On water drinkers and magical springs: Challenging the Lockean proviso as a justification for copyright

Lambrecht, Maxime [UCL]

Does intellectual property satisfy the requirements of the Lockean proviso, that the appropriator leave “enough and as good” or that he at least not “deprive others”? If an author’s appropriation of a work he has just created is analogous to a drinker “taking a good draught” in the flow of an inexhaustible river, or to someone magically “causing springs of water to flow in the desert,” how could it not satisfy the Lockean proviso? An influential attempt to justify intellectual property contends that nobody can reasonably object to such a regime because it will necessarily satisfy the Lockean proviso. This paper discusses two versions of this argument in the context of copyright law, reconstructed from insights from Justin Hughes, Adam Moore and Robert Nozick. In essence, these two arguments support that intellectual appropriators necessarily satisfy the Lockean proviso because they deprive nobody, just like someone drinking from a river, or somewhat creating magical springs of water in the desert. I argue that despite their intuitive appeals, these arguments either fail or lead to very weak conclusions. This in turn affects the plausibility of other proprietarian justifications for intellectual property which also require that the Lockean proviso be satisfied.