This article is written by Medha Tiwari, student of Shri Ramswaroop Memorial University, Lucknow, as an effort to explain the basic concept of property. After reading this article, readers will have a better understanding of the term property and various kinds of properties that exist.
Table of Contents
Meaning of Property
Introduction
The word property is used in numerous senses in general. If one looks around in the surroundings, everything available may be categorized as Property. Every object, whether tangible or intangible having some value to human beings, may be termed as Property. The essential characteristic of Property is the value attached to it. In one way or the other, it is a source of wealth. The value, although may be either monetary or personal. In a general sense, therefore Property consists of land, shares, buildings and debts due to another person. However, the term when used in the legal sense has a definite connotation. It is the right to enjoy and to dispose of certain things in an absolute manner as one thinks it fit.
Origin
The word “property” is derived from the Latin word proprietary and the French equivalent properties, which means a thing owned. The concept of property and ownership are very similar to each other. However, there is a fine line that distinguishes the two terms. It will not be incorrect to state that humans have been aware of their rights to possess what they rightfully own for long. The term property has been widely interpreted by various jurists such as Salmond, Bentham and Austin. Close observation of the definitions given by them will help us understand the concept in a better manner.
Definition of Property
Eminent jurist Salmond while defining the term property, observed that the term might be understood in one of the three senses mentioned below:
(i) The term property includes all the legal rights of a person. That is to say that it includes complete ownership of a man on material as well as incorporeal things.
(ii) The term includes not a man’s personal rights, but only his proprietary rights.
(iii) The term includes the rights of ownership in material things such as building etc. According to another jurist, Bentham, the term property includes ownership of material objects alone. He has, in a way, interpreted the term in a narrow sense. According to Austin, Property denotes the greatest right of enjoyment known to the law, including servitudes. The Property includes both proprietaries as well as the personal rights of a man.
Interpretation of the word Property by the Apex Court of India
The honorable Supreme Court of India in the case of R.C. Cooper vs. Union of India AIR 1970 SC 564, interpreted the concept of Property in the legal regime. The court, in this case, observed that the term property includes both corporeal things such as land, furniture and incorporeal things such as copyrights and patents. The recent trend of the Apex court, however, has changed. Court has started viewing Property in the light of Article 21 of the Indian constitution as liberties exist even reference to the Property owned and possessed.
Kinds of properties
Property is basically of two categories : Corporeal Property and Incorporeal Property. Corporeal Property is visible and tangible, whereas incorporeal Property is not. Moreover, corporeal Property is the right of ownership in material things, whereas incorporeal Property is an incorporeal right in rem. Corporeal Property is further categorized into Movable and Immovable Property. Incorporeal Property is classified into two categories : in re propria and rights in re aliena or encumbrances.
Corporeal and Incorporeal Property
These are the two categories of properties that exist.
(i) Corporeal Property has a tangible existence in the world and is related to material things such as land, house, ornaments, silver, etc.
(ii) Incorporeal Property is intangible because it’s existence is neither visible nor tangible. Right of easement and copyrights are incorporeal Property.
Movable and Immovable Property
All corporeal Property may either be movable or immovable in nature. The basis of this kind of classification is the portability of the object. The two categories are discussed as follows:
(i) Section 3 of the general clauses act, 1897; Section 2(6) of the Indian Registration Act, 1908 defines the term immovable Property. It includes land, things attached and embedded in the land.
(ii) On the other, movable Property includes any corporeal property which is not immovable property. It may include furniture, stationery items, etc. The concept of immovable Property holds greater importance and has elaborately been dealt with under Indian statutes. The following mentioned are judicially recognized as immovable Property:
- Right of way
- Right to collect the rent of immovable Property
- Right of ferry
- mortgagor’s right to redeem the mortgage
- The interest of the mortgagee in immovable Property
- Right of fishery
- Right to collect lac from trees
On the other hand, the following are not judicially recognized as immovable Property:
- Standing timber
- Growing crops
- Grass
- Royalty
- A decree of sale or sale of immovable property on a mortgage
- Right of the purchaser to have land registered in the name
- Right to recover maintenance allowance even though it is charged through immovable Property
The above-mentioned lists are not exhaustive and are subject to judicial interpretations from time to time.
Public Property and Private Property
With reference to the concept of ownership, Property may be classified into public and private property. The two kinds are discussed below:
(i) Public Property is owned by the public as such in some governmental capacity. In other words, it is owned by the government and used for the beneficial use of the public in general. A park or a government hospital is a public property.
(ii) Private Property is that Property which is owned by a particular individual or some other private person. A residential house of a citizen may be his private property.
Real and Personal Property
This distinction between real and personal Property basically originated from Roman law, and it still exists in England. The two categories of Property are discussed below:
(i) Real Property means all rights over land recognized by law.
(ii) Personal Property means all other proprietary rights, whether they are right in rem or in personam.
Right in re aliena and Right in re propria
Right in re aliena are also sometimes referred to as encumbrances. These are the rights of a specific user. These prevent the owner from exercising some definite right in reference to his Property. Lease, security and trust may be included under this category. Right in re propria are immaterial forms of Property. These are a product of human skill and labour. Patents, copyrights and commercial goodwill may be included under this category.
Intellectual Property
Meaning
Intellectual Property is, in simpler terms, creation of intellect or wisdom or of the human mind. It is related to intellectual innovation and innovation in the literary, scientific and artistic fields. Nations around the world are making efforts toward protecting intellectual property. One major reason is to recognize by way of statute, the economic rights of creators of these intellectual properties. Another reason is the urge to promote creativity amongst the masses which will, in the long run, contribute towards an environment comprising of only fair trade practices. The law related to intellectual Property aims at protecting the people who create and own the intellectual goods and services by granting them certain time-limited rights to control the use made of those productions. Those rights do not apply to the physical object in which the creation may be embodied but instead to the intellectual creation as such.
Kinds of Intellectual Property
Intellectual Property may be classified into various categories.
However, a few of the most widely utilized and owned intellectual properties have been discussed below:
Patent
A patent is a kind of Property that has intellectual worth attached to it. It is an exclusive right granted for an invention which is a product which is a result of a person’s ability to of doing something or offers a new technological solution to a problem. In order to obtain a patent, it is necessary that the technological information must be disclosed to the public in a patent application. A patent so obtained remains in force for twenty years.
Trademark
Another widely popular form of intellectual Property is a trademark. Trademark is a sign capable of distinguishing goods and services of one enterprise from another. These are basically a means to protect the unique identity of renowned brands. It enables a customer to recognize the brand or the product instantly without being misled. An example of a trademark would be the logos or slogans used by brands to make their products uniquely identifiable.
Copyright
Copyright is available to the creators of literary, dramatic, musical, artistic, producer of cinematograph acts or sound recording. It determines whether and in what conditions the original work may be used by persons other than the owner of the unique intellectual property.
Almost every product has copyright. These include the visible symbols on the product packaging and label etc. Copyrights protect original creative work has been written down on a piece of paper, saved on electronic storage hard drive device or preserved in some other tangible format.
Geographical Indicators (gi)
It is an indicator used on products having a specific geographical origin and possess qualities that exist due to their basic origin. The sign must identify a product as originating in a given place, and the quality, characteristics or reputation should be due to the place of origin. Recently, Rasgulla from Orissa and Kadaknath chicken from Madhya Pradesh has been granted the geographical indication tag in India.
Industrial Design
Industrial design is related to the products which are a part of the industrial set up. It refers to the shape, configuration, colour or pattern which may be an ornamental or aesthetic aspect of a product. The owners of a registered industrial design have a right to prevent third parties from making, selling, importing articles bearing a design which is a copy. Thereby any person using someone else’s industrial design may be liable to pay damages to the owner of the industrial design.
Trade Secret
Trade secret in simpler terms implies the strategy adopted by the owner of the business. It may be any confidential business information which provides an organization with a complete edge in the world market of the respective product it deals with. A trade secret is an initial step for an investor. It is essential that the idea or formula behind the unique trade opportunity remains secretive. Any person or organization indulging in unauthorized use of trade secrets is regarded to be guilty of unfair trade practice. For example, the recipe of any popular noodles brand may be considered as a trade secret of that brand.
Commercial Goodwill
Commercial goodwill is a prominent form of incorporeal right. The goodwill of a commercial business is a valuable right acquired by the owner by his labour and skill. The owner has the exclusive right of use and profit from the business and anyone who seeks to make use of it by falsely representing to the public that he is himself carrying on the business in question shall be violating this right.
An overview of Intellectual Property
Thus, it is now clear that the concept of intellectual property is one that covers within its ambit varied kinds of intangible property rights. Every product which is a part of the world market encompasses one or more of the kinds of intellectual property rights discussed above. The concept can be further understood by considering the illustration of a soft drink brand. The name of the brand would be its unique trademark. The formula of the soft drink would be considered as a trade secret, while copyright would comprise of the way the soft drink is packed. The shape of the bottle or tetra pack of the bottle may either be a design patent or a trademark.
Conclusion
From the above discussion, it can be very well concluded that the concept of Property has been in existence since the existence of human civilisation. Over the years, the concept of Property has witnessed a vast transition. The reason behind this transition may be the jurisprudential aspect of the concept. Thus, from a piece of brick to an idea behind a product, Property as a concept has developed in an unanticipated manner. The research being done in the field of property law makes it a dynamic concept which will continue to evolve in the years to come in the near future.
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