Labor as the Basis for Intellectual Property Rights: Against Cwik

Abstract While the dominant justification for intellectual property rights seems to remain consequentialist, various deontological theories are also proposed. They often appeal, directly or indirectly, to intellectual labor as a source of rights or as a circumstance that is relevant to justifying intellectual property on moral grounds. Recently, another such theory has been proposed by Bryan Cwik, gaining substantial recognition. It holds that, in the absence of intellectual property regulation, innovators and artists are at a disadvantage as compared to manual laborers. This is because they cannot control how the fruits of their intellectual labor are used. Patents, copyrights and other similar regimes are portrayed as necessary to secure their control over the exercise of their productive capacities. In the present paper Cwik’s theory is evaluated and exposed as indeterminate. Its metaphysical presuppositions are also criticized. When they are replaced by a more coherent ontology, a reinterpretation of control relations follows. Cwik’s objective of maximizing individuals’ control over their own productive capacities is achieved by intellectual property abolition, rather than enforcement. His theory fails to support intellectual monopoly.