UNIVERSITY OF PETROLEUM AND ENERGY

STUDIES
DEHRADUN, UTTARAKHAND
INDIA

Submitted by –

DEVANSHU GUPTA
500070200
R155218022
Intellectual property rights have grown to a position from where it plays an important role in the
global economy’s development over the past two decades. In 1990s, laws and regulations were
strengthened I this area by many countries unilaterally. In the multilateral level, there was enhanced
protection and enforcement of IPRs to the level of solemn international commitment because of the
successful conclusion of the Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS) in World Trade Organization.

There is a vast domain of intellectual property. Designs, Copyrights, and Patents Trademarks since a
long time have received recognition. Newer forms of the protection are also developing particularly
encouraged by the stimulating emergence in technological and scientific activities.

The natural rights theory

The term “natural right” signifies a fundamental right that a person has in his possession. The natural
rights theory takes into consideration that everyone has a natural property right on his, or her ideas.
This is because creation is the result of both labour, and creativity of the person putting it into effect.
Drawing its roots from John Locke’s philosophy that says an author has a natural right over the
output of his, or her intellectual endeavours, the natural rights theory is applicable to both tangible
and intangible properties. The extension of this theory incorporates the right to use or to exclude
others from use and the right to transfer the object owned. As ownership over a creation becomes a
natural right of the owner, infringement, or unauthorized use of the same will be considered as an
offence. This idea has been incorporated by different categories of intellectual property as well.

Though this theory sounds too simple to be perceived, the major criticism that the theory has
received cannot be ignored. The primary criticism of this theory has been presented hereunder;

The philosophy propounded by John Locke is restrictive as it restrains a creator from being the
owner of an abstract idea which by its existence can affect other innovators. Therefore, if a person is
vested with the right to ownership in the idea of preparing lemon juice, the same ipso facto will
prohibit other innovators from adapting similar kinds of ideas. The principle behind the copyright
laws is somewhat the same as Locke’s philosophy as there exists no copyright in an idea but in an
expression of that idea in a tangible form.

The Lockean theory observes that the ownership of tangible properties is not bounded by a time
limit. Generally, intellectual property rights are limited by nature as after the expiration of a
prescribed time, the safeguarded object, or creation becomes available in the public domain to be
freely accessible by any individual. But Locke’s theory is not completely ignored when it comes to
trade secret laws. This is because trade secret protection remains throughout a creator’s life unless
he/she by himself/herself retains the protection to disclose confidential information to the world.

As per the natural rights theory, an appropriator cannot delight over all the available natural
resources of the world. If a creator is provided with the ownership of his/her idea of producing milk
from soybeans, the rest of the market will be cornered by the creator in concern with soymilk
production. Thus to conclude, the natural rights theory encourages innovation by an individual, on
one hand, it restricts the others from the same, when it comes to an idea.

The utilitarian theory

The utilitarian theory walks in the footsteps of Jeremy Bentham, and John Stuart Mill who focused
on the “greatest good for the greatest number”. While the term “utilitarian” signifies “social
welfare”, the theory essentially is based on the fact that industrial progress and cultural goods
together can promote a better and significant economic impact on the society, and the people at
large. When it comes to intellectual property rights, the theory calls for a need to encourage
innovation and creations. This need can be satisfied by a minimal certification that the product of
such creation will be superior in comparison to the expenses that have been incurred for the
concerned product. This theory expressly bars trade secrets to be considered intellectual property
because a trade secret in the process of protecting information that is exclusive to an individual, or a
group, prohibits the general public from benefiting from the same. Thus acting as a deterrence for
the theory to function. The utilitarian theory is also known as the incentive theory because the
theory endorses society’s duty to respect the innovator’s right to ownership on his/her creation
which is not only a source of profit for the creator himself/herself but the society as a whole.

Like the previous theory, the utilitarian theory has also been subject to criticism. The main criticism
of this theory is that the utility gains from the impetus of a unique creation are neutralized against
the losses incurred due to exclusive ownership of the creation. Thus the issue arises if at all the
benefits of intellectual property rights can be weighed against the casualties or not.

Walking in the same line of fairness, and attractive culture is another theory of intellectual property
which is known as the social planning theory. Although the same as the utilitarian theory, the theory
differs from the previous theory in terms of its perception of a desirable society. Another theory that
needs to be considered here is the economic theory of intellectual property rights which is solely
related to the value of the market economy. The only contrasting view in this theory is that it does
not consider property as the sole source of gaining incentive.

Deterrence theory

The deterrence theory promotes morality, virtue, and illicit commercial behaviour. The deterrence
theory draws its roots from the fact opposed by the utilitarian theory which does not accept
deterrence in the process of drawing benefit from innovation for the entire society. It is the trade
secret laws that behave as a hindrance to unfair marketing and therefore, becomes the essence
behind the deterrence theory. The term “deterrence” signifies discouragement. The theory
discourages misappropriation of a creation, information, etc as the secrecy of the same is focused in
this theory.

The ethic and reward theory

As the name itself suggests, the ethic and reward theory provides a justification of the exclusive
rights that are provided to the original owner of innovation by the intellectual property rights. These
sets of exclusive rights are considered as an expression of appreciation to the creator for his or her
immense contribution to society by his or her creation. The term “ethic” signifies “fairness” whereas
the term “reward” symbolises “validation of the efforts contributed in a particular thing”. Put
simply, the ethics and reward theory throws light on the fact that a creator must be rewarded for
the creation and in doing so the ethics behind intellectual property rights will be realized.
It is to be noted that the question as to whether the reward given to creators and inventors for
benefitting the entire society, truly deserves the same or not, remains associated with the ethic and
reward theory. While on one hand, the theory presumes that inventors deserve to be rewarded, on
the other the theory makes it obvious that the inventors do not deserve it twice. Many consider that
the creators are already remunerated taking into account the exclusive right he/she possesses over
his/her work. That will be further used as a source of profit for the creator as well. Thus it is quite
evident that the exclusive right that the creator has over his or her creation is excessive.

The theory of moral desert needs to be read along with this theory. Proposed by Locke, the theory
validates a creator to enjoy the fruits of his or her labour all by himself or herself.

The personhood theory

The personhood theory provides that it is the creator’s creation that builds his or her personality
thereby clarifying an individual’s personality is inherent to his or her property right. The theory
draws its roots from Hegel’s philosophy, which provides that intellectual property rights are also
associated with safeguarding personality development that extends to material things. In this way,
the theory remarked that an unauthorized user who offers to the general public someone’s creation
without prior consent will be considered a thief.

The theory brings along its criticism which is linked to the underlying principle of the theory which
relates personality with creativity. This justification is ipso facto deficient as personality cannot be
said to have been linked with the outcome of someone’s creation. Though this is one side of the
coin, the other side of the coin says that even if the creation is independent of its creator, it is very
much dependent on the public. It is from the public that the work gains substance and importance.