Intellectual Property Rights — Study Notes 1

INTELLECTUAL PROPERTY RIGHTS

International Instruments & Theoretical Foundations

Comprehensive Study Notes

Covering: TRIPS • Paris Convention • Berne Convention • Rome Convention • Lisbon
Agreement

QUESTION 1

International Instruments of Intellectual Property

(a) TRIPS Agreement
INTRODUCTION

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is the

most comprehensive multilateral agreement on intellectual property. It was negotiated
at the end of the Uruguay Round of the General Agreement on Tariffs and Trade
(GATT) and forms part of the Agreement establishing the World Trade Organization
(WTO). TRIPS sets minimum standards for the protection and enforcement of
intellectual property across all WTO Member States, making it a cornerstone of the
modern global IP regime.

HISTORY

Prior to TRIPS, international IP protection was fragmented across various sector-

specific treaties such as the Paris Convention (1883) and the Berne Convention (1886),
administered by WIPO. The United States, European Communities, and Japan,
Intellectual Property Rights — Study Notes 2

dissatisfied with WIPO's enforcement mechanisms, pushed for IP negotiations in the

Uruguay Round (1986–1994). TRIPS was signed on 15 April 1994 in Marrakesh,
Morocco, and entered into force on 1 January 1995, binding all WTO members.

MAIN PRINCIPLES
• National Treatment: Each WTO Member must accord to nationals of other
Members treatment no less favourable than it accords to its own nationals with
regard to IP protection.
• Most-Favoured-Nation (MFN) Treatment: Any advantage, favour, or privilege
granted by a Member to nationals of any other country must be accorded to
nationals of all other Members immediately and unconditionally.
• Minimum Standards: TRIPS prescribes minimum standards for copyright,
trademarks, geographical indications, patents, industrial designs, layout-designs,
undisclosed information, and control of anti-competitive practices.
• Enforcement: Members must provide effective enforcement procedures — both
civil and criminal — including injunctions, damages, border measures, and
provisional measures.
• Dispute Settlement: IP disputes between WTO members fall under the WTO
Dispute Settlement Understanding (DSU), giving TRIPS a binding and
enforceable character unlike earlier treaties.
• Transitional Arrangements: Developed countries had 1 year, developing
countries 5 years, and least-developed countries 11 years (later extended) to
implement TRIPS obligations.

GOVERNING BODY

The TRIPS Council, a subsidiary body of the WTO General Council, is responsible for
monitoring the operation of the TRIPS Agreement, affording Members the opportunity
of consulting on matters relating to trade-related aspects of IP rights, and handling
disputes related to TRIPS obligations.

INDIA'S POSITION

India became a WTO Member on 1 January 1995 and is therefore bound by TRIPS. As a
developing country, India had until 1 January 2000 to implement TRIPS obligations for
most IP categories and until 1 January 2005 for pharmaceutical and agricultural
chemical patents. Key legislative responses include:
• The Patents (Amendment) Act, 2005 — introduced product patent protection for
pharmaceuticals and agro-chemicals; crucially, Section 3(d) prevents
evergreening by requiring enhanced efficacy for patentability of new forms of
known substances.
Intellectual Property Rights — Study Notes 3

• The Trade Marks Act, 1999 — replaced the 1958 Act to align with TRIPS
standards.
• The Copyright (Amendment) Act, 2012 — introduced provisions for digital rights
management and performer rights.
• The Geographical Indications of Goods (Registration and Protection) Act, 1999 —
established GI protection as required under TRIPS Art. 22–24.
India has actively used TRIPS flexibilities, particularly compulsory licensing (Section
84, Patents Act, 1970) for public health purposes, most notably in Natco Pharma Ltd. v.
Bayer Corporation (2012), the first compulsory licence granted in India.

(b) Paris Convention & Patent Cooperation Treaty (PCT)

INTRODUCTION

The Paris Convention for the Protection of Industrial Property (1883) is the
foundational international treaty in the field of industrial property — encompassing
patents, trademarks, industrial designs, utility models, service marks, trade names, and
geographic indications. The Patent Cooperation Treaty (PCT), concluded in 1970 and
administered by WIPO, supplements the Paris Convention by providing a unified
international filing procedure for patent applications.

HISTORY

The Paris Convention was adopted on 20 March 1883 in Paris and entered into force on
7 July 1884. It was the first major international effort to protect industrial property and
has been revised multiple times — Brussels (1900), Washington (1911), The Hague
(1925), London (1934), Lisbon (1958), and Stockholm (1967). It currently has 179
member states. The PCT, signed in Washington on 19 June 1970, entered into force on
24 January 1978, revolutionising international patent filing with 157 Contracting States
today.

MAIN PRINCIPLES — PARIS CONVENTION

• Nationals of any member state shall enjoy in other member states the
same IP protection as the latter's own nationals.: National Treatment
• An applicant who has filed a patent application in one member state may,
within 12 months (6 months for trademarks/industrial designs), file in
other member states with the filing date of the first application as the
priority date.: Right of Priority
• Patents obtained in different member states are independent of each
other — revocation or lapse in one state does not affect patents in
others.: Independence of Patents
Intellectual Property Rights — Study Notes 4

• Article 5A allows members to provide compulsory licences to prevent

abuses that might result from the exclusive rights conferred, such as
failure to work.: Compulsory Licensing
• Seizure of goods bearing false indications of source or the producer's
identity at importation is mandated.: Protection Against False Indications

MAIN PRINCIPLES — PCT

• International Filing: A single international application (filed in one language, at
one office, with one set of fees) has effect as a regular national application in all
designated PCT Contracting States.
• International Search: An International Searching Authority (ISA) prepares an
international search report identifying prior art, assisting applicants in assessing
patentability.
• International Preliminary Examination: Provides a preliminary non-binding
opinion on patentability, giving applicants 30 months from priority date before
entering national phases.
• National Phase: Applicants must ultimately satisfy requirements in individual
national/regional patent offices ('national phase entry').

GOVERNING BODY

Both treaties are administered by the World Intellectual Property Organization (WIPO),
a specialised agency of the United Nations headquartered in Geneva, Switzerland. The
Paris Union Assembly and the PCT Union Assembly are their respective governing
bodies.

INDIA'S POSITION

India acceded to the Paris Convention on 7 December 1998 and joined the PCT on 7
December 1998. India's implementation is reflected in:
• The Patents Act, 1970 (as amended) gives effect to Paris Convention priority
rights; Section 133–137 specifically governs convention applications.
• India participates in the PCT system; the Indian Patent Office (IPO) acts as a
receiving office for PCT applications by Indian nationals and residents.
• The IPO has been designated as an International Searching Authority (ISA) and
International Preliminary Examining Authority (IPEA) since 2013, handling
applications from specified countries.
• Compulsory licensing provisions in Sections 84–94 of the Patents Act are aligned
with Paris Convention Article 5A.
Intellectual Property Rights — Study Notes 5

(c) Berne Convention & WIPO Copyright Treaty (WCT)

INTRODUCTION

The Berne Convention for the Protection of Literary and Artistic Works (1886) is the
primary international treaty governing copyright protection, ensuring that creators
enjoy rights in their works across member countries without registration formalities.
The WIPO Copyright Treaty (WCT), 1996 — popularly referenced as the 'VCC' (or
'Internet Treaties') — updated the Berne framework for the digital environment.

HISTORY

The Berne Convention was adopted in Berne, Switzerland on 9 September 1886,

championed largely by the French author Victor Hugo and the Association Litteraire et
Artistique Internationale. It has been revised at Paris (1896), Berlin (1908), Berne
(1914), Rome (1928), Brussels (1948), Stockholm (1967), and Paris (1971, the current
text). It currently has 181 member states. The WCT was adopted by the WIPO
Diplomatic Conference in Geneva on 20 December 1996 and entered into force on 6
March 2002.

MAIN PRINCIPLES — BERNE CONVENTION

• Automatic Protection: Copyright protection arises automatically upon creation;
no registration, deposit, or other formality is required.
• National Treatment: Authors enjoy in countries of the Union, for works for which
they are protected under the Convention, rights that the respective laws grant to
their own nationals.
• Minimum Standards: The Convention mandates minimum protection for literary,
artistic, and musical works including: reproduction rights, translation rights,
broadcasting rights, moral rights (right of integrity and attribution), and a
minimum term of life + 50 years.
• Independence of Protection: Protection in a country of the Union is independent
of the existence of protection in the country of origin.
• Retroactivity Limitation: Each country applies its own law on the point, subject
to exceptions for works already in the public domain.

MAIN PRINCIPLES — WCT (VCC)

• Computer Programs: Explicitly protected as literary works under Article 2 of the
Berne Convention.
• Databases: Compilations of data or other material, in any form, are protected as
intellectual creations.
Intellectual Property Rights — Study Notes 6

• Right of Distribution and Rental: Authors of computer programs,

cinematographic works, and phonograms enjoy an exclusive right of commercial
rental to the public.
• Right of Communication to the Public: Authors have the exclusive right to
authorise any communication to the public, including 'making available' online
(Article 8) — the cornerstone of online copyright.
• Technological Protection Measures (TPMs): Contracting Parties must provide
adequate legal protection and effective legal remedies against circumvention of
TPMs (anti-circumvention laws).
• Rights Management Information (RMI): Removal or alteration of electronic
rights management information is prohibited.

GOVERNING BODY

The Berne Convention is administered by WIPO through the Berne Union Assembly.
The WCT is similarly administered by WIPO, with the WCT Assembly as its governing
body.

INDIA'S POSITION

India is a member of the Berne Convention (since 1 April 1928) but has NOT ratified
the WCT/WPPT. However, India has partially aligned its domestic law with WCT
standards through the Copyright (Amendment) Act, 2012:
• Section 65A — prohibits circumvention of technological protection measures, in
line with WCT Article 11.
• Section 65B — protects rights management information, mirroring WCT Article
12.
• Performer's rights and broadcast reproduction rights were strengthened.
• Term of protection remains life + 60 years (exceeding Berne's minimum of life +
50 years).
• The Cinematograph (Amendment) Act, 2023 introduced penal provisions against
camcording/piracy.
India's non-ratification of WCT is strategic — the country seeks to balance authors'
rights with public access, especially for education and research, under Sections 52 and
57 of the Copyright Act, 1957.

(d) Rome Convention

INTRODUCTION
Intellectual Property Rights — Study Notes 7

The International Convention for the Protection of Performers, Producers of

Phonograms and Broadcasting Organisations, commonly known as the Rome
Convention (1961), is the principal international treaty protecting the 'neighbouring
rights' or 'related rights' of performers, phonogram producers, and broadcasting
organisations — rights that are distinct from, but related to, copyright.

HISTORY

Efforts to protect performers and phonogram producers began in the early 20th
century, prompted by the advent of sound recording technology and radio
broadcasting. The Rome Convention was negotiated under the joint auspices of the
International Labour Organization (ILO), UNESCO, and BIPO (now WIPO) and was
adopted on 26 October 1961 in Rome, Italy. It entered into force on 18 May 1964.
While influential, it has a comparatively smaller membership (~96 states) than TRIPS
or Berne.

MAIN PRINCIPLES
• Performers' Rights: Performers (actors, singers, musicians, dancers) have the
right to prevent: broadcasting or communication to the public without their
consent, fixation of their unfixed performance, and reproduction of a fixation
made without their consent.
• Phonogram Producers' Rights: Producers of phonograms have the right to
authorise or prohibit direct or indirect reproduction of their phonograms.
• Broadcasting Organisations' Rights: Broadcasting organisations have the right to
authorise or prohibit: re-broadcasting, fixation, reproduction of fixations, and
communication to the public of their broadcasts.
• National Treatment: Each Contracting State must grant the same protection
given to its own nationals to nationals of other Contracting States meeting
defined criteria.
• Minimum Duration: Protection must last at least 20 years from the end of the
year of fixation (phonograms/performances) or broadcast.
• Limitations: Contracting States may impose the same limitations as they provide
for copyright in literary and artistic works (e.g., private use, news reporting,
educational use).

GOVERNING BODY

The Rome Convention is jointly administered by three international organisations: the

International Labour Organization (ILO), UNESCO (United Nations Educational,
Scientific and Cultural Organization), and WIPO. The Intergovernmental Committee for
the Rome Convention oversees its implementation.
Intellectual Property Rights — Study Notes 8

INDIA'S POSITION

India has NOT ratified the Rome Convention and is not a Contracting State. This is a
significant gap in India's international IP commitments. However, India has domestic
protection for neighbouring rights:
• The Copyright Act, 1957 (as amended) provides rights to performers under
Sections 38, 38A, and 38B, and to broadcasting organisations under Section 37.
• The 2012 Amendment significantly strengthened performers' rights, including
moral rights for performers (Section 38B) — a right not even in the Rome
Convention itself.
• Phonogram producers are protected as owners of 'sound recordings' under
Section 14(e) of the Copyright Act.
Despite non-ratification of Rome, India's domestic law provides protection broadly
equivalent to, and in some respects exceeding, Rome Convention standards. India's
reluctance to ratify is attributed to concerns over obligations regarding broadcasting
rights and reciprocity arrangements.

(e) Lisbon Agreement

INTRODUCTION

The Lisbon Agreement for the Protection of Appellations of Origin and their
International Registration (1958), and its updated version — the Geneva Act of the
Lisbon Agreement on Appellations of Origin and Geographical Indications (2015) —
provide an international registration system for appellations of origin and geographical
indications (GIs). It allows the international protection of GIs through a centralised
system administered by WIPO.

HISTORY

The Lisbon Agreement was adopted on 31 October 1958 in Lisbon, Portugal, entering
into force on 25 September 1966. It emerged from the limitations of the Paris
Convention's GI provisions, which required bilateral arrangements. The Geneva Act
(2015), which modernised and expanded the Lisbon system to explicitly cover GIs (not
just appellations of origin), entered into force on 26 February 2020. As of 2024, the
Lisbon Agreement has approximately 30 member states, primarily wine and spirits
producing nations.

MAIN PRINCIPLES
• International Registration: An appellation of origin/GI protected in its country of
origin can be registered with the WIPO International Bureau, which notifies all
other Contracting Parties.
Intellectual Property Rights — Study Notes 9

• Automatic Protection: Once registered, the appellation is protected in all other

Contracting Parties without any additional formality, unless a Contracting Party
declares a refusal within one year.
• Appellations of Origin: Refers to the geographical name of a country, region, or
locality designating a product originating there, with quality or characteristics
essentially due to the geographical environment (including natural and human
factors).
• Geographical Indications (Geneva Act): Expanded to cover GIs where a given
quality, reputation, or other characteristic of a product is attributable to its
geographical origin.
• Protection Against Usurpation: Protection is granted against any usurpation or
imitation, even with translations or accompanied by expressions like 'kind',
'type', 'style', or 'imitation'.
• Generic Names: A registered appellation cannot become a generic term in a
Contracting Party that has recognised the registration without declaring a
refusal.

GOVERNING BODY

The Lisbon Agreement is administered by WIPO. The Lisbon Union Assembly,

composed of all Contracting Parties to the 1958 Agreement and the 2015 Geneva Act,
is the governing body. The WIPO International Bureau maintains the International
Register of Appellations of Origin.

INDIA'S POSITION

India has NOT acceded to the Lisbon Agreement or the Geneva Act, making it a non-
member. India's position on Lisbon is nuanced:
• India has its own domestic GI legislation — the Geographical Indications of
Goods (Registration & Protection) Act, 1999 — which came into force in 2003,
implementing TRIPS Article 22–24 obligations.
• Notable Indian GIs include: Darjeeling Tea (first GI registered in India, 2004),
Kanchipuram Silk, Mysore Sandal Soap, Alphonso Mangoes, and Basmati Rice.
• India has actively sought GI protection for Basmati Rice and Darjeeling Tea in
international markets through bilateral and multilateral negotiations.
• India has generally been cautious about Lisbon accession as the treaty's small
membership limits reciprocal benefits; and there are concerns about the
administrative burden of monitoring the International Register.
India has been observing the Geneva Act (2015) with interest, particularly its broader
GI framework. Accession could provide stronger multilateral protection for India's rich
portfolio of GIs, especially in the agricultural and handicrafts sectors, but cost-benefit
analysis and policy priorities have kept India outside the system thus far.
Intellectual Property Rights — Study Notes 10

QUESTION 2

Theories of Intellectual Property Rights

Intellectual Property Rights (IPR) are not merely technical legal constructs — they are
grounded in competing philosophical and economic theories that justify and shape
their existence. Three dominant theoretical frameworks underpin modern IPR: Locke's
Labour Theory, Hegel's Personality Theory, and the Incentive Theory.

(a) Locke's Labour Theory (Labourism)

THEORETICAL FOUNDATION

John Locke (1632–1704), in his seminal work Two Treatises of Government (1689),
propounded the labour theory of property. While Locke himself did not address
intellectual property directly, his theory has been extensively applied to justify IP rights
by legal philosophers such as Robert Nozick and Justin Hughes.

CORE ARGUMENT

Locke's theory rests on three foundational propositions:

• Self-Ownership: Every person owns their own body and, by extension, the labour
of their hands.
• Labour Mixing: When a person mixes their labour with unowned resources
('common'), they incorporate something of themselves into the object,
generating a property entitlement.
• Value Addition: Labour adds value to raw materials; the person who creates
value by their effort deserves to own it. 'As much labour was most his own... it
was his property too.'

APPLICATION TO INTELLECTUAL PROPERTY

Applied to IP, the argument runs: an inventor, author, or creator expends intellectual
labour (thought, creativity, effort) on the intangible 'commons' of ideas. By mixing their
labour with the public domain of knowledge, they create a new work deserving of
private property protection.
• Authors who write original literary works deserve copyright because they have
invested creative labour.
Intellectual Property Rights — Study Notes 11

• Inventors who devise novel solutions deserve patents because they have invested
inventive labour over existing knowledge.

LOCKEAN PROVISO & ITS IMPLICATIONS FOR IP

Locke's theory is qualified by two important provisos:

• Sufficiency Proviso: Property appropriation is legitimate only if 'enough and as
good left in common for others.' Applied to IP: monopolies that deprive society of
access may violate this proviso.
• Non-Spoilage Proviso: Property ownership is justified only so long as the
property is not wasted. Excessive IP rights that suppress use may also violate
this.
These provisos provide philosophical grounding for time-limited IP rights, compulsory
licensing, and access to medicines/education exceptions — areas where Indian law has
been particularly active.

CRITIQUE
• The 'mixing' metaphor is difficult to apply to intangibles — how does one 'mix'
labour with abstract ideas?
• The labour theory cannot explain why intellectual effort on public domain
materials (e.g., a new arrangement of a classical piece) generates proprietary
rights.
• It underemphasises the social dimension of creativity — most inventions and
works build on prior knowledge and social infrastructure.
• Robert Nozick and others have noted that the 'entitlement' from labour is not
necessarily an exclusive proprietary right; one might be entitled to the value
added but not to exclude others from the underlying idea.

(b) Hegel's Personality Theory

THEORETICAL FOUNDATION

Georg Wilhelm Friedrich Hegel (1770–1831), in his Philosophy of Right (1821),

developed a theory of property grounded in personhood and self-expression. Margaret
Jane Radin and Justin Hughes have extended this framework to intellectual property in
the 20th century, arguing that IP is a projection of the creator's personality.

CORE ARGUMENT

Hegel argued that property is a necessary condition for the realisation of individual
freedom and personality:
Intellectual Property Rights — Study Notes 12

• Externalisation of Will: A person realises and objectifies their will by

incorporating it into an external object. Property is the embodiment of
personality in the external world.
• Recognition: The external world recognises the person's existence and identity
through their property. To deprive a person of their creation is to deny a
dimension of their selfhood.
• Alienation & Inalienability: While most property can be alienated (transferred),
certain deeply personal attributes — those central to the creator's identity —
cannot be fully alienated.

APPLICATION TO INTELLECTUAL PROPERTY

Applied to IP, the personality theory provides particularly strong justification for:
• Moral Rights in Copyright: The right of attribution (paternity) and integrity —
the right to object to distortions or mutilations of one's work that harm one's
honour or reputation — flow directly from the idea that a creative work
embodies the author's personality. This is enshrined in Article 6bis of the Berne
Convention and Section 57 of India's Copyright Act, 1957.
• Trademarks and Trade Names: Hegel's theory explains why individuals have a
strong claim over names and signs that express their commercial identity.
• Inalienability of Moral Rights: Since a work embodies the creator's personality,
moral rights (especially integrity) cannot be waived or transferred — justifying
why India's Section 57 makes moral rights inalienable even post-assignment.

HEGEL'S THEORY IN INDIA

The Personality Theory is most visible in India's copyright framework:

• Section 57, Copyright Act, 1957: Authors retain the right to claim authorship and
to restrain or claim damages for distortion/mutilation of their work, even after
assignment of copyright.
• Section 38B: Performers are granted moral rights — reflecting the personality
theory extended to performers.
• Mannu Bhandari v. Kala Vikas Pictures (1987): The Delhi High Court upheld the
author's moral right to integrity against distortion of her novel in a film
adaptation.

CRITIQUE
• The personality theory works best for artistic works but struggles with utilitarian
inventions — does a patent on a pharmaceutical molecule embody the inventor's
'personality'?
• It justifies moral rights more compellingly than economic rights — and thus
requires supplementation by other theories for the full scope of IP.
Intellectual Property Rights — Study Notes 13

• It may over-privilege the author's interests at the expense of the public's interest
in free cultural expression and adaptation.
• Margaret Jane Radin's concern: if all property reflects personality, then property
law itself becomes imbued with existentialist weight that courts and legislators
are ill-equipped to manage.

(c) Incentive Theory

THEORETICAL FOUNDATION

The Incentive Theory (also called the Utilitarian or Economic Theory) justifies IPR not
on the basis of natural rights or personality, but on consequentialist and economic
grounds: IP rights are a policy instrument designed to generate socially optimal levels
of innovation and creativity. It draws from classical utilitarian philosophy (Jeremy
Bentham, John Stuart Mill) and is today articulated through the lens of law and
economics.

CORE ARGUMENT

The theory proceeds from two key observations about information and knowledge:
• Public Goods Problem: Knowledge and information are 'public goods' — non-
rivalrous (one person's use does not diminish another's) and non-excludable
(difficult to prevent others from using them). Without legal protection, creators
cannot recoup their investment as competitors can freely copy.
• Market Failure: Left to the market alone, there would be underproduction of
knowledge-intensive goods because innovators cannot capture sufficient value.
IP rights address this market failure by granting temporary monopolies.

MECHANISM

The incentive theory envisions a social bargain:

• Creators receive exclusive rights (copyright, patent, trademark) for a limited
period — allowing them to recoup investment and earn profits.
• In return, the public benefits from disclosure of the invention/work; and upon
expiry of the term, the creation enters the public domain for free use.
• The patent system's disclosure requirement is a classic expression of this
bargain: patent protection is granted in exchange for full public disclosure of the
invention.

ECONOMIC DIMENSIONS

Modern scholarship has refined the incentive theory significantly:

Intellectual Property Rights — Study Notes 14

• Arrow's Information Paradox (Kenneth Arrow, 1962): A buyer cannot assess the
value of information without learning it; but once learned, there is no incentive
to pay for it. IP rights solve this by allowing creators to charge for access.
• Optimal Term: The theory predicts that the optimal duration of IP protection
balances incentive to create against deadweight losses from monopoly pricing.
This provides economic justification for time-limited rights.
• Dynamic Efficiency vs. Static Efficiency: IP rights may create short-term
allocative inefficiency (monopoly pricing), but generate long-term dynamic
efficiency through innovation.
• William Landes & Richard Posner: Extended the utilitarian analysis to copyright,
arguing that copyright protection reduces the cost of creating new works and
increases the supply of creative expression.

APPLICATION IN INDIA

The Incentive Theory is the dominant justification for India's IP legislative framework,
particularly:
• Patent Law: The Patents Act, 1970 grants a 20-year exclusive term in exchange
for disclosure of the invention — a direct expression of the incentive bargain.
• Section 3(d), Patents Act: Restricts 'evergreening' to ensure that the incentive is
only for genuine innovation, not incremental modifications — aligning with the
theory's concern for social welfare.
• Compulsory Licensing (Section 84): Reflects the theory's recognition that
monopoly can be harmful; where the public cannot access an invention at a
reasonable price, the state can override exclusivity.
• National IPR Policy, 2016: India's official policy document explicitly states that
IPRs promote innovation and creativity as instruments of economic development
— firmly grounded in incentive theory.

CRITIQUE
• Empirical Challenge: The causal link between IP protection and innovation is
contested. Studies on pharmaceutical innovation, software, and copyright
suggest that strong IP does not always lead to proportional increases in creative
output.
• Developing Countries: The incentive theory was designed around the economic
conditions of developed, innovation-intensive economies; it is less well-suited for
developing countries that are net importers of technology.
• Chilling Effect: Overly strong IP protection can inhibit follow-on innovation by
preventing others from building on existing works and inventions.
Intellectual Property Rights — Study Notes 15

• Peter Drahos: Argues that the 'grand bargain' metaphor is empirically

problematic — most innovators are motivated by reputational, personal, or
competitive factors rather than the promise of legal monopoly.

Comparative Overview of Theories

The following table summarises the three theories along key dimensions:

Basis of Justification:
Locke: Labour mixing gives rise to natural property rights
Hegel: IP embodies and projects the creator's personality
Incentive: IP rights are social policy tools to correct market failure
Primary Rights Justified:
Locke: Economic rights (copyright, patent, trademark)
Hegel: Moral rights; right of integrity and attribution
Incentive: Economic rights; limited duration monopolies
Key Scholars:
Locke: John Locke; Robert Nozick; Justin Hughes
Hegel: G.W.F. Hegel; Margaret Jane Radin; Justin Hughes
Incentive: Jeremy Bentham; William Landes; Richard Posner
Strength:
Locke: Intuitive; explains creator's 'ownership' of output
Hegel: Explains inalienable moral rights powerfully
Incentive: Empirically grounded; explains limited-term IP
Weakness:
Locke: Difficult to apply to intangibles; ignores social dimension
Hegel: Weak basis for patent/industrial design rights
Incentive: Empirical link between IP and innovation is contested
India's Relevance:
Locke: Basis for property approach in IP legislation
Hegel: Section 57 (moral rights); Section 38B performers
Incentive: Patents Act; National IPR Policy 2016; compulsory licensing

— End of Notes —