A Tale of Sovereignty and Liberalism: The Lockean Myth of Intellectual Property
Shaoul Sussman*
Note

The full text of this Note may be found here.

29 Fordham Intell. Prop. Media &Ent. L.J. 1357 (2019).

Note by Shaoul Sussman

ABSTRACT

[T]

he influence of John Locke’s thought upon the general legal perception of property rights cannot be overstated. Locke’s Labor theory of property holds that property originally comes about through individual exertion upon natural objects and that legal rights in the result of this labor are in fact property rights. The Lockean theory of property has dominated the Anglo-American legal discourse and is frequently used to justify various property regulation schemes. Despite this fact, many scholars have struggled to apply the theory to the field of intellectual property, and in particular to the field of patents and copyright. Many have attempted to square the circle, but the results of these efforts are rather unpersuasive.

This Note proposes to introduce a different framework of jurisprudence that better explains the underpinnings of the current intellectual property legal regime. This framework builds upon and applies the Aristocratic concepts of commutative and distributive justice to the concept of intellectual property. The Note argues that the notion of intellectual property is a legal concept that is first delineated by sovereign authorities in an act of commutative justice. Only after the ‘rules of the game’ are articulated by the sovereign, private actors can enter the legally delineated markets and engage in acts of commutative exchange. The Note demonstrates that from its inception, the field of intellectual property was fundamentally a sovereign legal endeavor and that despite Locke’s theoretical contributions to the field, at no time did the courts of England ever applied his own theory to the administration of intellectual property. Instead, the courts of England have time and again reaffirmed the fact that intellectual property is legal right that is granted by a sovereign and is founded upon the principals of distributive justice.

*J.D. Candidate, Fordham University School of Law, 2019; B.A., Philosophy, Bard College, 2016. The author would like to thank Professor Jed Shugerman for his guidance and advice throughout the writing process, and the editors of the Fordham Intellectual Property, Media & Entertainment Law Journal for their editing and feedback. The author would also like to extend a special thank you to his parents for their unconditional love and support.