Conversation with Sabhlok re Locke and Intellectual Property as a Natural Right or Property Right

by Stephan Kinsella on May 24, 2025

I recently had a twitter conversation with economist Sanjeev Sabhlok (@sabhlok). See, e.g.:

Thank you so much. Look forward to learning more about this complex and highly contested issue. https://t.co/O3HvbAWnOB

— Sanjeev Sabhlok (@sabhlok) May 13, 2025

He wrote me that he had looked into the issue further . See e.g. his tweet:

Here’s John Locke’s concluding comment on the margins of the Licensing Bill (not Act!) of 1693.

1) HE OBJECTED TO THE MONOPOLY OF THE STATIONERS COMPANY FOR PRINTING ANCIENT BOOKS:

That any person or company should have patents for the sole printing of ancient authors is very… https://t.co/G3hL8oKaSe pic.twitter.com/uBbRpyEzuu

— Sanjeev Sabhlok (@sabhlok) May 23, 2025

Here he notes that Locke was one of the main, and among the first in history, proponents of legislative copyright protections for living authors, and that the 1710 Statute of Anne was likely informed by his recommendations. Sabhlok thus concludes that intangibles can “be property,” whether recognized by law or not.

My response (edited):

Let me mention a few things for you to consider—see below. Take them as you will. If you would ever like to discuss any of these issues further, I’d be happy to. In the meantime, good luck with your work and I look forward to reading it.

Locke and the Founders on IP; IP as “property”

First, whatever Locke believed does not prove that “intangibles can be property.” And this is not even the issue: it is whether IP law is justified. As for Locke, he did not believe there is a natural right to IP, or that IP “is a property rights,” contrary to misleading and exaggerated claims to the contrary by libertarian IP proponents like Adam Mossoff.

It is really irrelevant whether he did or not; if he did, he was wrong. But he did not, as a matter of fact. I point this out to rebut the appeals to authority by the pro-IP types. On Locke and the Founders on IP, see my book Legal Foundations of a Free Society (LFFS), ch. 15, Part IV.J, “John Locke and the Founders on IP as a Natural Right.” As for some of the references cited there, see:

Tom W. Bell, Intellectual Privilege: Copyright, Common Law, and the Common Good (Arlington, Virginia: Mercatus Center, 2014; https://perma.cc/JLC2-396Y), pp. 69–71 and p. 192 n.52
Ronan Deazley, Rethinking Copyright: History, Theory, Language (Cheltenham, UK: Edward Elgar, 2006)), at 144 n.32
Seana Valentine Shiffrin, “Lockean Arguments for Private Property,” in Munzer, ed., New Essays in the Legal and Political Theory of Property (https://perma.cc/3TWB-4Z8A), p. 141

(Deazley is not online, unfortunately but I can send you digital files.)

IP “as property”

The issue is not whether IP “is” or “is not” property. It is whether IP laws, and the IP rights these laws create or are based on, are justified, and compatible with normal property rights. See, on this, my post IP is Not “Not Property”.

In my view this issue is muddied by speaking of the object of property rights as “property.” This leads to the confusing and loaded question: is IP (or: ideas, etc.) property or not? It leads people to say “well if houses and apples can ‘be property’ why can’t other things that we create and that have value”? This whole way of looking at it is confused and loaded/question-begging. See my book, LFFS, ch. 2:

As Professor Yiannopoulos explains:

Property is a word with high emotional overtones and so many meanings that it has defied attempts at accurate all-inclusive definition. The English word property derives from the Latin proprietas, a noun form of proprius, which means one’s own. In the United States, the word property is frequently used to denote indiscriminately either the objects of rights … or the rights that persons have with respect to things. Thus, lands, automobiles, and jewels are said to be property; and rights, such as ownership, servitudes, and leases, are likewise said to be property. This latent confusion between rights and their objects has its roots in texts of Roman law and is also encountered in other legal systems of the western world. Accurate analysis should reserve the use of the word property for the designation of rights that persons have with respect to things.

A.N. Yiannopoulos, Louisiana Civil Law Treatise, Property (West Group, 4th ed. 2001), §§ 1, 2.

You might also find of interest some more standard legal treatises attempt to grapple with this issue–ownership of intangibles. I do not agree with all this, and Claeys is trying to bend things to fit in IP, but still, FYI. See in particular:

Eric R. Claeys, Natural Property Rights (Cambridge U. Press, 2025)
James E. Penner, The Idea of Property in Law (Oxford: Oxford University Press, 1997), pp. 115–21
Phillip Wittenberg, Dangerous Words: A Guide to the Law of Libel (New York: Columbia University Press, 1947) (1, 2), pp. 1–10
On the precise definition of “property” see A.N. Yiannopoulos, Louisiana Civil Law Treatise, Property (West Group, 4th ed. 2001).

Again, these books are not all online (because of copyright) and some hard to find so you can. I can send you some. I also I have a large number of related publications in my files.

I also suggest various of my writings treating these issues, e.g. Legal Foundations of a Free Society (various chapters, e.g. ch. 2, 9, 15) and The Problem with Intellectual Property.

Empirics

As for the empirical case against IP, the work by Boldrin and Levine is good, but there even more. On this issue, see:

The Problem with Intellectual Property, Part III.B
Jacob H. Huebert, “The Fight against Intellectual Property“
Boldrin and Levine: The Case Against Patents
Boldrin & Levine, Against Intellectual Monopoly

You may also find this of use: Stephan Kinsella, ed.,The Anti-IP Reader: Free Market Critiques of Intellectual Property(Papinian Press, 2023). See especially, on the origins of copyright, Karl Fogel, “The Surprising History of Copyright and The Promise of a Post-Copyright World,”Question Copyright(2006). See also Fogel’s related Youtube talk. Re the history of copyright, see also Oren Bracha, “Owning Ideas: A History of Anglo-American Intellectual Property” (June 2005) (unpublished Ph.D dissertation, Harvard Law School), chap. 2. It may challenge some of your assumptions about the origin of copyright.

Finally, regarding your tweet about Locke and IP legislation, you write: “My proposal is 14 years for everyone, and if the author wants to renew – he/she can (upon payment of a hefty fee), for another 14 years.” I note that this is similar to that of Tom Bell, the “Founders Copyrighth,” which does not go far enough but which would be a huge improvement. See Bell: Tom Bell on copyright reform; the Hayekian knowledge problem and copyright terms.

All best, Stephan