It is commonly argued that legal protection of intellectual property rights is illegitimate because such protection has the effect of “depleting the information commons.”  The idea is that intellectual property laws, then, deprive people of something to which all have legitimate claims – namely, the objects in the information commons.  According to this line of argument, the class of information objects should be regarded as a morally protected resource for all to use – an information commons.  Any protection of intellectual property, then, that gives an exclusive right to some person to exclude others from the use of some informative proposition by requiring a fee has the effect of removing something from the information commons and thus has the effect of wrongly depleting it.  Thus, the “Commons Argument” concludes, information should be freely available and not subject to intellectual property protection.

In this proposed presentation and essay, I wish to explain the concept of an information commons and its historical roots in Lockean theories of properties; distinguish different versions of the arguments against intellectual property protection based on this concept; and evaluate these arguments.  Although the concept-term “commons” is ambiguous as between a number of uses, I will attempt to show that the concept that grounds this line of argument ultimately derives from the Lockean argument for original acquisition of property.  Locke realized that the existence of a moral right to property depends critically on the idea that persons can acquire a property right in objects to which no one else has a prior moral claim or entitlement (i.e., objects which are not the property of anyone else).  Here it is helpful to note that the idea that one can acquire a property right in something that is antecedently owned by someone else is comparatively unproblematic: if I own X and am hence morally entitled to dispose of it as I see fit, then it seems clear that I may transfer my property right in X to you by giving X to you, selling X to you, or otherwise abandoning my claim in X.  Although it might not be entirely clear exactly why it is that I can do this, there are no obvious problems, from the standpoint of ordinary intuition, with the idea that one person can transfer a property right to another person.

Original acquisition of property, however, is another story because our appropriating something that does not belong to us bears some resemblance to theft.  While theft is, strictly speaking, the intentional appropriation of someone else’s property without permission or legitimate authorization, the idea that one can take some object out of the commons – an object that does not belong to anyone – and make it one’s own without the consent of any other person requires some justification.  If, as Locke expressed the concern, God gave the world to all humanity in common, there is a puzzle about how it is that any one person can acquire an exclusive property right in some worldly object.

Locke’s solution is, of course, justifiably famous and remains the foundation for much classically liberal theorizing about property rights.  According to Locke:

Though the earth and all inferior creatures be common to all men, yet every man has a property in his own person; this nobody has any right to but himself.  The labor of his body and the work of his hands we may say are properly his.  Whatsoever, then, he removes out of the state that nature hath provided and left it in, he hath mixed his labor with, and joined to it something that is his own and thereby makes it his property.  It being by him removed from the common state nature placed it in, it hath by this labor something annexed to it that excludes the common right of other men (Locke 1690, Chapter V).

But, on Locke’s view, original acquisition was subject to this proviso: one may legitimately appropriate a material resource through one’s labor only if there remains enough of the resource for others.  Since there are limits in a world of scarcity to how much can be removed from the available resources while satisfying this proviso, its effect is to define a morally protected class of resources: a resource from this class cannot be permissibly appropriated by any one person in such a way as to exclude other persons from appropriation of that resource.  As a matter of moral principle, everyone has a moral right to use the resources available in the commons.

As a general matter, I will argue that the various arguments that intellectual property rights are illegitimate because they deplete an information commons derive from the Lockean proviso.  Intellectual property protection has the effect of depleting the intellectual commons only insofar as there is not enough and as good left for others.

I argue that the justification for the claim that some class of resources is a morally protected commons presupposes a number of claims.  First, it presupposes that people have some sort of morally significant interest in the relevant class of resources; land, for example, is of great importance to human well-being.  Second, it presupposes that the resource can be appropriated in such a way as to reduce its supply and cause its depletion.  Third, it presupposes that the relevant resource can also be consumed by members of the group in another way that does not reduce its supply.  Fourth, it presupposes that the relevant resources can be readily appropriated (in the protected way) by anyone with access to them; the vistas of a park can be viewed, for example, by anyone who happens to be there.  Finally, it presupposes that no one has a prior claim to exclude the others from appropriating the relevant resources (in the protected way); the original humans, for example, had no claim whatsoever to any of the land that forms part of a land-commons.

Among other counterarguments, I will argue that this version of the Commons Argument fails, however, because the fourth condition is not satisfied.  It is not true that all propositional objects exist in a form that can be readily appropriated by anyone who happens to be exploring it.  The proof of Fermat’s Last Theorem, for example, did not become available for consumption, despite the intense labors of mathematicians for hundreds of years, until Andrew Wiles produced it several years ago.  A Tale of Two Cities did not become available for consumption until Charles Dickens produced it.  While it might be true that someone else would have eventually found a proof for Fermat’s Last Theorem, it is not true that someone else would have written A Tale of Two Cities had Dickens not done so. 

Of course, these propositional objects might have already existed as abstract objects in logical space prior to their “discovery,” but I will argue that the important, interesting, non-obvious propositional objects cannot be readily consumed by people until someone, through the expenditure of her labor, makes it available to other people.  The intellectual commons, unlike the land commons, is not a resource already there waiting to be appropriated by anyone who happens to be there; it is stocked by and only by the activity of human beings.  People cannot make land, but they can (and do) make novels, music, proofs, theories, etc.; and if someone does not make a particular novel, it is not available for human consumption – even if it exists somewhere out there in logical space.