What Is Intellectual Property?

Intellectual property is a broad set of intangible assets and it is entitled to be protected with the view that certain products of human intellect should be provided with the same protective rights that apply to physical property or tangible assets. Intellectual property rights refer to the general term for the assignment of property rights through patents, copyrights and trademarks etc. for a limited period.

To understand the value and importance of IPR, we should know the theories behind its origin and the same are discussed below.

1.      The Natural Rights Theory

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.

Criticism of the theory:

The primary criticisms of this theory are,

·         This theory does not deal with temporal limitation of IPR. The usage of IPR is time bound, which means that after expiration a certain period of time, the IPR protected objects will be available in public domain. But the Lockean theory talks about unlimited term of ownership of tangible properties.

·         The Lockean Proviso restrains an innovator from owning an abstract idea which can affect subsequent innovators. Example- if a person is given the right to ownership in the unique idea of preparing pulpy orange juice, then the remaining innovators are left with nominal scope of discovery in the same field and thus prevent them from inventing a new technique for extracting pulpy orange juice. This right of ownership will violate Lockean Principle of Equity and Creative Liberty.

·         According to this theory, an appropriator cannot enrapture all the natural resources of the world. Such as, if anyone gets the ownership of his idea of producing milk from soybeans, the entire market of producing soymilk will be cornered down by the thinker. So as per Lockean thought, innovators are bolted from conquering the worldwide market with their abstract ideas. [1]

2.      The Utilitarian Theory / Incentive Theory

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.[2]

3.      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.[3]

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.

Criticism of the theory

·         However, this theory suggests that the benefit from such right can be obtained by the innovator in the initial years but if the innovators deserve the same right or not is questioned too under this theory.

·         Another drawback of this theory is its limitation in protecting the traditional knowledge because the old indigeneous communities received no reward for their rare invention of traditional methods and art. A person who registered a patent based on traditional knowledge would receive the full reward, not the original holders of the knowledge.[4]

5.      The Personhood Theory

The greatest philosophers of all times, Kant and Hegel are the profounder of the theory which claims that intellectual rights permit and protect the development of the personality, extending to material things.

As per this theory, the personality of everyone frames itself up in the environment of work, innovation, ideas and creation. The augmentation of the personality is deep seated to our property rights.

Under this theory personality and property law are compared in the field of copyright ( because the same way tangible assets are protected, the creative artistic works are also viewed as asset and get protected). After seeing the conflicting labour theory of Locke and Hegel’s personality or spiritual theory may not seem to be the best approach, since Locke’s theory approaches property as serving the personality, while Hegel’s theory perceives property as the – apotheosis of personality.

Criticism of the theory

When the creation is done, the work is independent from its creator but dependent on the public domain. As a matter of fact, the creation or work gathers the importance because others adheres importance to it.[5]

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.

Criticism of the theory

Although Legget has pointed out that even if we grant an exclusive right to a specific idea, there is no process of being sure or assuming that someone else did not inculcate the same thought or idea. Thus these rights can only be vindicated if they are applied in the manner that the individual rights are protected without infringing other’s right.[6]

7.      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.

Criticism of the theory

The contrasting view point of this theory is that there is no particlular ground to believe only property rights can create this incentive. Often the innovators are not the real owners of the property rights, and even after incentive is given, the question still remains as how much incentive is enough to secure the property rights. As far as the tangible property is concerned, it is argued that property laws are used to allot limited resources in the competitive market and without proper safeguard of property rights, suppliers would not supply to the market even if there is chance to obtain high profits. This criticism is based on free rider principle, which says opportunists should not be allowed to derive gains from where they have not sown i.e. contributed , otherwise it would create undesirable monopolies. This is the sole reason why limited durations imparted on intellectual property monopolies.[7]

Conclusion

The meticulous discussion on the theories of IPR through this article, has proved why intellectual property is compared with tangible assets and why the rights for such property should be conserved to protect the inventors, brands as well as the society as a whole.