ABSTRACT
The current dispute about whether, and to what extent, digital information should be granted legal protection underscores a fundamental tension between those who argue for strong intellectual property rights (IPRs) and those who advocate for the preservation of a robust intellectual commons. The latter group argues that current IPRs threaten the intellectual commons because: (a) they unfairly restrict access to information in digital form, and (b) they eliminate from the public domain some information that had previously been included in it. Defenders of strong IPRs, on the other hand, argue that without the kind of protection provided by recent copyright laws, individuals and corporations will not have the incentives necessary to produce literary and creative works. One might infer from the competing and at times seemingly contradictory, claims advanced in this dispute that no plausible resolution can be reached. A possible solution that has been overlooked, however, is one suggested in the classic theory of property put forth by British philosopher John Locke in the late 17th century. Locke’s theory, which includes a principle f or determining when sections of the physical commons are justly appropriated and enclosed, can also be applied in determining what is required for justly enclosing portions of the intellectual commons. Thus Locke’s classic property theory provides an adjudicative principle that can guide us in resolving key issues in the contemporary debate about how to balance LPRs and the intellectual commons.
