I. LOCKE'S THEORY OF PROPERTY

At the beginning of his discussion of property in Chapter Five of the Second Treatise, Locke claims that his project is to show “how Men might come to have a property in several parts of that which God gave to Mankind in common, and that without any express consent of all the Commoners.”Footnote ⁷ As is well known, Locke begins from the idea of an original right in common with all others. Locke argues that the original common right is established by God, who grants the earth to mankind to be used for human preservation. This gift of the earth to humans can be known on the basis of the law of nature. The fundamental law of nature (itself rooted in considerations about God's purpose for creation) is the preservation of mankind. From this it follows that persons have a duty of self-preservation and a further duty to preserve others. On the basis of this duty, all persons equally possess a right to self-preservation. Since the right to self-preservation is a right to the means of self-preservation and since the means of self-preservation lie in the earth, each person has the right to those means in common with others. The common ownership of the earth is thus derived from the fundamental law of nature through the fact that it (the earth) can serve as a means 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 rights could ever be justified. Exclusive property rights in parts of the common seem 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 that exclusive rights are possible but that they are possible without obtaining the consent of everyone. Locke solves this consent problem by bringing together several considerations. He aims first to show that appropriation out of the common without universal consent must be possible and then to explain the way in which appropriation may take place without violating the rights (or legitimate claims) of others. In answering this second question, Locke develops several natural-law background constraints on appropriation that serve to make acts of appropriation consistent with the rights of others. Within the scope of these constraints, one can appropriate particular objects from the common by laboring on it.

Locke shows that appropriation must be possible by drawing out the implications 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 not be used in the way that God intended and that the natural law licenses. “If such a consent as that was necessary, Man had starved, notwithstanding the Plenty God had given him.”Footnote ⁸ It follows that universal consent cannot be a necessary condition of appropriation. Locke appears to hold that it is a straightforward implication of these considerations that appropriation out of the common is possible. His argument depends on the idea that since the fruits of the earth are intended for human benefit, there must be a way for particular persons to appropriate them in order to benefit from them: “there must of necessity be a means to appropriate them some way or other before they can be of any use, or at all beneficial to any particular Man.”Footnote ⁹ Locke seems simply to assume that in order to benefit from a particular part of the common, I must be able to exclude others from it. As many commentators have noticed, this claim does not hold in all cases, since for some objects, the power to exclude others is not a condition of beneficial use. It is not clear whether Locke recognizes this and whether he would have limited the scope of his claims about the possibility of appropriation in accordance with it.

Given that appropriation out of the common without universal consent must be possible, Locke argues that appropriation can take place without violating the rights or legitimate claims of others if the act of appropriation satisfies certain background constraints. There are two basic limitations on the power to appropriate in the Lockean theory. The foremost of these is the “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 it leaves enough and as good for others.Footnote ¹⁰ I assume here that in the absence of universal consent, the proviso is a necessary condition of the legitimacy of particular acts of acquisition.Footnote ¹¹

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

A second limitation on acquisition is the spoilage limitation.Footnote ¹³ This is the idea that you may acquire only as much as you can use, or that acquisition is 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 limitation no longer applies. It is that money does not spoil, and so you can keep more and acquire more while still satisfying the spoilage limitation.

Against the background of these two constraints, Locke provides an account of appropriation in terms of the ideas of self-mastery and self-ownership. Man is “Master of himself, and Proprietor of his own person and the Actions or Labor of it.”Footnote ¹⁴ This grounds the possibility of obtaining exclusive rights to particular parts of the common by laboring on it. In laboring on the common (for example, by gathering acorns or clearing and cultivating a field), one adds something that is one's own and which provides the basis for excluding others. The problems facing this aspect of Locke's view are well-known, and a number of interpretations of it have been defended in the literature.Footnote ¹⁵ What must be pointed out here is that if it is successful, the labor argument establishes that someone who has “annexed” his labor to an object has a reason to complain if others interfere with his use of it.

I turn now to Shiffrin's account of Locke's theory of property and to her reasons for thinking that it does not support private property in intellectual works.

II. SHIFFRIN'S ARGUMENT AGAINST INTELLECTUAL PROPERTY

Seana Shiffrin has recently argued that the Lockean theory of property does not justify natural property rights in intellectual works. According to Shiffrin, the framework of Locke's theory of property incorporates an egalitarian concern that places limits on justifiable appropriation. In particular, she holds that only certain kinds of objects can be appropriated. Individual exclusive property in objects of a particular kind can be justified only when exclusive possession is required for the full exploitation of those objects for human benefit. In the case of intellectual property, the conditions that justify exclusive possession or appropriation are not met. While Shiffrin's argument aims to show that natural property rights in intellectual works in general cannot be justified on Lockean grounds, I read her argument more narrowly, as concerned only with the question of natural property rights in literary works.

Shiffrin rightly emphasizes the role of original common ownership in Locke's account. However, Shiffrin believes that the idea of original common ownership has important moral implications. It establishes a presumption of common ownership that structures the justification of private property. Shiffrin sees this presumption of common ownership as “a reflection and expression of the equal moral status of individuals.”Footnote ¹⁶ As such, it is a moral constraint that has to be overcome in justifying exclusive ownership of particular kinds of objects.

Against this background presumption of common ownership, Shiffrin argues that exclusive possession of some parts of the common can be justified on two interrelated grounds. The first is that exclusive possession of some objects comports with the motivation of God's grant of the earth to humans in common. Some objects in the common are such that I can use them 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 underlying motivation of the grant. Food is a central example of this type of object. I cannot be nourished by an apple without appropriating it exclusively. The second justifying ground of appropriation, then, is that exclusive possession of some types of objects is necessary for self-preservation. This condition provides an account of the positive goal or purpose that must be served by appropriation. Thus for some objects, exclusive possession is both consistent with the motivation of the common grant and necessary to make it meaningful. For these objects, the presumption of common ownership is overcome.

An important qualification to this statement of Shiffrin's argument must be noted here. It might be thought that the exclusive use of an object can be justified only if it is required for self-preservation or subsistence narrowly construed. This would be to read the second ground of appropriation as a necessary condition of legitimate appropriation. However, Shiffrin does not regard contribution to self-preservation as a necessary condition of all legitimate appropriation. Her view is rather that self-preservation is one purpose that can justify exclusive use consistently with the motivation of the common grant. There may be other valid purposes that can also justify exclusive use. Another such valid purpose, according to Shiffrin, is the full and effective exploitation of an object for human benefit. Thus the presumption of common ownership can be overcome not only when exclusive use is required for self-preservation but also when exclusive use is necessary for fully effective use of an object for human benefit. For example, my appropriation of a field not directly required for my preservation can be justified if it is necessary for me to exclude others from that field in order to make fully effective use of it as a source of benefit.

The important point here for our purposes is that, in Shiffrin's view, the question about whether exclusive possession of intellectual works can be justified need not turn on the contribution such works might make to self-preservation or subsistence narrowly construed. The question is, rather, whether the full exploitation of literary works for human benefit requires exclusive property in such works.

Given this construal of the underlying motivations of the Lockean theory of property and the justificatory conditions of appropriation, we can see why Shiffrin denies that the Lockean view justifies property in literary works. There are two related points to be made here. First, in order for me to make fully effective use of a literary work, it is not necessary that I be able to exclude others. The fully effective use of literary works does not require exclusive possession.Footnote ¹⁷ Second, the power to exclude others from a literary work frustrates the fully effective use of that work since it prevents others who could also make use of the work from doing so. Since property in literary works is not required for fully effective use by me and since property in literary works frustrates the fully effective use of literary works more generally by preventing others from using those works, the presumption of common property is not overcome.

It is worth noting that Shiffrin's conclusion follows from the first point alone. All she needs to show is that in order for me to use a literary work effectively I do not need to be able to exclude you from it. This shows that the common-property presumption is not overcome in the case of literary works.Footnote ¹⁸

On Shiffrin's version of the argument, the Lockean theory fails to justify exclusive property in intellectual works even if it does justify exclusive property in other kinds of objects. It is important to identify exactly what Shiffrin is claiming here. Shiffrin denies that the Lockean argument justifies what she calls “strong intellectual property rights.” Strong intellectual property rights are, in her terms, rights to “exclusive control over access to use of intellectual works.” Shiffrin is not committed to denying that creators of intellectual works should be compensated or acknowledged. But she does want to claim that the kind of exclusive control that is often thought to be central to a property right cannot be justified by a Lockean view in the case of literary works.Footnote ¹⁹

III. OBJECTIONS TO SHIFFRIN'S ACCOUNT

In this section, I raise a number of objections to Shiffrin's account of the Lockean view. To begin, it is worth noting one interesting implication of Shiffrin's view on appropriation. This is that it seems to deny that universal consent could by itself be sufficient for appropriation of objects from the common. Even if, as happens to be impossible, I could get everyone to agree to my appropriating an unowned literary work, this appropriation would not be legitimate since it is not required for full and effective use of the object. This seems to be inconsistent with the basic orientation of the Lockean theory of property, which regards universal consent as capable of legitimating appropriation.

A more serious objection concerns the notion of a common in ideas or literary objects. Some of the early defenders of a Lockean view of literary property denied that literary works or their materials form an original common. William Enfield argued, for example, that “the work which he [the author] possesses was never in any other hands, nor was ever a part of a common stock on which all men had a general claim.”Footnote ²⁰ Shiffrin, on the other hand, holds that the initial-common-ownership thesis applies to literary works as well as to land. The objection might be raised that she relies on a questionable metaphysical assumption that there is an initial intellectual common in the way that there is an initial common of land. Were there no initial common or were it empty, there would be no presumption of common ownership to overcome and perhaps property in intellectual works could be more easily justified.Footnote ²¹

Shiffrin's basic response to this objection is to argue that the question of whether intellectual works should be held in common is not a metaphysical question but rather a moral one. Shiffrin claims that even if we construe the intellectual common as empty and think of intellectual products as pure authorial creations, there is a moral reason to think of them as “incorporated into an intellectual common on creation.” The reason is that since exclusive property in these creations is not required for their effective use, thinking of such works as common reflects the equal moral status of individuals and an idea that “things should be shared equally unless there is strong reason to do otherwise.”Footnote ²²

This argument is unsatisfying. The argument claims that even if there is no original common in the case of ideas or literary objects, the requirement of effective use should still be held to apply. But a requirement of effective use arises as a condition of justified appropriation (if at all) only because there is an original common and so cannot be used to argue for common ownership 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 because the earth is an original common. Were there no original common, then the requirement of effective use would not arise. In the case of intellectual works, there is arguably no original common. Because the requirement of effective use is grounded in the existence of original common, it cannot be used to argue for common ownership without circularity.

A second objection concerns Shiffrin's account of the implications of the original common. It is important to keep in mind that the presumption of common ownership on which Shiffrin's argument depends is an interpretation of the moral implications of the original common. There is a distinction between Locke's clearly egalitarian commitment to original common ownership and Shiffrin's interpretation of that commitment in terms of a presumption of common ownership.Footnote ²³ This suggests that unless Shiffrin's account is the only account consistent with the recognition of the original common, an argument is required to show that the presumption of common ownership is the best way to understand Lockean egalitarianism. So we must ask whether other accounts of the original common are available that draw weaker moral implications from it. If they are, then it becomes important to ask which version of Lockean egalitarianism is most compelling.

A presumption that things should be held in common unless strong reason can be found to show otherwise is not the only way to take the idea of an original common seriously. One alternative possibility is suggested in William Enfield's tract Observations on Literary Property. On Enfield's interpretation, the grant of the original common should be regarded as a grant in common of the power to acquire property:

The analogies that Enfield draws here between the common grant and a meal given by a parent to children or a donation of money to a crowd may seem to complicate the matter. They presuppose a donor (and thus, it would seem, a theological justification of property), and the second may seem to suggest that any distribution that resulted from the scramble to appropriate would be unobjectionable. However, it is the underlying point that is of interest to us here. This point is that one way of interpreting the common grant is as the grant of a common power to appropriate some share in the means of preservation rather than as a common property in all of the means of self-preservation. Since something is granted in common here, and since it would seem that such a grant could be justified on the grounds of considerations about self-preservation, this would appear to be a possible alternative to Shiffrin's account.

A similar view is defended by Sreenivasan.Footnote ²⁵ On his interpretation of the original common, the natural right to property in common arises from the Lockean concern with human self-preservation and benefit and is thus to be understood as a right to the means of self-preservation (the earth) in common with others. But this right has, on his account, a complex structure that connects it closely to labor. For Sreenivasan, the original right in common is a right “not to be excluded from the use of the common materials which have been plentifully provided by God and from which the direct means of support can be produced.”Footnote ²⁶ As such, it is a right to exercise one's productive powers on the common consistently with the right of others to do the same. The right to the means of preservation is, for Sreenivasan, legitimately exercised only through labor or the exercise of one's productive powers on the common. Labor, “to the extent that one is able, is the only legitimate way to exercise one's right to the means of preservation.”Footnote ²⁷ 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 one must leave enough and as good for others, then the exercise of this right does not exclude others from also laboring on the common and deriving their subsistence from it.

It is important to notice that on this interpretation, the common right is not a right not to be excluded from benefiting from whatever means of benefit there are but a right to be a producer oneself. This right to be a producer is anchored, for Sreenivasan, in the right not to be excluded from the material conditions of self-preservation. Leaving aside the question of whether Sreenivasan's view is the best interpretation of Locke or counts as the most attractive Lockean view, it is clearly consistent with recognizing the egalitarian importance of the original common, although it interprets Locke's egalitarianism more weakly than Shiffrin does.

This is an important point. Shiffrin's defense of her view appears to depend on a claim that her interpretation is the only one that allows us to take the idea of an original common seriously. She suggests that, unlike accounts that emphasize labor and self-ownership, her view “preserves the importance of the common-ownership thesis,”Footnote ²⁸ and she criticizes self-ownership interpretations of Locke's theory on the grounds that on such views, “the claim of initial common ownership has almost no significance.”Footnote ²⁹ The thought behind this argument is presumably that her strong egalitarian interpretation of the original common is the only interpretation in which that idea makes a difference to the justification of Lockean property by placing a real constraint on appropriation. This rests on the plausible idea that a theory that takes the original common seriously must reach different conclusions about the justifiability of property from a theory that begins from a no-ownership situation. If Shiffrin's argument allows us to reach a conclusion that could not be reached from a no-ownership situation, and if there are no other theories that can do so, then her account would have a strong claim to be the only one that takes the original common seriously.Footnote ³⁰

This argument will not succeed, however. As I suggest above, Shiffrin's presumption of common ownership is not the only possible interpretation of the original common. Furthermore, Enfield's and Sreenivasan's interpretations of the common grant do place a constraint on appropriation. In Enfield's example of the parent who provides a common meal for a group of children, it seems right to say both that the parent has given the meal to the children in common and that no one of them has the power to appropriate any more of it than is consistent with what is required to meet the needs of others. In Sreenivasan's case, one can appropriate only what one produces and one's exercise of one's right of production must be consistent with the rights of others to labor on the original common or produce things from it.

If this is correct, then more argument is needed to show why we should accept Shiffrin's presumption of common ownership as an account of the implications of the original common. However, even if we are prepared to admit that the egalitarian principle that Shiffrin places at the basis of her interpretation of Locke is a compelling moral principle, her argument faces a further objection. Shiffrin's argument relies on the thought that the only considerations that are relevant in considering whether or not some form of resource should remain in common are considerations about human benefit. This overlooks two important things. First, we find in Locke's account another possible basis of valid property claims that does not depend on considerations about the role of objects in self-preservation or benefit. This is the doctrine of maker's right, which holds that a maker has a claim to that which she has made. The second is that recognizing this alternative justification of property claims is compatible with recognizing the importance of the original common and its egalitarian role in Locke's account.

In interpreting the original common in light of Locke's egalitarian motivations, Shiffrin neglects Locke's account of the basis of the original common in God's grant. The foundation of the grant, on the Lockean view, lies in God's title to the earth established on the grounds that he created it ex nihilo. The point here is not that Locke's theory of property rests on theological presuppositions. Rather, for Locke, God's entitlement to dispose of the earth and thus its status as a common, are grounded in a moral thesis about relations between makers and objects. The fact that the doctrine of maker's right lies at the foundation of the argument for the original common in Locke's view shows that it can be read as an important Lockean principle alongside his egalitarian concerns. To the extent that it provides a possible basis for legitimate claims to exclude others, it should be included in considerations about the normative foundations of property in various kinds of objects.

IV. THE DOCTRINE OF MAKER'S RIGHT

The Lockean idea that labor can serve as a source of valid property claims may strike us as a nonstarter. The most common interpretation of Locke's account of appropriation by laboring (and the one that the text most obviously suggests) is the labor-mixing model. One obtains property in a part of the common by mixing one's labor in it. The objections to this model are well known. The most famous objection comes from Robert Nozick, who argued that it does not follow from the fact that you mix your labor with something that it becomes yours. As Nozick pointed out, if I mix my tomato juice with the ocean, I do not gain the ocean, but rather lose my tomato juice.Footnote ³¹ This objection seems to apply with special force to things like literary works. If I labor in the world of ideas, perhaps I simply lose my labor in that ocean rather than gaining a right to that with which I have mixed my labor.Footnote ³²

Fortunately, however, there is another interpretation of the Lockean argument available to us. This is the workmanship model. The workmanship model is a strong candidate to explain how it might be possible to have property in literary works or works of art. The central tenet of the workmanship model is the doctrine of maker's right—the claim that a maker has a right in that which she has made. The workmanship model begins from the idea that God's right in his creatures is grounded in his having made them. Since human making is analogous to God's making (both are the work of intellectual beings) human beings also have a right to that which they have made. The workmanship interpretation was defended by Tully and more recently by Sreenivasan.Footnote ³³ I focus here on Sreenivasan's presentation and defense of this model. The view can be summarized in the following claims:

1. (1) The doctrine of maker's 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 maker has a property in what he has made.Footnote ³⁴

2. (2) God has a property in Man. This property is explained by the doctrine of maker's right. That is, God's property in human beings obtains in virtue of the fact that God made them.

3. (3) Making is an intellectual activity that involves bringing about the “material realization of some idea.”Footnote ³⁵ It is governed by the idea or essence of the thing made and involves knowing that idea.

4. (4) By virtue of the fact that making is an intellectual activity, God's making and human making are analogous. Both God and humans engage in making in the sense required by the doctrine of maker's right.Footnote ³⁶

5. (5) The doctrine of maker's right applies to human making by virtue of the analogy. If God's 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. (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 Locke, and since humans may properly be said to make their actions, humans have a property in their labor.

7. (7) A human being has a property in the things that she makes from the common material provided by God. (This is only a necessary not a sufficient condition, since property rights must also satisfy the proviso.)Footnote ³⁷

Both (6) and (7) are consequences of (1) as applied to human activity. The workmanship model in general depends most significantly on the plausibility of (1). And, indeed, the doctrine of maker's right does seem to have an intuitive appeal. However, this account also faces a number of objections.

A first objection denies that Locke appeals to a principle of maker's right in his justification of acquisition. One response to this objection is to point out that it is not necessary that Locke himself endorse the doctrine of maker's right in order for the argument to succeed. However, it is quite clear that Locke did endorse the doctrine of maker's right, at least as an explanation of God's property. Locke appeals to the doctrine in Section 6 of the Second Treatise:

This is enough to show that Locke held the doctrine of maker's right.

A second objection concerns the ground of the doctrine of maker's right. There is reason to believe that Locke took the doctrine to be self-evident.Footnote ³⁹ However, even if we concede that the doctrine is self-evident, we may wonder whether the analogy between God and human beings which establishes the human capacity for property can hold. One way in which we might question the analogy is to draw a distinction between God's making and human making. God creates ex nihilo, which is to say that his making is not a combination of previously available materials, but humans can make only by compounding or dividing materials that God has previously made. Perhaps the doctrine of maker's right applies only to creation. Clearly humans cannot create material objects, and so there is an important disanalogy between God's creation and human making.

Sreenivasan disagrees. He notes that there is a general sense of making that applies both to creation and to making as compounding or dividing. This sense of making is the idea of “bringing into being.” Making in this broad sense would be causality of a specific kind in which one knows an idea and brings about a material realization of that idea. God's acts of creation and human acts of compounding and dividing are both encompassed by this broader sense of making. “On the workmanship interpretation, man's capacity for property is to be explained in terms of the similarity between man and God as makers in the broad sense.”Footnote ⁴⁰ Insofar as the doctrine of maker's right employs the broad sense of making, the analogy between God and human beings holds, and human beings can be entitled to property based on the doctrine of maker's right.

Significantly, the workmanship model does not discount the importance of the original common in Locke's view. Indeed it provides the basis for asserting that the earth is an original common. Nor is it obviously inconsistent with a reading of Locke that supposes that the original common expresses an egalitarian motivation. As I now suggest, the doctrine of maker's right can 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 of literary property. In one manuscript, he does address the issue of books and printing, however.Footnote ⁴¹ The manuscript includes Locke's criticisms of the Licensing Act of 1662 and his comments on a proposed bill regulating printing that was aimed by its supporters to replace the Licensing Act and prevent its renewal. In this manuscript, Locke uses the phrase “property in his copy” to refer to a right of an author, and in his comments on the draft bill he suggests that a provision be inserted to secure this right. Locke's use of the word “property” here suggests that he did think of literary works as property. However he does not say anything about the foundation of these rights, and the passage does not show decisively that he regarded author's rights as natural rights grounded in labor or maker's right.Footnote ⁴² His use of the term “property” is compatible with the idea that author's rights have some other foundation or that they are not natural rights at all. So the manuscript does not tell us much about Locke's own view on the nature of property rights in intellectual works.

Two considerations might be thought to show that Locke did not regard author's rights as natural rights grounded in labor. First, Locke seems to have regarded term limits as reasonable limits on copyright, and in his comments on the draft bill he recommends securing the author's property in his copy for a limited term to be determined in the statute.Footnote ⁴³ Locke's support for term limits may suggest that he did not regard author's rights as natural rights, although it is hardly conclusive evidence that he did not. Second, Locke places a condition on copyright that might be thought to sit uneasily with a labor- or maker's-right-based justification. One of the conditions that Locke places on the author's copyright in a book is that copies of the book must be deposited in the king's library and the “libraries of the two universities.”Footnote ⁴⁴ Receipts from the king's librarian and from the vice chancellors of the universities were required in order to vest in the author or his executors the sole privilege of reprinting or publishing the book within the term limits established by law. The fact that the right to solely reprint or republish one's book vested only when one had these receipts could be thought to suggest that Locke did not regard author's rights as arising from their labor, but again, it does not show conclusively that he did not.

Whatever Locke's own view was however, his theory of property did play an important role in subsequent debates about property rights in literary objects. In particular, it came to be employed in the legal battles over copyright 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 property are suggested by William Enfield in the passages quoted at the beginning of this paper. The assumption that underlies Enfield's view is that there is an analogy between the production of literary works and the cultivation of the earth. The analogy lies in that both involve labor or making. If labor or making grounds a property right in land, then it ought no less to ground a property right in literary productions. Furthermore, if, as Enfield suggests, there is an argument from equity that someone who is willing to labor should (at least) be able to try to profit from his labor (or perhaps deserves a return), then this argument should apply both to cultivation of land and to the production of works of sentiment or philosophy.Footnote ⁴⁵ I will address each of these issues in turn.

From at least one point of view, the application of the doctrine of maker's right to literary works appears to be more straightforward in the case of literary works than in the case of material objects. We might read the Lockean view as holding that in the production of literary works, human beings do something that they are not capable of doing in the material world, namely, they create them ex nihilo.Footnote ⁴⁶ If this is correct, then maker's-right claims seem to be on especially strong ground in the case of literary works, since the doctrine holds that the right is strongest and most extensive in those cases. Even if one thinks that the analogy between creating and making is strained, it is liable to be much less problematic in the case of literary works than it might be in the case of material makings, since the creation of a literary 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 literary property will succeed even if the application of the doctrine of maker's right is confined to ex nihilo making and thus even if the maker's-right account does not succeed in justifying the property rights that human beings are alleged to have in material objects. Furthermore, on this interpretation of literary making, Shiffrin's challenge becomes irrelevant. Even if we accept that her “presumption of common ownership” applies in the case of objects in the original common, literary works, as ex nihilo creations, are not parts of an original common.

In my view, the ex nihilo interpretation of literary making is the most plausible interpretation. Although we should not deny that authors draw on an existing language and on the ideas and works of others in their literary making, there is a case to be made for the claim that the making of a literary work does not involve assembling the work from preexisting materials.Footnote ⁴⁷ However, even if we deny that literary works are the ex nihilo productions of their authors, the doctrine of maker's right still has some force. Suppose we view literary works as fixed combinations constructed from a preexisting material (ideas, propositions, etc.) or as constructions in a social context from materials partially created by others. On these conceptions of what it is to make a literary work, there is some justification for thinking of ideas as a common on which authors labor as others labor on the earth.Footnote ⁴⁸ But it does not follow from this alone that authors cannot claim rights in the products of their laboring activity. Authorial making in this case seems to be analogous in the relevant way to bringing forth produce by cultivating a field. If we are persuaded that material cultivation could give rise to property, then it seems that authorial making ought to do so as well. And if making does establish a distinct relation between the author and the work of the sort that Locke calls a “property,” then this relation has to be taken into account in considering whether or not the author should have the right to exclude.

The denial of property rights in this case presupposes, first, that the ex nihilo interpretation of literary making is false, and second, that Shiffrin's presumption of common ownership applies. However, we have seen that there are good reasons to reject Shiffrin's presumption of common ownership, and by itself the idea that literary making is not ex nihilo does not seem to determine the answer to the question in the direction of common ownership. More generally, the denial of property rights in this case assumes that the only considerations that are relevant in determining whether authors should have property rights are considerations of human benefit and the full exploitation of the work. If these considerations are all that is relevant, then perhaps the products of authorial making ought not to be considered the property of the author. The maker's-right conception suggests, however, that these considerations are not the only relevant ones. It does so by identifying a special and morally significant connection between author and work, thus identifying the ground of an author's interest in the results of her literary activity.Footnote ⁴⁹

The point seems especially strong if we consider the theory of property as establishing rules for fairly bringing into balance the claims of separate persons with respect to objects. The doctrine establishes limits on the ways in which persons can draw on the capacities of others. As products of human making, 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 more generally, 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 (consistently with the limitations imposed by the proviso), I am entitled to what I have made on the basis of my making simply because it would be unfair on the part of others to assert a claim to it. The same seems to hold for literary creations. Insofar as the doctrine of maker's right has weight, it establishes a connection between author and object that grounds a moral property claim to the object. Thus it appears to establish a property in literary works and even 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 weight by combining the maker's-right account of the connection between author and work with an appeal to equity. In the passage quoted at the beginning of this paper, Enfield suggests an equity consideration that we might gloss in terms of the idea that each ought to be able to try to make a living by exercising the capacities with which she has been endowed (or that chance has given her). Other equity considerations include the principle that someone who has expended effort or created value deserves fair compensation for that effort, and the principle that one ought to be able to try to benefit from one's own efforts. It would not be fruitful to rely on these considerations in developing a theory of property in literary works, however. Equity considerations such as these do not appear to support exclusive property rights. It may be, for example, that those who labor and produce literary works are fairly owed a return from their labor, but this in itself does not entail that they should have exclusive property rights in what they have created.

However, there is a way of presenting the argument from equity that does not involve a claim about what people fairly deserve given that they have expended effort. On this reading of the equity argument, to allow others to use what I have made (even if they are required to compensate me) would be to allow them to treat me unfairly. The idea here is that in creating artistic expressions I am using my intellectual capacities to produce something new. On the assumption that the creation of a literary work establishes a significant connection between author and work, then to allow the author no right to what she has created beyond what others have would be to allow others to make use of resources in ways that fail to respect the significance of her creative activity. The problem with allowing others to reap where they have not sown is that what an author has created becomes available as a resource for others to draw upon whenever and in whatever way that they like. This may plausibly be thought to be contrary to equity.

This argument shows why we ought to hold that the maker's-right account of literary property establishes “strong” property rights in literary objects. A strong property right in an object is a right to some more or less extensive form of exclusive control over an object. One might think that the maker's-right claim in a literary object can be satisfied simply by compensating or acknowledging the creator of the object, but this is, I think, implausible. It may well be the case that creators of literary works should be acknowledged and compensated for their labor (although compensation may be thought to be out of place in cases where the work is of little or no quality). But as the equity arguments shows, we should also recognize that it would be unfair to refuse authors a special control over what they have made. Thus the argument requires that we acknowledge that authors have strong property rights over their creations.

I conclude that the maker's-right view provides strong grounds in favor of natural property rights in literary works. Several important questions remain. First, the analysis given here does not address the question of the specific entitlements to which the making of a literary work gives rise. Even if the Lockean view is successful in justifying private property rights in literary works, it does not tell us what powers, privileges, or claims make up this property right. We might take as our guide here the rights that are typically associated with copyright. Copyright usually includes “exclusive rights over reproduction, public performance, public display, distribution, and the making of derivative works.”Footnote ⁵⁰ These rights might be usefully subsumed under the category that A.M. Honoré, in his influential analysis of ownership, called the right to manage.Footnote ⁵¹ I do not argue here that any of these particular rights should be recognized as necessitated by the maker's-right analysis. I do, however, assume that some form of a right to exclude others and to manage the work arises from the maker's-right doctrine.

A second question remains concerning the strength of the property right that is generated by the maker's-right account. Again, the analysis given here does not determine the answer to the question of how strong the right is. Thus it leaves unclear how it might be limited by other rights or what competing considerations might justify limiting or overriding it. I do not intend to try to answer this question decisively here. There are two possibilities to consider. Either the maker's-right view will generate a property right in a literary work that is as strong as any other Lockean property right (such as a right in a corporeal artifact) or it will be limited in special ways. However, in the second case some story will have to be told about what the justification of those limits is. While I suspect that there are special reasons to limit private property rights in literary works, I suggest below that we cannot account for these limits from within the Lockean account.

In deciding what equality requires with respect to the question of property in literary works, we need to balance all of the relevant claims. In the case of literary works, however, the strongest claim to the work that others can produce is that full exploitation of the work does not require exclusive property. But that consideration cannot be the whole story except in a common where no one has more claim than others to a particular thing. In the case of literary works, someone, namely the author, does have more claim than others to the particular thing. It is arguably inconsistent with egalitarian commitments to say that when someone has made a literary work, it simply enters the common, that is, to say that the maker's-right claim carries no weight.

VI. AN OBJECTION TO THE LOCKEAN ACCOUNT

The doctrine of maker's right combined with the equity argument provides the most plausible Lockean argument for property in literary works. In this section, I want to suggest a new diagnosis of the most basic problem with the Lockean account of property in literary works. On Shiffrin's view, the problem is one of fully effective use. Exclusive rights in literary works can be expected to prevent people from using the work even though they could benefit from using it and even though their use of it does not interfere with the use of it by others. This is, in fact, a common source of objection to Lockean conceptions of literary property. However, this account of the problem with the Lockean view fails because it does not take account of the legitimate interests of authors. The most basic problem with the Lockean view is different. It is not a problem about fully effective use of a nonrivalrous object but a problem about the proper balance between public and private interests. To put this in a different way, it is intuitively plausible that there are distinctive limits on property rights in literary works that do not apply in the case of other kinds of property. While it is unobjectionable for an author to prevent others from using her work in certain ways, other forms of exclusion from literary works are objectionable. The Lockean view does not by itself provide grounds for distinguishing between objectionable and unobjectionable forms of exclusion. It cannot account for our intuitions about 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, the only presidential library run by a private foundation. While the library did not contain the presidential papers, it did possess many important documents relating to Nixon's political career. Just prior to the opening of the Nixon Library in 1990, the director of the library, Hugh Hewitt, suggested that scholars who had written unfavorably about Nixon would be denied permission to access Nixon's papers.Footnote ⁵² What he suggested was in effect that the Nixon Foundation would exercise a power to determine who was to be admitted to the archive for the purposes of research. In the face of public outcry, this policy was never adopted. Most of us will agree that this form of control is objectionable. However, it would be difficult to find resources from within the Lockean view to explain why it is problematic. If the rights of an author are maker's rights, then the author can determine who is to have access to her works in the same way that I can determine whom I want to allow to use a table that I have constructed. If we assume that an author of a literary work can transfer her rights to others, then this power to exclude can also be exercised by others in many cases. Although this form of exclusion strikes us as problematic in the case of the Nixon Library, it is not clear how the Lockean view could be in the position to object to it.

This objection can be illuminated more fully by looking at the limits that the Lockean view places on property in literary works. Limits on acquisition in the Lockean framework come most prominently from the proviso, that is, the claim that private appropriation of an object requires that the appropriator leave “as much and as good” for others. It is important to notice the structure of the proviso argument. The proviso prevents the maturation of an exclusive right in cases in which taking the thing out of the common would 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 exclusive rights 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 proviso either will not apply or will always be satisfied. It will not apply if its justification 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 another's toil in the world of ideas. If they are deprived of something, it is not a means of preservation. But even if we want to suppose that they are deprived of a means of preservation (or benefit) by another's appropriation out of the world of ideas, it is easy to make the case that there is always enough and as good left for them. The proviso will always be satisfied if my exclusive right in my literary work always leaves others with plenty of opportunities to create their own works. Since the world of ideas seems large enough for anyone who wants to labor in it, the proviso will not place any constraint on the maturation of an exclusive right.

The important claim about the proviso upon which this argument depends is that it places a certain kind of limit—and only a certain kind of limit—on exclusive rights. The proviso limits the use of common resources in a way that makes that use consistent with use of the same stock of resources by others. The proviso can thus plausibly be seen as expressing the equality of human beings who have to live together in conditions of scarcity because it serves to ensure that each has the opportunity to labor and to fulfill her duties of self-preservation independently. But the proviso does not place limits on the ways in which I may control what exclusively belongs to me. If enough and as good is left for others, then no one can claim access to what I have created. The Lockean argument sees claims of access in terms of 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 raise a problem for the Lockean account. After all, some of the ways in which an author might exclude others from the use of her property might be rude or immoral, but this does not show that she does not or should not have a right to exclude them from her property in these ways. Thus a full defense of the objection would need to show that certain kinds of exclusion from literary works not merely are morally troubling ways of exercising one's rights but exceed the justifiable limits of those rights. In order to do this, it would need to provide an account of the reasons or interests that ground special limits on literary property. I do not provide such an account here. All I try to show is that the Lockean is committed to denying that there are any limits on the rights of authors beyond those imposed by the enough-and-as-good requirement. This is already a significant result, since it puts the Lockean view at odds with some intuitive moral judgments about control over books, writing, and ideas.

The example of the Nixon Library suggests that there are important human interests that speak in favor of limiting the property rights in literary works that are grounded in maker's right. But the proviso, the central source of limitations on private rights within the Lockean theory, is not an appropriate way of protecting these interests. The proviso only guarantees me something to labor on. It does not ground any rights to use or access things that other people have labored on. I try in this paper to suggest that this can ground a powerful objection to the Lockean view. The problem is not that the theory excludes people from a source of benefit that should be held in common but that it lacks the necessary resources to explain and justify the special limits on the private rights of authors of literary works.