PROTECTING YOUR BRAINCHILD: UNDERSTANDING THE IMPORTANCE OF

INTELLECTUAL PROPERTY LAWS

AUTHORED BY

ANIMESH PUNEET GUPTA

CONTENTS

1. CHAPTER I: INTRODUCTION 1-3

2. CHAPTER II: TYPES OF IPR 4 - 13

3. CHAPTER III: JUSTIFICATION OF IPR 14 - 16

4. CHAPTER IV: RECOMMENDATIONS AND SUGGESTIONS 17

CHAPTER 1

INTRODUCTION

“If you wish to make an apple pie from scratch, you must first invent the universe.”

-Carl Sagan

Inception of the notion: Intellectual Property Rights

Since the beginning of time, man has been inventing and discovering things to make life easier
and efficient. In this, man has used his intellect in order to find novel uses of things commonly
found around him in order to enhance his lifestyle and make life better. This use of intellect led
to the development of intellectual property. From the discovery of fire to the invention of the
wheel, everything helped make life better for man and has never been credited to a certain
individual. In the past, people did not pay much regard to intellectual property and everything
was in public domain. It has been noted in Ancient Indian history that sale of knowledge is a
sin, it should be provided to as many people as possible without any craving for returns. This
is visible in the Gurukul system of ancient India where the guru would share his inventions
with his disciples and scriptures would be distributed for free. But, with the advent of the
Industrial Revolution, there was a change in people’s perception towards Intellectual Property
as intellectual capital was recognized as an important and precious asset. It was in the late 19th
century that for the first-time intellectual property was legally recognized. Since then,
intellectual rights have grown in importance as it is a precious right which is fiercely defended.

What is Intellectual Property?

Intellectual property is a fiction property and not a physical or real property like a specific
house, pen or car. The owner of intellectual property holds the right to the concept, design or
utility of a product or service. The subject matter of intellectual property rights is expansive
and includes everything from literary and artistic works, computer software, patents of
inventions, designs, etc. Intellectual property rights are an area of law that is associated with
the legal rights of products formed out of intellect, creative effort, commercial reputation and
goodwill.

Intellectual property rights are like any other property right. They allow creators, or owners, of
patents, trademarks or copyrighted works to benefit from their own work or investment in a
creation. These rights are outlined in Article 27 of the Universal Declaration of Human Rights,

1
which provides for the right to benefit from the protection of moral and material interests
resulting from authorship of scientific, literary or artistic productions. The importance of
intellectual property was first recognized in the Paris Convention for the Protection of
Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic
Works (1886). Both treaties are administered by the World Intellectual Property Organization
(WIPO).1

Intellectual property rights are negative in nature. This means that it stops others form doing
something, using their property, copying it, third parties who have independently reached the
same result but are unaware of such ownership etc.

There are several different types of rights and areas of laws which together make up what we
regard as Intellectual Property Rights. Some of these are:

 Copyright
 Rights in performances
 The law of breach of confidence
 Patents for inventions
 Registered designs
 Unregistered design rights
 Trade marks
 Passing off
 Malicious falsehood (trade libel)2

Criteria of Classification – Intellectual Property Rights

Intellectual Property Rights consist of several types of rights and areas of law as have been
discussed above, and it becomes important to distinguish these laws. There are several
similarities and differences between the various rights. A practical method for distinguishing
these can be the purpose of the right, whether to create a monopoly or to prevent unlawful use
of the product. Another method of distinguishing is the requirement for registration; that is,
whether the right is dependent on the completion and submission of a formal application and
registration process. The necessary formalities do not just end there, rather, it is just the tip of
the iceberg, as such rights cannot just be granted to any Tom, Dick and Hardy. The application

1
WIPO, ‘What is Intellectual Property?’
<http://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf> accessed 10th November 2017.
2
David I. Bainbridge, Intellectual Property (first published in 1992, Pearson)

2
goes through intense scrutiny and examination by the relevant authorities who make sure that
the application does not violate anyone else’s rights. The right puts the owner in a privileged
position and grants the power to create a monopoly on a certain product as well as the authority
to stop anyone from using the property while the owner can exploit it as he wishes. It also
permits the owner to seek legal remedy in cases of trespass and to deter Another method of
distinguishing is the nature of the right, whether it applies to a creative work or to a commercial
goodwill.

Intellectual property rights reward creativity and human endeavor, which fuel the progress of
humankind. This is visible in several situations for example: The multibillion dollar film,
recording, publishing and software industries – which bring pleasure to millions of people
worldwide – would not exist without copyright protection. Without the rewards provided by
the patent system, researchers and inventors would have little incentive to continue producing
better and more efficient products for consumers. A clear example of this is of Nikola Tesla
who is forgotten today despite many innovations in the field of electricity. Consumers would
have no means to confidently buy products or services without reliable, international trade
mark protection and enforcement mechanisms to discourage counterfeiting and piracy.3

3
Ibid.

3
CHAPTER II

UNDERSTANDING INTELLECTUAL CAPITAL AND RIGHTS THAT PROTECT IT

“Patents are like fertilizer. Applied wisely and sparingly, they can increase growth. But if you
apply too many chemicals, or make patents too strong, then you can leach the land, making
growth difficult.”

-Alex Tabarrock

Before attempting to justify the particular concept of Intellectual Property Rights, it is

important to first form an adequate understanding of the general concept of property, in order
to better understand and solve the problem at hand. Property cannot be explained as being
abstract nor static. On the contrary, the meaning of property is concrete and dynamic, which
has changed through the different historical moments of the world’s social and economic
development. Some different conceptions of property and have been historically been linked
with the tangibility of things. These things can be physically seen, felt and held and are
generally classified as movables and immovables.

Of course, it is clear that, despite the several theoretical disputes, IPRs in the form of patent
systems and copyright laws had begun to spread in many countries, mainly as a by-product of
expansion of international commerce. By the mid-19th century, patent laws gained importance
were enacted in almost all major countries of the European continent. So, did the criticism of
patent protection and copyright laws. The reason for this was the contradiction between IPRs
and classical property rights.

The historical birth of the latter was connected with the death of the feudal system of privileges
and the growth of economic liberalism based on laissez-faire (Polanyi, 1944). By contrast, the
historical development of patent protection and copyright laws was linked with the re-
emergence of privileges and monopolies, which were against the liberal spirit of free
competition.

It now becomes important to understand some different types of Intellectual Property Rights to
form a better understanding of the concept and further provide a concrete justification for the
same. The next section of this paper discusses some of these important IPRs including: (a)
Patent System, (b) Copyright System and, (c) Trademarks.

INVENTIONS, DESIGNS AND UTILITY- PATENT

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DEVELOPMENT OF THE RIGHT

The concept of patent finds origin in English law. The term ‘patent’ is derived from the Latin
term ‘patere’ which means ‘to open’. The term signifies an open grant under the Royal crown
which is open to the entire world. The letter of grant with the Royal seal brought with it certain
privileges and immunity conferred by the Crown with regard to the monopoly and exclusive
rights to the invention. In England, as in other parts of Europe, it emerged as one minor form
of State patronage.4 James I was partial to rewarding his political creditors with trading
monopolies granted by letter patents. For here were precedents enough from the illustrious
hands of Elizabeth I.5 In this framework, a patent was by no means a right in the modem sense
of the term. The idea of anyone having a right to a patent, upon the fulfillment of a few standard
requirements and of a corresponding duty to issue, stood in sharp contrast to the grant system's
raison d'etre.6 The grant was a tool for dispensing royal policy and was based on royal
discretion. The king granted all patents as "a matter of grace and favor."7 This meant that
though some general policy may have applied with regard to a certain class of cases, each grant
was an independent decision based on the exercise of specific discretion and a weighing of the
interests involved. No matter how novel or ingenious a specific invention was, no one could
claim a right to be granted royal privileges in the form of a patent. Similarly, no institution-
court or otherwise could declare and enforce a "duty" of the crown to issue a patent. 8 Instead,
it was always a matter of royal prerogative and discretion to bestow such a privilege as a
specific policy response to a specific plea. But, James lacked her force and in 1624 Parliament
sought to declare these exercises of royal prerogative void.9

The grant of a patent gives the inventor or his employer a monopoly for exclusive usage under
the principle of quid pro quo wherein, they have to disclose the full technical information of

4
A Venetian law of 1474 went so far as to establish a positive system for granting 10-year privileges to
inventors of new arts and machines: Mandich/Pragar (1948) 30 J.P.O.S 166; (1960) 42 J.P.O.S 378. See
generally, Penrose, The Economics of the International Patent System (first published in 1951) 2 and following;
Phillips [1983] E.I.P.R 41.
5
Even she, at the end of her reign had to face considerable pressure which led to her issuing the Proclamation
concerning Monopolies of 1601. Subsequent litigation declared the invalidity of at common law of a patented
monopoly granted by her in playing cards; expediently, the case was not brought to judgement until after her
death: Darcy vs Allin [1602] 11 Co.Rep. 846.
6
Edward C. Walterscheid, to promote the progress of useful arts: The American Patent Law and Administration,
1798- 1836, At 38 N.50
7
This term became a common description of patents when the earliest legal treatises started to appear at the
beginning of the nineteenth century. See infra text accompanying notes 182-183.
8
Oren Bracha, The Commodification of Patents 1600-1836: How Patents Became Rights and Why We Should
Care, 38 Loy. L.A. L. Rev. 177 (2004). Available at: http://digitalcommons.lmu.edu/llr/vol38/iss1/4
9
This was the culmination of a battle on the matter which began during the term of James I and continued
against his successor Charles I.

5
the invention. In India, patents are governed under the Indian Patents Act, 1970. The Act does
not explicitly define the term patent, rather, only says that "patent" means a patent for any
invention granted under this Act in section 2(m). Under section 2(j) invention has been defined
as “invention" means a new product or process involving an inventive step and capable of
industrial application” and inventive step is defined under 2 (ja) as “"inventive step" means a
feature of an invention that involves technical advance as compared to the existing knowledge
or having economic significance or both and that makes the invention not obvious to a person
skilled in the art”. 10 The disclosure is a central prerequisite for the grant of a patent and it must
be total, with nothing of substance, withheld, otherwise it might be difficult for others to make
use of the invention once the patent has expired. In Young vs Rosenthal,11 Grove J. said (a 31):

“Then he [the applicant] is bound so to describe it in his specification as that any

workman acquainted with the subject… would know how to make it, and the reason of
that is this, that if he did not do so, when the patent expired he might have some trade
mystery which people would not be able actually to use in accordance with his invention
(although they had a right to use it after his invention had expired), because they would
not know how to make it.”12

The patentee has to disclose all information pertaining the invention however, does not need to
teach others as to how the invention is to be replicated.

THE NECESSITY OF PATENTS: NEED AND JUSTIFICATION

An inventor owns a property right to his invention. It is something created out of his intellect
and labor, and is a natural right in accordance with the views on property rights in the minds
of philosophers such as Locke. In the most basic sense, rewarding ingenuity of an inventor for
a limited period of 20 years is only fair given the amount of time, effort and labor that went
into the creation of the same. Furthermore, the protection and monopoly thus granted, is only
for a limited period, unlike that granted for other forms of property which grant protection till
the owner has possession of the property and is recognized by the law. While, many stood in
support of patents, there were several views in opposition to patents during the peak of the
Industrial Revolution, including the notion that it was not necessary in the industrial era, others

10
Indian Patents Act, 1970
11
Young vs Rosenthal, [1884] 1 RPC 29 (a 31) (Grove J.)
12
Ibid.

6
felt that it gave rise to greed and kills innovation as inventors fight for the right and not for the
innovation, as noted in ‘The Economist’ in 1851 on the subject of patents:

“… inflames cupidity, excites fraud… begets disputes and quarrels betwixt inventors,
provokes endless lawsuits, makes men ruin themselves for the sake of getting the privilege of a
patent which merely fosters a delusion of greediness.”

There were strong rebuttals by those who felt and realized the need for the retention and
improvement of the system of patents, some of which still hold true in the modern era:13

 The Contract Theory: Temporary protection granted in reward for knowledge of new
inventions.
 The Reward Theory: Inventors should be rewarded for making useful inventions and law
must be used to guarantee this reward so that inventors can receive sufficient recompense
for their ingenuity.
 The Incentive Theory: By constructing a framework whereby invention is rewarded, this
will act as an incentive to make new inventions and to invest the necessary time and capital.
This is a forward-looking approach in contrast to the latter which is retrospective.
 The Natural Law/ Moral Rights Theory: Individuals have a right of property in their own
ideas and this right should be protected from being usurped or stolen by others.

Discussion about the efficacy of incentives has a practical, utilitarian flavor which is lacking
when the argument is about the demands of justice for the individual. Modern patent systems,
it should be observed, offer a standard formula to all those who have “inventions” to protect.
They contrast with the systems of research grant and reward, whether funded by the State or
private organizations.

CREATOR AND HIS CREATION, THE AUTHOR’S RIGHT: COPYRIGHT

Copyright relates to literary and artistic creations, such as books, music, paintings and
sculptures, films and technology-based works (such as computer programs and electronic
databases). In certain languages, copyright is referred to as authors’ rights. Although
international law has brought about some convergence, this distinction reflects an historic
difference in the evolution of these rights that is still reflected in many copyright systems. The
expression copyright refers to the act of copying an original work which, in respect of literary

13
Dutton H.J (1984) The Patent System and Inventive Activity during the Industrial Revolution 1750-1852,
Manchester University Press Chapter 1.

7
and artistic creations, may be done only by the author or with the author’s permission. The
expression authors’ rights refer to the creator of an artistic work, its author, thus underlining
that, as recognized in most laws, authors have certain specific rights in their creations that only
they can exercise, which are often referred to as moral rights, such as the right to prevent
distorted reproductions of the work. Other rights, such as the right to make copies, can be
exercised by third parties with the author’s consent, for example, by a publisher who obtains a
license to this effect from the author.14

Unlike protection for inventions, copyright law and the associated concept of related or
neighboring rights (discussed below) protects only the form of expression of ideas, not the
ideas themselves. The works protected by copyright are creative with regard to the choice and
arrangement of the medium of expression such as words, musical notes, colors and shapes.
Copyright protects the owner of the exclusive property rights against those who copy or
otherwise take and use the particular form in which the original work was expressed. It is
possible for authors and creators to create, have rights in and exploit a work very similar to the
creation of another author or creator without infringing copyright, as long as the work of
another author or creator was not copied. From this basic difference between inventions and
literary and artistic works, it follows that the legal protection provided to each also differs.
Since protection for inventions gives a monopoly right to exploit an idea, such protection is
short in duration – usually about 20 years. The fact that the invention is protected must also be
made known to the public. This involves issuing an official notification that a specific, fully
described invention is the property of a specific owner for a fixed number of years. In other
words, the protected invention must be disclosed publicly in an official register. By contrast,
the legal protection of literary and artistic works under copyright prevents only unauthorized
use of the expressions of ideas. This is one reason that the duration of protection for copyright
and related rights is much longer than for patents. Copyright law can be – and in most countries,
is – simply declaratory, i.e., the law may state that the author of an original work has the right
to prevent other persons from copying or otherwise using the work. A created work is thus
considered protected as soon as it exists, and a public register of copyright-protected works is
not necessary. No actions or formalities are required of the author or creator.

According to Sec. 14 of the Copyright Act, 1957 defines copyright as follows:

14
WIPO, Understanding Copyrights and Related Rights
<http://www.wipo.int/edocs/pubdocs/en/wipo_pub_909_2016.pdf> accessed 09 January, 2018

8
“14. MEANING OF COPYRIGHT.-FOR THE PURPOSES OF THIS ACT, "COPYRIGHT" MEANS
THE EXCLUSIVE RIGHT SUBJECT TO THE PROVISIONS OF THIS ACT, TO DO OR AUTHORIZE
THE DOING OF ANY OF THE FOLLOWING ACTS IN RESPECT OF A WORK OR ANY

SUBSTANTIAL PART THEREOF, NAMELY:- (A) IN THE CASE OF A LITERARY, DRAMATIC OR

MUSICAL WORK, NOT BEING A COMPUTER PROGRAMME, - (I) TO REPRODUCE THE WORK IN

ANY MATERIAL FORM INCLUDING THE STORING OF IT IN ANY MEDIUM BY ELECTRONIC

MEANS; (II) TO ISSUE COPIES OF THE WORK TO THE PUBLIC NOT BEING COPIES ALREADY IN

CIRCULATION; (III) TO PERFORM THE WORK IN PUBLIC, OR COMMUNICATE IT TO THE

PUBLIC; (IV) TO MAKE ANY CINEMATOGRAPH FILM OR SOUND RECORDING IN RESPECT OF

THE WORK; (V) TO MAKE ANY TRANSLATION OF THE WORK; (VI) TO MAKE ANY

ADAPTATION OF THE WORK; (VII) TO DO, IN RELATION TO A TRANSLATION OR AN

ADAPTATION OF THE WORK, ANY OF THE ACTS SPECIFIED IN RELATION TO THE WORK IN

SUB-CLAUSES (I) TO (VI); (B) IN THE CASE OF A COMPUTER PROGRAMME,- (I) TO DO ANY

OF THE ACTS SPECIFIED IN CLAUSE (A); “(II) TO SELL OR GIVE ON COMMERCIAL RENTAL
OR OFFER FOR SALE OR FOR COMMERCIAL RENTAL ANY COPY OF THE COMPUTER

PROGRAMME: PROVIDED THAT SUCH COMMERCIAL RENTAL DOES NOT APPLY IN RESPECT

OF COMPUTER PROGRAMMES WHERE THE PROGRAMME ITSELF IS NOT THE ESSENTIAL

OBJECT OF THE RENTAL.” (C) IN THE CASE OF AN ARTISTIC WORK,- (I) TO REPRODUCE THE

WORK IN ANY MATERIAL FORM INCLUDING DEPICTION IN THREE DIMENSIONS OF A TWO

DIMENSIONAL WORK OR IN TWO DIMENSIONS OF A THREE DIMENSIONAL WORK; (II) TO

COMMUNICATE THE WORK TO THE PUBLIC; (III) TO ISSUE COPIES OF THE WORK TO THE

PUBLIC NOT BEING COPIES ALREADY IN CIRCULATION; (IV) TO INCLUDE THE WORK IN ANY

CINEMATOGRAPH FILM; (V) TO MAKE ANY ADAPTATION OF THE WORK; (VI) TO DO IN

RELATION TO AN ADAPTATION OF THE WORK ANY OF THE ACTS SPECIFIED IN RELATION

TO THE WORK IN SUB-CLAUSES (I) TO (IV); (D) IN THE CASE OF CINEMATOGRAPH FILM, -
(I) TO MAKE A COPY OF THE FILM, INCLUDING A PHOTOGRAPH OF ANY IMAGE FORMING
PART THEREOF; (II) TO SELL OR GIVE ON HIRE, OR OFFER FOR SALE OR HIRE, ANY COPY OF

THE FILM, REGARDLESS OF WHETHER SUCH COPY HAS BEEN SOLD OR GIVEN ON HIRE ON

EARLIER OCCASIONS; (III) TO COMMUNICATE THE FILM TO THE PUBLIC; (E) IN THE CASE

OF SOUND RECORDING, - (I) TO MAKE ANY OTHER SOUND RECORDING EMBODYING IT; (II)

TO SELL OR GIVE ON HIRE, OR OFFER FOR SALE OR HIRE, ANY COPY OF THE SOUND

RECORDING REGARDLESS OF WHETHER SUCH COPY HAS BEEN SOLD OR GIVEN ON HIRE ON

EARLIER OCCASIONS; (III) TO COMMUNICATE THE SOUND RECORDING TO THE PUBLIC.

9
 EXPLANATION: FOR THE PURPOSES OF THIS SECTION, A COPY WHICH HAS BEEN SOLD

ONCE SHALL BE DEEMED TO BE A COPY ALREADY IN CIRCULATION.”15

JUSTIFICATION OF THE RIGHT: COPYRIGHTS

Natural Justice Principle

The reasoning here is that the fruit of the author’s intellectual sweat must not be seen
to be reaped by another, except by authorization or license. It is against the principle of natural
justice for an infringer to reap from where he has not sown.
Moral Principle
Though similar to the natural justice principle, the moral principle is distinguishable. It is also
distinct from the owner’s economic right. Moral rights allow the owner take certain actions to
preserve the personal relationship between him and the work as a mother would do to a child,
a product of her labour. in other words, it is a paternal right that is conferred to the creator of
the work and no one else.
Cultural Principle
Globally, copyright has been recognized as a legal instrument for the protection of the higher
manifestation of human achievement and the promotion of educational, informational and
cultural advancement of man. Under the cultural principle, literary, musical and artistic works,
and indeed expressions of folklore, are recognized as rich intellectual assets and national
heritage.
One significant result of the cultural principle is the concept of free access to works in the
public domain. Works are in the public domain if they are not covered by the relevant copyright
law, if the duration of copyright has expired or the copyrights are forfeited.16 One can use any
work in the public domain without obtaining permission of the copyright owner.17

15
Copyright Act, 1957
16
Boyle J, The Public Domain: Enclosing the Commons of the Mind, Yale University Press, 2008, 38
17
In the United States, a work falls into the public domain when the copyright term expires or, in the case of
works published between 1923 and 1989, if the work lost copyright protection because the copyright owner
neglected to take the necessary steps under then applicable copyright law. Additionally, a copyright owner can
directly dedicate a work to the public domain. This is done expressly, through language such as “Everything on
this book to which we own copyright is hereby released into the public domain,” or by using the Creative
Commons Public Domain Dedication.

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THE MARK OF MY PROPERTY: TRADE MARK
THE CONCEPT OF TRADE MARK

“Trade mark” means a mark capable of distinguishing the goods or services in connection with
which it is used in the course of trade which are certified by the proprietor of the mark in respect
of origin, material, mode of manufacture of goods or performance of services, quality, accuracy
or other characteristics from goods or services.
According to article 2 of the Trade Mark Law Treaty the following signs can be considered
under trade mark on the following basis:
Nature of Marks
(a) The Treaty applies to marks consisting of visible signs, provided that only those
Contracting Parties which accept for registration three-dimensional marks shall be
obliged to apply this Treaty to such marks.

(b) This Treaty shall not apply to hologram marks and to marks not consisting of visible
signs, in particular, sound marks and olfactory marks.

Kinds of Marks
(a) This Treaty shall apply to marks relating to goods (trade marks) or services (service
marks) or both goods and services.

(b) This Treaty shall not apply to collective marks, certification marks and guarantee
marks.

Most legal systems therefore developed registration to protect the imitation of marks and
names.18
Trademarks have a variety of functions. Cornish summarizes the functions into three broad
categories: -
1. Origin Function – marks deserve protection so that they may operate as indicators of the
trade source from which goods or services come or are in some other way connected.

18
Cornish, Intellectual Property (first published in 1982, PeacockBooks) 516

11
2. Quality or Guarantee Function – marks deserve protection because they symbolize quality
associated by consumers and certain goods or services and guarantee that the goods or services
measure up to expectation.
3. Investment or Advertising Function – marks are ciphers around which investment in the
promotion of a product is built and that investment is a value, which deserves protection as
such, even when there is no abuse arising from misrepresentation either about origin or
quality.19
JUSTIFICATION OF THE RIGHT: TRADE MARK
Three important reasons are given as a justification for the protection of Trade marks. They
are–
1. Creativity
2. Information
3. Ethical justification (Bently and Sherman opcit 662)
Creativity
It is argued that one of the justifications for the protection of intellectual property rights is the
protection of labour, which is involved in the creation of such rights. This is also one of the
bases of the concept of unfair competition. However, in regard to trademarks it may be difficult
to contend that there is creation as in the case of patents or copyright. However, this argument
may be somewhat weak in that a trade mark is nurtured not only by the trader but by the
customer and the public as well. It is also argued as stated by Justice Breyer in the US Supreme
Court in the case of Qualitex v Jacobson Products20 that trade mark law helps to assure a
producer that it (and not an imitating competitor) will reap the financial reputation and related
awards associated with a desirable product. Information It is argued that trademarks are a
shorthand way of communicating information that purchasers need in order to make informed
decisions. Information provided by trademarks is particularly important in relation to goods
that a consumer cannot inspect. Trademarks also encourage the manufacturer to maintain
consistent quality standards.21 In a leading article Brown maintains that “advertising depends
on the remote manipulation of symbols, most importantly of symbols directed at a mass

19
Cornish Opcit p.527 F. Schechter The Historical Foundations of the Law relating to Trademarks Ruston on
Original Trademarks (1955) 45TM Rep. 127 Diamond The Historical Development of Trademarks (1975) 65
TM Rep. 265)
20
115 S CT 1300 (1995)
21
(N. Economides, “The Economics of Trade marks” (1988 78 TM Rep 523); W Landes and R Posner, “The
Economics of Trade Mark Law (1998) 78 TM Rep 267

12
audience through mass media or imprinted on mass protected goods22. Brown drew a
distinction between persuasive and informational advertising and maintained that the only
justification for advertising was informational and persuasive functions of marks is of dubious
social utility.
Ethical justification
It is argued that by adopting another’s trade mark a person is taking advantage of the goodwill
generated by the original trade mark owner and therefore on the principle that a person should
not reap what he has not sown trademarks should be protected. It is on this basis that objections
were made in respect of comparative advertising and the principle of dilution of trademarks
justified.

22
R. Brown “Advertising and the public interest: The Legal protection of Trade Symbols” 1948 57 Yale Law
Journal 1165

13
CHAPTER III
THE NEED OF THE CENTURY, THE SALVATION OF MANKIND’S MIND:
JUSTIFICATION OF INTELLECTUAL PROPERTY RIGHTS
“He who receives an idea from me, receives instruction himself without lessening mine;
as he who lights his taper at mine, receives light without darkening me.”
― Thomas Jefferson, Selected Writings
The enterprise of intellectual property law has long been based on the belief that external
incentives – such as copyrights and patents – are necessary to get people to produce artistic
works and technological innovations. The need for Intellectual property has only increased
with time as the creators have become more cautious of the use of their hard work and creations.
The very idea that IPR is not needed or is irrelevant is preposterous as not having IPR is
tantamount to denying a person access to the advantage of his own home or the ability to travel
in his own car. The basic principles of society do not allow such injustice in the case of tangible
property, yet, people suddenly change opinions in the case of intangible property, like IPR.
NATURAL JUSTICE THEORY:
Probably the most debated attempt to justify IPRs morally is on the grounds of natural law.
Specifically, it is stated that IPRs are moral-claim rights that each individual naturally has
independently of the laws and government of civil society. The concept of nature here does not
imply that individuals are born with IPRs but rather that these rights can be recognized as valid
by moral and rational human beings apart from any provisions of positive law. The ability to
claim IPRs or any natural right depends on human reason. The moral conception of IPRs as
natural rights plays important role in justifying legislation for patents, copyrights, trademarks,
etc. Since 1928, IPRs conventions, like for instance the Berne Convention, have started adding
the concept of ‘moral rights’ in their texts. As the World Intellectual Property Organization
(WIPO) stresses, one of the main reasons why countries have law to protect IP is to give
statutory expression to the moral rights of creators in their creations. In this sense, moral rights
of creators specify legal rules.

It is well known that Locke’s theory of private property is theologically founded. Locke argues
that God gave the world to human beings in common and provided them with reason to make
use of it to the best advantage of their life. This argument theoretically leads to the formation
of two provisos. The first is the ‘no waste’ proviso according to which appropriated resources
must be used, otherwise they become common again. The second is the ‘enough and as good’
proviso. As it is well known, for Locke private appropriation is morally justified only if it

14
leaves enough and as good to newcomers. Both provisos condition individual property rights
and develop presuppositions of social reproduction. Therefore, it can be said that Locke’s
theory justifies the transition from the ‘general’ right of common ownership in the state of
nature to the ‘special’ right of private ownership in civil society.

The moral justification of IPRs on the grounds of natural law uses as an example the Lockean
theory of private property. In his Second Treatise of Government, Locke introduces the
principle of self-ownership as a natural right of each individual to her own person and labour.
This principle is linked with negative liberty and not utility maximization. Owning herself,
each person is free to do with her powers whatever she chooses so long as she does not cause
or threaten harm to non-consenting others. However, in the case of harm without prior consent,
the affected person has the right to full compensation. On the grounds of self-ownership, Locke
forms his mixing labour theory that justifies private property as a natural right. According to
him ‘The Labour of [Man’s] Body and the Work of his Hands, we may say, are properly his.
Whatsoever then he removes out of the State that Nature hath provided, and left it in he hath
mixed his Labour with, and joined to it something that is his own, and thereby makes it his
Property’.

REWARD THEORY

This implies that IPRs constitute a just reward for enterprise and merit. Individual creators of
innovative ideas and inventors morally deserve to be rewarded for their qualities and talents.
Thinkers who favour the merit concept of justice abstract from the Hegelian conception of
individuality and personality. As Vlastos points out ‘If A is valued for some meritorious
quality, m, his individuality does not enter into the valuation’. Thus, for instance, authors are
only valued for their talent to create original ideas and not for their developed personality. The
reward-based rationale of IPRs played important role in the 19th century patent controversy.
As Machlup and Penrose stress, one of the arguments for IPR protection was advanced ‘…in
the name of fairness to secure the inventor his just reward’.

The moral justification of IPRs in terms of just reward derives from libertarianism. Libertarians
propose principles of justice which recognize that each individual is entitled to her talents and
abilities. Whatever goods are acquired on the basis of natural talents and abilities are just.
Libertarians argue that just distribution results from people’s free exchanges. More precisely,
Nozick, one of the most debated libertarians of the 20th century, suggests an ‘entitlement
theory’ based on three principles of justice: ‘I. A person who acquires a holding in accordance

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with the principle of justice in acquisition is entitled to that holding. 2. A person who acquires
a holding in accordance with the principle of justice in transfer, from someone else entitled to
the holding, is entitled to the holding. 3. No one is entitled to a holding except by (repeated)
applications of I and 2’.

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CHAPTER IV

RECOMMENDATIONS AND SUGGESTIONS

Knowledge is very vital in life`s transformation and transition”

― Jaachynma N.E. Agu, The Prince and the Pauper

After the fair and concrete analysis of IPRs, it can be understood and safely concluded that the
reward and moral factor of IPR plays an important role in the modern society. It is suggested
that the rights be recognized and there are several compelling reasons for promoting intellectual
property laws23:

 First, the progress and well-being of humanity rest on its capacity to create and invent new
works in the areas of technology and culture.
 Second, the legal protection of new creations encourages the commitment of additional
resources for further innovation.
 Third, the promotion and protection of intellectual property spurs economic growth, creates
new jobs and industries, and enhances the quality and enjoyment of life.
 An efficient and equitable intellectual property system can help all countries to realize
intellectual property’s potential as a catalyst for economic development and social and
cultural well-being.
 The intellectual property system helps strike a balance between the interests of innovators
and the public interest, providing an environment in which creativity and invention can
flourish, for the benefit of all.

23
Sushmita Rana and Imran Bakshi,’Legal Protection of Innovative Uses of Computers in R&D: A Review’
(2017) North Asian International Research Journal of Sciences, Engineering and IT
http://www.nairjc.com/setup/science-engineering-it/sci271.pdf> accessed 11 November 2017.

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About the Author

The author is a first-year student of B.A.L.L.B at the prestigious Army Institute of Law, Mohali
affiliated to Punjabi University, Patiala.

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