Eigentum über Ideen in Lockes Rahmen (IH)

Justin Hughes, The Philosophy of Intellectual Property

Epstein directly, albeit unknowingly, points out a critical difference: we are not in possession of any particular external objects by a kind of natural necessity. If we were, the need for property laws would be greatly diminished. Each person, like a tree, would be rooted to his own parcel of external objects; this would be "of natural necessity," and no one would try to displace another from his natural and necessary attachments. Precisely because "natural necessity" goes no further than the mind/body link, reliance upon the "possession" of body as a foundation for a possession-based justification of property is a bit disingenuous.

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We can justify propertizing ideas under Locke's approach with three propositions: first, that the production of ideas requires a person's labor; second, that these ideas are appropriated from a "common" which is not significantly devalued by the idea's removal; and third, that ideas can be made property without breaching the non-waste condition. Many people implicitly accept these propositions. Indeed, the Lockean explanation of intellectual property has immediate, intuitive appeal: it seems as though people do work to produce ideas and that the value of these ideas -- especially since there is no physical component -- depends solely upon the individual's mental "work."

The creativity we perceive in an intellectual product may be either in the core idea or in the core idea's execution. I suggest that when we readily can separate the two, execution always seems to involve labor, but it is not always clear that the creation of the idea involves labor. Ideas often seem to arrive like Athena -- suddenly they are here, full and complete. Like Zeus, we may have a headache in the process, but it is some unseen Minerva who puts in the labor.

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