The base of any IP is an ‘idea’ that governs it. It is this idea on which the philosophical foundation of rewarding the talent revolves.
Intellectual property is one of the fastest growing field of law in the present time. The concept of property has changed a lot. Property has always tended to provide the owner with bundle of rights, for the purpose of using it as he wants. This right to use was compared to the maintenance of status quo in 18th and 19th century, perhaps owing to the conservative nature of the society. Gradually, there was a requirement to extend the ambit of property to the periphery of what we call as “talent”. This extension was primarily based on the philosophical foundation of “rewarding the talent”. The real question to ask here is about the origin of this philosophical foundation or rather to say the jurisprudential aspect. This piece will try to delve around this jurisprudential aspect of IP concerning primarily to Locke’s labor theory so as to understand the foundation.
The base of any intellectual property (IP) is an “idea” that governs it. It is this idea on which the philosophical foundation of rewarding the talent revolves. Locke’s justification becomes very important to make ourselves understand this conundrum. Locke’s justify it by giving two simple analogies. Firstly, the labor must be rewarded and secondly, one must provide reward to get labor. These two things seem quite simple but its interpretation has given IP, the importance which it holds today in the globalized world. Now if we interpret the labor with that of idea governing intellectual property we will come across an interesting linkage between that of labor and idea. The first and the foremost question to ask is whether an idea requires labor. Does society believes that production of ideas requires labor? Or is that the production does require labor irrespective of any societal belief? There has always been a huge debate on this among various writers. Locke provides an interpretation to this as well. He sternly believes that ideas do require labor. Well we can’t expect that an idea to invent a bulb was without an extreme labor being done by Thomas Edison. Various researches done today come with a huge investment coupled with a lot of labor. Locke comes up with another beautiful explanation saying that our bodies are our own property. And what we do by our property (body) becomes our property. Well one can have a different opinion to this as well. If we say that work done by our body becomes our property, whether this means that the labor which is expected is quantifiable with the time that is spent or rather it implies the metaphor of sweat on the brow? Probably the idea- making perhaps might not be considered as manual labor. But those who spend time on ideas prefer this to manual labor. So can we compare the job of farming, tree cutting or doing mechanical works equivalent to idea-making? Locke’s view of labor is something which refers to “pain”. Meaning thereby, if the labor is done for some manual work, it does incur pain, but what about idea-making? Does it mean that by referring labor as pain, Locke tries to imply that idea-making is also a painful?
This context of labor as painful and idea-making being a painful exercise brings us to two interpretation of the labor theory done by Locke. First is the normative proposition of the labor theory and second is the instrumental proposition. These two propositions provide us some room over which we can at least infer some reasoning on whether idea-making is painful or not. In the normative proposition it says that the labor must be rewarded because of its unpleasantness nature. And to other extent, the instrumental proposition proposes to reward the unpleasantness of labor not because it is unpleasant but because the people must be motivated to do labor. Both of the interpretation does assume that doing labor is unpleasant. From here the foundation starts getting laid. Once the people get motivated to work for reward, this reward getting system is slowly converted into the right based system. In one of the very famous case of Mazer vs. Stein in 1954, the United States’ Supreme Court said that the economic philosophy behind granting patent and copyright encouraging individual efforts is the best way to advance for public welfare. This wide acceptance of the analogy that people must be awarded so that they should be motivated to do the unpleasant work might not substantiate that idea-making is painful but it does interpret that the understanding of labor inherently was in consonance with that of being unpleasant. But idea-making is painful cannot be a very strong argument since it could be a neutral activity or a pleasant one.
Locke’s justification of labor does not end here but it also covers another interpretation which is very common with IP regime is that of “value-addition”. Why I said it being very common is because of the mandatory nature of IP concerning the value addition. Locke justify it by saying that when labor produces something of “value to others”, then the person deserves some benefit out of it. The above discussion clearly stipulates that the labor was considered to be unpleasant and with the proposition of value addition, a clear picture of an “effort” behind doing the labor is visible. Even today the patents act around the world substantially focuses on utility and industrial applicability of the patent. The proposition of value addition substantially focuses on the efforts. It was again reiterated with in the similar case of Mazer vs. Stein that the enhancement of the public good by the efforts of the intellectual laborers makes the creator of the IP worthy of rewards. Even when a patent is being filed, it does require an “advance” over the existing technology that being the pre-requisite of the patent law anywhere in the world. Well one can easily argue that this interpretation might not get into the copyright area as many worthless works are copyrighted without any value addition. But what if the copyright work can ever be considered to be of social value to the society? It might be difficult to answer this and one can have argument both in favor and against. But certainly if we compare the invention with that of the copyright than certainly the social value which the inventions have will perhaps be more than that of the copyrighted work.
But invariably the labor theory still applies to it as well. We are often being told that the ideas are not copyrightable but it’s the expression which is. Now at a closer look at the labor theory play a substantial part. By having expression as copyrightable it does insist over the effort being expected from the author. For our understating the labor is the expression. Hence, idea/expression dichotomy can be very much synonymous with idea/labor dichotomy. Locke’s justification might not hold true for the value addition but it does proves its labor part even in the copyright.
Well for the value addition part, a very important concept that Locke refers to is the common approach to the idea. These common approaches can somehow be addressed to value addition in the idea. He gave an example that if Mr. A creates an idea X and this idea gives the possibility to idea Y and Z. What if Mr. A can claim the authority over idea Y and Z? Here the concept of value addition does play a very substantial role in defining the author. How substantially the new idea is connected with that of the idea X? If idea Y and Z have a very close connection with that of idea X, then it is much obvious that the author of Y and Z cannot claim the copyright protection being lacking in “value addition”. Some ideas are common to which everyone has a right to use. But this common approach must be balanced in such a way to not to infringe over the rights of the author.
This analysis of the jurisprudential aspect of IP holds much importance to understand the foundation of IP. IP has undergone a lot of changes in its structure but the basic foundation had always remained unchanged. Locke’s labor theory substantially proves this very foundation. The origin of IP through structuring itself from a labor perspective and linking it to the idea provides a substantial start to deal with IP foundation. The requirement of labor in one’s idea provides an insight towards the notion of “effort” being assumed for getting reward. The societal attitudes for getting motivated for rewards forms a very important role in today’s IP regime. It is due to this incentive based formula that we see an increase in the IP management and strategizing IP across corporate in the world. But whether Locke’s justification holds validity in modern perspective more than what has been described. What about the creator’s personality who develops the idea? How an individual’s personality can be important to the IP? These pertinent questions will be discussed in the next piece under this column.