79 Design Essay Short

79 Design Essay Short-3
”[18] But Locke’s genius is to give this idea its import.

In brief, “mixing labor” occurs when a rational person engages in value-producing labor, and he creates property—consist mostly of the “Industry” of technological inventions, such as the bread made by the “Mill [and] Oven,” the “Plough” that tills the soil, and “all the Materials made use in the Ship,” among others.

(II.43) And we must not forget the conceptual skills of artisans that made possible “the Labour of those who broke the Oxen, who digged and wrought the Iron and Stones, who felled and framed the Timber.” (II.42) (original emphasis) Locke’s own explanation of his property theory is replete with examples of his moral approval of how technological inventions secure for an individual the “conveniences of life”—a flourishing human life.

Locke’s farming examples are illustrations of value-creating, productive labor because they are replete with conspicuous references to the intellectually-driven, technological inventions that make possible farming in the first place.

Second, and directly related to the first point, it explains why Locke himself expressly justifies copyright as “property” and approvingly refers to “Inventions and arts” in his summation of his theory that property arises from value-creating, productive labor that supports the “conveniences of life” in § 44 of the In 1690, the legal concept of patents (property rights in inventions) did not exist yet,[10] and so this is an explicit indication of Locke’s willingness to include what would later become the legal concept of patents within his property theory.

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.

This is why Locke himself expressly recognizes that copyright is property.

He also wrote approvingly of inventions and the technical arts as exemplars of the value-creating, productive labor that creates all property (contrary to oft-repeated, mistaken claims about Locke’s view of IP rights by some scholars today[4]).


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