Uppsala universitet Filosofiska institutionen

On Shiffrin, Locke and Intellectual Ownership

Isak Gerson VT 2013 Handledare: Magnus Jedenheim-Edling

Table of Contents
Introduction..........................................................................................................................................3 1 Preliminary remarks..........................................................................................................................4 What is an intellectual good?...........................................................................................................4 What is intellectual property?..........................................................................................................5 Shiffrin's interpretation of Locke.....................................................................................................6 Other interpretations of Locke.........................................................................................................8 Questioning Shiffrin.......................................................................................................................11 2 Intellectual ownership......................................................................................................................11 3 Discussing Shiffrin's arguments......................................................................................................16 4 Conclusion.......................................................................................................................................19 Bibliography.......................................................................................................................................20

Keywords: Intellectual Property Rights, Locke, Nozick, Commons, Shiffrin Abstract: Can intellectual property rights be grounded in Lockean theories of property? By reading Seana Shiffrin's interpretation of Locke's theory of appropriation and Shiffrin's arguments on the question of intellectual property, I study if intellectual ownership is justified according to Locke's theory. I reach the conclusion that it can not be justified.

Introduction
The question of intellectual ownership has been debated in the public for a long time especially in terms of copyright. The arguments that are used are often based on either a utilitarian incentive theory claiming that intellectual ownership is necessary to make sure intellectual labor is done at all, on a Hegelian personality-based theory claiming that control over intellectual objects is essential for our self-actualization, since we mix ourselves and our personality with these objects, or a liberal rights-based theory claiming that those who perform intellectual labor have a natural right to own the intellectual goods their labor gives rise to, corresponding with the ownership rights to material goods arisen from material labor. I will not review the incentive theory or any other utilitarian theory of intellectual ownership in this article. My focus will be on rights-based theories. I returned to John Locke, one of the great philosophical authorities on ownership theory, in my examination of the question. I base my work on Locke primarily because Locke offers a theory of appropriation that balances the rights of the appropriator against the rights of the society as a whole, and because Locke offers metaphysical grounds for his theory of appropriation. Seana Shiffrin has in her article Lockean Arguments for Private Intellectual Property (2001) and her chapter Intellectual Property in A Companion to Contemporary Political Philosophy (2007), investigated intellectual ownership from a Lockean perspective. My purpose is to discuss the metaphysics and the arguments on intellectual ownership raised in Shiffrin's texts, with the focal point on Shiffrin's earlier article. I will also lean on Shiffrin in my discussion on the metaphysics of intellectual ownership. I will start the paper with some chapters of the metaphysics of intellectual goods, intellectual property and systems of intellectual appropriation. After that, I will explain Shiffrin's interpretation of Locke, and argue why Shiffrin's interpretation of Locke is better than other interpretations. I will proceed by explaining Shiffrin's metaphysical discussion of intellectual ownership. That needs to be done before I start discussing Shiffrin's views on how well intellectual ownership can be justified in terms of Lockean ownership. Shiffrin claims that Lockean theory is unable to provide a solid ground for intellectual ownership. I will present her claims one by one and discuss them. What I aim to prove is that there is no justification for intellectual ownership in Lockean theory of ownership.

1 Preliminary remarks
What is an intellectual good?
Literature, scientific articles, movies and music are all examples of intellectual goods. Paper books, paper magazines, hard drives and digital discs are all material goods that may contain intellectual goods. My paper book can contain the story, poem or thesis you have written. Your hard drive may contain music I have composed. How are intellectual goods produced in the first place? Material goods are produced from raw materials, with labor. I might sow seeds to harvest grain, use wood or stone to build a house or pick fruits. These raw materials often have their origin in what John Locke refers to as the commons. The commons are the goods in the world which have not yet been appropriated. Since these goods have not been appropriated, they are still commonly owned (like the wild forests, or the unused soil). What is the relationship between forged intellectual goods and the raw material of the commons? Shiffrin tries to answer this last question by presenting three possible conceptions of the nature of intellectual goods and commons. I will explain Shiffrin's conceptions one by one. (Shiffrin, 2001:158-9) The first possible conception Shiffrin presents is that all intellectual goods originate from the commons. The process of intellectual labor is a labor of discovery and unveiling. It would be like the process of finding fresh baked pies. The pies already exist, and we just have to find them to gather and eat them. Shiffrin sees this conception as a bit too platonic. The idea that no ideas or concepts are the least bit personal seems strange. We do often think that many intellectual goods get some attributes by the personality of their author. (Shiffrin, 2001:159-60) The second conception Shiffrin presents separates ideas and concepts from expressions. The ideas and concepts belong in the intellectual common, but intellectual labor shapes them as particular expressions. The expressions are what we know as works of art or works of science, and the concepts and ideas are the foundations on which they are built. (Shiffrin, 2001:161) Shiffrin claims that this relationship has an agricultural analogy. The farmer uses the common land, earth, water and reshapes it through labor into a usable good food. The author uses the common concepts, ideas and reshapes it through labor into a usable good intellectual works. (Shiffrin, 2001:161) The third conception is the case where there is no intellectual common at all. Authors use no 4

external material. The produced intellectual goods are pure labor, formed into a consumable good. The laborer's role here is similar to that of the laborer's role in reproductive labor, like the labor of a nurse. No part of the labor depends on any raw material. The labor is created exclusively with the laborer's body and brain. (Shiffrin, 2001:164-5) This view is also quite problematic. Shiffrin raises concern about historical works and other nonfictional works. It is not as controversial to claim that I have written a book like Cinderella strictly from my own fantasy as to claim that I have written a book about the second world war strictly from fantasy, since historical (and other nonfictional) works actually describe the world around us. But fictional works are also quite problematic. The belief that all written fiction is written in a literary tradition is quite a platitude. But this third conception seems unable to handle this. (Shiffrin, 2001:164-5) The next question is how objects are used and worn out. Material goods are used by one or a limited number of persons at a time. A carrot or a house can only last or hold for so and so many people. Usage of material goods almost always wears out the goods in question. Usage of an immaterial good, on the other hand, is not exclusive. Neither does usage of intellectual goods wear out the intellectual good. I may get bored of a song I listen to, but that is a corruption of my relation to my mental copy of the good, not a corruption of the good in itself. The song can still be as exciting in your mental processes. The third question is how objects are transferred and traded. When I give you a house, I transfer my ownership over the house to you. I lose my house, because I give it to you. But when I give you my song, that does not affect my ownership of my song. I might lose the materialized medium for the song, like the note sheets or the burned CD, but I will not lose the song as such. I could just as well create another materialized copy of the song before I give it to you. Intellectual goods are therefore non-rivalrous and non-exclusive. (Levin, 2008:36)

What is intellectual property?

When you own something material, you own the token of the material property. When you buy a house, you do not get to own all of the tokens that identify with the house type i. e. all identical houses.1 But when one owns something immaterial, one gets according to the intellectual property
1 The distinction between a type and its tokens is an ontological one between a general sort of thing and its particular concrete instances, according to the Stanford Encyclopedia of Philosophy http://plato.stanford.edu/entries/typestokens/

rights system to own the type of the good. When one owns a song, one owns every token of the song. If someone chooses to copy the song another person owns, that token infringes on the owner's right to own the song. The ownership of intellectual goods is somewhat different from ownership of material goods in another way. When I own a song, I control how the song is copied and transferred into new ownership. For example, if I have sold you a CD with music I own, I can not control what you do with your CD, but I have the right to control how you copy the CD and transfer the contents of the CD to other people. The way copyright and patent systems are constructed legally usually falls under the second of Shiffrin's conceptions. In the legal sphere, it is not the artistic or scientific qualities themselves that are ownable, but the expressions and solutions that build upon them. This does not mean that the systems only protect the exact expressions and solutions presented. They also forbid people from creating and spreading expressions and solutions similar enough to the protected work. I will get to that later. In essence, copyright is the right for the recognized author of a work of art or literature to control how the work is copied, transferred and spread a kind of ownership of this work. Patents protect technical or otherwise innovative ways to solve problems, solutions that have industrial applications. One important difference between intellectual and material ownership is what is considered owned. When I build a house with my own material, Lockean theory would allow me to appropriate that house. But when I design a house, my ownership according to intellectual property rights stretches across all of the houses that are designed in that way.

Shiffrin's interpretation of Locke

While many interpretations of Locke focus on the right to the fruits of one's labor, Shiffrin's interpretation of Locke sees labor primarily as a tool of determining the details of the ownership. The ethical basis of Shiffrin's reading of Locke is the world as commonly owned. We need ownership to make sure the world is used in an effective way, not primarily because we earned it through our labor. (Shiffrin, 2001:143-4) The interpretation goes back to the ethical claim that the world is given to us by the Christian god. Since we received the world commonly, we all have to share the goods of the world. But to be able 6

to use the goods of the world, we sometimes have to appropriate it. Locke himself phrases it this way: The earth and all that is therein is given to men for the support and comfort of their being. And though all the fruits it naturally produces and beasts it feeds belong to mankind in common, as they are produced by the spontaneous hand of nature; and not anybody has originally a private dominion exclusive of the rest of mankind in any of them, as they are thus in their natural state; yet, being given for the use of men, 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. (Locke, 1698:26. Emphasis added)

According to Shiffrin's interpretation of Locke, this seems to be the core reason for developing a system of ownership at all. To be able to enjoy the goods of the world, we need to remove them from the common. The other reason for developing a theory of appropriation in Shiffrin's interpretation of Locke, is to secure the right of self-preservation. First, we must preserve ourselves. We do this by appropriating and using the goods of the world around us in a way that preserves ourselves. (Shiffrin, 2001:145-51) But we do not only have a right to preserve ourselves, we also have a duty to effectively use the world around us. To do this, we often need to appropriate the world around us. We need to appropriate the land to till the earth. We need to appropriate the forest to build houses. This duty goes far beyond the right to preserve oneself. We should use the world we were given in the most effective way, no matter how much we need to. (Shiffrin, 2001:145-51) This is how Shiffrin interprets how Locke justifies appropriation and ownership, in both situations of self-preservation and situations beyond self-preservation. This part of Shiffrin's interpretation is pretty clear. The terms of who the ownership belongs to is not so clear, though. Shiffrin does not see ownership of the fruits of one's labor so much as a moral right, as it is a good way to allocate resources in a way that makes the use of the world as effective as possible. When it comes to appropriation beyond that what is necessary for self-preservation, Shiffrin clearly dismisses the thesis that ownership should be a way of creating incentives for labor. (Shiffrin, 2001:143-4, 151-2) Rather the ownership beyond what is necessary for self-preservation seems to be a tool to help those who work the owned material and the owned goods in planning the labor in a way that makes the best of the material and the goods. In Shiffrin's reading, Locke seems to give the right to appropriate 7

more than what people need for self-preservation to make sure that even these extra materials and goods are used as effectively as possible. (Shiffrin, 2001:151-2) So I might appropriate land that would otherwise be left unused, and use it to sow, fertilize, harvest and eat the fruits of my labor. My appropriation was necessary to plan and execute the project, and the land would have been good for nothing if I had not grown my food on it. On the other hand, if I have plenty of food while my neighbors starve and I use a lot of my land for producing luxuries, it might not be legitimate for me to keep all of the land for myself. I could maintain myself anyway, and the land would be more effectively used if my neighbors got a part of it. It might even be true in some situations, that I will have to share my food with my neighbors if they starve. Perhaps not always justified with effective use, but at least in justified with their selfpreservation.

Other interpretations of Locke

There are several reasons why Shiffrin's interpretation of Locke is superior to other readings. I will contrast Shiffrin's reading to Gerald A. Cohen's interpretation of Locke, and to Robert Nozick's interpretation of Locke. Last, I will argue that one of the strengths of Shiffrin's system is that it manages to create a Lockean system of appropriation that opens up for both individual and collective ownership. I contrast Shiffrin to Cohen and Nozick, simply because Cohen's and Nozick's interpretations and critiques of Locke are two of the more popular interpretations and critiques of Locke. Cohen interprets Locke in the chapter Marx and Locke on Land and Labor in his work Selfownership, Freedom and Equality. Cohen's interpretation of Locke's argument for appropriation in that work is as follows: [S]ince land without labor produces hardly anything, and land with labor produces an enormous amount, labor contributes vastly more to output than land does, and labor should, accordingly, be appropriately rewarded. (Cohen, 1995:185) But this view is, according to me and to Cohen, not without problems. One of the problems is that Locke overrates the value added by labor. It might be true that land without the application of labor is nearly worthless, and that land upon which labor has been applied is far more useful. But does it follow that labor contributes with all this added value? We could study how useful labor without land is. Just tilling or sowing into thin air will not fill my stomach. Actually, very few types of labor 8

are useful without using materials from the land (or materials that are forged from materials from the land). (Cohen, 1995:182-4) Another problem Cohen points out is that Locke ignores the fact that the land is unevenly distributed. Not only in terms of ownership, but in terms of opportunity. If I live in the desert, my opportunities to start prosperous a farm is somewhat different from that of someone who lives in more fertile regions. (Cohen, 1995:186) But my main issue with Cohen's interpretation of Locke is the argument that the basis of appropriation is intimately linked with the question of value. Cohen seldom speaks about why the person that adds value to a good should gain ownership of the same good. This question is discussed once in Cohen's text. Cohen quotes the Lockean argument: [the improving cultivator] who appropriates land to himself by his labor does not lessen but increase the common stock of mankind . . . he that encloses land, and has a greater plenty of the conveniences of life from ten acres than he could have had from a hundred left to nature, may truly be said to give ninety acres to mankind: for his labor now supplies him with provisions out of ten acres, which were but the product of a hundred lying in common. (Locke quoted in Cohen, 1995:187) Cohen specifies how this argument is to be interpreted: The cultivator's gift to 'the common stock' is not, I think, the surplus provision he produces on his own ten acres, all of which he might himself consume, but the bounty of nature on the ninety acres he is able to vacate for the use of the rest of mankind, because his productivity on the ten he privatizes. (Cohen, 1995:187-8) Cohen himself points out the weakness in this argument: it can only justify appropriation when the appropriation leads to an increase of the commons, corresponding somewhat with the gained effectiveness. This seems to be an attempt to defend appropriation based on added value with an argument similar to Shiffrin's effective use-system. So why not stick to Shiffrin's system of appropriation based on effective use? Robert Nozick's critique of Locke starts with the claim that Lockes theory is substantially mistaken regarding ex ante ownership. Nozick does not acknowledge Locke's ethical grounds. Instead, he claims that the world is ex ante unowned. Nozick specifies the critique with his tomato juice example: If I own a can of tomato juice and spill it into the sea so that it's molecules (made

radioactive, so I can check this) mingle evenly throughout the sea, do I thereby come to own the sea, or have I foolishly dissipated my tomato juice? (Nozick, 1974:175) Shiffrin avoids this question by presenting a Lockean theory where the labor is more of a means to distribute ownership, rather than the moral measuring rod itself. When the focal point of the theory is not labor, the question of judging how much labor is needed for appropriation becomes less important. Nozick's theory is very focused on rights-based points of view. Shiffrin manages to lift Locke into a moral discussion of ownership that does not only discuss the rights of ownership, but also what is fair and what leads to the maximized use of goods. By doing that, Shiffrin manages to build a system of appropriation that has the advantages of several moral systems (like the popular Lockean and the utilitarian). I do not see Locke's justification for ownership beyond the need of self-preservation as a justification for specifically private ownership. To eat an apple, one must appropriate it privately (according to Locke), but to build a temple, private ownership might not be necessary. Collective ownership, such as ownership belonging to a family, a tribe or a democratic government might be just as good as or better than private ownership when it comes to appropriating the commons beyond the need for self-preservation (except for those situations that demand a temporary ownership that is practically needed to utilize something like in the case with the apple). I interpret Locke through Shiffrin as seeing the forms of ownership beyond what is necessary for self-preservation as secondary to the effects in terms of effective use of the world around us. If a common is more effectively administrated through collective ownership than private ownership, the ownership should be collective. The central issue of importance is that the commons are owned at all, and that they are owned in a way that maximizes the effective use of the commons. This is not clearly written in Shiffrin's interpretation. But Shiffrin does give a clue in the introduction to the article, when Shiffrin describes the governmental system that administrates music as a common, and compensates artists with royalties. (Shiffrin, 2001:142) Or when Shiffrin discusses some of the labored products that are neither agricultural nor intellectual (like parks and paths). (Shiffrin, 2001:162-3) These serve as examples of how some parts of the goods in the world might be better administrated collectively.

10

Questioning Shiffrin
One problem with Shiffrin's theory is, of course, that it relies on the more theological part of Locke's theory. One might argue that one needs to prove the Christian god in order to rely on Locke's theory. Since Shiffrin's theory relies a lot on that part of Locke's theory, this might be even more crucial when relying on Shiffrin's theory. However, I do not think that is necessary. Regardless of whether there is a god or not, we need to figure out a way to use the world in a way that ensures that our use of the world is both fair and effective. We can not be certain that God gave us this world, but we can be certain that we need to use it to survive. It is hard to argue that one of us own it ex ante more than any other. Another critique can be found in Spinello's and Botti's A Defense of Intellectual Property Rights (2009:182-4). Spinello argues that some intellectual goods actually require the ownership rights of intellectual property to be used most effectively. Spinello refers to Shiffrin who actually agrees with this (Shiffrin, 2001:157-8), but for a very limited set of works. As an example, Spinello mentions the exploitation of misappropriation of a trademark could certainly hurt consumers who benefit from stability of meaning (2009:183). There are two ways to counter this argument. One is to ask what goods should guide the way we make our principles. If there is not a clear way to judge what goods require ownership to be used most effectively, should we under-protect those works or overprotect the rest? It is far from clear that under-protection is the way to secure the over-all most effective use. It is even less clear that this argument is strong enough to refute Shiffrin's argument. The other way to counter the argument is to ask how the most effective use for these goods is reached. Is it through private ownership, or other ways to regulate how the intellectual goods are used? In the example Spinello raises, the most effective use could probably be reached as well by a law against misleading advertising.

2 Intellectual ownership
Shiffrin's first argument is this: The use of intellectual goods is non-rivalrous and non-exclusive. The use of the intellectual goods does not require prolonged exclusive use or control. The use of intellectual goods are always more effective when several people use them at once. My use of an intellectual good never intrudes on your possibilities to effectively use the same intellectual good. If we both share a concept or idea, we both gain a better understanding. If we both know of a plan or a 11

technological solution, we can both realize it, as long as the material conditions allow us. There are even reasons to believe that a lot of intellectual goods need to be shared and exchanged freely to achieve its full potential. (Shiffrin, 2001:156) Locke's theory of ownership according to Shiffrin emphasizes that private appropriation is in place in order to effectively use the world around us. Therefore, Locke's theory of ownership according to Shiffrin does not seem to allow for private ownership of intellectual goods. Private ownership of intellectual goods does just not meet the Lockean standards of effective use. (Shiffrin, 2001:156-7) Shiffrin goes on to claim that works in progress might be an exception here, that premature publication is a problem for effective use. (Shiffrin, 2001:157) It is important to question if this really is a copyright-related claim, or if this is more of a question of making secrecy possible. It is not the intellectual goods status as property that is discussed, but the details of the production of the goods. But how does the answer relate to the various metaphysical conceptions of the relations between the intellectual common and the intellectual goods? How are we to review intellectual appropriation if intellectual goods are appropriations of the intellectual commons, like in the first conception? How are we to see appropriation of intellectual goods if they partly depend on the intellectual commons, like in the second conception? What if intellectual goods really are the result of pure labor, like in the third conception? What if there is no part of the intellectual goods stemming from the common? (Shiffrin, 2001:159) Shiffrin argues that the metaphysics is irrelevant for the answer. All these scenarios require different responses if they are to be studied through Shiffrin's interpretation of Locke. But they all arrive at the same result, the thesis that intellectual ownership is not integrable within Lockean ownership theory. I will conclude and state her discussion and arguments. (Shiffrin, 2001:159) According to the first conception, where all intellectual goods originate from the common, Shiffrin's argument holds. There is no need to make the property rights exclusive. Once an intellectual good is discovered from the common, the most effective way to use it is to let everyone use it. (Shiffrin, 2001:159) Moreover, the first conception seems incompatible with copyright ownership of derivative works. It is also not compatible with the wide appropriation of the patent legislation. When an author discovers an intellectual good from the common, how can this author also gain the right to appropriate similar goods? (Shiffrin, 2001:160-1) The second conception pictured intellectual goods as crafted by ideas and concepts belonging to 12

the intellectual common. Shiffrin uses the agricultural analogy2 quite well. It seems that I and Shiffrin can agree on much of the similarities between the relationships farmland and agricultural goods, and concepts and intellectual goods. What differs them is that farmland is exclusive in its use, while concepts are non-rivalrous. (Shiffrin, 2001:161) To conclude: Ideas and concepts are important parts of the common, just like farmland, for the same reasons. However, while we seem to need to appropriate farmland to use it effectively, there is no reason at all to appropriate ideas and concepts (but rather the contrary). It seems rather clear that we have reasons to keep ideas and concepts away from private ownership. (Shiffrin, 2001:161) Shiffrin raises the critical point that this argument might be reversed. If several people can labor the same piece of intellectual material from the common at once, is there really a need make sure the intellectual goods themselves are unappropriated as well? (Shiffrin: 2001,161) Shiffrin answers the critique by claiming that the argument is not strong enough. The ex ante-part of Locke's model is really stressed in Shiffrin's interpretation. It is the appropriation that needs to be justified, not the other way around. Shiffrin's reply to the objection is that the objection simply can not explain why the intellectual goods should be appropriated. The fact that intellectual goods can be used without prior appropriation is enough to justify that intellectual goods should remain unappropriated, together with the speculative thesis that these goods often seem to be better used when unappropriated indicates a stronger support for not appropriating intellectual goods. (Shiffrin, 2001:161-2) Shiffrin imagines the possibility to interpret expressions as the way to reach ideas. Ideas are what is really valuable to us. But to find them, we need an expression. To reach a particular expression, one can use an expression that is already formulated or one can through labor reach the idea by formulating a new expression. Shiffrin admits that it is clear that the author has put work into this expression, but Shiffrin maintains that the author still can not fulfill the Lockean requirements for appropriation. (Shiffrin, 2001:163) Locke's system was mainly created for situations where goods were dependent on the commons. Agriculture depended on land and water, fabrics on sheep, and so on. Under the second and third conception of the relationship between intellectual commons and goods, this does not seem entirely true. But according to Shiffrin, this is irrelevant. It is not only the commons that are ours. All goods in the world that do not require exclusive ownership to be effectively used are ours, collectively. Shiffrin sees this as a a result of our equal moral status as individuals. (Shiffrin, 2001:163-4)
2 Described on page 5-6.

13

Defending Shiffrin's line of argument in the third conception of the relationships between intellectual goods and intellectual commons might be a bit harder, since one here could see intellectual goods as no more than an extension of the self, since they come directly from the mind of the author. The self is, according to Locke, exclusively owned. (Shiffrin, 2001:165) Shiffrin claims that this is only relevant until the work is published. Shiffrin uses the following analogy: By analogy, suppose a person grows an extra length hair, cuts it off from his or her head, and deliberately throws it onto the beach for public view. Is it clear that he or she should be able to prevent passersby from touching it or using it? Suppose this person discards many such lengths of hair onto the common, creating aisles of long, silky hair. Does the right of self-ownership really yield a natural right to restrict access to or control what is done to these clumps? How many such hair-aisles may she introduce into public space yet continue to subject to her control? Of course, when the hair is still attached to the body, there are reasons associated with the values underlying self-ownership to permit the owner to restrict access to it, to protect his or her autonomy and physical security. Such reasons hold even if the attached hair has been fashioned into an artwork or sculpture that others might appreciate. But once a person has deliberately separated from his or her products, it is harder to believe that the right to self-ownership grants rights to continue to control these things. To permit that control would be, in part, to grant a person exclusive control over an aspect of the public domain or the common. A person with such rights could introduce things into them, occupy their space, and control what was done to them. Such rights of control seem inconsistent with the norms of common ownership those of free public access and use that govern what remains of the public commons. (Shiffrin, 2001:165-6) The analogy seems to be as follows: We might suppose that intellectual works are a part of our what we in a Lockean sense should own, since it is our through labor extended selves. But they stop being just a part of ourselves the moment we release them into the open by publishing them. Just as our hair is a part of our body until the moment we cut it and leave it on the ground. (Shiffrin, 2001:165-6) The issue here is not only that we lose the right to our extended selves when we cut them of. The issue seems to be that when our extended selves become a part of the common, our attempts to control them become attempts to control the common itself. That is the main reason why we can not control the parts of ourselves we have severed and left in the common, in the world around us. (Shiffrin, 2001:165-6) 14

To sum up: There is one central argument the argument from common ownership and effective use and one specific argument for the third conception of the relationship between the intellectual goods and the intellectual common in Shiffrin's argumentation. The central line of argument in Shiffrin's article is the argument from common ownership and effective use. It may be stated like this: Premise 1: We own the world commonly, and every private appropriation must be justified in reference to a) self-preservation or b) that the appropriation secures the most effective use of the good. Premise 2: Since intellectual goods are non-exclusive in their use, intellectual goods can be used for self-preservation without the need for private appropriation. Premise 3: Since intellectual goods are non-exclusive in their use, and often even benefit from being shared, intellectual goods do not need to be privately appropriated in order to be most effectively used. Ergo: It is not possible to justify private appropriations of intellectual goods. Shiffrin maintains that this argument is strong enough for her two first conceptions, but that an additional argument is needed for the third conception of the relationship between intellectual goods and the intellectual common. The critique Shiffrin replies to can be stated as follows: Premise 1: The self extended through labor or not is not a part of the common. Premise 2: If intellectual works are entirely a product of the mind and not at all a product of the rest of the world, intellectual works were always a part of the extended self and never a part of the common. Ergo: Intellectual works are owned privately regardless of the argument from common ownership and effective use.

Shiffrin questions the second premise by claiming that intellectual works (according to the third conception of the relationship between intellectual goods and the intellectual common) are a part of the extended self, but only until they are published. When they are published, they become a part of the rest of the world again, Shiffrin claims, and further appropriation from that point must still be justified.

15

3 Discussing Shiffrin's arguments

Some of the premises are directly drawn from Shiffrin's interpretation of Locke. I will not discuss them. The rest is worth discussing, though. It does seem pretty clear that intellectual goods can be used for self-preservation without the need for private appropriation. We can even find examples of cases where intellectual ownership is a direct problem for self-preservation through labor. The most clear and well-known example is probably medicine patents. A lot of poor people need expensive medication to treat epidemic diseases that are common in the third world, like AIDS. Even though these people might have access to factories as well as material that would allow them to produce cheaper medicine, the patent system keeps them from producing this cheap medicine that would save many lives. (Boulet, Perriens & Renaud-Thry, 2000:4) So, private ownership of intellectual goods can be a problem for self-preservation, while not owning intellectual goods does not seem to be a problem for self-preservation at all. The Lockean condition for self-preservation seems only to counter justification of private appropriation of intellectual property. When discussing if private appropriation of intellectual goods is coherent with the Lockean demand that appropriation should benefit the effective use of intellectual goods, Shiffrin claims one thing and speculates in another. She claims that there is not real connection between private appropriation of intellectual goods and a more effective use of the intellectual good that is appropriated. Her argument is that intellectual goods can be used by many people at the same time without any of the persons gaining less from the use because of the others. This separates intellectual goods from many material goods. So we can draw the conclusion that for every extra person that uses the same intellectual good, the effectiveness of the use increases in what is probably a linear way. We all gain enjoyment from listening to a song, and on average, this enjoyment increases with the same amount for every new person. But there is a speculative argument too, claiming that sometimes, the single uses of intellectual goods increase when a lot of people use the same intellectual goods. Shiffrin explains: Moreover, intellectual products often require at least some fairly concurrent, shared (though not necessarily coordinated) use for their full value to be achieved and appreciated.

16

Ideas and their expressions are usually most effective when contemplated by many when their truths are commonly appreciated and implemented, and their flaws discovered and shared. Indeed, there is a social presumption that ideas and expressions are the object of open dialogue, exchange, and discussion. Attempts to control, suppress, manipulate, or monopolize ideas and information run counter to the intellectual spirit of open public discussions that promote learning and appreciation for the truth. (Shiffrin, 2001:156)

In the academic sphere, the peer-review system is a perfect example. We do not judge scientific results as valid until several people have read and inspected the results properly. We value ideas and opinions a lot more when they have been objects for public discussion and critique. Art and culture sometimes especially when it is a part of the popular culture depend on being part of a greater public context to be fully appreciated. Since Shiffrin interprets Locke as seeing incentive arguments as clearly irrelevant (Shiffrin, 2001:152), we have to see them in a more consequentialist way. This implies two things. It means that a justification of intellectual ownership must be a secondary question, more of a strafing away from Lockean theory than a use of it. Also, it implies that other means of creating incentives for authors than systems of intellectual ownership could be as good as or even more in accordance with Lockean theory. Ways of publicly paying for art, science or technology or patron systems could give authors incentives without the need for intellectual ownership of the intellectual goods they create. The other argument Shiffrin proposes the argument that published works are severed from the self is supported by what may be seen as quite a crude analogy. But the claim in itself is this: Once an intellectual work has been published, it is a part of the rest of the world, severed from the self. To exercise any means of power or ownership over the work is to exercise ownership or power over the world severed from the self. Is it like this? It seems so. There are many situations where individuals can violate others' intellectual ownership by artistically describing the culture and world around them. I can not use parts of the movies or music I grew up with when I retell my childhood or other important parts of my life. It is also difficult to depict the world around oneself without violating others' intellectual ownership. Most of the sounds, sights and messages around us are copyrighted, whether we are in public or in our private lives. So there is a clear conflict between my right to create intellectual goods based on my identity, and previous authors' right to own their intellectual property. It is not a 17

problem for the day-to-day sales of books and movies, but it is a problem for the system of intellectual property. It is not clear why I cannot reuse those parts of my memories and depict those parts of my life that are owned by previous authors. I hope to have shown that not only do Shiffrin's arguments hold, but they can be drawn even further. Not only are systems of intellectual property unnecessary to fulfill the Lockean condition of effective use, they may even constitute a direct problem. Not only are the same systems unnecessary to secure the right to self-preservation, they might also be a direct problem in some situations. Regardless of the metaphysics of intellectual property, a system of intellectual property can not build on the idea that intellectual property is an extended part of the self, since this extended part is severed when works are published.

18

4 Conclusion
I have studied if intellectual ownership can be justified in accordance with Lockean theory, hoping to prove that there is no justification for intellectual ownership in Lockean theory of ownership. To do this, I have read Locke through Shiffrin, and especially Shiffrin's article Lockean Arguments for Private Intellectual Property. I have tried to discuss the metaphysics of intellectual goods and intellectual commons, starting from the metaphysic discussion in Shiffrin's article. I have given an account of Locke's theory of appropriation, of Nozick's critique of Locke's theory of appropriation, and Shiffrin's interpretation of Locke's theory, which I think renders Nozick's critique of Locke irrelevant. In her article, Shiffrin reaches the conclusion that through her interpretation of Locke's theory of appropriation, intellectual ownership can not be justified. I have cnveyed her arguments and criticized them. I find that Shiffrin's arguments do not only hold, but they can, from what I see, be drawn even further. Shiffrin's central thesis is that private appropriation of intellectual goods can not be justified according to Locke, and therefore, intellectual goods should remain collectively owned. What I have tried to prove is that Shiffrin's interpretation of Locke and Shiffrin's argument can be used not only to show that the Lockean requirements for appropriation can not be filled when it comes to intellectual property, but also that intellectual ownership is a direct problem for the Lockean theory of appropriation. Not only is private intellectual ownership unnecessary in a Lockean theory, it is necessary not to allow private intellectual ownership, both for the sake of selfpreservation and for the sake of using the world most effectively. According to me, according to Shiffrin, and according to Locke in Shiffrin's interpretation of Locke, intellectual ownership can not be justified with Locke's theory of appropriation.

19

Bibliography
Boulet, P., Perriens, J. & Renaud-Thry, F., 2000. Patent Situation of HIV/AIDS-related Drugs in 80 Countries. Geneva: UNAIDS/WHO . Cohen, G. A., 1995. Self-Ownership, Freedom, and Equality. Cambridge: Cambridge Univ. Press. Levin, M., 2008. Lrobok i immaterialrtt. 9th ed. Stockholm: Norstedts Juridik AB. Locke, J., 1698. Second Treatise of Government An Essay Concerning the True Original, Extent, and End of Civil Government. London: Black Swan. Shiffrin, S., 2007. Intellectual Property. In: Goodin, R., Pettit, P., Pogge, T., eds. 2007. A Companion to Contemporary Political Philosophy. Hoboken: Wiley-Blackwell, pp 653-668. Shiffrin, S., 2001. Lockean Arguments for Private Intellectual Property. In: Munzer, S. R., ed. 2001. New Essays in the Political Theory of Property. Cambridge: Cambridge University Press. Spinello, R., A., & Bottis, M., 2009. A Defense of Intellectual Property Rights. Cheltenham: Edward Elgar Publishing Limited.

20