Intellectual Property, Independent Creation, and the Lockean Commons

Copyright and patent law – granting rights in very different kinds of entities, but nonetheless lumped together as “intellectual property” – are almost universally regarded as having the same theoretical underpinnings. The philosophical significance of the differences between these two areas of law thus remain almost entirely unexplored. Just one example of this tendency to theoretically unify copyrights and patents is Seana Shiffrin’s Lockean Arguments for Private Intellectual Property, which challenges Lockean theories of IP rights. But the present paper argues that Shiffrin’s challenge succeeds in the context of patents but not copyrights, due to significant differences between the two; and in so doing, it unearths and disentangles the philosophical implications of these distinctions between copyrights and patents – and, indeed, of distinctions within the “copyright” and “patent” bundles of rights themselves – including their numerous revisionary implications for existing law from the perspective of the Lockean framework. The article thus calls attention to intellectual property’s under-explored philosophical complexity, as well as the doctrinal and practical stakes of the questions it raises, so that we begin considering them far more carefully than they have yet been.