 In 1783, the author Joel Barlow wrote a letter to the Continental Congress in the United States urging the adoption of copyright legislation. Here's the heart of his letter. There are certainly no kind of property in the nature of things, so much his own, as the works which a person originates from his own creative imagination. And when he has spent great part of his life in study, wasted his time, his fortune, and perhaps his health in improving his knowledge and correcting his taste, it is a principle of natural justice that he should be entitled to the profits arising from the sale of his works as a compensation for his labor in producing them, and his risk of reputation in offering them to the public. This letter was both influential and typical. Twelve of the thirteen American states adopted copyright statutes, moved in large part by sentiments of the sword expressed in Barlow's heartfelt letter. Since then, authors, lobbyists, legislators, and judges have frequently invoked similar arguments to justify or expand copyrights. An excellent collection of examples can be found in a 1996 article by Stuart Sturck. Here are a few. In 1906, the famous composer John Philip Sousa sent a telegram to the chairman of the congressional committee considering legislation that would have expanded public performance rights, in which Sousa argued as follows, earnestly request that the American composer receives full and adequate protection for the product of his brain. Any legislation that does not give him absolute control of that which he creates is a return to the usurpation of might and a check on the intellectual development of our country. An expansive declaration of this general sort comes in the 1954 decision of the United States Supreme Court in the case of Mazer v. Stein. Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered. The most general idea latent on all of these passages is that a person who works hard deserves to be compensated and that the law should be crafted to ensure that he or she receives that compensation. Stated this broadly, the idea enjoys very wide public support, at least in Western democratic societies. Social psychologists tell us that most people tacitly subscribe to what the psychologists sometimes call equity theory. The central principle of equity theory is that justice entails giving each person in a collective enterprise a share of the products of that enterprise proportional to his or her contributions to it. A more specific and controversial variant of this general attitude is that a person who works hard deserves to control the fruits of her labor. In other words, she should not only be compensated appropriately, she's entitled to a property right in her creations, the right to do with them what she wishes. When seeking support for that idea and guidance in construing it, lawmakers and scholars commonly look to the political theory of the 17th century British philosopher John Locke. Locke's writings are attractive for at least two reasons. First, his ideas have been highly influential in Anglo-American political culture, although to a lesser extent in continental European political culture. Thus, if one can ground a policy argument in Locke's work, the stature of that argument increases. Second, Locke did not offer an unqualified defense of property rights. Rather, he offered an influential justification of private property balanced by various analytical devices meant to ensure that the interests of the public at large should not be impaired by private property rights. To most modern writers who seek similar balances, Locke's complex approach is intriguing and inspiring. I'll spend a few minutes now summarizing the main features of Locke's general theory of property rights. This argument is likely to be familiar to many of you, but not to all. Once we're done, we'll consider the application of Locke's argument to intellectual property and to copyrights in particular. Most of Locke's theory is distilled in Chapter 5 of his Second Treatise of Government. The heart of that chapter is a generative vignette, an evocative story. In that story, a person, for Locke, that person is a man, comes upon a parcel of land that no one yet owns or, more precisely, that is held in common. The man works hard to make the land productive. How? Well, he doesn't say precisely, but you can imagine him removing the trees and the large rocks, breaking open the soil, ensuring that it's adequately irrigated and so forth. He then plants seeds, which grow into plants, which, properly tended, produce fruits and vegetables. Engaging in these activities, Locke argued, the man acquires a natural property right, not merely to the crops, but to the land used to grow them. Here's the key passage. Though the earth and all inferior creatures be common to all men, yet every man has a property in his own person. This nobody has any right to but himself. The labor of his body and the work of his hands, we may say, are properly his. Whatsoever, then, he removes out of the state that nature hath provided and left it in, he hath mixed his labor with and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature placed it in, it hath, by his labor, something annexed to it that excludes the common right of other men. For this labor being the unquestionable property of the laborer, no man but he have a right to what that is once joined to, at least where there is enough and as good left in common for others. All of this happens, Locke argued, in a state of nature. In other words, the farmer's rights are natural rights, not dependent upon state recognition. But once a state is formed, it has a duty to recognize and enforce natural rights acquired in this fashion. According to Locke, the ability of a person to acquire natural property rights in this fashion is however limited in three ways. These limitations are commonly known as provisos. The first is known as the sufficiency proviso. According to Locke, the acquisition of natural property rights by the farmer only occurs if he has left, as you'll recall, as much and as good for others. This restriction is analytically very important, as we'll see, but to Locke, it did not seem especially problematic because at the time he wrote, the world contained lots of what Locke thought of as unowned land, most notably in North America. Today, of course, the sufficiency proviso would impose much stricter limits on the ability of a person to acquire real property through labor. The second proviso is known as the spoilage proviso. According to Locke, if the farmer has grown so many crops that he's unable to consume them and they rot in his barn, he not only forfeits his right to the unused crops, but also his right to as much of the land as was necessary to grow them. In other words, his legitimate holding shrinks. Again, this restriction was not particularly important for Locke, because in his view, it was rendered largely irrelevant by the invention of money. After the adoption of a medium of exchange, if you grew more crops than you could eat, you could exchange the surplus for hard currency, which you could then use to purchase other goods and services. The result, the surplus did not go to waste and the legitimacy of your holdings was not threatened. The third and last of the provisos, less clearly recognized in Chapter 5, but implicit in other portions of Locke's work, is sometimes referred to as the duty of charity. This restriction, emphasized by Wendy Gordon in a pioneering article, entails an obligation to let others share one's property in times of great need, so long as one's own survival is not threatened. So that in brief is the core of Locke's general theory of private property. Many nuances and controversies lurk in this quick summary. In particular, I've not said anything about the long-standing debate concerning the extent to which Locke should be understood as an apologist for capitalism. If you're curious about such matters, feel free to explore some of the materials listed in the bibliography, to which there's a link on the map. But we're going to press on to consider the application of Locke's theory of real property to copyright. It's widely thought that Locke's theory provides an even stronger justification for intellectual property than it does for property and land. The following circumstances underlie this assumption. First, the public domain, by which I mean the large body of unowned cultural products that all authors draw upon when creating their own works, provides a plausible analog to the land held in common that figures so importantly in Locke's argument. Next, with respect to many kinds of intellectual property, labor seems to provide a disproportionately large source of its value. To create a novel, a writer of course needs a few tangible raw materials, some paper, some pencils, nowadays a laptop computer and so forth, but much more of the value of the novel derives from the writer's work than from those materials. Consequently, it seems more appropriate to confer on her ownership of the novel than it does to confer ownership of the land upon Locke's homestead farmer. Finally, in ways that will gradually become more obvious as we proceed through these lectures, Locke's famous provisos seem to align in a suggestive fashion with several of the so-called exceptions and limitations that copyright law imposes upon the rights of authors. For all these reasons, Locke's theory of property seems, to many observers, to provide both a potent justification for the system of copyright law and equally important a guide when determining how far that law should reach. That widespread assumption turns out to be overstated. Most fundamentally, it's less obvious than it first appears that Locke's argument has any bearing at all on intellectual property. Even if one can get past that initial hurdle, it turns out that key features of Locke's argument contain ambiguities that blur its application to the kinds of issues that arise in the copyright context. Let's take up the threshold difficulty first. In a shrewd article, Shauna Schifrin points out that one can find, in chapter 5 of the Second Treatise, six different explanations for why labor upon unowned land generates natural property rights. Those six rationales are summarized in the map in front of you. First, natural reason, Locke argued, informs us that people have, quote, a right to their preservation, end quote, and the only practical way of effectuating that right is by appropriating, in other words, owning the materials we need for food and shelter. This is more than a right, in Locke's view, it's a duty. We have a religious obligation to preserve ourselves. More broadly, God commanded us to subdue the earth, specifically to, quote, improve it for the benefit of life, end quote. And the only way to do that is to labor upon it and then, again, appropriate the fruits of that labor. Next, Locke argued that our intuitions tell us that a person has a, quote, property in his own person, including, as we saw in the passage I read earlier, quote, the labor of his body and the work of his hands, end quote. When we mix the work of our hands, which we owned, with unowned raw material, it seems natural, he argued, that the former should color the latter. Locke's fourth argument is that work is virtuous. God gave the world, he argued, quote, to the industrious and rational, not to the fancy or covetousness of the quarrelsome and contentious, end quote. Virtuous workers deserve rewards. Fifth, it seems natural, Locke argued, that ownership of a finished product should track ownership of the most valuable component thereof, which he argues is typically labor. Sixth and finally, Locke, throughout chapter five, draws sustenance from the language of transformation. He depicts the homestead farmer's activities as attractive, in part because of the way they alter the landscape, from wild to domestic, from raw to cultivated, from chaotic to ordered, and from unproductive to productive. All of these changes seem to Locke self-evidently worthy of commendation. Once one is catalogued, the foundations of Locke's theory of real property becomes much less clear that his argument has force in the context of intellectual property. In particular, as Schifrin points out, only the fourth and fifth of the six rationales seem to provide clear-cut justifications for a novelist's acquisition of a property right in her novel. Presumably, the novelist owns the work of her hands just as much as the farmer, and her labor is just as virtuous. But her survival is not dependent on controlling her novel, nor does the novel seem pertinent to her religious obligation to subdue the earth. The relevance of the other two arguments is uncertain. In short, there's trouble at the threshold. But let's assume that rationales four and five, the moral value of work and intuitions regarding proportionality, are indeed adequate to launch a Locke in justification for copyright. We can thus move on to more detailed questions concerning the implications of Locke's approach for the law. Quickly, we encounter other difficulties. Perhaps the most fundamental is what sort of labor is deserving of a reward. What counts, more specifically, as a virtuous, intellectual work? There are at least four possibilities, again listed in the map. The first, which seems closest to Locke's original understanding, is that labor consists of time and effort, hours spent in a chair typing or standing in front of an easel painting. But as Justin Hughes has shown, we often speak of meritorious work in other terms, tacitly defining it as something you'd rather avoid doing or as something that creates social value. Finally, as Lawrence Becker suggests, we sometimes speak and act as if creative labor is more meritorious than mechanical or dredged labor. These differences matter for copyright. Suppose, for example, that a particular writer or a particular class of artists loved their work and would rather do it than anything else. The avoidance theory of labor, in other words, the interpretation that defines labor as something you'd rather not do, would suggest that writers of this sort should not be given copyrights in their creations, whereas the other interpretations would confer upon them legal protection. Perhaps poets who seem especially passionate about their work should be denied copyrights. Another example. Suppose you work hard, but you're bad at what you do. Indeed, your labor reduces rather than enhances the social value of the materials you labor upon. To take a classic hypothetical example, you find a beautiful piece of naturally sculpted driftwood on the beach, and you paint it pink, reducing its beauty. Do you deserve a copyright in your sculpture? Here's another challenge. An important dimension of Locke's argument is that the magnitude of the reward or the property right acquired by our laborer should be proportional to the amount of labor he or she has invested. But how do you decide how large a reward or property right is appropriate? An illustration. Scott Lieberman is a cardiologist who lives in Tyler, Texas. He's long been fascinated by the space program and is an avid amateur photographer. On February 1, 2003, Mr. Lieberman figured out that the space shuttle Columbia would pass over his home in East Texas around nine o'clock in the morning on its way to a landing in Florida. He and his wife went out into the yard and pointed their cameras at the sky. As it happened, this was just the moment when the Columbia began to break apart. One of Lieberman's images captured that horrific incident. He submitted the photo to the local newspaper, which in turn forwarded it to the Associated Press. By the next afternoon, Lieberman's photo was on the cover of Time Magazine. As you know from the first lecture, as a matter of copyright law, Lieberman surely is entitled to a copyright in his photograph, so the AP and Time needed Lieberman's permission to print and publish the photo. But what is the magnitude of the appropriate or, in Lockean terms, proportional reward to which Lieberman is entitled? He himself seems not to have been mercenary, but he could have demanded quite a large fee from the AP. Should he have been able to do so? Locke's theory points us in the general direction by emphasizing the principle of proportionality, but it doesn't give us much guidance in determining what exactly proportionality means in cases like this. The way in which the issue is framed matters quite a lot. If you focus on the amount of effort that went into pressing the shutter at the moment the space shuttle passed overhead, then it might seem that Lieberman is morally entitled to only a small reward. By contrast, if you take into account the cost of his equipment, his years of self-training, and so forth, then the appropriate reward might be much larger. But putting that important nuance to one side, it's apparent that the largest source of the value of Lieberman's photo arises from luck being in the right place at the right time. What's an appropriate, in other words, proportional reward for that? Yet another difficulty. How exactly should one construe the Lockean concept of the commons? Various options are listed on the map. One possibility would be to treat the concept of the commons as equivalent to the idea expression distinction that we discussed in the first lecture. As you'll recall, copyright law in all countries excludes from protection facts or ideas. Only an author's distinctive expression of facts or ideas is shielded. Perhaps the root of that doctrine is the Lockean proposition that facts and ideas constitute part of the commons upon which authors apply their labor. But this, an initially attractive interpretation, quickly crumbles. For one thing, an author's ideas, if they're original, don't seem to be part of the commons, the existing stock of cultural materials. Yet they cannot be owned. Another problem arises out of the fact that for Locke, labor upon a tract of land held in common resulted in ownership of that tract by contrast, labor upon facts and ideas does not, as we've seen, result in ownership of those facts and ideas. In short, Locke's theory doesn't seem to fit well the way the copyright law is currently organized. Last but not least, the application of the provisos, the famous three Lockean provisos to copyright law, is tricky. Scholars wrestle over the best interpretation of those provisos and over the proper application of each interpretation to intellectual property. Part of the problem arises from the ambiguity of the provisos themselves. For example, should the sufficiency proviso be construed to prevent the acquisition of property rights when the result would be to leave unowned raw materials in sufficient amount for others to appropriate? Or rather, should it be construed more broadly to prevent the acquisition of property rights only when the overall welfare of other people is impaired? The answer makes a big difference to copyright law. In other cases, the proviso itself seems reasonably clear-cut, but its application to intellectual property is unclear. For instance, although most scholars think that the spoilage proviso is irrelevant in the context of copyright because novels don't rot, Benjamin Damstead has argued plausibly that when an author or an inventor secures an intellectual property right over a socially valuable innovation, but then refuses to make it widely available to consumers, the result is a kind of spoilage, and the law should devise a mechanism to override the creator's selfish choice. Scholars are likely to continue to wrestle with these puzzles. My own sense is that it's unlikely that any scholar will succeed in identifying a unique, true, or best interpretation of Locke's original theory in the context of copyright. Locke himself supported literary property, but had relatively little to say about why, and his highly influential remarks about property and land contained too many ambiguities to provide crisp answers to the kinds of questions we must resolve today in the context of art, literature, architecture, software, and so forth. This should not be terribly surprising, nor should it be terribly disturbing. The real value of Locke's theory is not that it gives us definitive answers, but that it encourages us to ask particular kinds of questions. What resolutions to particular disputes over IP or over the rules governing kinds of disputes would treat the parties most fairly? In other words, what would give them what they deserve? Locke's original writings and the many layers of commentary upon those writings sensitize us to some of the considerations that seem relevant to answering those questions. Most importantly, they urge us to be attentive to the role of labor in creating intellectual products and to give the laborers the rights they deserve while ensuring that the public at large is not disadvantaged. But what that guideline means in particular context is largely up to us. Set forth on the map are a few of the issues to which fairness theories direct our attention. How can we ensure that the many contributors to composite intellectual products are fairly rewarded? A premier example consists of films which arise out of the creative contributions of many different people. Screenwriters, actors, directors, set designers, costume advisors, camera operators, and so forth. As we'll see, the copyright systems of different countries handle the rights of those various contributors in quite different ways. When we get to that doctrine, we should and will ask which, if any, of the national systems fairly compensate all of the contributors to a film. Another variant of the same general question, at the end of this lecture series, we'll consider the shifting rules governing so-called traditional knowledge. These are the cultural products of indigenous groups. When we do so, one normative issue will be what system of rules, if any, takes appropriate recognition of the fact that traditional knowledge typically results from the intellectual labor of many generations of people. The issue of proportionality will also come up frequently in this course. Here's just one context. The value of many copyrighted works derives in part from the labor of the copyright owner, but also in part from materials taken from the public domain. Classic examples include Disney's animated versions of folktales, such as Snow White, or Cinderella, or historical narratives, such as Pocahontas. Should the scope of Disney's copyrights in such adaptations of traditional materials be smaller than the scope of copyrights and films incorporating more original plots? The kinds of considerations that Lockean scholars attend to suggest that the answer is yes, but it's hard to determine how exactly one would implement that guideline. Another example. Should considerations of the sort highlighted by fairness theory prompt us to reconsider the absence of copyright protection for factual works, many of which require considerable effort and investment to produce? As we'll see, European countries currently offer reasonably generous copyright style protection to databases, which are compilations of factual materials. The United States is much less generous. In this respect, is Europe right and the United States wrong? In the same vein, should the writers of autobiographies have more control over the narratives of their own lives than they currently do under contemporary copyright law? Ensuring that people who engage in creative labor are fairly rewarded creates a presumption that the answer to each of these questions is yes. Whether that presumption is overridden or trumped by other considerations will take up in future lectures. So here's one last crucial issue. Does fairness require only giving authors appropriate monetary rewards? Or does it also require giving them control over the physical embodiments or performances of their works? Rob Merges, a leading IP scholar and a founder of the Berkley Center for Law and Technology, has recently argued for the latter position. His stance in these debates is interesting. For most of his career Merges approached difficult policy questions involving law of intellectual property from the perspective of utilitarian theory, the approach that will take up in lecture number four. In other words, he sought to identify the set of rules that would be socially optimal in each situation. Eventually, however, he became convinced that utilitarian theory is inadequate. In particular, it's incapable, he now believes, of generating a solid justification for the entire intellectual property edifice. So here's a passage in which he expresses this disillusionment. In my research, I've become convinced that with our current tools, we will never identify the optimal number of patented copyrighted and trademarked works. Every time I play the archaeologist looking for the utilitarian footings of the field, I come up empty. Try as I might, I simply cannot justify our current IP system on the basis of verifiable data showing that people are better off with IP law than they would be without it. Maximizing utility, I've come to see, is not a serviceable first-order principle of the IP system. It's just not what IP is really all about at the latest level. Now, Murgis is not abandoned his utilitarian calculator altogether, but he has relegated it to what he calls a middle intermediate layer in his theory of intellectual property. For deep level inspiration and guidance, he now relies on the writings of Locke and Kant. One of the lessons that Murgis derives from his explorations of those writers is that monetary compensation for authors is inadequate. That respect for their work and their autonomy necessitates giving them property rights over their creations. Decades ago, Murgis had advocated the same position from the standpoint of cost-benefit analysis. Now he offers an alternative, non-consequential justification. Much later in this series of lectures we'll take up the question of what, if anything, should be done in the ongoing crisis in the entertainment industry, resulting in part from the ubiquity of peer-to-peer copying. At that point, Murgis' argument concerning whether compensation is adequate or whether property rights are essential will become relevant. We'll see whether his contention holds up. This concludes our review of the cluster of arguments known as fairness theory. We'll now turn to the second of the four clusters, commonly known as personality theory.