THEORIES OF INTELLECTUAL PROPERTY RIGHTS

Intellectual Property and the importance of IPR traces its origin back to and relevance
from the theories of renowned philosophers such as John Locke, Immanuel Kant,
John Stuart Mill, Jeremy Bentham, Georg Hegel, etc. The ideologies and theories
propounded by them act as the supporting pillar of the jurisprudential aspect of
intellectual property rights. The theories of IPR that this paper will talk about are

1. The Natural Rights Theory

2. Ethic and Reward Theory
3. Utilitarian or Incentive Theory
4. Personhood Theory

THE NATURAL RIGHTS THEORY

This theory is fundamentally based on John Locke’s concept that an owner possesses
a natural right over the things that he produces with the help of his own labor and
efforts, either physical or intellectual. Therefore, ownership arises from the labor and
innovation of person creating it. Locke believed that “individuals are entitled to
control the fruits of their own labor. In his perspective, a person, who cultivates crops
by using his own labor or creates a new invention by putting his efforts, naturally
obtains property rights,”[4] merely by the virtue of adding his own labor. Similarly, the
natural rights theory of intellectual property reflects that an individual naturally
acquires ownership of the artwork that he creates or literary work that he authors
because he added his own intellectual labor in it.

Locke based his theory on the idea that when a person puts his labor in an unowned
object, his labor gets amalgamated with the new object that is then created, which
cannot be separated without causing damage to the novel creation thus made. The
creator then acquires natural rights over the object in which he applied his intellectual
labor. Once the person acquires the property right, his original creation is protected
from being used, transferred or manipulated by another person. Any such breach of
the intellectual property right of the creator / owner would be against the law.

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ETHIC AND REWARD THEORY

An owner or creator is legally protected under IPR for his novel creations by granting
him exclusive rights over the work he produces. These exclusive rights include the
right to enjoy the property, exclude others from enjoying it and to dispose the
property in any manner he likes. The creator is rewarded for contributing to the
welfare of the society by producing his work, however, when an ethical or moral
perspective is involved while rewarding it falls under this theory of intellectual
property rights. This theory emanates from the concept that granting exclusive rights
on an original work are “an expression of gratitude to an author for doing more than
the society expects or feels that they are obliged to do.”[5] It implies that other than
the profit or remuneration for his production, if any, the individual should also be
granted exclusive legal rights over the property so produced since he contributed for
the betterment of community.

Ethic and Reward Theory suggests that for producing the original work, the creator
might have been given some reward in form of royalty or otherwise, and then the
creator should be rewarded again with exclusive legal rights over his novel production
since he contributed something for ‘social utility’ that would benefit the society at
large. The thinkers supporting this theory believe that the individual who put his
intellectual labor for social good must be fairly compensated with his contribution
being respected and this can be done by granting him exclusive rights. These exclusive
rights act as moral and ethical rewards since the creator would be legally protected
under IPR.

Critiques against this theory have contended that just like a person is not punished
twice for doing something offensive that causes displeasure to the people similarly, a
person who has contributed to the society should also not be rewarded twice.

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UTILITARIAN OR INCENTIVE THEORY

Utilitarianism is “greatest good for the greatest number” which basically implies
happiness of the maximum number of people. Therefore, the conduct which causes
happiness of a large number of people should be appreciated and promoted whereas
the conduct which causes displeasure to the society should be avoided or discouraged.
Propounded by Jeremy Bentham and John S. Mill, the concept of utilitarianism helps
in socio-cultural and economical progress. Likewise, while inferring it in intellectual
property utilitarian concept plays a significant role.

As and when a person creates a product or there is technological innovation within a

community, the society benefits from the advancement and progress. Since this
progress benefits and causes happiness of the society at large, such innovation and
creations are to be promoted and encouraged.  Such encouragement can be done by
granting exclusive rights to the creator as he has worked hard to empower the society
and cause pleasure to the maximum number of people. This will not only create a
sense of motivation to put in more efforts but would also make him believe that he
and his work are rightfully respected and recognized. Therefore, the authorities or
administration are expected to grant such rights and recognize their efforts.

However, while creating and designing the work, the cost of production might be too
high. So, the incentive given to the creator might not be sufficient enough to cover the
costs incurred. This might discourage the creator as well, thus, preventing him to
further experiment and produce.

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PERSONHOOD THEORY

This jurisprudential theory was propounded by famous thinkers like Immanuel Kant
and Georg Hegel. Personhood theory of intellectual property rights states that while
applying labor to produce some work, a person also incorporates some part of his
personality in the creation. An “individual’s personality growth is inherent”[6] and
thereby, constitutes an integral part of the creative works. Since exclusive property
rights are granted over the creative works and original productions, the creator also
gains rights over the personality that is developed during the process. This right to
“protect the development of personality extends to material things”[7] as well.

These rights emphasize more on preserving and safeguarding interests related to

personality rather than merely protecting the monetary interests. Other than the right
to fiscal advantage, the maker should also be given the right to safeguard his
personality infused with the creation. Intellectual Property Rights should include
protection of both creativity and every other thing incorporated in it.
There exists a loophole in this theory if we consider the fact that once the original
work is produced, it is distinct from the creator. As the work becomes available to the
public, it is up to them as how they receive and treat it. Therefore, it is not dependent
on the person creating it.

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CONCLUSION

It is a well-established fact that Intellectual Property Rights have been quite effective
and successful in protecting the novel creations that have facilitated in the upliftment
and growth of any nation. They have bolstered and encouraged the society to produce
more. It is quite evident that in this age of technological development and increased
creation of artworks, competitiveness has found its way. As a result, people might
indulge in unfair practices to manipulate or copy other’s creations or use them
illegitimately to create something new. To mitigate such incidences, intellectual
property rights through patents, trademarks, copyrights and trade secrets have found a
permanent place. It ensures that there is no unhealthy competition or any kind of
unfair practices. Intellectual Property rights acts as incentives to the individuals who
are in the field of research and experimentation. Such encouragements give them a
feeling of recognition. These rights not only provide ownership right but also
recognize and reward them for their efforts and labor. It protects the economic
interests of creators as well.

Each theory has its own approach and perspective of inferring intellectual property
rights. There is no specific right or wrong with regards to a theory. Different
individuals might relate and favor different theories.

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Rights/> with Enhelion’s Online Law firm certified Master Course! 

There has been a recent surge in the requirement and use of IPR laws in India. Indian
Courts of Law have been reasonably strict in regulating intellectual property rights and
awarding punitive damages to deter further infringement. “Prioritizing IPR has
become necessary for socio-economic development.”[8]
Based on these theories there are some loopholes and incongruities which need to be
looked into. Moreover, with changing times and continuous advancement, there can
be several challenges which the existing IPR laws might have to cope with. The
coming years would be very essential to evaluate the progress and improvisation of
domestic IPR laws in comparison with the international ones. It would be interesting
to see how IPR laws unfold in the upcoming years.

[1] The Effects of the Internet on Intellectual Property Rights, SACRAMENTO

INTELLECTUAL PROPERTY LAW BLOG (Mar 27, 2017).
https://www.petersonwatts.com/blog/2017/03/the-effects-of-the-internet-on-
intellectual-
propertyrights/#:~:text=Patents%2C%20trademarks%20and%20copyrights%2
0are,protected%20to < https://www.petersonwatts.com/blog/2017/03/the-
effects-of-the-internet-on-intellectual-
propertyrights/#:~:text=Patents%2C%20trademarks%20and%20copyrights%2
0are,protected%20to> %20the%20fullest%20extent.

[2] Varun Sharma & Gautam Kumar, Patent Litigation – Trend and Development,
CHAMBERS AND PARTNERS,
(2020).https://practiceguides.chambers.com/practice-guides/patent-litigation-
2020/india/trends-and-developments.

[3]Singh and Associates, India: Role of IPR in Sports, MONDAQ (May 22, 2019).
https://www.mondaq.com/india/sport/808132/role-of-ipr-in-sports

[4] Adam Moore & Ken Himma, Intellectual Property, Stanford Encyclopedia of
Philosophy (Oct 10, 2018) https://plato.stanford.edu/entries/intellectual-property/.

[5] L. BENTLY & B. SHERMAN, INTELLECTUAL PROPERTY LAW 36 (3RD

ED. 2008).

[6] Jane Secker, Considering Theories of Intellectual Property on World IP Day, UK

COPYRIGHT LITERACY, (2018),
https://copyrightliteracy.org/2018/04/26/considering-theories-of-intellectual-
property-on-world-ip-day/.

[7] Mikhalien du Bois, Justificatory Theories for Intellectual Property Viewed

Through the Constitutional Prism, PER/PELJ (2018).
http://www.scielo.org.za/pdf/pelj/v21n1/19.pdf.