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Labour Desert

The first justification for IP is John Lockes' labour desert theory. In short it is: People own themselves, and derived from this they also own the fruits of their labour, as otherwise they would still be slaves. Now creating or inventing things can be considered labour. And therefore works of the intellect are property, just like the goods manufactured by a workman. This justification is what philosophers would call a deontological justification, in the sense that it is a rights-based approach, and that it does not take the consequences of the exercise of these rights into account.

In the original version the example of unowned waste-land is used. This land could become one's property by clearing it out and farming it. Central to the original Lockean version was that one transforms something useless into something useful, that one actively uses it, takes no more than one uses (the waste prohibition), and that one leaves enough of the same for others (sufficiency provisio), so no one is worse off. In more formal terms: as long as the situation at T2 is pareto optimal (no one worse off, at least one better off), compared to the situation at T1 and the prohibition and provisio are met, then one has a full property right over things produced or transformed through one's labour.

Now because expressions are not just non-rivalous in their usage, but also in the sense that there can be a practically unlimited number of possible phrasings, the theory could fit for copyrighted original works. However for more extended applications of copyright (such as to story-lines or sequels) and as applied to the input of derived works and remixes, the labour desert justification's sufficiency provisio, and especially the requirement to be actually using it (the waste prohibition), pose a problem: Not just for works no longer in print, but also because non-rivalousness arguably makes any forgone use a waste. Furthermore, patents on anything but finished consumer products certainly don't meet the requirements, because future inventions depending on earlier ones can easily create deadlock situations that bar new courses of innovation (so called patent thickets). Thus while there may still be something to be said for it, we do not consider this justification for IP binding here.

The labour desert justification is mostly held in Europe and is included in the Berne Convention. In France it is specifically encoded in the so called 'droits moraux', or moral rights, that French authors have in addition to economic rights. The moral rights entail things such as the right to decide whether something is to be published, the right to withdraw it from the market, and the right of attribution. They cannot be sold by the author, and are perpetual. The interests that the labour desert justification centers on mostly are those of authors and publishers.

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Enclosures of the Mind: Intellectual Property from a Global Perspective

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