Abstract
In debates about the moral foundations of intellectual property, one very popular strand concerns the role of labor as a moral basis for intellectual property rights. This idea has a great 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? In this paper, I argue that the answer to that question is “yes”. I offer a new view, different from existing labor theories of intellectual property, which I call the productive capacities view. This view gives us a way to make sense of the idea of labor as the basis for intellectual property rights, as well as a tool for critically evaluating existing intellectual property institutions.
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Notes
These kinds of “Lockean” considerations are often cited in the legal literature on IP (for examples, see Gordon 1993; Yen 1990; and Merges 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 Supreme Court has even cited considerations about labor. For example, in Ruckleshaus v. Monsanto, 467 US 986 (1984), 1002–1003: “This general perception of trade secrets as property is consonant with a notion of ‘property’ that extends beyond land and tangible goods and includes the products of an individual’s ‘labour and invention’”.
17 U.S.C. 106.
What I say in this paper applies more readily to copyright and patent than it does to trade secrets and trademarks (one obvious wrinkle is that trade secrets are not transferable).
There are a lot of questions that can (and should) be asked about this way of individuating labor theories of property. For example, we need to give an account of what it would mean for labor to be the dominant moral basis for property, in a view that cites multiple moral bases, such as a desert-for-labor view. Becker has devoted a great deal of work to these issues (Becker 1980, 1981, 1992). These topics are beyond the scope of this paper. Its sufficient for our purposes here to understand dominance colloquially: a labor theory is one in which the preeminent considerations in favor of property have to do with labor, and in which any other moral bases (if there are any) are offered either to support or complement considerations about labor.
The problem is not always fatal; if it can be shown that labor justifies either property rights or some other option, then property rights are justified, its just that labor doesn’t give any special reasons to prefer IPRs over the other option. In that case, underdetermination would be a theoretical infelicity, but not a serious problem. Perhaps there are other reasons, not having to do with labor, to prefer property to other entitlements, and these, in conjunction with a labor argument, are sufficient reason for property. I owe this point to an anonymous referee.
Such theories are usually referred to as “makers’ rights” views. Tully (1983) is considered the locus classicus for such a makers’ rights interpretation of Locke’s property theory; Sreenivasan (1995) also offers a makers’ rights view. For discussion of makers’ rights views in general, see Simmons 1998. Rand (1986) offers a similar argument for IPRs, though much less sophisticated than Child’s. There are serious questions about the notion of “value” at the heart of Child’s view; for critical discussion, see Hettinger 1989: 35–40 (and also Mossoff 2012 for a rebuttal to Hettinger).
Of course an obvious objection is that intellectual labor, as opposed to intellectual products, requires a significant amount of resources. Biomedical research, for example, requires capital, materials, labor, and training. But there is a difference between the use of resources as investment and their use as supply. Child’s argument is an argument about supply, not investment. There may be an objection here, but it would require an argument that investment of resources to support intellectual labor at least dampens the claim laborers have on the results of their work.
This characterization of labor comes from Simmons 1992.
Thanks to Bill Hasselberger for raising this point.
Rawls, it should be noted, does not think property rights over the products of one’s labor are necessary to respect these plans.
One could object here that there are some cases where having this kind of control can have the opposite effect, and in fact be harmful to individuals. This goes for a number of rights and liberties; rights to free expression are as much rights to stick one’s foot in one’s mouth as they are rights to meaningfully engage in political debate. That having these rights also could give individuals too much freedom, and so lead to harms down the line, doesn’t mean they are not an important part of institutions which give individuals the liberty to live their lives in accord with their own freely and reflectively chosen ends. Thanks to an anonymous referee for raising this point.
A similar point, connecting IPRs to the right to contract, is made by Breakey (2009).
These considerations hold in different social contexts of labor. Even in what Reeve (1986) has called the “integrated production with wage labor” model, in which firms own the means of production (in this case, equipment, labs, music studios, computers, and the like) and labor is sold, the ability to use one’s productive capacities to produce something of value (namely, IP) makes the exercise of those capacities valuable, and gives one both bargaining power and the ability to trade the use of one’s capacities for what they value (a certain kind of job or career) or just the means (wages) to get what they value and pursue their ends (saving up enough to set up their own business, say, or travelling or pursuing a hobby).
This is a distinctly Coasean line of reasoning, about competition between boutique manufacturers and firms (Coase 1937).
There is a wrinkle here, about co-invention. Suppose two inventors independently arrive at the same set of ideas. Since both invested in the labor, both should be due the property right. Any ground for assigning it to one over the other (for instance, giving it to the first to file a patent application) would be arbitrary, and so the IPR (whoever has it) would seem to be unjustified. This is primarily a question about design of IP institutions; any set of IP rules would have to deal with this and similar cases, and there are more considerations to take into account when constructing these rules than just the moral demands on the institutions. It seems the most satisfying solution is simply just for both parties to share ownership of the ideas, although this will have the effect of reducing the benefits available to each, among other complications. However, even joint ownership in this case may be impractical. Thanks to Loren Lomasky for pointing this wrinkle out to me.
These rights of control and attribution are (somewhat misleadingly) called “moral rights” and are a staple of IP law in Europe. For discussion of philosophical issues involving moral rights, see Beitz 2005.
I don’t want to suggest that the problems I point out here are insurmountable objections to Gordon, Yen, Child, or Moore. Rather, the point is that the productive capacities view is an improved labor theory because it doesn’t raise these problems. Perhaps a revised version of their views, or a “hybrid” theory combining good elements from each, could handle these sorts of problems. However, as they are currently constituted, both the labor-mixing views of Gordon, Yen, and Child, and Moore’s Lockean theory, are susceptible to some pretty significant objections, all of which are dealt with by the productive capacities view. I owe this point to an anonymous referee.
I owe this example, about academic labor, to Loren Lomasky.
Of course there’s a sense in which these are potential subjects of property. If I were to develop my objection into a long book, for instance, the fact that the book started out as an objection at a conference doesn’t mean I forfeit any property rights I have in it. But while it is still just an objection at a conference, the following argument about institutional context applies; mixing my labor to produce a comment at a paper presentation doesn’t give reason why I should have property over it. The fact that I could justify a property right if I turned the objection into a book only deepens the mystery. Why does mixing my labor not give me reason for property when all I do is offer a comment at a conference, but does give me reason when I write a book based on the comment? Thanks to an anonymous referee for raising this point.
This may seem to raise the distinctiveness problem again, as it means there is only a connection between labor and IPRs in some cases. But this is only a problem if we think that there has to be some non-contingent, non-contextual connection between labor and IPRs; for example, for any view that held that IPRs were “natural” rights. This is not the view offered here, so is not a problem for the productive capacities view. Thanks to Bill Glod for raising this objection.
Perhaps Ginger would lose her competitive advantage over other gatherers, but the proviso, as interpreted by Moore, should rule out such an advantage as justification for the right, as having an advantage makes other gatherer’s worse off.
Thanks to an anonymous referee, for pointing out this problem.
There’s a possible science-fiction case here, in which Jane is not an engineer, and the fully worked out design just pops into Jane’s head. She then copies it down (without really knowing what its is), patents the design, and makes millions and millions of dollars. The creation was totally effortless, and her reward is truly disproportionate to the costs of invention. If such a case actually occurred, I would have to admit that there is no ground for an IPR over that design, and if most (or even just a fair amount) of invention and innovation actually worked this way, then this would pose a serious problem for the theory given here. But in the real world, as opposed to the philosopher’s fictional universe – where humans arise fully developed from swamp slime, men get thermometers implanted in their skulls by mad scientists, and aliens regularly kidnap people and take them to planets where the molecular structure of the clear liquid coming from the tap is not H20 – invention is not costless, designs for machines do not implant themselves fully-formed in people’s heads, and engineering degrees actually require serious work. If this means my view only applies to planet Earth in this century, and not in all possible worlds, then so be it.
This has an important side effect: the productive capacities view also serves as an ideal for criticizing current IP institutions. If the value of IPRs is that they are conducive to a more liberal political society, because of the control they give intellectual laborers to order their lives as they see fit, then this gives us a criterion for evaluating and criticizing current institutions.
These features of the contemporary reality of IP are discussed in Merges 2011.
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Acknowledgments
Thanks to Loren Lomasky, Sahar Akhtar, Dave Schmidtz, Bill Glod, Jason Craig, Sam Duncan, Bill Hasselberger, and two anonymous referees, for comments on earlier drafts of this paper.
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Cwik, B. Labor as the Basis for Intellectual Property Rights. Ethic Theory Moral Prac 17, 681–695 (2014). https://doi.org/10.1007/s10677-013-9471-y
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DOI: https://doi.org/10.1007/s10677-013-9471-y