The legitimacy of protecting intellectual property rights: The irrelevance of two conceptions of an information commons

The purpose of this paper is to consider arguments both for and against intellectual property (IP) rights that are premised on each of two conceptions of the information commons that attributes either moral value or disvalue to its preservation.

The methodology is the philosophically standard one of reflective equilibrium. The author considers the argument for a morally protected information commons that is grounded in Locke's famous proviso limiting original acquisition of material property to situations that leave enough of the resource to others and Hardin's famous argument that holding material property in common leads to overuse and depletion – a Tragedy of the commons. In particular, the arguments are evaluated according to whether they cohere with ordinary foundational commitments.

The author argues that neither conception of the commons is directly applicable to information objects and hence is relevant with respect to the issue of whether legal protection of IP rights is morally justified.

The identification of key differences between material objects and information objects that shows the irrelevance of these two leading conceptions in resolving the general issue of whether legal protection of IP rights is justified.