Labour and Intersubjectivity: Notes on the Natural Law of Copyright

The paper develops a theoretical approach to copyright law centred on authorial right, yet capable of accounting for the public interest in access to and dissemination of intellectual creations. The paper questions the deployment of Locke's labour theory of property in the formulation of a rights-based view of copyright, and offers a rights-based interpretation of the idea/expression dichotomy inspired by Kant's theory of property. Whereas Locke understood the property right in terms of the category of labour, Kant posited that, as a relation between persons, the property right cannot be derived from a unilateral act - such as labour - of a person on a thing. Deploying the interpersonal dimension of the property right, the paper demonstrates that the idea/expression dichotomy normatively structures the relation between the parties to a copyright action in terms of their equal rights to authorship. To the extent that the defendant has not copied the plaintiff's expression but has instead expressed an idea anew, the defendant has exercised her own authorship. The limits of the plaintiff's right (i.e. the law's refusal to copyright ideas) are thus the contours of a public domain that, as a matter of equality, the plaintiff himself must be held to recognize.