Concept of Property and Intellectual Property

The concept of property refers to the legal right of an individual or group to possess, use, and
dispose of a tangible or intangible resource. It is a fundamental concept in economics, law,
and society, and it plays a crucial role in the organization and functioning of modern
societies. In general, property can be divided into two categories: tangible property, which
includes physical assets such as land, buildings, and personal possessions, and intangible
property, which includes legal rights such as patents, copyrights, and trademarks.

Intellectual property (IP) is a type of intangible property that is created by the human
intellect. It refers to the legal rights that protect creations of the mind, such as inventions,
literary and artistic works, symbols, designs, and names used in commerce. Unlike tangible
property, which can be physically possessed and traded, IP is intangible and can only be
protected through legal means.

The purpose of IP laws is to provide creators with the exclusive right to use and profit from
their creations for a certain period of time, in order to encourage innovation and creativity.
The concept of IP is based on the idea that intellectual creations are similar to tangible
property and should be protected in the same way. This means that creators have the right to
control and profit from their intellectual creations, just as property owners have the right to
control and profit from their physical assets.

However, IP is also subject to certain limitations, such as fair use, which allows for limited
use of copyrighted materials for certain purposes such as criticism, comment, news reporting,
teaching, scholarship, or research. Overall, the concept of property and intellectual property
are closely related, but they differ in the nature of the resource being protected. While
tangible property refers to physical assets, intellectual property refers to creations of the
mind. Both types of property are essential for promoting innovation, creativity, and economic
growth in modern societies.
 Theories of Intellectual Property Rights

1. Natural Rights Theory:

This theory suggests that IP is a natural right that arises from an individual's creativity and labor.
According to this theory, creators have a natural right to protect and control their creations and
inventions, and this right should be recognized and protected by law.

The main justification behind this theory is that everyone has a right to consider his/ her ideas as
natural property right by the reason that the creation originates from the effort, originality and
inventiveness of the creator. The backbone of this theory is based on famous philosopher John
Locke’s idea that an author has a natural right over his creation applying his intellectual labour. In this
sense there is no difference between intellectual property and the traditional tangible property and
there is no difference between the rights of the owners of these two kinds of properties, such as right
to enjoy the property, to restrict others from using the property and the right to transfer the ownership.

2. Utilitarian Theory
This theory suggests that IP protection is necessary to promote the public interest and economic
growth. According to this theory, by providing creators with exclusive rights to their inventions and
creations, IP protection encourages innovation, which in turn leads to increased economic growth and
consumer welfare.

The word “utilitarian” means ‘social welfare’ and this theory was championed by great economists
Bentham and Mill with the objective of making every policy universal in the sense of attaining the
greatest good for the greatest number. The primary essence of this theory is that the industrial progress
and cultural goods can create a better and important economic impact on the society. Consequently, to
fill the need of promoting the inventions and creations, there should be nominal certification that the
outcome will be superior as compared to the expenses incurred for his work. Likewise as the name
suggests, the incentive theory validates the duty of society to respect the innovators and their right to
ownership because it brings profit for the whole society.

Criticism of the theory.

The main criticism of this theory is here the utility gains from the impetus of a unique innovation are
neutralized against the losses incurred due to exclusive ownership. Thus the question arises if really
the benefits of IPR can be weighed against the casualties or not

3. The personhood theory

The personhood theory provides that it is the creator’s creation that builds his or her personality
thereby clarifying an individual’s personality is inherent to his or her property right. The theory draws
its roots from Hegel’s philosophy, which provides that intellectual property rights are also associated
with safeguarding personality development that extends to material things. In this way, the theory
remarked that an unauthorized user who offers to the general public someone’s creation without prior
consent will be considered a thief.

The theory brings along its criticism which is linked to the underlying principle of the theory which
relates personality with creativity. This justification is ipso facto deficient as personality cannot be
said to have been linked with the outcome of someone’s creation. Though this is one side of the coin,
the other side of the coin says that even if the creation is independent of its creator, it is very much
dependent on the public. It is from the public that the work gains substance and importance.

4. The Ethic & Reward Theory

This theory rationalizes the exclusive rights of intellectual property from moralistic and ethical aspect.
The concept of ethic requires an equitable and proportional contribution from the side of creator or
innovator who has invented something for the social utility. Here the IPR are viewed as “an
expression of acknowledgement and indebtedness to an author for doing more than society expects or
feels that they are obliged to do”.

With this reward of legal rights, others are excluded from using the work or the methodology in
certain ways when the work is publicly available. On this perception patents, copyright works and
designs are justified under reward theory, but trade secrets are not protected because here the
dissemination of information in the public is restricted.

5. The Social Planning Theory

In this theory intellectual property rights are considered particularly as a part of general property laws
and it must be shaped cultivate the attainment of a fair and attractive culture.

Criticism of the theory

This approach is almost similar to the utilitarian theory in its orientation, but dissimilar in its
willingness to dispose perception of a desirable society richer than the apprehension of social welfare
deployed by utilitarians.

6. Moral Desert Theory

According to Locke, “every man has a property in his own person”, i.e. the fruit of one man’s labour
belongs to him only. The intellectual property rights also follow the same pattern because the
innovator deserves the right because of his intellectual and physical labour.

This theory compensates a worker’s performance for his “effort, ability, persistence, industriousness,
luck, time spent, the difficulty, danger of the work, leadership” etc. But this fails to give any absolute
value of the work like, “inherent worth” of labour, or a “just price” for labour.
 7. Deterrence theory
The deterrence theory promotes morality, virtue, and illicit commercial behaviour. The deterrence
theory draws its roots from the fact opposed by the utilitarian theory which does not accept deterrence
in the process of drawing benefit from innovation for the entire society. It is the trade secret laws that
behave as a hindrance to unfair marketing and therefore, becomes the essence behind the deterrence
theory. The term “deterrence” signifies discouragement. The theory discourages misappropriation of a
creation, information, etc as the secrecy of the same is focused in this theory.

8. Economic Theory
Economic theory of Intellectual property rights is directly related to its value in market economy. For
intellectual property, an incentive must be created to overcome the losses and market failure because
every time the innovators loss a huge amount of money due to high initial creation costs and marginal
distribution costs of intellectual products.

Nature and Types of Intellectual Property

1. Industrial IP
2. Aesthetic IP

Industrial and aesthetic intellectual property (IP) have different legal frameworks and serve
different purposes, but they are both essential for protecting the interests of creators and
promoting innovation in society.

Industrial IP, which includes patents and industrial designs, protects the functional and
technical aspects of a product. Patents protect the technical aspects of an invention, such as
its structure, mechanism, or method of operation, and give the inventor the exclusive right to
make, use, and sell the invention for a limited period of time. Industrial designs, on the other
hand, protect the aesthetic aspects of a product, such as its shape, pattern, or color, and give
the owner the exclusive right to use and license the design.

Aesthetic IP, which includes copyrights and trademarks, protects the artistic or non-functional
aspects of a product. Copyrights protect original works of authorship, such as literature,
music, or art, and give the creator the exclusive right to reproduce, distribute, and display the
work for a limited period of time. Trademarks, on the other hand, protect the names, logos, or
symbols that identify a product or brand, and give the owner the exclusive right to use and
license the trademark.
While industrial and aesthetic IP have different legal frameworks, they are both important for
promoting innovation and creativity in society. Industrial IP encourages innovation by
providing inventors and creators with the incentive to develop new and useful products, while
aesthetic IP promotes creativity by protecting original works of art and design. Both types of
IP also help to protect the interests of creators and ensure that they are properly compensated
for their work.

In conclusion, industrial and aesthetic IP are essential components of the legal framework for
protecting intellectual property. While they serve different purposes and provide different
types of protection, they both play important roles in promoting innovation, creativity, and
economic growth in modern society.

i. Patents: Patents are legal rights that give inventors the exclusive right to make, use,
and sell their inventions for a limited period of time, usually 20 years from the date of
filing. Patents are granted for inventions that are new, non-obvious, and useful, and
they protect the functional aspects of an invention, such as its design, structure, or
method of operation.
ii. Trademarks: Trademarks are legal rights that protect the distinctive signs, symbols,
names, or logos that businesses use to identify and distinguish their goods or services
from those of others. Trademarks can be registered or unregistered, and they are
renewable indefinitely, as long as they continue to be used and defended.
iii. Copyrights: Copyrights are legal rights that protect original works of authorship, such
as books, music, art, or software. Copyrights give creators the exclusive right to
reproduce, distribute, and display their works, and they last for a fixed period of time,
usually the lifetime of the creator plus 70 years.
iv. Trade Secrets: Trade secrets are confidential and proprietary information that
businesses use to gain a competitive advantage, such as formulas, recipes, designs, or
customer lists. Trade secrets are protected by contract law and through legal actions
against unauthorized use or disclosure.
v. Industrial Designs: Industrial designs are legal rights that protect the ornamental or
aesthetic aspects of a product, such as its shape, configuration, or pattern. Industrial
designs can be registered or unregistered, and they protect the visual appearance of a
product, but not its functional features.
vi. Geographical Indications: Geographical indications (GIs) are legal rights that protect
the names, signs, or symbols that identify products as originating from a particular
geographic region and having certain qualities, characteristics, or reputation
associated with that region. GIs are used to protect traditional knowledge and cultural
heritage, as well as to promote the economic development of rural areas. Overall, the
nature and types of IP are diverse and complex, and they play a critical role in
fostering innovation, creativity, and economic growth in modern society.