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Queen's Law Journal. Volume 28, Number 1 (2002), p. 1-60.


Copyright; labour; law; Locke


This paper criticizes a Lockean approach to copyright, which sees an author’s right as the natural entitlement to the fruits of her labour. The author’s contention is that the Lockean account mistakenly finds the justification for copyright in the relationship between an author and her work, rather than the persistent presence of this labour-desert rationale in Canadian copyright rhetoric necessarily privileges the interests of the private rights-bearer over the public interest, and so threatens the public policy goals that copyright is intended to further. The author attacks the Lockean copyright theory from two directions. First, she examines the extent to which Locke’s theory of acquisition can offer a sound account of the shape and scope of the copyright system. The discussion questions the coherence of Locke’s theory in the realm of intangibles, and the ability of the copyright system to meet the essential Lockean focus upon the rights-bearer is inappropriate in the copyright context, as it adds ideological legitimacy to the economic goals of copyright holders and favours commodification over communication. Ultimately, the author maintains that there must be a departure from the Lockean view of property in the intellectual property context to permit a paradigm shift from a rights-based to a public interest approach.

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