Theories of Intellectual Property

Natural Right theory: Labour Theory (Locke’s

Theory)

Property right is a natural right. A person has a right

to own the creation of his mind in the same manner
he owns creation of his labour. When a person is
deprived of what he has created he becomes.
At the beginning, everything was common but by
using labour /intellect/ it has become private. We
need to protect somebody’s labour because it is a
natural right. So, it may take to conclude that
intellectual property rights are natural rights.
The problem is that natural right theory doesn’t cope
with the temporal limitation of intellectual property
rights. It is true that temporal limitation is applicable
to intellectual property. Intellectual property is most
of the time limited in time as to the protection
accorded by law. This theory may be justifiable for
corporeal ownership in which its existence may be for
indefinite period of time. In intellectual property,
however, after lapse of a certain time the work will be
part of the public domain.
Nothing can be called with greater prosperity man’s
property than the fruits of his labour. The property in
any artimcle or reason of his own mechanical labour
is never denied him; the labor of his mind is no less
worth of the protection of the law.
A person has a natural right to the fruits of her labour
and that this should be recognized as her property,
whether in tangible or intangible term.
John Locke has two theses. 1) Everyone has property
right in the labour of his own body. The labour of his
body and the work of his hands are properly his. 2)
The appropriation of an unowned object (ideas or
theories) arises out of application of human labour to
that object. Mixing one’s own labour with unowned
thing confers upon a property right in the whole thing.
However, after appropriation there must remain
objects of similar quality in sufficient quantity for
others: “Enough and as good left for other.”
Personality Theory
Intellectual property rights are important to create
personal self assertion. As propounded by Hegel, a
person would be more self assertive when she/he
owns property. He will feel more equal (equality). He
will be freer. It is believed that the work is the
personal expression of the author’s or the inventor’s
thoughts. So he should be given the right to decide
when and how his work may be produced or
performed in public, and the right to prevent
mutilations and changes. Intellectual property laws
are to be there to protect the author’s or the inventor’s
manifestation of his personality. This is also backed
by the need for the safeguarding of the individual’s
freedom of expression.
Utilitarian Theory
What do Intellectual Property Rights do? They make
the public good a private, a non rivalorous –
rivalorous and the non-exclusive – exclusive, and the
non-scarce scarce which are not scarce by nature. The
laws create artificial scarcity of knowledge. This is
because creators do not have the necessary incentive
unless they have accorded some means to control
their knowledge. Unless this is done, they lack the
necessary economic incentive. This is called
utilitarian theory of intellectual property.
Utilitarian is institution socially beneficial. It states
that we have intellectual property systems because it
has the effect on the betterment /economic/ of the
society. Its correctness is to be assessed in the
economic success of the countries. So, it is more of
an economic issue. We have witnessed tremendous
technological advancements both in the science and
the arts. The question is: would it be possible without
intellectual property systems? According to this
theory, you do something because you will get
something. Why should we care about creations of
society? Society should care about its creators
because the ultimate beneficiary is the society itself
because they give solution to technical problems.
Such theory has never been successful as we would
expect them to be. There is an objection from
economists. When intellectual property is given
exclusive rights, according to them, it is a creation of
a monopoly right. Monopoly is contradistinguished
with a perfectly competitive market. If monopoly is
unrestricted it will result in market crush. How does
intellectual property right create monopoly? How do
antitrust organizations fight monopoly?
There are arguments counterfeiting this. Whenever
the law gives an exclusive right to the innovator, the
right holder is not enabled to control the problem.
There are so many ways of resolving a problem. That
means there is no intellectual property law which
prohibits other innovators from innovating a solution
to the same problem. This is not sound in copyrights
since they protect expression of ideas.
Patent for a drug for a certain illness does not prohibit
innovating another drug for the same illness.
However, each monopolizes their right until another
comes. So, the monopolistic nature is undeniable.
That is why governments try to control such
monopolization.
What if design law does not exist? Some say without
intellectual properties, designers will not engage in
such business and then a given society may not
promote cultures. There is a counter argument for the
monopolization of a patent. The economic incentives
given to an inventor enforce another person to invent
around the patented idea. It stimulates others to
develop an alternative solution because of the
monopolization of the patented idea. So it induces
inventing around an existing patent.
There is a counter argument to this, i.e., if we end up
in giving different solutions to the same problem, it
will result in economic waste since there are different
problems which we have to give solutions to.
The other version of utilitarian theory is incentive
(bargain) theory. The protection given to intellectual
property is an incentive to individuals not only to
create works of the mind but also to publicize and
disseminate them into the public. It is to encourage
creativity and publicity. Works of the mind are very
important to a given society for its social, cultural and
economic development.
Through literature development, the cultural
orientation of a given country will be promoted.
Invention promotes industrialization. Development
of the west has to do much with intellectual creativity.
Those works require investment in terms of time,
money and effort. So without protection people will
not invest on them. They are no less investment
demanding than corporeal thing and the protection of
the law is needed. In addition, creativity by itself is
not adequate. If the work of a mind is not made
available to the public, that is not useful. With
protection publicity will be encouraged thereby
enabling their publicity and serve their intended
purpose. Upon the expiry of their period of protection
the public will start to use the properties. When right
is protected then the creator will make his work to be
known. Without protection people may not make
their works known. The state is bargaining with
individuals.
Do intellectual properties really stimulate innovation?
Are not there any stimulators other than intellectual
property rights? It is a controversial issue.
The other question is: does the theory really work?
Numerous assertions are made. There are factors
other than intellectual property rights which stimulate
innovation.
Before the existence of intellectual property rights
there were innovations. Some say, even great works
of the mind are created without the existence of
protection. As an example, we can take Shakespeare’s
writings. What incentives encouraged these people?
What they are saying is there are born creators, who
continue creating even without protection. People
create for different reasons: to satisfy their natural
urge, necessity, fame… Some writers say copyright is
unnecessary restriction on the public favor of the
author. For them, when there is shortage, a better
system is needed and creativity follows even without
legal protection.
However, the critics must be seen seriously in light of
the world’s development. In older days, people may
write books because violation itself is very difficult,
there were no printing machines, no mechanism of
dissemination, no recording machines for
reproduction and distribution.
In history, works of the literature were even limited
to certain groups, elites of the church. These days,
however, the situation the changed. The critics on
incentive theory will not work firmly today.
Objections to incentive and reward theory may be
summarized as:
The need to pay the rights owner a royalty or fee may
increase the price of the product or service to which
intellectual property right relates. It can be seen as a
kind of tax on knowledge and information.
Even if consumers are prepared to pay the prices
charged by the right owners, the latter may not meet
the demands of the public in sufficient quantities.
This will lead to compulsory license.
The grant of rights has little positive effect in
promoting investment that is required for the
production of new inventions, technical innovation,
literary and artistic productions and the like.
Whilst no monopolies in the strict sense are applied
by economists, intellectual property rights have the
potential to be used to anti-competitive effect,
particularly where they are pooled together or used as
a lever to obtain other ends.
Intellectual property rights can be used to suppress
free speech and access to information.
Regarding issues related to intellectual property
rights, we have attached the following different
materials written by different scholars. Please read
them critically.