Clearing the Rubbish: Locke, the Waste Proviso, and the Moral Justification of Intellectual Property

Defenders of strong intellectual property rights or of a non-utilitarian basis for those rights often turn to Locke for support. This paper criticizes that move. My major claim is twofold: on the one hand, intellectual property would be an almost paradigmatic case of Lockean property; on the other hand, Locke’s provisos – specifically the widely neglected spoilage proviso – would sharply limit the scope of any entitlements. My secondary claim is accordingly that the spoilage proviso’s neglect is undeserved, and that it deserves a more central place in our understanding of Locke.
In the first part of the paper, I attempt to resurrect the spoilage proviso. Part 2 rereads Locke’s texts to explain why intellectual property would be a paradigmatic case of Lockean property. Part 3 attempts a conceptual clarification of waste in Lockean terms. The final part applies this analysis to some contemporary IP issues: to certain uses of IP to control access, to deadweight loss due to monopoly pricing, and to the possibility of anticommons scenarios. Each of these can be seen as “”waste”” in the Lockean sense, and thus each offers a counterweight to strong IP claims made in Locke’s name.

Gordon Hull

Public Affairs Quarterly

January 2009

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