As I have explained in my scholarship, for instance, patents were defined as civil rights securing fundamental property rights, and thus identified at the time by the legal term of art, “privilege” (see here).
American legislators and courts thus secured property rights in novel and useful inventions, creative works, trademarks, and trade secrets—securing the right to make, use, and profit from the value created by one’s productive (inventive) labors.
First, as a preliminary matter, my colleague, Eric Claeys, has shown that this critique results in part from foisting on Lockean property theory a deontological framework that is alien to Locke’s ethical and political theory.
It was also alien to the American legal actors who understood Lockean theory and implemented it in the law.
Such inventions represent the rationally-guided, value-creating, productive labor that serves a flourishing human life in civil society, and this is why Locke highlights them as exemplars of his property theory.
Lockean Theory in Modern American IP Law The genius and success of Anglo-American property law is that it has recognized and applied the central idea from Lockean property theory that property rights secure , not just physical objects.
In his famous 1826 treatise, , Chancellor James Kent classifies copyrights and patents under the title, “Original Acquisition by Intellectual Labor.” Here, Kent argues for the Lockean principle that “It is just that [authors and inventors] should enjoy the pecuniary profits resulting from mental as well as bodily labor.” As 19th century judges were wont to say, the patent laws ensured that an inventor would “enjoy the fruits of his invention.” Even more explicitly invoking the Lockean theory I described earlier, one judge in 1843 explained that it is “difficult to draw a distinction between the fruits of mental and physical labor” and that this is a key reason why the patent laws provide that “a man should be secured in the fruits of his ingenuity and labor.” These are only a few examples from a historical legal record of IP rights that are permeated with references to Lockean theory. But many scholars today reject such evidence as mere “rhetoric.” The conventional wisdom is that, while such sentiments were perhaps widespread given American exceptionalism, they had no real impact in the creation and enforcement of IP rights in actual legal doctrine. This is wrong for several reasons.
I cannot address them all in a short essay here, but I will identify a couple to make the case that Lockean theory was determinative in designing novel legal protections for IP rights in the early American Republic.
In § 34 of the I.30) that is the source of both the moral ideal (a flourishing life) and the means to that end (value-creating, productive labor).
It is not lions, tigers, bears, or other “dangerous and noxious Creatures” (II.16) who invented the plough, the mill, and ships.