IPR lecture 11-Oct-2023 11:40AM

Utilitarianism Theory
John Stuart Mill – English jurist developed Utilitarianism Theory in 19th Century (1861). The theory
states that an action is valid or permissible if it produces greatest happiness amongst a vast majority
of population and ensure absence of pain. Thus Mill’s utilitarianism is taken on something which
maximises welfare of the people

IPR works mainly on incentive system and belief that providing protection to the innovation or new
creation would encourage people to overtly disclose their innovation that others would unjustly use
their creativity. As per utilitarianism theory, avoiding property right to innovator is merely mean to an
end because ultimate welfare of the society is when the creation or innovation is openly disclosed.

John Stuart Mill agreed that patent monopoly are appropriate compared to earlier protections of
rewards and privileges granted by monarchies or monarchs. Mill agreed that granting rewards or
privileges by monarch involve discretion on part of authority who may not recognise certain matters
as against that under the current IP regime, creations and innovations enjoy protection not because
they are validated under the discretionary power of the government but because they fulfil statutory
legal requirements under various patent laws and therefore they are legally recognised.

Utilitarianism Theory would agree that monopoly for a short duration would encourage more people
to disseminate their work which would enable public to read, enjoy and appreciate creative work.

Utilitarianism justifies the exitance of modern Trade Mark law on 3 grounds

a. Prevent passing off goods i.e. harmful on the grounds that

i. It confuses the consumer
ii. Harms the business
iii. It will also increase search cost, time, efforts etc. of consumer

Trade Mark ensures consumer welfare and quality by weeding out counterfeit products from the
market

IPR lecture 12-Oct-2023 11:40AM

IPR criticism

- IPR regime impedes innovations based on patents

- Patent regime based on incentive system restricts the people, other than inventor, freely
using that idea
- Though there is a system of disclosure under the patent law, it still provides exclusive
ownership for a certain period to patent owner (for 20 years)
- Thus idea as such does not allow free flow of idea and the restrictions on the diffusion of
technology in a way it impedes innovation based on patents
- The negative effect of it is permission of monopolistic practices in democracy
- Patent protection for 20 years under the law invariably does is elimination of competitors in
the market. This is in a way leaves to patent holder controlling the price of product.
 IPR lecture 13-Oct-2023 11:40AM

Labour theory aka Natural Rights theory by John Locke

One of the powerful basis for justifying IPR lies in the belief that a person derives the fruits of his
labour. It would mean the IPR would belong to the creator because he involves his labour and he
rightfully deserves the fruits of his labour. John Locke the english philosopher in his book “Second
Treatise on Government” (1689) all that in the nature provided by god & it is available to all men as it
is held in for the common benefit for all. So, no individual can have prior claim over substances that
are available in the nature as it is meant for entire humanity. Law profounded this theory because
when individua exerts pressure over natural resources then he can claim it as his property because
he has added value to it. Law of Locke’s version is based on justification that each individual has prior
property right in one’s body and also because labour exerted by individual in his property and he is
owner if his own body. Therefore, as per law, it is impossible to separate labour & its product.

Abundance of natural resources

Non-Rivalrous – Non- Rivalrous means that consumption of a good by one person does not reduce
the amount available for others. Non-rivalry is one of the key characteristics of a pure public good.
Ex. Broadcast television is an example of a non-rival good; when a consumer turns on a TV set, this
does not prevent the TV in another consumer's house from working.

John Locke justification to property protection rights in labour is subject to a condition that the
exercise of that right should not deny others of resources existing in nature. e.g. Agriculture and
Horticulture products.

This theory was criticised by two authors Robert Nozick and Edwin Hettinger – Labour theory by John
Locke fails to take into account the value added to the product, contribution made by others in the
evolution of product and labour they take into account only the value added by the recent
contributor.

The question of owning IPR at the exclusion of others and the right to receive royalty is not a natural
right as this can be attributed to the society which is creating a system of protecting a labour i.e.
product invented. Hence IPR in a way is dependent on larger public interest.