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This article is written by Parul Chaturvedi, from Dr R.M.L Law College, Bangalore. In this article, the author talks about the constitution with the inclusion of IP within the protection of property at the constitutional level.


The Constitution is the most imperative part of upholding and enforcing the rule of law, and Intellectual Property law is profoundly related to the essence and functioning of these rules of law. Like other laws, the intellectual property was the result of a balanced method by which, constitutional rights are taken control framework in the creation of copyright, patents, trademarks, etc., and integrate by Human rights and Intellectual property rights by making impartial approach related to the protection of these rights in the form of product, logo, design, with certain exceptions and limitations of the property rights.

It can be said that the fundamental rights expressed in the Constitution include the following rights that can be considered to play a role in the application of intellectual property rights, privacy, freedom of expression, property, land, free access to the information. The question arises as to whether, under the Constitution, intellectual property is protected as a fundamental right or something else?

In this article, the author likes to highlight whether intellectual property is a constitutional right of a person? and, How do the Constitutional right and Human rights affect the protection of intellectual property rights? and the protection against existing threats to national security known as the thefts of intellectual property? Whether it should be possible to maintain the balance between intellectual property rights and fundamental Constitutional rights?

The definition and application of intellectual property in the context of constitutional rights, along with their inclusion in the conventions on intellectual property, as well as the constitutions, demonstrates that cooperation and harmonization have been achieved. Intellectual property rights help to promote creativity, which would not occur without economic reward and incentives.

Constitutional rights should prevail when a dispute occurs but the legitimate interests of the owner or creator should be protected. Interpretation and implementation are two main areas that indirectly protect constitutional rights through intellectual property.

There is no question that one disagreement between intellectual property rights is a response to the economic rationale, whereas constitutional rights are primarily socially focused. But that doesn’t mean they can’t reconcile indeed, balancing the cultural, social, and environmental dimensions is part of a new paradigm, that is, sustainable growth.

Constitutional empowerment

Constitutions also prescribe and describe the power of the legislature to set down Intellectual Property rules. Since it was from the United States, that empowers Congress to enact a law that promotes advancement in science and the useful arts, by giving authors and inventors exclusive rights to their writings and innovations for a limited time.

Article. 19(1)(f) 

  • As enshrined in Article. 19(1)(f), the right to property was a constitutional right and India first adopted its constitution.
  • Article 19(1)(f) had to be read in compliance with Article 31 of the Constitution so that the State could not deprive a person of his property without the authority of the law.
  • The law provides compensation for the property taken possession.
  • Set down the criteria of the number of damages according to which such compensation should be given.

Constitution of the United States  

America has always been a nation of innovators and inventors. Patents provide protection and an incentive for risk-taking. They cover numerous innovations, including industrial designs, production methods, high-tech devices, and molecular compounds. 

When reviewing particular situations, the practicality of the application of this constitutionally protected right becomes apparent. Contrarily to constitutionally protected intellectual property in the United States, there is a possibility of stifling creativity in societies such as developing nations, where intellectual property is not guarded, and thereby endangering growth. The highest act of the Constitution is necessary for the security of an intellectual property.

The constitution of the United States of America in Article 1, Section 8, Clause 8 gave the power to “promote research and useful arts” by giving inventors a restricted but exclusive right to discover. This refers to Section 310, in copyrights and patents, and trademarks equally protected under the trade clause. 

According to Anthony Wayne, in 2008, the basic principle of intellectual property protection is that the fruits of its innovation are enjoyed for a certain period by inventors, innovators, artists, and others. It can also be argued that the preservation of copyright is a vital element to maintaining cultural capital in our societies. Their strong connexion is the intellectual property rights guaranteed by the United States Constitution with the free-market system. The business has a benefit because this opportunity to produce offers its people rich and varied cultural menus.

The United Kingdom and the United States law

  • Constitutional law is influenced by the philosophy of common law.
  • IP Law stems from the constitution of the United States and of its territorial existence. 
  • It differs from other laws jurisdictions that have stronger or more recent relationships with the United Kingdom. 
  • The other jurisdictions of common law such as Australia or Canada whose federal constitution has been unwritten and have been maintained in a variety of respects.

The nature of Copyright

  • Copyright is the right in the Federal Constitutional Court, 7 July 1971, to the use of land by Churches and schools.
  • The copyright limitation as established in the law is set out in Article 46 of the Copyright Act. 
  • This is inconsistent with the property guarantee. 
  • The meaning and function of property cannot and must not be modified to social and economic relations. 
  • The absolute notion of the property remains in the constitution. 
  • Thus it assigned the obligation to the legislature to decide the nature and boundaries of the land.

This often applies to the contractual rights of an individual, for example, the tangible property included in the statute. The Constitution does not authorise the legislature to act either way. The legislature safeguards the basic material or property rights and maintains compliance with those provisions by specifying the powers and obligations that make up the right. The content that follows from these clauses must be integrated to protect copyright constitutionally. It constitutes the basis of constitutionality covered by copyright. One of the fundamental features of copyright as a property in the sense of constitution is the commercial creation of the author’s artistic work, which, in theory, belongs to the creator.

Constitutional considerations 

The Universal Declaration of Human Rights

Article 27 of the Universal Declaration of Human Rights states that: “Each person shall have the right, from every science, literary, and artistic work, to the defence of his or her moral and material interests.”

The Universal Declaration is a resolution of the United Nations General Assembly, It was adopted in 1948 and does not have a binding effect on the Member States, in so far as it did not enforce clear requirements to comply with the declaration.

However, the International Covenant on Economic, Social, Cultural Rights, which was adopted in 1966 and is an international agreement binding on the Member States of the United Nations.

Article 15 of the International Covenant on Economic, Social, and Cultural Rights repeats the clause of the Universal Declaration mentioned above. As the basic human rights of the Universal Declaration and International Covenant on Economic, Social and Cultural Rights are generally accepted (by the 1966 International Convention on Civil and Political Rights), the right to intellectual property can be considered a commonly acknowledged fundamental right.

European Convention For The Protection Of Human Rights And Fundamental Freedoms

The right to property is guaranteed by Protocol No. 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. 

Article 1 of Protocol 1 contains three rules: 

  • The first of these is the right to property protection. It is contained in the first sentence of Article 1 of Protocol No. 1 “Any natural or legal person shall have the right to the peaceful enjoyment of his property.”
  • The second clause applies to property deprivation. It stipulates in the second sentence of Article 1 of Protocol No. 1 set out in the Convention “No one shall be deprived of his possessions except in the public interest and subject to the conditions laid down by law and by the general principles of international law.”
  • The third law relates to the regulation of land use. It clarifies that commitments, such as tax duties, may be bound in interest to property

The so-called ‘constitutionalization’ is already happening at European Union (EU) level and through the EU Charter of Fundamental Rights, which serves as a basis for a new ‘constitutional’ power. The right to intellectual property protection, including freedom of expression, is certainly important to society. The process of constitutionalization should be expected to impact how the stories of intellectual property are told and how it is interpreted?

The current sense of the European Union as legal amendments are increasingly difficult to achieve, the constitutional frameworks would also contribute to ensuring that the fundamental principles of intellectual property rights are fully recognised and it aims to ensure that intellectual property rights are understood and protect the dignity of integrity.

Provision : IP as a constitutional right (South Africa)

The fundamental human rights found in the Bill of Rights include the following rights which may be considered to play a part in the application of the law on intellectual property:

The question arises whether, under the Constitution, intellectual property, and in particular copyright, is secured as a basic human right or something else. Is the intellectual property a basic human right, or the right to possess it? If not, then the Bill of Rights in any other way covers intellectual property. How does the Bill of Rights affect copyright legislation?

  • Privacy (Section 14); 
  • Freedom of expression (Section 16); 
  • Property (Section 25); 
  • Access to information (Section 33)
  • Article 27(2) of the Universal Declaration of Human Rights states: Everyone has the right to protect the moral and material interest stemming from any scientific, literary or artistic production of which he is the author.

The Universal Declaration and the International Covenant (together also with the International Covenant on Civil and Political Rights, 1966) as being the embodiment of fundamental human rights it can be argued that the right to hold intellectual property rights, and more particularly copyright, is a universally accepted fundamental right. While South Africa did not support the Universal Declaration, it is a party to the International Covenant.

When called upon to adjudicate upon the validity of the South African Constitution as part of the process of its adoption, and in particular upon the question of whether it provided for all universally accepted fundamental rights, freedoms, and civil liberties in the Bill of Rights (as it was mandated to do), the Constitutional Court – in the Certification case – held that the right to hold intellectual property was not universally accepted as a fundamental right and therefore did not require to be recognised in the Bill of Rights.

  • The soundness of this decision is open to serious questions.
  • The court sought to justify its decision by explaining that intellectual property is a form of “property” which is covered by section 25 of the Constitution and it was therefore not necessary for it to be dealt with separately in the Bill of Rights.

IP as a property under the Constitution

For the present purposes, the relevant part of Section 25 of the South Africa Constitution reads as follows;

  1. No one may be deprived of property except in terms of a law of general application, and no law may permit arbitrary deprivation of property.
  2.  Property may be expropriated in terms of the law of general application          
    1. for a public purpose or in the public interest; and
    2. subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by the court.
  3. For this section:

(a) The public interest requires the engagement of the country to land reform, and reforms to ensure equal access to all the natural resources of South Africa, and 

(b) Property is not limited to land.

  • From a reading of the section, it becomes apparent that its primary focus is on immovable property (land) and more specifically the deprivation or expropriation of such property. 
  • The inclusion of sub-section (4)(b) appears to have been something of an afterthought as a catchall to include property in general within its ambit.
  • This provision was certainly taken into account by the Constitutional Court when it stated that Section 25 covered intellectual property. 
  • In this sense, the section’s protection of the intellectual property is very restricted and is primarily confined to avoid the removal of existing property
  • This does not put any responsibility on the state to continue to promote the potential development of the intellectual property.
  • The scope, as it is, of the defence is quite unsatisfactory.
  • The basis has been created to advance the argument that intellectual property is protected (a measure) in the Bill of Rights and is constitutionally enshrined.

The Laugh it off case 

In Laugh it Off Promotions CC v The South African Breweries International 

  • (Finance) BV t/a Sabmark International (Freedom of expression Institute as Amicus Curiae) the Constitutional Court held that Section 16(1) of the Constitution provides for equal protection for the right to freedom of speech and intellectual property rights. 
  • It is now generally agreed that the concept of “estate” includes intellectual property as set out in Section 25 of the Constitution.
  • In support of this acceptance, it should be noted that the case before the Constitutional Court was an appeal against the Supreme Court’s decision and that the Court held that the decision had been taken. 
  • Trademarks are property, be it tangible or intangible.
  • Whether the property is intangible isn’t less clear. Our law has always accepted the intangible as a class of objects, despite theoretical objections. 
  • The dictum has not been questioned, so the Constitutional Court will recognize it. Therefore, judicial attention was given to the claim that trademarks and other intellectual property rights, including copyright, constitute property for Article 25 of the Constitution.
  • This has led to a claim that the legally prohibited use of a registered trademark would result in the owner of that registered trademark violating property in Section 25 of the Constitution and that the law in question will be unconstitutional.
  • In the Laugh It off the case, the Court followed both the approach of the Supreme Court of Appeal and the Constitutional Court by arguing the relevant provisions of the copyright law should be read in compliance with the Constitution, and not unreasonably violate the defendant’s right to freedom of speech and expression.
  • The copyright law must be changed to make free speech rights less damaging. This definition was articulated in the case of Laugh it Off by the Constitutional Court arguing that “the Trade Marks Act was seen and applied through the constitutional prism.

The Gidani Case

The Court of Justice in the case of National Soccer League v Gidani (Private) Ltd has accepted the concepts concerning the contractual status of trademarks as property under the Constitution, proposed in the Laugh it off Case is similarly applicable to the copyright.

IIn Gidani ‘s case, he argued that, in his unauthorised application of the copyright works that were the subject of the lawsuit, he had violated the right to freedom to receive or transmit content, ideas set out in Article 16(1)(b) of the Bill of Rights (soccer lists). 

The court found the defendant refused his constitutional defence in Gidani ‘s case. The acts of the defendant shall not constitute a means of freedom of speech/expression guaranteed by the Constitution to protect it.

Article 16(1)(a) or (b) of the Constitution does not authorize the commercial use of another person’s intellectual property to be interpreted as educating the public.

This amendment had two immediate implications

  • The right to property is not going to be a fundamental right now but a constitutional one. Legislation breaching the constitutional right to property can now be questioned only in the High Courts and not explicitly in the Supreme Court.
  • As a result of the deletion of Article 31, the State was not obligated, by Parliament’s statute, to compensate individuals whose land had been purchased.
  • It has remained legally viable, especially in the judgment of the Supreme Court and in the case of Maneka Gandhi. In other words, the deprivation of property without compensation held that every constitutional provision had to be interpreted in a fair, reasonable, and rational manner.
  • Therefore, any statute that deprives an individual of their property must do so in a fair manner. The only fair way to deprive a person of his property would be to give him adequate compensation. But this subject is not entirely relevant for this purpose. The only point of note is that the Constitution permits no one to be deprived of his property without the authority of law.
  • The right as claimed has significance in modern constitutional jurisprudence as the states are obliged to needy and marginalised sections of society by adopting suitable welfare measures.
  • Article 2(1) of International Covenant of  social, economic and cultural rights, 1966
  • Section 27 of the Constitution of South Africa.
  • In a generic sense, all legal rights are property rights. In a narrower sense, personal legal rights are divided into proprietary rights in rem are property rights. The Proprietary Rights in personam come under the law of obligations.
  • Patent Rights: The exclusive enjoyment of invention is the part of the right to freedom of ownership of property in the common law. However, the legislature has intervened and abolished the common law regime as it was ineffective and enacted its regime protecting the rights as patent rights. The nature of rights granted in chapter VIII, etc of the patents act 1970 are like freedom, liberty, and privileges to enjoy the benefits of inventions.

Though a patent is a property right in a generic sense, the United States Supreme Court has classified the patent right as public right because everything flows from a statute.

Case of Oil States Energy Services, LLC V Greene’s Energy Group, LLC (200 Led 2d 671)

Court held:

  • In this case, the inter partes summary proceedings do not infringe Article III or the seventh Constitutional amendment. 
  • Justice Thomas clarified that granting a patent is a matter involving a public right. 
  • The IPR trials include the same substantive matter as the issuance of a patent, which falls under the doctrine of public rights. 
  • The Constitution does not preclude the Patent Office from addressing issues relating to validity post-issuance outside of an Article III Court.
  • The Court held that its holding was limited only to the issue of the constitutionality of the IPRs. For example, the Court observed that ‘The Oil States does not challenge the retroactive application of the inter partes review, even though that process was not in effect when its patent was issued.’ This will almost certainly lead to continued constitutional challenges for patents granted before the adoption of the AIA (America Invents Act).
  • The Court acknowledged that it was not deciding whether the IPR proceedings posed due process issues, which was noteworthy given the questioning of extended panels during the oral argument.
  • The majority held that “inter partes review falls firmly within the doctrine of public rights.” 
  • According to Justice Thomas “the decision to grant a patent is a matter of public rights specifically the granting of a public franchise,” and that “inter partes review is simply a reconsideration of that award,” for which “Congress has reserved the jurisdiction of the PTO permissibly.”
  • The Court did not ‘clarify’ the distinction between public and private rights,’ and that ‘precedents applying the doctrine of public rights were ‘not entirely clear.
  • Despite reciting many cases of the Supreme Court that referred to patents as public franchises, the term ‘franchise’ was not specified in the Oil States, nor was it established in the Oil States.
  • Under the holding of Article III of the Court, a Seventh Amendment right to a jury trial has been refused.

The two main definitions to be considered are:

  •  Property
  •  Authority by law

‘Property’ as understood in Article 300A 

First of all, there appear to be ample facts to support the argument of “property” as understood in Article 300A. There is a simple issue as to whether ‘intellectual property’ such as “clinical experimental data” come under or do not come under the concept of ‘ property’ as understood in Article 300A.

‘The judgment of the Supreme Court on  Entertainment Network India Ltd. (ENIL) v. Super Cassette Industries Ltd. (SCIL) in the form of ‘intellectual property rights’ is another such authority.

In the related party the Court held that: In addition to human rights on the property, possession of any copyright as possession of any other property must be regarded in the light of the principles laid down in  Article 19(1)(g) of the Constitution.

The judgment goes on further to say that

The right to property is no longer a constitutional right. It has to be experiencing increasing constraints. As regards Article 300A of the Constitution, it must be subject to the conditions laid down therein, namely that it must be obtained in full or in part in the public interest and on equal compensation payments.

The fact that the Supreme Court agrees that ‘copyright’ falls within the scope of Article 300A is indicative that even ‘clinical trial data’ obtained after extensive testing is likely to fall within the scope of ‘property’ as provided for in Article 300A.

‘Authority by law’ as understood in Article 300A

In Article 300A, the word “law” only means a statute or a statutory rule or regulation. Executive national currencies are not included in the word ‘policy’ as specified by Article 300A. Inevitably, the source of the ‘rule,’ which deprives an individual of their property, must come from a statute in the legislature. The issue then arises whether, for Article 300A, the related provisions in the Drugs and Cosmetics Rules of 1945 qualify as “regulation,” or if the same is treated as without any substance in the Act.

Do the ‘related provisions’ of the 1945 D&C Rules fall within the scope of ‘law’ as provided for in Article 300A

There is ample ground to support the argument that the legislative provisions and regulations fall within the meaning of ‘law’ as laid down in Article 300A. 

For example, the purposes of Article 300A an order made in compliance with the procedure laid down by Land Acquisition Act will qualify as a ‘law’ as it was implemented in the procedure laid down in this Act. The ‘related provisions’ of the above-mentioned D&C Rules of 1945 do not count as a ‘rule’ because in my view such delegated legislation is outside the reach of the Act.

In the case of Delhi Laws Act,1912, delegated legislation is appropriate as the Seven Judge Bench of the Supreme Court does not require delegation of an important legislative goal, i.e. that it is not capable of delegating a policy issue. Delegated legislation is appropriate. The decision to obtain useful knowledge, i.e. expensive scientific research, is a significant requirement for the public good to be accomplished only through a statutory statute.

If the US wanted to limit the duration of new drug exclusivity to five years for novel drugs, then it will have to do so through a constitutional amendment called the Hatch-Waxman Act and not through the Food and Drug Administration law.

It would also be difficult for the Government to justify those laws based on Article 300A of the Constitution. However, I should also like to emphasise that the Parliament can also restrict the rights laid out in Article 300A and that, since the innovator has been adequately offset for sharing it, it would also be perfectly reasonable if Parliament were to enact an amendment which explicitly permits generic enterprises to depend on the clinical data of the innovative enterprise.


Protection against piracy of intellectual property and trade secrets means securing the innovative growth cycle of a nation and the emerging economy. The developed country has the problem of finding a way of ensuring that valuable intellectual property rights remain in use and that their worth remains protected from ruthless abuses and worldwide theft. Intellectual property rights cannot succeed in fostering innovation in their fundamental economic position if rights are violated and the law and the constitution are fine.

The full effect of the “constitutionalization” of intellectual property rights will be demonstrated in the coming years, and the process itself will have an impact on the practice of the courts and the legislature itself, especially in the sense of existing interpretations of intellectual property rules and principles.

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