Abstract

Property law treats intellectual property (IP) differently than physical property. This paper draws upon John Locke’s labor mixing theory of property to explain why we have different moral expectations for IP. In particular, this paper aims to demonstrate that a Lockean account leads to the conclusion that intellectual property rights must be limited by a policy of expiration although we have no such expectations for physical property. In so doing, this paper begins with an explanation of Locke’s original justification for physical property, conducts a modest exploration of what a Lockean theory of IP might look like, and ends by arguing that expiration is a way to reconcile the warring interests within such a theory of IP. In addition to labor mixing, Locke’s two restrictions of property acquisition, the enough and as good proviso and the waste condition, critically affect how we must balance the rights of original IP inventors, subsequent inventors, and the general public.