Concept of Intellectual Property
“Intellectual Property” refers to a loose cluster of legal doctrines that regulates the use
of different sorts of ideas and insignia.
It denotes the rights ober a tangible object of the person whose mental efforts created
it.
Some forms of these expire after a set of period of time, and other forms last
indefinitely
IPR grants two rights - a positive and negative.
Positive one is the right to do certain things in relation to the subject-matter i.e., the
owner of the right is entitled to exploit commercially the idea he expressed
previously.
The negative right entitles the owner to prevent others from doing what his positive
right permits him to do.
Justification for IPR:
1. Incentive for innovation, creation, invention
2. Return on Investment
3. Industrial and economic development
4. It promotes respect and recognition to individual creators and provides a means for
livelihood
5. Prevents infringement and free riding (free riding - someone who benefits from the
free sources without paying for the cost)
6. It is an instrument for cultural, social and economic unity and identity
Theories of Intellectual property
Natural Theory
Natural Property theory is one which treats all of nature as a heritage to be shared
equally by all human beings.
Diamond v Chakrabarty appeals to this view holding that Chakrabarty deserved a
patent for his bacterium because it was his own handiwork, and not a manifestation of
nature, free to all men and reserved exclusively to none.
Huddart v Grimshaw
There are common elementary materials to work with in machinery.
It is the adoption of those materials to the execution of any particular purpose that
constitutes invention.
If the application of them is new with a new productand beneficial to the public, it
ought to be protected by patent.
If substance of the invention has been communicated to the public in any other patent,
so as to be a known thing, he cannot claim to be the benefit of his patent
Locke’s labour Theory of Property
There is a state of nature where everything belongs to everyone; a public domain
where everything belongs to everyone and therefore it is not property at all because
property necessarily implies proprietorship.
A person who labours upon resources that are either not owned or held in common,
has a natural property rights to the fruits of his or her efforts.
State has a duty to respect and enforce that natural right.
This theory is presented in Chapter V, “of property” in the Second Treatise of the two
treatises of government.
Raw material is deemed to be held in common and the labour contributes to the value
of finished products.
According to this view, IP permits to reward the creator for his work in order to
encourage him in his innovative work, he will be more inspired to produce work and
more willing to make his work available to public.
Moore v. Regents of University of California
- Moore underwent treatment for hairy cell leukemia at the UCLA Medical
Center under the supervision of Dr. David W. Golde.
- Moore'scancer was later developed into a cell line that was commercialized.
- The California Supreme Court, after applying the Lockean philosophy ruled that
Moore had no right to any share of the profits realized from
the commercialization of anything developed from his discarded body parts.
Hegelian Philosophy
- Approach – private property rights are crucial to the satisfaction of some
fundamental human needs.
- IPR justified on the ground that they create social and economic conditions
conducive to creative intellectual activity, which is important for human
flourishing.
- Individual’s will is the most important value in the existence of the individual.
And the personality of the will depends on the personality of the individual. (also
known as personality theory)
- IP is the personification of the personality of an individual.
- Idea, inventions are all personifications.
Gramophone Co. of india Ltd. V Birendra Bahadur Pandey
- An artistic, literary or musica work is the brainchild of its author, the fruit of his
labour, and so considered to be his property.
Incentive theory by William Nordhaus
2 corrolaries:
Incentive to Invent Theory
- Too few inventions will be made in the absence of patent protection because
inventions once made are easily appropriated by competitors who have not shared
in the costs of invention.
- If successful inventions are quickly imitated by free riders, competition will drive
prices down to a point where inventor receives no return to the original investment
in research and development.
- Patents enable the inventors to use their monopoly inventions to extract a price.
Incentive to innovate theory
- Even after an invention is made, further investment, research and development is
necessary before it is ready for commercial exploitation.
- Patent monopoly enhances the likelihood that a firm will be willing to undertae
these investments.
- This theory holds that patent system achieves its objectives by offering monopoly
profits as a lure to proote innovation.
Reward Theory by John Stuart Mill
- Patent system is a limited monopoly that rewarded the inventor depending on the
utility of the invention to the consumer.
Schumpeterian Theory
- This theory suggests how patent monopolies might promote technological
innovation.
- Schumpeter distinguishes innovation from invention, noting that invention itself
produces no economically relevant effect at all
- Innovation, on the other hand, brings about incessant revolutionary changes in the
economic system through a process of creative destruction.
- In this process, new firms continually arise to carry out new innovations driving
out old firms that provide obsolete goods and services. Competition from new
commodities and new technologies is far more significant in this model than price
competition among firms offering similar goods and service.
Emmanuel Kant
As far as property is concerned, he stressed on aspect of authority and autonomy. Property
only belongs to that category over which you have authority and autonomy.
Utilitarian Theory
- Most popular utilitarian guideline for shaping property rights – maximisation of
net social welfare.
- This requires lawmakers to strike an optimal balance between the power of
exclusive rights to stimulate invention and offsetting such right to curtail
widespread public enjoyment of those creations.
- Utilitarian guideline has been transposed to copyright law by William Landes and
Richard Posner.
- According to them, consumption of a copyrighted work does not reduce
enjoyment by one due to enjoyment by another
- The theory also provides an answer to the financial loss suffered by the copyright
holder due to the use of the copyrighted material without permission of the holder
of the right. Licensing is the solution to this.
- Jeremy bentham argued that innovators incur fixed cost which has to be recouped
in the absence of which innovation will deter.
Honore – there are 11 characteristics of property. if any kind of entity exhibits these
characteristics, then it can be termed as property.
a. the right to possess – right to have exclusive physical control over the thing
b. right to use – owner can personally use and enjoy the thing that he owns
c. right to manage – to decide how and by whom the thing shall be used; includes assigning
of the right to someone else.
d. right to income – he can reap the benefits from the use of it himself or by giving it away to
someone else
e. right to capital – includes the power to alienate the object, liberty to destroy the whole of it
f. right to security – at least for a foreseeable time a person should be secured of his
ownership and proprietorship over the thing
g. incident of transmissibility – you must be able to transfer or transmit the property to
another
h. incident of absence of term – absence of term means that you don’t give conditional IPR.
When they are given, they are given absolutely
i. duty to prevent harm – duty doesn’t imply duty on the owner himself
j. liability to execution – just like any other property or assets, IPR can be used to pay off a
person’s debts
k. residuary character – any right extinguished by you ........................
Together these 11 rights denote a bundle of rights. it is not possible to take out one of these
and then give it to a person.
Radical or socialist theory – every owner of a property has to hold the property with a
socialist mind. Every invention is socially constructed and hence, first and foremost intention
should be towards the society. Individuality has nothing to boast of. Everything is for society.
Ecological theory – innovators and inventors should always promote those innovations and
inventions which would be less ecologically destructive than other.
