Intellectual property are a set of intangible properties which are way different from the naturally existing tangible form of property. Now the question arises whether these intellectual properties be given rights equal to that to other property rights. This value of IPR has been explained by the theories of IPR namely; The Utilitarian Theory, The Labour Theory and The Personality Theory.

1. The Utilitarian Theory

This theory was given by J.S. Mills, who belied on “the greatest good for the greatest number”. He advocated to count the amount of happiness and harm due to consequences of an act and if happiness outweighs the harm then it is a good act otherwise discard it as a bad one. According this theory, IPR works mainly on the incentive system i.e. award or monopoly and granting of these awards is merely means to an end i.e. it would encourage people to openly disclose their innovation without any fear. Through this, society benefits as the new creation or innovation is more openly discussed and enables people to learn from it. If no such protection is granted then no one will come out with innovations because of fear of losing one’s hard work, depriving people of an innovation resulting in a loss to the society. Utilitarians regard granting of patent as a win-win situation as it results in greatest happiness for the greatest number of people.

This theory also justifies trademarks arguing that without trademark protection, a lot of products would be there with the same marks and would make it difficult to identify a manufacturer of a particular goods. Due to this, buyers would not be able to identify the safe and quality products easily resulting in wastage of time and money. Therefore if trademarks are protected they serve as a source of identifier for the desired products. This will help in decreasing the search cost, ensuring no deception and providing deserved incentive to the manufacturers which would ultimately help them in maintaining the quality of their products.

Similarly for copyright, utilitarians argue that if a certain monopoly period is not allowed, other peoples would make profit out of an author’s work causing losses to the author. Due to this people would stop publicizing their work. This would reduce the books in the society. Hence copyright is important for the maximum flow of information and knowledge to maximum number of people.

Criticism

The critiques of this theory believe that it does not maintain balance between the private and public interest. They argue that private IP rights restrict the use of ideas. Patents restrict people, other than the first person to register the idea, to freely use that idea which restricts new additions to it, ultimately hampers the advancement of the society and depriving it from greater good. It also eliminates competition in the market and results in rise in prices of the concerned products.

2. The Labour Theory

John Locke states this theory in ‘Second Treaties of Government’. He believes that one of the powerful laws for the justification of IPR lies in the belief that ‘a person deserves the fruits of his labour’. He initially believes that, ‘all that is in nature is provided by God and it is available for all the men’. So no individual can have prior claim over substances that are available in nature as it is meant for the enjoyment of the entire community. But, he asserted that when an individual exerts his labour over resources, he can claim it as his property as he has added value to those resources through his labour. For instance if someone digs to find gold then that gold is his property as he has done labour for it.

This theory is based on the presumption that each individual has prior property rights in one’s body, therefore the labour exerted by an individual is his own property as he is the owner of his body. It is impossible to separate labour and its product and hence there lies no superior or conflicting claim over that property. But this theory comes with Locke’s sufficiency proviso. According to him, property rights are only granted if it is not denying others of the resources in the nature. This means that an individual cannot claim property rights over scarce resources.

Criticism

According to Robert Nozick, Locke allowed private rights only if there is left enough for others and therefore himself denies the fruits of labour to the people putting their work in limited resources. Secondly, it hits out the contribution of all the people whose work resulted in evolution of certain product. He only recognized the labour exerted by the recent laborer.

3. The Personality Theory

This theory by J.W.F. Hegel is often used to justify IPR. According to him, “any work or innovation would belong to its author or innovator because it is the manifestation of the creator’s or innovator’s personality.” He further argues that the individual’s will should be given more importance compared to other elements that make up an individual because personality is a reflection of individual’s will. The society accepts the external manifestation of an individual as property. Therefore, when an individual expresses himself through his work, it is nothing but an external manifestation of his personality. According to him, labour is the means by which the will occupies the object.

This theory can be used to justify the claims of their work by the authors, artists, musicians, photographers etc. An author’s personality is manifested through his or her work i.e. books are external objects manifesting inner personality of the author including his feelings, emotions, imagination etc. Similarly, an innovative technology is a manifestation of the inventor’s will and hence creates a property right.

Criticism

The Personality Theory fails to acknowledge the property rights of an imitator. This theory does not explain the situation when a person writes a book quoting the work of other author’s, what would be his right? Would it be considered as the manifestation of his work? Similar question arises for a painter imitating the art of another painter. Secondly, the recognition of a work or creation depends upon the acknowledgement of the society as whole and merely by manifestation of one person’s will.

Aishwarya Says:

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