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Articles Intellectual Property Rights

Theories of Intellectual
Property Rights
praptibhattacharya30  August 8, 2020    

What Is Intellectual Property?

Intellectual property is a broad set of intangible assets  and it

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

To understand the value and importance of IPR, we should

know the theories behind its origin and the same are
discussed below.

1.      The Natural Rights Theory

The main justification behind this theory is that everyone

has a right to consider his/ her ideas as natural property
right by the reason that the creation originates from the
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effort, originality and inventiveness of the creator. The

 backbone of this theory is based on famous philosopher
John Locke’s idea that an author has a natural right over
his creation applying his intellectual labour. In this sense
there is no difference between intellectual property and
the traditional tangible property and there is no difference
between the rights of the owners of these two kinds of
properties, such as right to enjoy the property, to restrict
others from using the property and the right to transfer
the ownership.

Criticism of the theory:

The primary criticisms of this theory are,

·         This theory does not deal with temporal limitation of

IPR. The usage of IPR is time bound, which means that
after expiration a certain period of time, the IPR protected
objects will be available in public domain. But the Lockean
theory talks about unlimited term of ownership of
tangible properties.

·                The Lockean Proviso restrains an innovator from

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

·                According to this theory, an appropriator cannot

enrapture all the natural resources of the world. Such as, if
anyone gets the ownership of his idea of producing milk
from soybeans, the entire market of producing soymilk
will be cornered down by the thinker. So as per Lockean
thought, innovators are bolted from conquering the
worldwide market with their abstract ideas. [1]

2.      The Utilitarian Theory / Incentive Theory

The word “utilitarian” means ‘social welfare’ and this

theory was championed by great economists Bentham and
Mill with the objective of making every policy universal in
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 the sense of attaining the greatest good for the greatest
number.
The primary essence of this theory is that the industrial
progress and cultural goods can create a better and
important economic impact on the society. Consequently,
to fill the need of promoting the inventions and creations,
there should be nominal certification that the outcome will
be superior as compared to the expenses incurred for his
work.

Likewise as the name suggests, the incentive theory

validates the duty of society to respect the innovators and
their right to ownership because it brings profit for the
whole society.

Criticism of the theory

The main criticism of this theory is here the utility gains

from the impetus of a unique innovation are neutralized
against the losses incurred due to exclusive ownership.
Thus the question arises if really the benefits of IPR can be
weighed against the casualties or not.[2]

3.      The Social Planning Theory

In this theory intellectual property rights are considered

particularly as a part of general property laws  and it must
be shaped cultivate the attainment of a fair and attractive
culture. 

Criticism of the theory

This approach is almost similar to the utilitarian theory in

its orientation, but dissimilar in its willingness to dispose
perception of a desirable society richer than the
apprehension of social welfare deployed by utilitarians.[3]

4.      The Ethic & Reward Theory

This theory rationalizes the exclusive rights of intellectual

property from moralistic and ethical aspect. The concept
of ethic requires an equitable and proportional
contribution from the side of creator or innovator who has
invented something for the social utility. Here the IPR are
viewed as “an expression of acknowledgement and
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 indebtedness to an author for doing more than society
expects or feels that they are obliged to do”.

With this reward of legal rights, others are excluded from

using the work or the methodology in certain ways when
the work is publicly available. On this perception patents,
copyright works and designs are justified under reward
theory, but trade secrets are not protected because here the
dissemination of information in the public is restricted.

Criticism of the theory

·                However, this theory suggests that the benefit from

such right can be obtained by the innovator in the initial
years but if the innovators deserve the same right or not
is questioned too under this theory.

·                Another drawback of this theory is its limitation in

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

5.      The Personhood Theory

The greatest philosophers of all times, Kant and Hegel are

the profounder of the theory which claims that intellectual
rights permit and protect the development of the
personality, extending to material things.

As per this theory, the personality of everyone frames

itself up in the environment of work, innovation, ideas
and creation. The augmentation of the personality is deep
seated to our property rights.

Under this theory personality and property law are

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

Criticism of the theory

When the creation is done, the work is independent from

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

6.      Moral Desert Theory

According to Locke, “every man has a property in his own

person”, i.e. the fruit of one man’s labour belongs to him
only. The intellectual property rights also follow the same
pattern because the innovator deserves the right because
of his intellectual and physical labour.

This theory compensates a worker’s performance for his

“effort, ability, persistence, industriousness, luck, time
spent, the difficulty, danger of the work, leadership” etc.
But this fails to  give any absolute value of the work like,
“inherent worth” of labour, or a “just price” for labour.

Criticism of the theory

Although Legget has pointed out that even if we grant an

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

7.      Economic Theory

Economic theory of Intellectual property rights is directly

related to its value in market economy. For intellectual
property, an incentive must be created to overcome the
losses and market failure because every time the
innovators loss a huge amount of money due to high
initial creation costs and marginal distribution costs of
intellectual products.

Criticism of the theory

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

Conclusion

The meticulous discussion on the theories of IPR through this

article, has proved why intellectual property is compared
with tangible assets and why the rights for such property
should be conserved to protect the inventors, brands as well
as the society as a whole.

[1] Balew Mersha & Kashay Debesu, Theories of Intellectual

Property (2012), https://www.abyssinialaw.com/online-
resources/study-on-line/item/468-theories-of-intellectual-property.

[2] Peter S. Mennel, INTELLECTUAL PROPERTY: GENERAL

THEORIES

[3] UKEssays. November 2018. The Theories Of Intellectual

Property Philosophy Essay. [online]. Available from:
https://www.ukessays.com/essays/philosophy/the-theories-of-
intellectual-property-philosophy-essay.php?vref=1

[4] Lionel Bently, Brad Shearman, Dev Gangjee & Philip

Johnson, Intellectual Property Law (2008)
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[5] Hegel’s Philosophy of Right para 51

[6] Garima Gupta & Avih Rastogi, Intellectual Property Rights:
Theory & Indian Practice (2002).

[7] Mikhalien du Bois, Justificatory Theories for Intellectual

Property Viewed through the Constitutional Prism (2018),
PER/PELJ

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