This article is written by Prashant Dhodapkar, pursuing Diploma in US Intellectual Property Law and Paralegal Studies from Lawsikho. The article has been edited by Priyanka Mangara (Associate, LawSikho) and Dipshi Swara (Senior Associate, LawSikho).
Thousands of years ago, humans were not very different from other animals and had to hunt or gather food and seek shelter in the wild. A major shift happened with the dependence on farming (rather than hunting) for sustenance, and also living in communities and sheltered homes. To cater to the altered social situation, different types of systems and institutions such as family, division of work, community or society, towns and states, religion, a system of government and law, etc. were created for managing the individual and collective existence.
In recent centuries, we have witnessed tremendous technological changes and scientific innovations, accompanied by a drastic change in the economy and our lifestyles. What was once an agrarian economy changed to an industrial economy characterized by mechanization and mass production? The present era is known as the knowledge economy or information economy wherein the production of goods and services depends on knowledge-intensive activities. An important enabling factor for this change is human skills and mental abilities. Incentivizing such skills and abilities through appropriate systems is considered highly necessary for sustaining improvements in our lifestyles.
What are intellectual property rights (IPR)?
The intellectual property rights (IPR) and the legal as well as administrative systems that facilitate such rights, is an important mechanism for incentivizing the creative endeavours that make our lives better. The term IPR has three components (namely ‘intellectual’, ‘property’ and ‘rights’), and it is worthwhile to briefly examine the meaning of these terms individually as well as collectively.
- ‘Intellectual’ denotes something that is associated with our mental faculties (thinking, reasoning, conceptualizing, analyzing, synthesizing, etc.).
- ‘Property’ means something which is owned by a person (natural or an entity) and can be tangible or intangible (land, natural resources, manufactured goods, books, ideas, inventions, etc.).
- ‘Rights’ convey a type of entitlement.
Both the terms ‘property and ‘rights’ are amenable to in-depth legal analysis. For the sake of brevity, we can say that ‘property rights’ mean a set of rules for ownership and access to something. A person having a ‘property right’ in something can use it, sell it, license it, rent it, mortgage it, and even abandon it. The term IPR, therefore, means the set of rights to creations that arise out of mental efforts. It is customary to refer to the IPR base of an organization as IP assets since these rights can be commercially exploited in the course of business just like any other real or physical assets.
IPR are engines of economic growth
IPR comprises the intangible resource base of organizations (apart from skills, goodwill, and relational capital). The increasing importance and emphasis on IPR can be gauged from the fact that for S&P 500 companies in 1975, intangibles accounted for 17% of the enterprise value, which increased to 84% in the year 2018.
This has been accompanied by an increase in IP filing activity (especially patents and trademarks), with countries such as China and South Korea accounting for most of the increase.
Subject matter eligible for IPR
The subject of IPR includes patents (granted to inventions that are new, non-obvious, and useful, for a period of 20 years) designs (which protect the aesthetic appearance of articles), trademarks (which are signs that differentiate the goods and services of an enterprise from that of the other), Copyrights (which granted to creators of literary, artistic, musical, cinematographic works or even to computer programs and database, etc.), Trade Secrets (proprietary valuable information), Geographical Indications of origins (goods that have specific qualities on account of geographical origin or manufacturing processes), the layout of integrated circuits, plant varieties, etc. are also considered as IPR.
The laws pertaining to IPR are designed and administered as per the national laws, which are largely harmonized with the formation of the World Trade Organization and the multilateral agreements known as Trade-Related Aspects of Intellectual Property Rights (TRIPS). TRIPS lay down the minimum standards of protection and enforcement for intellectual property, allowing some flexibility to individual nations to design their IP systems.
IPR : a brief history
Although the IPRs have taken a definite shape in the 20th century, the IP rights in one form or the other have been known, almost throughout the history of human civilization. As early as 500 BCE, 1 year of exclusivity to exotic culinary creations of bakers was accorded in Sybaris, Greece. Vitruvius (257-180 BCE) is known to have exposed IP theft in a literary contest in Alexandria.
Another case of copyright theft happened in 6th century Ireland when St. Columba copied the illustrations of a copy of the bible, without permission, that he obtained from St. Finian. Finian accused Columba of theft, stating that the copying was illegal. Columba denied any wrongdoing, and Finian had to resort to Royal intervention. While ruling in favour of Finian, the King is reported to have said “To every cow belongs its calf, to every book its copy”.
Before the IP rights came into existence, rights in the form of royal favours, privileges, franchises, or monopolies existed for some time. The earliest codified laws related to IP were the Venetian Patent Statute (1474) and the Statute of Anne (1710) for copyrights. The Paris Convention (1883) and Berne Convention (1886) led to the codification of modern Patent and Copyright laws. How is the system of privileges different from IP rights? While the effect of privileges was to remove what existed in the public domain and provided exclusive rights, the IP rights do not affect anything that is in the public domain.
IPR differ from real goods
Although considered analogous, IPR differ from traditional tangible assets in several ways:
- They are non-rivalrous goods, i.e., several people can simultaneously possess and use these assets without causing any hindrance to other users. Real assets are rivalrous, i.e., the use of a cell phone, car, book, etc. by any person precludes their use by others.
- IPR are also non-exhaustible, their ‘consumption or use by a person does not cause any diminished availability to other users.
- IPR are provided for a limited time duration, although the monopoly afforded by them can be potentially forever.
- IPR are predominantly exclusionary rights, i.e., the owner of an IP right can prevent its use by others who do not have his/ her consent.
- The marginal cost of production for IP tends to be negligible, which is not the case for real goods.
- IPR are a bundle of economic as well as moral rights.
The debate over legitimacy of IPR
The subject of IPR raises several debates around their purpose, design, and legitimacy. While the property rights in respect of real goods are readily accepted by a large section of society, it is considered unjustifiable by many to grant an exclusive and comprehensive set of private rights to something that is non-rivalrous, does not lead to the non-availability to the creator even if appropriated by a large number of people, and the costs almost nothing to distribute to a large number of people. While patent rights are alleged to slow down the pace of technological progress, copyrights are considered barriers to the free diffusion of knowledge. Moreover, opponents of IPR often question the morality of state coercion in the enforcement of private rights.
How do philosophers justify property rights?
Various philosophers have shaped human thought and have had a profound impact on statesmen, legal systems, political systems, etc., and continue to influence our views on metaphysical issues such as liberty, justice, virtue, beauty. Their views appear very relevant today and continue to be studied as well as debated around the world. Since the validity of IPR is often questioned on moral grounds, it will be useful to examine the perspectives of different philosophers on the subject of private property rights and especially the rights that arise out of intellectual efforts.
The Greek giants : Socrates, Plato, and Aristotle
The ancient Greek philosophers are credited with laying down the foundations of western philosophy. They are considered together because Socrates was the teacher of Plato, who in turn was the teacher of Aristotle. Socrates (470-399 BC) was concerned with a life of virtue and known for his teachings in rationalism, ethics, and epistemology. He is famous for his claim “I know nothing” and believed that one should confront one’s beliefs in order to gain knowledge. He did not write anything, his teachings are available through Plato’s (428-348 BC) writings, such as Dialogues which is based on the Socratic method of questions and answers on a given topic. Both Socrates and Plato were against private rights and advocated collective rights. In Republic, Plato argued; collective ownership was necessary to promote the common pursuit of the common interest, and to avoid the social divisiveness that would occur ‘when some grieve exceedingly and others rejoice at the same happenings.’
Aristotle (384-322 BC), who had a wide range of interests and was the first to make observations in biology, had views that were very different from his teacher. He opined that the exercise of private rights makes a person free and hence a better citizen. According to him, human happiness requires all types of external goods, including wealth and property. In Politics 2.7, Aristotle criticized the view that communism- or the levelling of property- cured the injustice associated with property. He opined that in order to prevent crimes, one should improve one character through education. Especially criticizing the communism of women and children, he stated that when people share something in common, they tend to neglect such things. This view runs very parallel to the ‘Tragedy of Commons’ problem discussed frequently in contemporary economic theories.
The Lockean labour theory of property
One of the most influential Enlightenment thinkers and empiricists in support of property rights was John Locke (1632-1704), who in Chapter V of Second Treatise on Government argued that individual ownership of goods and property is justified by the labour expended in producing such goods, or the use of the property to produce goods useful to the society. His views, most popular as the Labour Theory of Property or Lockean labour theory is summarized as following propositions:
- God has provided a world to people in common.
- Nature on its own provides very little value to society.
- Every person has property in his own person.
- Whenever a person mixes his labour with something in commons, he makes it his property.
- The right of property is conditional to the persons leaving enough and as good for other commoners.
- A person cannot take more out of commons than he can use it to his advantage.
As per Lockean view, property rights are a just reward for the industrious. Intellectual labour, therefore, also merits property rights so long as it results in societal benefits. Lockean theory of property has been a subject of contention for scholars of property rights since it is open to several interpretations. It has been relied upon in several judicial decisions, e.g., in Millar v Taylor (1769) 4 Burr.2303, and also continues to influence contemporary thinkers.
It is to be noted that courts have gone beyond ‘labour’ as a precondition for property rights. Gerber (2016) provided two legal precedents which led to the codification of important aspects of copyrights. In Feist Publications, Inc. v. Rural Telephone Service Co., the Supreme Court rejected the plaintiff’s claim of copyright over a telephone directory stating that it was a result of a combination of ‘sweat of the brow’ and public domain material, not original work as prescribed by the Copyright Law. Similarly, in Baker v Selden, 101 U.S. 99 (1879), the Court concluded that the plaintiff’s book describing a method of accounting did not qualify for copyright protection as ‘scientific truths and methods of an art are a common property of the whole world’. These cases demonstrate that originality and the idea/expression dichotomy are the two critical elements of copyright protection, and ‘combination of labour with something in commons’ alone is insufficient to merit protection.
Perhaps, in the modern context, we need to understand ‘labour’ in a broad sense as ‘efforts’ (e.g., expenditure in terms of resources) for justifying intellectual property rights. After all, the production of intellectual outputs such as inventions, books, movies, paintings, etc. involves a lot of individual or organizational efforts. Without economic and moral rights afforded by IPRs, there are no incentives for such outputs. A copycat does not exert much in producing such output and deserves no rights, and in fact, needs to be treated as an infringer.
Metaphysical theories of Kant and Hegel
Going beyond the natural law theories of occupation and labour, Immanuel Kant (1724-1804) proposed a metaphysical theory wherein he asserted the inviolability of individual human personality (Mishra, 2009). Kant states ‘Nothing is originally mine without a judicial act’. There are 3 elements to Kant’s theory:
- ‘Prehension’ of an object that belongs to no one,
- An act of free will interdicting others from using it,
- Appropriation of the thing as per universal laws, whereby all others are obliged to respect and act according to the will of the appropriator in respect of the thing appropriated.
Another metaphysical theory originated from Hegel (1770-1831) wherein he opined that mankind has the absolute right to appropriate all that is a thing. According to him, the exercise of one’s free will over something which is in one’s possession makes it his property. Although discarding occupancy as an element of the property, he relies heavily on the concept of possession. An interesting aspect of the patent law is that it requires the patent applicant to prove that he is in possession of the idea that is intended to be protected. The statute Section 10 (3) of the Patent Act, 1970 even includes a condition that the applicant may be required to submit a model or sample in respect of the application, to illustrate the invention. This requirement at present is probably a mere vestige from the era wherein artisan-based products were sought to be patented. However, adequate description to enable a person skilled in the art to carry out the invention remains a key element of proving possession of an idea. Likewise, fixation on a tangible medium makes an idea eligible for copyright protection.
The socialist theory of Marx
In contrast to Locke, who advocated private property on the basis of labour, Karl Marx (1818-1883) employed a labour theory of value to advocate the abolition of property rights, which he viewed as a source of alienation and a barrier to attainment of freedom. Marx was strongly critical of the idea of freedom as stated in the 1789 French doctrine “Right of Man” and did not see all rights as having equal importance. For him, all other rights were subservient to the right of property. The right of property forced an individual to see fellow human beings as an enemy standing in the way of his acquisition or preservation of property. If laws exist to protect property, then there can be no equality in law without property.
The functional theory of Duguit
The great French philosopher remarked that property is no longer a subjective right of the owner, it is the social function of the possessor of the wealth (Mishra, 2009). According to him, it is the duty of the individual to employ his physical, intellectual, and moral forces to enrich social interdependence.
Ancient Indian philosophy and intellectual property rights
The ancient Indian knowledge is so vast and comprehensive that it is very difficult to summarize or assess it. It comprises the Vedas, the epics Ramayana and Mahabharata, etc. (all traditions do not accept the authority of Vedas). These great works contain the worldly (e.g., Ayurveda, description of rituals) as well as metaphysical knowledge including that of Dharma and morals. Property rights were known in ancient India and the proper means of the acquisition were also prescribed, which have equivalence to modern concepts: Proper payment, gift, inheritance, etc. The great sage Vyasa is supposed to have composed these works with divine assistance (i.e., Lord Ganesh as the scribe). One view is that the Vedas were revealed to the sages in a meditative state, and these were transmitted through hymns composed by the sages. Transmission of knowledge through oral tradition was the norm, through the master and disciple (Guru and Shishya) tradition. Knowledge was considered sacred, and it is believed that the authorship of work was secondary. However, great works such as the Patanjali’s Yoga Sutras and Panini’s Grammar (some opine Patanjali and Panini refer to the same person), Charaka’s Ayurveda, etc. are known as authored.
One view held by a large number of people is that as per the Indian tradition, knowledge was free. However, this view is not correct, since the process of education required considerable commitment of the disciple as well as the master. Also, the disciples were required to pay a Dakshina at the conclusion of the education, whose amount was somewhat arbitrary.
An interesting mythological anecdote that is worth considering is that of Ekalavya, who wanted to learn archery from the great Dronacharya, who taught the Pandavas and Kauravas. Since he was not eligible to receive tuition, he learned archery by using a statue of Dronacharya in lieu of his instructions in person. When Dronacharya came to know that Ekalavya had become an accomplished archer through and attributed his skills to Dronacharya, he demanded his Dakshina– Ekalavya’s thumb, depriving him of what was considered as wrongly appropriated knowledge. This action of Dronacharya is open to several interpretations. One possible interpretation is that the stature of Ekalavya was elevated forever as a disciple beyond comparison. However, the great tragic episode illustrates an important philosophy of IP rights- one cannot justify the appropriation of information/ knowledge through unauthorized means, even if one attributes such knowledge to the correct source and has worked hard for assimilating the knowledge.
An interesting example of inventions in the Indian context is the astronomical instruments of Jantar Mantar of Jaipur, where the ‘inventorship’ is credited to King Sawai Jai Singh II. All the details of the instruments are visible and lie open to the public in the true spirit of patents. The barrier to copying such inventions comes from the enormous scale, cost, accuracy, and craftsmanship; and legal protection is redundant.
Modern perspectives and debates around IPR
In the modern discourse on IP rights, the legitimacy of such rights is argued on the basis of the fact that IP rights are non-rivalrous, and if non-excludable, involve a ‘free rider’ problem (Van Lindberg, 2008). However, there are many who opine that IP rights create unnecessary barriers to the diffusion of scientific knowledge and innovations. A vast amount of knowledge is locked up due to copyright restrictions, the opponents claim. The proponents of IPRs point out that the IP laws are designed in order to balance the rights of the creator with that of the ‘consumers’. In absence of just rewards, there will be really no creations.
The recent widespread opposition to the ‘Stop Online Piracy Act’ and ‘Protect Intellectual Property Act’ indicates the premium placed on ‘freedom’ of information. However, the term free or freedom is not clearly understood here. For example, Wikipedia places a great emphasis on the quality of the article it hosts, including correct attribution of the sources and the right tone for the articles. Such requirements are supported in copyright systems, then why oppose them? We are not only interested in the contents of information, but its source and integrity as well.
Information should be freely available, argue the opponents of IP. It is very difficult to make scientific breakthroughs available to the public through learned societies or journals for ‘free’. There are several costs incidental to such publications. The integration of such knowledge in trade practices takes time and resources. In the Indian context, it is criticized that the IP systems are tools for exploitation by western countries. The patenting of seeds, neem, basmati rice, etc. is often cited as examples of misappropriation. However, the remedies for such misappropriation exist in the IP systems. The incidents or allegations of fake news point out the consequences of indiscriminate sharing of information.
The Open Source and creative commons are cited as an alternative to IPR, but it is a fact that the development of open-source software involves costs, commercial versions of open-source software exist (Van Lindberg, 2008), and are accepted by everyone. Open source is really a cooperative effort to develop and exploit intellectual efforts and is not free in the sense of ‘free lunch’ but usually free in the sense of ‘free to use, modify and distribute’. The creators of open source work still control how their works will be used.
Although the justification for IPR is based on their importance to economic growth, the literature indicates that the link between economic growth and IP filing is not clear- do IPRs impact economic growth or vice versa? Or is there simultaneity involved? Knowledge of IP systems is vital for participating in the knowledge economy. Countries like India attempt to catch up with the developed world in terms of economic affluence, but it is doubtful whether such a vision is viable without being productive in physical as well as IP space. The opponents of IPR cite its non-exhaustible nature, but IP assets are vulnerable to waste, degeneration, or destruction, akin to their physical counterparts.
Moral arguments against IPRs are based on the perception that knowledge/information should not be exclusive. However, the very essence of patents is sharing of inventions (the etymology of patents originates in patere, or to lay open), and as Francis Gurry, former DG of WIPO, remarked, “sharing of information benefits the society whereas secrets are beneficial for individuals”.
The intellectual property rights are designed to mimic physical assets as closely as possible, so that social or commercial exchange becomes possible. Thus, inventions have embodiments, and the inventors need to possess the idea sought to be protected. Also, the metes and bounds of an invention need to be defined through claims for obtaining patent protection, which is similar to defining the boundaries of a physical asset such as a piece of land for obtaining registration. Copyrightable material should be fixed in a tangible medium.
None of the philosophical theories can justify or refute IPRs fully, although property rights, in general, have been considered vital by most philosophers. We cannot deny that the creators of IP have a right to exercise some degree of control over their works.
- Mishra, J.P., ‘An introduction to intellectual property rights’ Central Law Publications, 2nd Edition, 2009.
- Van Lindberg, ‘Intellectual property and open source’, Oreilly, 2008.
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