From Property Right to Copyright: A Conceptual Approach and Justifications for the Emergence of Open Access Nikos Koutras* Abstract vate property that lead to evolution, production and personal growth. Additionally, the concept of property This article relies on the premise that to understand the sig- has evolved from Plato’s joint ownership theory to full nificance of Open Access Repositories (OARs) it is necessary liberal ownership theory and moved in the direction set to know the context of the debate. Therefore, it is necessary by Aristotle. The concept of private property has been to trace the historical development of the concept of copy- considered similarly by following philosophers with right as a property right. The continued relevance of the Aristotle’s conception. rationales for copyright interests, both philosophical and However, Plato’s ideas about the concept of property for pragmatic, will be assessed against the contemporary times communal use is a more desirable model, which can jus- of digital publishing. It follows then discussion about the rise tify the philosophy of OA. The origins of the notion of of Open Access (OA) practice and its impact on convention- property lie in his philosophy; in accordance with his al publishing methods. The present article argues about the ideas, the concept of property was introduced as joint proper equilibrium between self-interest and social good. In ownership in terms of social justice and, moreover, as a other words, there is a need to find a tool in order to bal- beneficial tool to support the growth of the whole ance individuals’ interests and common will. Therefore, republic – the ideal republic. He argues that there there is examination of the concept of property that interre- should not be private property and that, therefore, lates justice (Plato), private ownership (Aristotle), labour property under the ‘umbrella’ of joint ownership forms (Locke), growth of personality (Hegel) and a bundle of the appropriate factor for peace and justice. Aristotle, 139 rights that constitute legal relations (Hohfeld). This exami- although a student of Plato, focuses on a more individu- nation sets the context for the argument. alistic aspect; he contends that private property is more effective and will lead to improvement. It is obvious that he denies his teacher’s (Plato’s) rationale about joint 1 Introduction ownership by signalising that such extreme unification is against the diversity of personal identity and against This article relies on the premise that to understand the the benefit that everyone gathers through market significance of Open Access Repositories (OARs) it is exchange. necessary to know the context of the debate. Therefore, This leads to a discussion of Locke’s philosophy, as he it is necessary to trace the historical development of the extends the concept of private property ownership by concept of copyright as a property right. The continued combining it with work. Locke claims that whatever relevance of the rationales for copyright interests, both work is produced by an individual becomes his/her philosophical and pragmatic, will be assessed against the property. This idea justifies the connection of owner- contemporary times of digital publishing, followed by a ship and creation. Specifically, in his work titled Second 1 discussion about the rise of Open Access (OA) practice Treatise on Government, Locke proposes an explanation and its impact on conventional publishing methods. of the right by which an individual can claim to own one The present article argues that there is a proper equili- part of the world when, according to the Bible, God brium between self-interest and social good. There is gave the world to human beings in common. Locke thus a need to find a tool that balances individuals’ argues that individuals own themselves and thus their interests and the common will. This requires an exami- own labour. At this point, the connection between Aris- nation of the concept of property that interrelates justice totle’s and Locke’s logic is evident. Locke and Aristotle (Plato), private ownership (Aristotle), labour (Locke) agree that private property is one of numerous intrica- and growth of personality (Hegel). This examination cies. However, Locke contends that there is a more indi- sets the context for the argument. In the literature the vidualistic rationale for property ownership than does core notion of property (i.e. as a concept and its subject Aristotle. matter) is seen to stem from Aristotle’s ideas about pri- * Nikos Koutras, Postdoctoral Researcher, Faculty of Law, University of 1. J. Locke, Second Treatise of Government and a Letter Concerning Tol- Antwerp. eration (Oxford University Press, 2016). Nikos Koutras doi: 10.5553/ELR.000127 - ELR November 2019 | No. 2 Further on, according to Hegel’s views, the concept of ownership and the input of labour in order to possess property is used to comprehend it as a phase in the actual property. development of human kind and the growth of individ- ual personality; thus, he extends the appropriate envi- ronment or surroundings of private property following 2 Conceptual Framework of Aristotle’s and Locke’s logic or reasoning. This chrono- logical order provides an effective flow of thought that Property enables me to propose justifications for the emergence of OA as additional support to current copyright 2.1 Plato’s Notions of Property regimes. Plato’s ideas about property were related to his ideas From Aristotle’s philosophy to modern times there are about family, society and the republic. They also con- differences regarding traits of property and its owner- tain the origins of notions of patents. His ideas are ship, as, one by one, philosophers added new features to explained below. In the period around 500 B.C. in their theories. Plato’s argumentation about joint owner- Ancient Greece, some form of patent rights was recog- ship was neglected. However, Plato’s philosophy on nised. For example, in the Greek city of Sybaris, patents property enables us to draw on his notions about com- were granted for the creation of unique culinary dishes.3 munal property or joint ownership and its significance Encouragement was provided to those who introduced within OA. The argument of this article is based on refinements in luxury; profits accruing from such Plato’s logic, partly because later philosophers also endeavours were secured to the inventor by a patent for implicitly support his ideas regarding communal use of the period of one year.4 This kind of protection for one property, as they highlight several unique aspects of year illustrates that creative endeavours were encour- 2 community as a whole. aged in a manner that protected the whole market from The OA practice supports wider distribution of infor- monopolies. At the same time, one or more persons mation resources. Therefore, when information and could enjoy an economic advantage in relation to their communication technologies are undergoing a ‘revolu- creative efforts. In this context, Plato’s ideas are useful tion’, it is imperative to go back to Plato’s concept and to describe an ideal republic in which only philosophers argue that OA determines an instrument with benefits ought to keep private property in terms of justice.5 For towards wide dissemination of information resources. the rest, he suggests that there should be joint owner- Hence, there is a need to connect the emergence of ship.6 The shape of Plato’s ideal republic requires jus- copyright protection with developments in the concept 7 140 tice as its main purpose. of property. The same connections can justify the devel- Plato contends that owning private property leads to opment of OA in contemporary times, as, for instance, greed and lust. He claims that children should be taken balancing individual rights with the social good. The from their biological parents and redistributed by the last part discusses OA in terms of an appropriate shift of state to other parents; that is how he supports his argu- existing copyright protection in the digital age, which ments concerning private property and the right to leads to distribution of information and information ‘own’ a child.8 In other words, Plato does not believe in accessibility. Also considered here is the question of private property as such; he believes that, eventually, no whether open access could be an efficient way of one should own anything, except for the philosophers.9 enhancing the relationship between individuals’ inter- Therefore, some scholars call Plato a proto-socialist or a ests and the common will. proto-communist. In response, it can be said that this In the following section, the first subsection deals with view of property was applied by Plato only to the guard- the conceptualisation of property based on Plato’s and ian class and the auxiliaries for the purpose of focusing Aristotle’s views about property. This discussion traces their attention on the ever-important matter of the state. the transition from public or communal property (Pla- It should not overshadow the fact that this was the first to’s perspective) to the understanding of property as an time that someone initiated a discussion about the individual ownership right and the change in the under- standing of private property that encourages personal 3. A. Rich, A Dictionary of Roman and Greek Antiquities (Nabu Press, developments (Aristotle’s perspective). This helps to 2010). associate basic elements in the ideas of previous philoso- 4. W. Smith, A Concise Dictionary of Greek and Roman Antiquities (Nabu phers with the views of modern philosophers concern- Press, 2010). 5. C.H. Kahn, Plato and the Socratic Dialogue: The Philosophical Use of a ing the concept of property. The argument advances Literary Form (Cambridge University Press, 1998). further in part two with a discussion that relies on mod- 6.