aims to show that natural property rights in intellectual works ingeneral cannot be justified on Lockean grounds, I read her argument morenarrowly, as concerned only with the question of natural property rights inliterary works.

Shiffrin rightly emphasizes the role of original common ownership inLockes account. However, Shiffrin believes that the idea of original com-mon ownership has important moral implications. It establishes a presump-tion of common ownershipthat structures the justification of private property.Shiffrin sees this presumption of common ownership as a reflection andexpression of the equal moral status of individuals.16 As such, it is a moralconstraint that has to be overcome in justifying exclusive ownership of par-ticular kinds of objects.

Against this background presumption of common ownership, Shiffrinargues that exclusive possession ofsomeparts of the common can be justi-fied on two interrelated grounds. The first is that exclusive possession ofsome objects comports with the motivation of Gods grant of the earth tohumans in common. Some objects in the common are such that I can usethem for my self-preservation only if I am able to exclude others from them.Excluding others from use of such objects is thus consistent with the un-derlying motivation of the grant. Food is a central example of this type ofobject. I cannot be nourished by an apple without appropriating it exclu-sively. The second justifying ground of appropriation, then, is that exclusivepossession of some types of objects is necessary for self-preservation. Thiscondition provides an account of the positive goal or purpose that must beserved by appropriation. Thus for some objects, exclusive possession is bothconsistent with the motivation of the common grant and necessary to makeit meaningful. For these objects, the presumption of common ownership isovercome.

An important qualification to this statement of Shiffrins argument mustbe noted here. It might be thought that the exclusive use of an object canbe justified only if it is required for self-preservation or subsistence narrowlyconstrued. This would be to read the second ground of appropriation asa necessary condition of legitimate appropriation. However, Shiffrin doesnot regard contribution to self-preservation as a necessary condition of alllegitimate appropriation. Her view is rather that self-preservation is onepurpose that can justify exclusive use consistently with the motivation of thecommon grant. There may be other valid purposes that can also justify ex-clusive use. Another such valid purpose, according to Shiffrin, is thefull andeffective exploitationof an object for human benefit. Thus the presumptionof common ownership can be overcome not only when exclusive use is re-quired for self-preservation but also when exclusive use is necessary forfullyeffective useof an object for human benefit. For example, my appropriationof a field not directly required for my preservation can be justified if it is

16. Shiffrin,supranote 6, at 165. For the presumption of common ownership see id. at 157.




necessary for me to exclude others from that field in order to make fullyeffective use of it as a source of benefit.

The important point here for our purposes is that, in Shiffrins view,the question about whether exclusive possession of intellectual works canbe justified need not turn on the contribution such works might make toself-preservation or subsistence narrowly construed. The question is, rather,whether the full exploitation of literary works for human benefit requiresexclusive property in such works.

Given this construal of the underlying motivations of the Lockean theoryof property and the justificatory conditions of appropriation, we can see whyShiffrin denies that the Lockean view justifies property in literary works.There are two related points to be made here. First, in order for me tomake fully effective use of a literary work, it is not necessary that I beable to exclude others. The fully effective use of literary works does notrequire exclusive possession.17 Second, the power to exclude others from aliterary work frustrates the fully effective use of that work since it preventsotherswho could also make use of the work from doing so. Since property inliterary works is not required for fully effective use by me and since propertyin literary works frustrates the fully effective use of literary works moregenerally by preventing others from using those works, the presumption ofcommon property is not overcome.

It is worth noting that Shiffrins conclusion follows from the first pointalone. All she needs to show is that in order for me to use a literary workeffectively I do not need to be able to exclude you from it. This shows thatthe common-property presumption is not overcome in the case of literaryworks.18

On Shiffrins version of the argument, the Lockean theory fails to justifyexclusive property in intellectual works even if it does justify exclusive prop-erty in other kinds of objects. It is important to identify exactly what Shiffrinis claiming here. Shiffrin denies that the Lockean argument justifies whatshe calls strong intellectual property rights. Strong intellectual propertyrights are, in her terms, rights to exclusive control over access to use ofintellectual works. Shiffrin is not committed to denying that creators ofintellectual works should be compensated or acknowledged. But she does

17. It might be thought that the right to exclude others is necessary for fully effective use,since it provides an incentive to put in the effort required to develop the work fully. I thinkthat Shiffrin has a reply here, however: even if incentives are necessary in order to promotethe full development and exploitation of the work, it would not necessarily follow thatstrongproperty rights are justified. Incentives that encourage the full development and exploitationof the work could be provided by mandatory royalty systems or other forms of compensation

short of strong property rights.SeeShiffrin,supranote 6, at 142.18. Is the first point justified? This depends on what counts as using the work effectively. If

my fully effective use includes my being able to derive an income from it, then I need to be ableto exclude others. If my fully effective use includes only being able to appreciate, contemplate,and learn from the work, then I do not need to be able to exclude others from the work. Itappears that Shiffrin does not regard use of the object as a means of income by the author asa part of the fully effective use of the object.




want to claim that the kind of exclusive control that is often thought to becentral to a property right cannot be justified by a Lockean view in the caseof literary works.19

III. OBJECTIONS TO SHIFFRINS ACCOUNT

In this section, I raise a number of objections to Shiffrins account of theLockean view. To begin, it is worth noting one interesting implication ofShiffrins view on appropriation. This is that it seems to deny that universalconsent could by itself be sufficient for appropriation of objects from thecommon. Even if, as happens to be impossible, I could get everyone toagree to my appropriating an unowned literary work, this appropriation

would not be legitimate since it is not required for full and effective use ofthe object. This seems to be inconsistent with the basic orientation of theLockean theory of property, which regards universal consent as capable oflegitimating appropriation.

A more serious objection concerns the notion of a common in ideas orliterary objects. Some of the early defenders of a Lockean view of literaryproperty denied that literary works or their materials form an original com-mon. William Enfield argued, for example, that the work which he [theauthor] possesses was never in any other hands, nor was ever a part of a

common stock on which all men had a general claim.20 Shiffrin, on theother hand, holds that the initial-common-ownership thesis applies to liter-ary works as well as to land. The objection might be raised that she relies ona questionable metaphysical assumption that there is an initial intellectualcommon in the way that there is an initial common of land. Were there noinitial common or were it empty, there would be no presumption of com-mon ownership to overcome and perhaps property in intellectual workscould be more easily justified.21

Shiffrins basic response to this objection is to argue that the question of

whether intellectual works should be held in common is not a metaphysicalquestion but rather a moral one. Shiffrin claims that even if we construethe intellectual common as empty and think of intellectual products as pureauthorial creations, there is a moral reason to think of them as incorporatedinto an intellectual common on creation. The reason is that since exclusiveproperty in these creations is not required for their effective use, thinkingof such works as common reflects the equal moral status of individuals andan idea that things should be shared equally unless there is strong reasonto do otherwise.22

19. Id.at 142.20. SeeENFIELD,supranote 1, at 19.21. Shiffrin raises and addresses this objection in her article.SeeShiffrin, supranote 6, at

158.22. Id. at 154.




This argument is unsatisfying. The argument claims that even if there isno original common in the case of ideas or literary objects, the requirementof effective use should still be held to apply. But a requirement of effectiveuse arises as a condition of justified appropriation (if at all) onlybecausethere is an original common and so cannot be used to argue for commonownership in the absence of an original common. Consider the case of land.If there is a requirement of effective use in the case of land, this is becausethe earth is an original common. Were there no original common, thenthe requirement of effective use would not arise. In the case of intellectualworks, there is arguably no original common. Because the requirement ofeffective use is grounded in the existence of original common, it cannot beused to argue for common ownership without circularity.

A second objection concerns Shiffrins account of the implications ofthe original common. It is important to keep in mind that the presump-tion of common ownership on which Shiffrins argument depends is aninterpretation of the moral implications of the original common. There isa distinction between Lockes clearly egalitarian commitment to originalcommon ownership and Shiffrins interpretation of that commitment interms of a presumption of common ownership.23 This suggests that unlessShiffrins account is the only account consistent with the recognition of theoriginal common, an argument is required to show that the presumptionof common ownership is the best way to understand Lockean egalitarian-ism. So we must ask whether other accounts of the original common areavailable that draw weaker moral implications from it. If they are, then itbecomes important to ask which version of Lockean egalitarianism is mostcompelling.

A presumption that things should be held in common unless strong rea-son can be found to show otherwise is not the only way to take the ideaof an original common seriously. One alternative possibility is suggested inWilliam Enfields tract Observations on Literary Property. On Enfields inter-pretation, the grant of the original common should be regarded as a grantin common of the power to acquire property:

Whether we consider the natural powers of man in connection with his naturalwants; or whether we have recourse to the express grant recorded in Scripture;it is sufficiently evident, that when he was first placed upon the earth, it wasthe intention of his Creator, that he should take possession of such things as

were suited to his nature and necessities. But his having a natural capacity oreven an explicit authority to do this, did not give him a property in any thing,till, in consequence hereof, he actually possessed himself of some part of

23. Id. at 143. Shiffrin does not aim to reconstruct or defend Lockes own position but toprovide us with the most defensible reconstruction of the 2nd Treatises argument for privateappropriation. The question that faces us here is thus not whether her view is Lockes viewbut whether her reconstruction is the only account of the moral implications of the originalcommon that can claim to take it seriously.




the stores which were set before him. The permission or grant being generalwith respect to the objects of possession, and being given in common to allthe human race, was rather the donation of a power to acquire the right ofproperty than the actual right. The original state of mankind with respect to

the goods of nature resembles that of children, sitting down to the table oftheir common parent, who has set before them an abundance of provision,and given them a general power to partake of it, without assigning to eachhis particular portion; every one takes what he pleases, and what he takesbecomes his own though before he had no property in it, and though there

was no prior agreement among them what part each should take. Or to makeuse of a more familiar simile; it resembles money thrown among a crowd,

with respect to which, the general intention of the donor that it should bedistributed among them is evident, but no individual can claim a property inany part of it till he has made it his own by actual seizure.24

The analogies that Enfield draws here between the common grant anda meal given by a parent to children or a donation of money to a crowdmay seem to complicate the matter. They presuppose a donor (and thus,it would seem, a theological justification of property), and the second mayseem to suggest that any distribution that resulted from the scramble toappropriate would be unobjectionable. However, it is the underlying pointthat is of interest to us here. This point is that one way of interpreting thecommon grant is as the grant of a common power to appropriate someshare in the means of preservation rather than as a common property in allof the means of self-preservation. Since something is granted in commonhere, and since it would seem that such a grant could be justified on thegrounds of considerations about self-preservation, this would appear to bea possible alternative to Shiffrins account.

A similar view is defended by Sreenivasan.25 On his interpretation of theoriginal common, the natural right to property in common arises from theLockean concern with human self-preservation and benefit and is thus tobe understood as a right to the means of self-preservation (the earth) incommon with others. But this right has, on his account, a complex structurethat connects it closely to labor. For Sreenivasan, the original right in com-mon is a right not to be excluded from the use of the common materialswhich have been plentifully provided by God and from which the directmeans of support can be produced.26 As such, it is a right to exercise onesproductive powers on the common consistently with the right of others todo the same. The right to the means of preservation is, for Sreenivasan,legitimately exercised only through labor or the exercise of ones produc-tive powers on the common. Labor, to the extent that one is able, is theonly legitimate way to exercise ones right to the means of preservation.27

24. ENFIELD,supranote 1, at 15.25. SREENIVASAN,supranote 15, at 115.26. Id. at 43.27. Id. at 46.




Moreover, the right to the means of preservation is limited by the proviso.If the right to labor on the common is limited by the condition that onemust leave enough and as good for others, then the exercise of this rightdoes not exclude others from also laboring on the common and derivingtheir subsistence from it.

It is important to notice that on this interpretation, the common rightis not a right not to be excluded from benefiting from whatever means ofbenefit there are but a right to be a producer oneself. This right to be aproducer is anchored, for Sreenivasan, in the right not to be excluded fromthe material conditions of self-preservation. Leaving aside the question ofwhether Sreenivasans view is the best interpretation of Locke or counts asthe most attractive Lockean view, it is clearly consistent with recognizingthe egalitarian importance of the original common, although it interpretsLockes egalitarianism more weakly than Shiffrin does.

This is an important point. Shiffrins defense of her view appears todepend on a claim that her interpretation is the only one that allows usto take the idea of an original common seriously. She suggests that, un-like accounts that emphasize labor and self-ownership, her view preservesthe importance of the common-ownership thesis,28 and she criticizes self-ownership interpretations of Lockes theory on the grounds that on suchviews, the claim of initial common ownership has almost no significance.29

The thought behind this argument is presumably that her strong egalitarianinterpretation of the original common is the only interpretation in whichthat idea makes a difference to the justification of Lockean property byplacing a real constraint on appropriation. This rests on the plausible ideathat a theory that takes the original common seriously must reach differentconclusions about the justifiability of property from a theory that beginsfrom a no-ownership situation. If Shiffrins argument allows us to reach aconclusion that could not be reached from a no-ownership situation, and ifthere are no other theories that can do so, then her account would have astrong claim to be the only one that takes the original common seriously.30

This argument will not succeed, however. As I suggest above, Shiffrinspresumption of common ownership is not the only possible interpretationof the original common. Furthermore, Enfields and Sreenivasans inter-pretations of the common grant do place a constraint on appropriation. InEnfields example of the parent who provides a common meal for a groupof children, it seems right to say both that the parent has given the meal tothe children in common and that no one of them has the power to appro-priate any more of it than is consistent with what is required to meet theneeds of others. In Sreenivasans case, one can appropriate only what one

28. Shiffrin,supranote 6, at 143, 149.29. Id. at 148.30. Some interpretations of the no-ownership thesis build in moral considerations. The

appropriate contrast here, however, is with a nonmoralized no-ownership situation.




produces and ones exercise of ones right of production must be consistentwith the rights of others to labor on the original common or produce thingsfrom it.

If this is correct, then more argument is needed to show why we shouldaccept Shiffrins presumption of common ownership as an account of theimplications of the original common. However, even if we are prepared toadmit that the egalitarian principle that Shiffrin places at the basis of herinterpretation of Locke is a compelling moral principle, her argument facesa further objection. Shiffrins argument relies on the thought that the onlyconsiderations that are relevant in considering whether or not some formof resource should remain in common are considerations about humanbenefit. This overlooks two important things. First, we find in Lockes ac-count another possible basis of valid property claims that does not dependon considerations about the role of objects in self-preservation or benefit.This is the doctrine of makers right, which holds that a maker has a claim tothat which she has made. The second is that recognizing this alternative jus-tification of property claims is compatible with recognizing the importanceof the original common and its egalitarian role in Lockes account.

In interpreting the original common in light of Lockes egalitarian moti-vations, Shiffrin neglects Lockes account of the basis of the original com-mon in Gods grant. The foundation of the grant, on the Lockean view, liesin Gods title to the earth established on the grounds that he created itexnihilo. The point here is not that Lockes theory of property rests on theo-logical presuppositions. Rather, for Locke, Gods entitlement to dispose ofthe earth and thus its status as a common, are grounded in a moral thesisabout relations between makers and objects. The fact that the doctrine ofmakers right lies at the foundation of the argumentfor the original commonin Lockes view shows that it can be read as an important Lockean principlealongside his egalitarian concerns. To the extent that it provides a possiblebasis for legitimate claims to exclude others, it should be included in con-siderations about the normative foundations of property in various kinds ofobjects.

IV. THE DOCTRINE OF MAKERS RIGHT

The Lockean idea that labor can serve as a source of valid property claimsmay strike us as a nonstarter. The most common interpretation of Lockesaccount of appropriation by laboring (and the one that the text most ob-viously suggests) is the labor-mixing model. One obtains property in a partof the common by mixing ones labor in it. The objections to this modelare well known. The most famous objection comes from Robert Nozick,who argued that it does not follow from the fact that you mix your laborwith something that it becomes yours. As Nozick pointed out, if I mix mytomato juice with the ocean, I do not gain the ocean, but rather lose my




tomato juice.31 This objection seems to apply with special force to thingslike literary works. If I labor in the world of ideas, perhaps I simply lose mylabor in that ocean rather than gaining a right to that with which I have

mixed my labor.

32

Fortunately, however, there is another interpretation of the Lockean ar-gument available to us. This is the workmanship model. The workmanshipmodel is a strong candidate to explain how it might be possible to haveproperty in literary works or works of art. The central tenet of the workman-ship model is the doctrine of makers rightthe claim that a maker has aright in that which she has made. The workmanship model begins from theidea that Gods right in his creatures is grounded in his having made them.Since human making is analogous to Gods making (both are the work of

intellectual beings) human beings also have a right to that which they havemade. The workmanship interpretation was defended by Tully and morerecently by Sreenivasan.33 I focus here on Sreenivasans presentation anddefense of this model. The view can be summarized in the following claims:

(1) The doctrine of makers right: a maker has a right in that which he has made.Since (for Locke) a right is equivalent to a property, it can be said that a makerhas a property in what he has made.34

(2) God has a property in Man. This property is explained by the doctrine ofmakers right. That is, Gods property in human beings obtains in virtue of the

fact that God made them.(3) Making is an intellectual activity that involves bringing about the material

realization of some idea.35 It is governed by the idea or essence of the thingmade and involves knowing that idea.

(4) By virtue of the fact that making is an intellectual activity, Gods making andhuman making are analogous. Both God and humans engage in making in thesense required by the doctrine of makers right.36

(5) The doctrine of makers right applies to human making by virtue of the anal-ogy. If Gods property in humans is explained by the fact that they are his

workmanship, then human property in things that humans make is explained

by their workmanship.(6) A human being has a property in her labor. The important premise here is that

humans have a property in their action. Since labor is equivalent to action, for

31. ROBERTNOZICK, ANARCHY, STATE ANDUTOPIA(1974), at 174175.32. For discussion of the objections to the labor-mixing model,seeSIMMONS,supranote 2, at

267.33. Tully,supranote 15.34. SREENIVASAN,supranote 15, at 62.

35. Id. at 64.36. Incidentally, no claim that God actually exists is required for the argument to go through.

Furthermore, the claim is not that you must completely understand what you are doing in mak-ing something in order to have a right in it. Rather, Lockes central criterion for determining

whether someone has made something is whether he knows what that thing is in the senseof knowing its real essence. Id. at 84. (In speaking of essences here, we must have Lockesempiricist theory of essence in mind.)




Locke, and since humans may properly be said to make their actions, humanshave a property in their labor.

(7) A human being has a property in the things that she makes from the commonmaterial provided by God. (This is only a necessary not a sufficient condition,

since property rights must also satisfy the proviso.)37

Both (6) and (7) are consequences of (1) as applied to human activity.The workmanship model in general depends most significantly on the plau-sibility of (1). And, indeed, the doctrine of makers right does seem to havean intuitive appeal. However, this account also faces a number of objections.

A first objection denies that Locke appeals to a principle of makers rightin his justification of acquisition. One response to this objection is to pointout that it is not necessary that Locke himself endorse the doctrine of

makers right in order for the argument to succeed. However, it is quiteclear that Locke did endorse the doctrine of makers right, at least as anexplanation of Gods property. Locke appeals to the doctrine in Section 6of theSecond Treatise:

For Men being all the Workmanship of one Omnipotent, and infinitely wiseMaker; All the Servants of one Sovereign Master, sent into the World by hisorder and about his business, they are his Property, whose Workmanship theyare, made to last during his, not one anothers pleasure.38

This is enough to show that Locke held the doctrine of makers right.A second objection concerns the ground of the doctrine of makers right.

There is reason to believe that Locke took the doctrine to be self-evident.39

However, even if we concede that the doctrine is self-evident, we may won-der whether the analogy between God and human beings which establishesthe human capacity for property can hold. One way in which we mightquestion the analogy is to draw a distinction between Gods making andhuman making. God creates ex nihilo, which is to say that his making is not

a combination of previously available materials, but humans can make onlyby compounding or dividing materials that God has previously made. Per-haps the doctrine of makers right applies only to creation. Clearly humanscannot create material objects, and so there is an important disanalogybetween Gods creation and human making.

Sreenivasan disagrees. He notes that there is a general sense of makingthat applies both to creation and to making as compounding or dividing.This sense of making is the idea of bringing into being. Making in thisbroad sense would be causality of a specific kind in which one knows an idea

and brings about a material realization of that idea. Gods acts of creationand human acts of compounding and dividing are both encompassed by

37. Id. at 75.38. LOCKE,supranote 7, at II.6.39. Sreenivasan,supranote 15 at 6974.




this broader sense of making. On the workmanship interpretation, manscapacity for property is to be explained in terms of the similarity betweenman and God as makers in the broad sense.40 Insofar as the doctrine ofmakers right employs the broad sense of making, the analogy between Godand human beings holds, and human beings can be entitled to propertybased on the doctrine of makers right.

Significantly, the workmanship model does not discount the importanceof the original common in Lockes view. Indeed it provides the basis for as-serting that the earth is an original common. Nor is it obviously inconsistentwith a reading of Locke that supposes that the original common expressesan egalitarian motivation. As I now suggest, the doctrine of makers rightcan ground a reasonable case for property in literary works.

V. PROPERTY IN LITERARY WORKS

Locke does not himself apply his account of property to literary works,and it is not clear what view he held on the question of the grounds ofliterary property. In one manuscript, he does address the issue of booksand printing, however.41 The manuscript includes Lockes criticisms of theLicensing Act of 1662 and his comments on a proposed bill regulatingprinting that was aimed by its supporters to replace the Licensing Act and

prevent its renewal. In this manuscript, Locke uses the phrase property inhis copy to refer to a right of an author, and in his comments on the draftbill he suggests that a provision be inserted to secure this right. Lockes useof the word property here suggests that he did think of literary works asproperty. However he does not say anything about the foundation of theserights, and the passage does not show decisively that he regarded authorsrights as natural rights grounded in labor or makers right.42 His use ofthe term property is compatible with the idea that authors rights havesome other foundation or that they are not natural rights at all. So the

manuscript does not tell us much about Lockes own view on thenatureofproperty rights in intellectual works.

Two considerations might be thought to show that Locke did not regardauthors rights as natural rights grounded in labor. First, Locke seems tohave regarded term limits as reasonable limits on copyright, and in hiscomments on the draft bill he recommends securing the authors propertyin his copy for a limited term to be determined in the statute.43 Lockessupport for term limits may suggest that he did not regard authors rights

40. Id. at 75.41. The manuscript dates from 16941995. SeeJOHNLOCKE, POLITICAL ESSAYS (Cambridge

University Press, Mark Goldie ed., 1997), at 338.42. For the view that Locke did regard rights in literary works in these terms, see Justin

Hughes,Copyright and Incomplete Historiographies: Of Piracy, Propertization and Thomas Jefferson, 79S. CAL. L. REV. 993, 1012 (2006).

43. SeeLOCKE,supranote 41, at 337, 338.




as natural rights, although it is hardly conclusive evidence that he did not.Second, Locke places a condition on copyright that might be thought tosit uneasily with a labor- or makers-right-based justification. One of theconditions that Locke places on the authors copyright in a book is thatcopies of the book must be deposited in the kings library and the librariesof the two universities.44 Receipts from the kings librarian and from thevice chancellors of the universities were required in order to vest in theauthor or his executors the sole privilege of reprinting or publishing thebook within the term limits established by law. The fact that the right tosolely reprint or republish ones book vested only when one had thesereceipts could be thought to suggest that Locke did not regard authorsrights as arising from their labor, but again, it does not show conclusivelythat he did not.

Whatever Lockes own view was however, his theory of property did playan important role in subsequent debates about property rights in literaryobjects. In particular, it came to be employed in the legal battles over copy-right that came in the wake of the Statute of Anne, the first copyright statute,enacted in England in 1709.

Several roughly Lockean reasons for thinking of literary works as propertyare suggested by William Enfield in the passages quoted at the beginningof this paper. The assumption that underlies Enfields view is that there isan analogy between the production of literary works and the cultivation ofthe earth. The analogy lies in that both involve labor or making. If labor ormaking grounds a property right in land, then it ought no less to ground aproperty right in literary productions. Furthermore, if, as Enfield suggests,there is an argument from equity that someone who is willing to laborshould (at least) be able to try to profit from his labor (or perhaps deservesa return), then this argument should apply both to cultivation of land andto the production of works of sentiment or philosophy.45 I will address eachof these issues in turn.

From at least one point of view, the application of the doctrine of makersright to literary works appears to be more straightforward in the case of lit-erary works than in the case of material objects. We might read the Lockeanview as holding that in the production of literary works, human beings dosomething that they are not capable of doing in the material world, namely,they create them ex nihilo.46 If this is correct, then makers-right claimsseem to be on especially strong ground in the case of literary works, sincethe doctrine holds that the right is strongest and most extensive in those

44. Id. at 338339. Lockes aim in inserting this provision in the bill is to encourage thefulfillment of its requirement that copies of all books be placed in the universities. This impliesthat in his view, rules designed to foster the public availability of books are legitimate conditionson copyright.

45. The argument from equity is Enfields, but it has clear roots in Lockes discussion ofappropriation.

46. SeeMoore,supranote 5, at 77.




cases. Even if one thinks that the analogy between creating and making isstrained, it is liable to be much less problematic in the case of literary worksthan it might be in the case of material makings, since the creation of aliterary work is plausibly thought of as a case of ex nihilo making.

It is worth noting here that on this account the Lockean argument for lit-erary property will succeed even if the application of the doctrine of makersright is confined to ex nihilo making and thus even if the makers-right ac-count does not succeed in justifying the property rights that human beingsare alleged to have in material objects. Furthermore, on this interpretationof literary making, Shiffrins challenge becomes irrelevant. Even if we ac-cept that her presumption of common ownership applies in the case ofobjects in the original common, literary works, as ex nihilo creations, arenot parts of an original common.

In my view, the ex nihilo interpretation of literary making is the mostplausible interpretation. Although we should not deny that authors drawon an existing language and on the ideas and works of others in their literarymaking, there is a case to be made for the claim that the making of a literarywork does not involve assembling the work from preexisting materials.47

However, even if we deny that literary works are the ex nihilo productionsof their authors, the doctrine of makers right still has some force. Supposewe view literary works as fixed combinations constructed from a preexistingmaterial (ideas, propositions, etc.) or as constructions in a social contextfrom materials partially created by others. On these conceptions of what it isto make a literary work, there is some justification for thinking of ideas as acommon on which authors labor as others labor on the earth.48 But it doesnot follow from this alone that authors cannot claim rights in the products oftheir laboring activity. Authorial making in this case seems to be analogousin the relevant way to bringing forth produce by cultivating a field. If weare persuaded that material cultivation could give rise to property, then itseems that authorial making ought to do so as well. And if making doesestablish a distinct relation between the author and the work of the sortthat Locke calls a property, then this relation has to be taken into accountin considering whether or not the author should have the right to exclude.

The denial of property rights in this case presupposes, first, that the exnihilo interpretation of literary making is false, and second, that Shiffrinspresumption of common ownership applies. However, we have seen thatthere are good reasons to reject Shiffrins presumption of common owner-ship, and by itself the idea that literary making is not ex nihilo does not seem

47. Recent scholarship on the subject challenges this view, however. Some scholars argue

that the ex nihilo interpretation rests on an implausible view of literary works as the creationsof solitary genius. Martha Woodmansee traces the development of this idea of books as theproduct of genius; WOODMANSEE,supranote 3, at 37. It may be that examples of true ex nihiloliterary making are extremely rare. In that case, the ex nihilo interpretation of the makers-right account would account for authors rights only in those rare cases. For the rest, we wouldhave to rely on the second possible interpretation discussed below.

48. For Shiffrins view on this possibility,seeShiffrin,supranote 6, at 161.




to determine the answer to the question in the direction of common owner-ship. More generally, the denial of property rights in this case assumes thatthe only considerations that are relevant in determining whether authorsshould have property rights are considerations of human benefit and thefull exploitation of the work. If these considerations are all that is relevant,then perhaps the products of authorial making ought not to be consideredthe property of the author. The makers-right conception suggests, how-ever, that these considerations are not the only relevant ones. It does soby identifying a special and morally significant connection between authorand work, thus identifying the ground of an authors interest in the resultsof her literary activity.49

The point seems especially strong if we consider the theory of propertyas establishing rules for fairly bringing into balance the claims of separatepersons with respect to objects. The doctrine establishes limits on the waysin which persons can draw on the capacities of others. As products of humanmaking, literary works are a product of the exercise of human capacities.While authors draw on the work of others and on a shared cultural life moregenerally, this does not entail that they are not entitled to what they produce.If I construct a table from wood taken from a common forest (consistentlywith the limitations imposed by the proviso), I am entitled to what I havemade on the basis of my making simply because it would be unfair on thepart of others to assert a claim to it. The same seems to hold for literarycreations. Insofar as the doctrine of makers right has weight, it establishes aconnection between author and object that grounds a moral property claimto the object. Thus it appears to establish a property in literary works andeven to do so more firmly than it does in the case of material makings.

This account of property in literary works can be given additional weightby combining the makers-right account of the connection between authorand work with an appeal to equity. In the passage quoted at the beginning

49. There are other important considerations in this matter that are distinct from concernsabout full exploitation and human benefit. One of the most important arises from Lockeancommitment to liberty and self-ownership. One could argue that property rights in literary

works place unacceptable limits on the ways in which others may use themselves and theirpossessions. One way in which this might happen is if natural property rights in literary worksprevented people from making use of their own independently created works. Suppose, forexample, that you independently create a literary work that is exactly similar to one that isalready in existence. Since you have not copied the work from the preexisting one, you havenot attempted to reap where you have not sown. In this case, being prevented from using this

work seems to be an unacceptable intrusion on your freedom. Fortunately, the Lockean viewcan avoid this problem by allowing for a defense of independent creation (a standard featureof copyright law). If you independently create a work that is similar to an existing work of mine,

you are not prevented by my previous claim from using that work in any way. Since you createdit, you will have a standard makers-right claim to that work. The Lockean view prevents copyinghere, but it does not prevent people from working on and developing their own ideas. I amindebted to Matt Zwolinski for raising this criticism in a referee report for this journal. It is also

worth pointing out that there may be other forms of liberty-based challenges to the Lockeantheory on this matter. My argument in this paper is focused mainly on rebutting Shiffrinsbenefit-based objection and does not aim to address liberty-based objections conclusively.




of this paper, Enfield suggests an equity consideration that we might glossin terms of the idea that each ought to be able to try to make a living byexercising the capacities with which she has been endowed (or that chancehas given her). Other equity considerations include the principle that some-one who has expended effort or created value deserves fair compensationfor that effort, and the principle that one ought to be able to try to benefitfrom ones own efforts. It would not be fruitful to rely on these considera-tions in developing a theory of property in literary works, however. Equityconsiderations such as these do not appear to support exclusive propertyrights. It may be, for example, that those who labor and produce literaryworks are fairly owed a return from their labor, but this in itself does notentail that they should have exclusive property rights in what they havecreated.

However, there is a way of presenting the argument from equity that doesnot involve a claim about what people fairly deserve given that they haveexpended effort. On this reading of the equity argument, to allow others touse what I have made (even if they are required to compensate me) would beto allow them to treat me unfairly. The idea here is that in creating artisticexpressions I am using my intellectual capacities to produce somethingnew. On the assumption that the creation of a literary work establishes asignificant connection between author and work, then to allow the authorno right to what she has created beyond what others have would be to allowothers to make use of resources in ways that fail to respect the significanceof her creative activity. The problem with allowing others to reap wherethey have not sown is that what an author has created becomes available asa resource for others to draw upon whenever and in whatever way that theylike. This may plausibly be thought to be contrary to equity.

This argument shows why we ought to hold that the makers-right accountof literary property establishes strong property rights in literary objects. Astrong property right in an object is a right to some more or less extensiveform of exclusive control over an object. One might think that the makers-right claim in a literary object can be satisfied simply by compensating oracknowledging the creator of the object, but this is, I think, implausible. Itmay well be the case that creators of literary works should be acknowledgedand compensated for their labor (although compensation may be thoughtto be out of place in cases where the work is of little or no quality). But as theequity arguments shows, we should also recognize that it would be unfairto refuse authors a special control over what they have made. Thus theargument requires that we acknowledge that authors have strong propertyrights over their creations.

I conclude that the makers-right view provides strong grounds in favorof natural property rights in literary works. Several important questions re-main. First, the analysis given here does not address the question of thespecific entitlements to which the making of a literary work gives rise. Evenif the Lockean view is successful in justifying private property rights in




literary works, it does not tell us what powers, privileges, or claims make upthis property right. We might take as our guide here the rights that are typi-cally associated with copyright. Copyright usually includes exclusive rightsover reproduction, public performance, public display, distribution, andthe making of derivative works.50 These rights might be usefully subsumedunder the category that A.M. Honore, in his influential analysis of owner-ship, called the right to manage.51 I do not argue here that any of theseparticular rights should be recognized as necessitated by the makers-rightanalysis. I do, however, assume that some form of a right to exclude othersand to manage the work arises from the makers-right doctrine.

A second question remains concerning thestrengthof the property rightthat is generated by the makers-right account. Again, the analysis givenhere does not determine the answer to the question of how strong theright is. Thus it leaves unclear how it might be limited by other rightsor what competing considerations might justify limiting or overriding it.I do not intend to try to answer this question decisively here. There aretwo possibilities to consider. Either the makers-right view will generate aproperty right in a literary work that is as strong as any other Lockeanproperty right (such as a right in a corporeal artifact) or it will be limitedin special ways. However, in the second case some story will have to be toldabout what the justification of those limits is. While I suspect that there arespecial reasons to limit private property rights in literary works, I suggestbelow that we cannot account for these limits from within the Lockeanaccount.

In deciding what equality requires with respect to the question of propertyin literary works, we need to balance all of the relevant claims. In the caseof literary works, however, the strongest claim to the work that others canproduce is that full exploitation of the work does not require exclusiveproperty. But that consideration cannot be the whole story except in acommon where no one has more claim than others to a particular thing.In the case of literary works, someone, namely the author, does have moreclaim than others to the particular thing. It is arguably inconsistent withegalitarian commitments to say that when someone has made a literarywork, it simply enters the common, that is, to say that the makers-rightclaim carries no weight.

VI. AN OBJECTION TO THE LOCKEAN ACCOUNT

The doctrine of makers right combined with the equity argument provides

the most plausible Lockean argument for property in literary works. In thissection, I want to suggest a new diagnosis of the most basic problem with

50. Wendy J. Gordon, Intellectual Property, inTHE OXFORD HANDBOOK OF LEGAL THEORY(PeterCane & Mark Tushnet eds., 2003), at 630.

51. A.M. HONORE, MAKINGLAWBIND(1987), at 168.




the Lockean account of property in literary works. On Shiffrins view, theproblem is one of fully effective use. Exclusive rights in literary works canbe expected to prevent people from using the work even though they couldbenefit from using it and even though their use of it does not interferewith the use of it by others. This is, in fact, a common source of objectionto Lockean conceptions of literary property. However, this account of theproblem with the Lockean view fails because it does not take account of thelegitimate interests of authors. The most basic problem with the Lockeanview is different. It is not a problem about fully effective use of a nonrivalrousobject but a problem about the proper balance between public and privateinterests. To put this in a different way, it is intuitively plausible that thereare distinctive limits on property rights in literary works that do not applyin the case of other kinds of property. While it is unobjectionable for anauthor to prevent others from using her work in certain ways, other formsof exclusion from literary works are objectionable. The Lockean view doesnot by itself provide grounds for distinguishing between objectionable andunobjectionable forms of exclusion. It cannot account for our intuitionsabout the limits of property rights in literary works.

In order to illustrate this idea, consider the example of the Nixon Library.The Richard Nixon Library and Birthplace was, until very recently, theonly presidential library run by a private foundation. While the librarydid not contain the presidential papers, it did possess many importantdocuments relating to Nixons political career. Just prior to the openingof the Nixon Library in 1990, the director of the library, Hugh Hewitt,suggested that scholars who had written unfavorably about Nixon would bedenied permission to access Nixons papers.52 What he suggested was ineffect that the Nixon Foundation would exercise a power to determine whowas to be admitted to the archive for the purposes of research. In the faceof public outcry, this policy was never adopted. Most of us will agree thatthis form of control is objectionable. However, it would be difficult to findresources from within the Lockean view to explain why it is problematic. Ifthe rights of an author are makers rights, then the author can determinewho is to have access to her works in the same way that I can determinewhom I want to allow to use a table that I have constructed. If we assumethat an author of a literary work can transfer her rights to others, then thispower to exclude can also be exercised by others in many cases. Althoughthis form of exclusion strikes us as problematic in the case of the NixonLibrary, it is not clear how the Lockean view could be in the position toobject to it.

This objection can be illuminated more fully by looking at the limits thatthe Lockean view places on property in literary works. Limits on acquisitionin the Lockean framework come most prominently from the proviso, that

52. Joan Hoff,Researchers Nightmare: Studying the Nixon Presidency, 24 PRESIDENTIAL STUD. Q.271 (1996).




is, the claim that private appropriation of an object requires that the appro-priator leave as much and as good for others. It is important to notice thestructure of the proviso argument. The proviso prevents the maturation ofan exclusive right in cases in which taking the thing out of the commonwould not leave enough and as good for others. In the acquisition of land,the proviso can be expected to play a serious role in limiting the exclusiverights that can arise. The extent of these limitations is a matter of debate.But in the case of the creation of literary works, it appears that the provisoeither will not apply or will always be satisfied. It will not apply if its justifica-tion depends crucially on the role that the objects play in self-preservation.Since literary works are not direct means of subsistence or self-preservation,no one can complain of being deprived of those means by anothers toilin the world of ideas. If they are deprived of something, it is not a meansof preservation. But even if we want to suppose that they are deprived ofa means of preservation (or benefit) by anothers appropriation out of theworld of ideas, it is easy to make the case that there is always enough andas good left for them. The proviso will always be satisfied if my exclusiveright in my literary work always leaves others with plenty of opportunitiesto create their own works. Since the world of ideas seems large enough foranyone who wants to labor in it, the proviso will not place any constraint onthe maturation of an exclusive right.

The important claim about the proviso upon which this argument de-pends is that it places a certain kind of limitand only a certain kind oflimiton exclusive rights. The proviso limits the use of common resourcesin a way that makes that use consistent with use of the same stock of re-sources by others. The proviso can thus plausibly be seen as expressing theequality of human beings who have to live together in conditions of scarcitybecause it serves to ensure that each has the opportunity to labor and tofulfill her duties of self-preservation independently. But the proviso doesnot place limits on the ways in which I may control what exclusively belongsto me. If enough and as good is left for others, then no one can claim accessto what I have created. The Lockean argument sees claims of access in termsof the desire to reap where one has not sown.

I do not attempt to provide a full defense of this objection in this paper.Those sympathetic to the Lockean view might doubt that these points raisea problem for the Lockean account. After all, some of the ways in which anauthor might exclude others from the use of her property might be rude orimmoral, but this does not show that she does not or should not have a rightto exclude them from her property in these ways. Thus a full defense of theobjection would need to show that certain kinds of exclusion from literaryworks not merely are morally troubling ways of exercising ones rights butexceed the justifiable limits of those rights. In order to do this, it wouldneed to provide an account of the reasons or interests that ground speciallimits on literary property. I do not provide such an account here. All I try toshow is that the Lockean is committed to denying that there are any limits


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on the rights of authors beyond those imposed by the enough-and-as-goodrequirement. This is already a significant result, since it puts the Lockeanview at odds with some intuitive moral judgments about control over books,writing, and ideas.

The example of the Nixon Library suggests that there are importanthuman interests that speak in favor of limiting the property rights in literaryworks that are grounded in makers right. But the proviso, the centralsource of limitations on private rights within the Lockean theory, is not anappropriate way of protecting these interests. The proviso only guaranteesme something to labor on. It does not ground any rights to use or accessthings that other people have labored on. I try in this paper to suggest thatthis can ground a powerful objection to the Lockean view. The problem isnot that the theory excludes people from a source of benefit that shouldbe held in common but that it lacks the necessary resources to explain andjustify the special limits on the private rights of authors of literary works.

2 Lockean Property and Literary Works

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