I’ve noted before a central error of arguments for intellectual property (IP) is the idea that creation is an independent source of rights (see Libertarian Creationism; Rand on IP, Owning “Values”, and “Rearrangement Rights”; Locke, Smith, Marx and the Labor Theory of Value; this comment to “Trademark and Fraud”; Elaborations on Randian IP; Objectivists on IP). As I noted in “Intellectual Property and Libertarianism“:
… creation is an important means of increasing wealth. As Hoppe has observed,
One can acquire and increase wealth either through homesteading, production and contractual exchange, or by expropriating and exploiting homesteaders, producers, or contractual exchangers. There are no other ways.
While production or creation may be a means of gaining “wealth,” it is not an independent source of ownership or rights. Production is not the creation of new matter; it is the transformation of things from one form to another — the transformation of things someone already owns, either the producer or someone else.
Using your labor and creativity to transform your property into more valuable finished products gives you greater wealth, but not additional property rights. (If you transform someone else’s property, he owns the resulting transformed thing, even if it is now more valuable.) So the idea that you own anything you create is a confused one that does not justify IP.
There are two ways to acquire rights to property: homesteading unowned property; or contractually acquiring title to property held by a previous owner. It is wealth and value that is created or produced, by rearranging already-owned scarce resources. But no new property emerges from an act of production, from labor, from creation: new wealth is created, by making existing property more valuable. By being careful here about the distinction between “creating value” and acquiring property rights, by avoiding overuse of the creation and labor metaphors, we can avoid the mistake of thinking that we have rights in whatever we find, whatever we buy, and whatever we create, as if this latter is an independent, third category. We have rights to the value we create only as a by-product of owning the resource that we have made more valuable by rearranging it. And once we see that this third category does not exist, we see that the creationist case for IP evaporates. Creation never was a source of ownership at all.
Or, as I wrote in Against Intellectual Property,
One reason for the undue stress placed on creation as the source of property rights may be the focus by some on labor as the means to homestead unowned resources. This is manifest in the argument that one homesteads unowned property with which one mixes one’s labor because one “owns” one’s labor. However, as Palmer correctly points out, “occupancy, not labor, is the act by which external things become property.” By focusing on first occupancy, rather than on labor, as the key to homesteading, there is no need to place creation as the fount of property rights, as Objectivists and others do. Instead, property rights must be recognized in first-comers (or their contractual transferees) in order to avoid the omnipresent problem of conflict over scarce resources. Creation itself is neither necessary nor sufficient to gain rights in unowned resources. Further, there is no need to maintain the strange view that one “owns” one’s labor in order to own things one first occupies. Labor is a type of action, and action is not ownable; rather, it is the way that some tangible things (e.g., bodies) act in the world.
The principle that a thing belongs to the person who happens to be the first in time to take it into his possession is immediately self-explanatory and superfluous, because a second person cannot take into his possession what is already the property of another. … Since property is the embodiment of personality, my inward idea and will that something is to be mine is not enough to make it my property; to secure this end occupancy is requisite. … Occupancy makes the matter of the thing my property, since matter in itself does not belong to itself.
So: creation does not give rise to property rights or new property, but only enhances the value of already-owned scarce resources. And it is being first to appropriate or occupy an unowned resource, not some metaphorical and derivative “ownership of labor,” that is the basis for Lockean homesteading. The idea of creation and the labor metaphor Locke employed has been wildly distorted by modern advocates of intellectual property. They regularly argue that if you own your labor then you own “things” that you create with your labor. Yet even the American Founders who put the IP clause into the US Constitution in 1787 did not think of IP rights as natural rights, steeped as they were in Lockean ideas. “To the contrary, they evidently viewed copyright as a policy tool, one aimed at promoting the progress of science and useful arts. They begrudged copyright’s interference with natural and common law rights, like the government they formed, as a necessary evil.” Tom W. Bell, Intellectual Privilege: A Libertarian View of Copyright, ch. 3 (draft). The Founders didn’t think Locke’s natural rights views implied that IP was a natural right, and Locke apparently didn’t either. As Professor Bell writes, Locke’s
labor-desert justification of property gives an author clear title only to the particular tangible copy in which she fixes her expression–not to some intangible plat in the noumenal realm of ideas. Locke himself did not try to justify intangible property. He appears, in fact, to have viewed copyright as merely a policy tool for promoting the public good. Modern commentators who would venture so far beyond the boundaries of Locke’s thought and into the abstractions of intellectual property thus ought to leave his name behind.
More pointedly, copyright contradicts Locke’s justification of property. He described legislation authorizing the Stationers’ Company monopoly on printing—the nearest thing to a Copyright Act in his day—as a “manifest . . . invasion of the trade, liberty, and property of the subject.” Even today, by invoking government power a copyright holder can impose prior restraint, fines, imprisonment, and confiscation on those engaged in peaceful expression and the quiet enjoyment of physical property. By thus gagging our voices, tying our hands, and demolishing our presses, copyright law violates the very rights that Locke defended.
… As our careful review of the historical record showed, however, the Founders almost certainly did not regard copyright as a natural right.
Bell cites here Ronan Deazley, who in Rethinking Copyright: History, Theory, Language writes (p. 143-44, n.32):
One of the ironies of the orthodox conception of copyright within the UK is that John Locke himself did not consider that his theory of property extended to intellectual properties such as copyrights and patents. In response to this letter from Freke [discussing with Locke arguments about a Bill for the Better Regulating of Printing and Printing Presses to provide certain property rights in books], Locke suggested that Parliament might secure the “Author’s property in his copy” by either including some provision that would allow a right to reprint those works which bore the name of the author or publisher upon them, or by issuing a “receit” upon delivery of three copies of any printed work for the use of the King’s library and the two universities which would “vest a priviledg in the Author of the said book his executors administrators and assignes of solely reprinting and publishing the said book for ___ years from the first edition thereof” ….
Consider Locke’s words in Two Treatises on Civil Government (ch. V, § 28):
He that is nourished by the acorns he picked up under an oak, or the apples he gathered from the trees in the wood, has certainly appropriated them to himself. No body can deny but the nourishment is his. I ask then, when did they begin to be his? when he digested? or when he eat? or when he boiled? or when he brought them home? or when he picked them up? and it is plain, if the first gathering made them not his, nothing else could. That labour put a distinction between them and common: that added something to them more than nature, the common mother of all, had done; and so they became his private right. And will any one say, he had no right to those acorns or apples, he thus appropriated, because he had not the consent of all mankind to make them his? Was it a robbery thus to assume to himself what belonged to all in common? If such a consent as that was necessary, man had starved, notwithstanding the plenty God had given him. We see in commons, which remain so by compact, that it is the taking any part of what is common, and removing it out of the state nature leaves it in, which begins the property; without which the common is of no use. And the taking of this or that part, does not depend on the express consent of all the commoners. Thus the grass my horse has bit; the turfs my servant has cut; and the ore I have digged in any place, where I have a right to them in common with others, become my property, without the assignation or consent of any body. The labour that was mine, removing them out of that common state they were in, hath fixed my property in them.
Notice here Locke already assume self-ownership, and then argues that an acorn ingested into one’s body becomes one’s property; to take the acorn back would violate his rights in his body. So what makes the acorn his? Locke says that it is labor that “put a distinction between” the ingested acorn and the unowned commons. Later he says the labor “was mine,” but this metaphorical comment is not necessary for his argument that by exerting labor on some unowned resource–by somehow transforming, enclosing or otherwise embordering it–one “puts a distinction” on it. That is the very purpose of borders of owned things: to distinguish them from things one does not own. Labor does this by establishing a connection or link between the homesteader and the thing embordered or transformed. (See my “What Libertarianism Is” and “How We Come To Own Ourselves.”) But labor does not need to be “owned” to serve this function. If labor were “owned” as some independent thing or substance (instead of merely being a metaphorical description of the fact that owning one’s body gives one the practical right to control one’s actions and labor as a sort of “byproduct”), and anything you “mixed” it with “therefore” became your property, then the argument would arise that you would own even useful, valuable ideas one “creates” by one’s labor. In fact this is how modern-day IP advocates argue.
But apparently Locke did not overextend his own labor metaphor as IP advocates do, for he did not view IP as a natural right, and neither did the Locke-influenced Founders who put the IP clause into the US Constitution in 1787. Bell is right that modern advocates of IP should not claim to be Lockeans. I’m not sure when the mistake arose of thinking of patent and copyright as “natural” rights. While the Founders and even Locke realized IP is not a “natural” right but only a temporary policy tool based on utilitarian notions, those coming later apparently did not see this distinction. They saw a large set of “rights” protected in the Constitution and lumped them all together as natural rights, even though only some of them were thought to be by the Founders and by Lockeans.
Now I noted in Rand on IP, Owning “Values”, and “Rearrangement Rights” that Rand should have realized that creation is not an independent source of ownership (thus deflating her case for IP), given that she once wrote:
The power to rearrange the combinations of natural elements is the only creative power man possesses. It is an enormous and glorious power—and it is the only meaning of the concept “creative.” “Creation” does not (and metaphysically cannot) mean the power to bring something into existence out of nothing. “Creation” means the power to bring into existence an arrangement (or combination or integration) of natural elements that had not existed before.
She was not alone in this insight. In Man, Economy, and State, Rothbard wrote:
Men find themselves in a certain environment, or situation. It is this situation that the individual decides to change in some way in order to achieve his ends. But man can work only with the numerous elements that he finds in his environment, by rearranging them in order to bring about the satisfaction of his ends. With reference to any given act, the environment external to the individual may be divided into two parts: those elements which he believes he cannot control and must leave unchanged, and those which he can alter (or rather, thinks he can alter) to arrive at his ends. The former may be termed the general conditions of the action; the latter, the means used. Thus, the individual actor is faced with an environment that he would like to change in order to attain his ends. To act, he must have technological ideas about how to use some of the elements of the environment as means, as pathways, to arrive at his ends. Every act must therefore involve the employment of means by individual actors to attempt to arrive at certain desired ends. In the external environment, the general conditions cannot be the objects of any human action; only the means can be employed in action.
It should never have been called in question that the transportation of persons, goods, and information is to be reckoned part of production, so far as it does not constitute an act of consumption, as do pleasure trips for example. All the same, two things have hindered recognition of this fact. The first is the widespread misconception of the nature of production. There is a naive view of production that regards it as the bringing into being of matter that did not previously exist, as creation in the true sense of the word. From this it is easy to derive a contrast between the creative work of production and the mere transportation of goods. This way of regarding the matter is entirely inadequate. In fact, the role played by man in production always consists solely in combining his personal forces with the forces of Nature in such a way that the cooperation leads to some particular desired arrangement of material. No human act of production amounts to more than altering the position of things in space and leaving the rest to Nature.