ANCIENT GREEK PHILOSOPHERS
● Created the foundation of western philosophy
● Socrates was the teacher of Plato, who in turn was the teacher of Aristotle.
● Socrates (470-399 BC) was concerned with a life of virtue and known for his teachings
in rationalism, ethics, and epistemology.
○ He didn't write anything …his teaching were known through plato
● Both Socrates and Plato were against private rights and advocated collective rights
● In his book Republic Plato argued
○ collective ownership was necessary to promote the common pursuit of the
common interest, and to avoid the social divisiveness that would occur ‘when
some grieve exceedingly and others rejoice at the same happenings.’
● Aristotle (384-322 BC) had different view as compared to his teacher
○ He opined that the exercise of private rights makes a person free and hence a
better citizen
○ human happiness requires all types of external goods, including wealth and
property.
● "The patent system added the fuel of interest to the fire of genius." - Abraham Lincoln
● "If I have seen further than most, it is because I stood on the shoulders of giants.”
Isaac Newton
The Lockean labour theory of property
“a person deserves the fruits of his labour”
● One of the most influential Enlightenment thinkers and empiricists in support of
property rights
● argued that individual ownership of goods and property is justified by the labour
expended in producing such goods, or the use of the property to produce goods useful
to the society.
● God has provided a world to people in common.
● Nature on its own provides very little value to society.
● Every person has property in his own person.
● Whenever a person mixes his labour with something in commons, he makes it his
property.
● The right of property is conditional to the persons leaving enough and as good for other
commoners.
● A person cannot take more out of commons than he can use it to his advantage.
● As per Lockean view, property rights are a just reward for the industrious.
● Intellectual labour, therefore, also merits property rights so long as it results in societal
benefits.
● no individual can have prior claim over substances that are available in nature as it is
meant for the enjoyment of the entire humanity.
○ Example :- James Watt used his labour to develop and improve steam engines
■ Locke’s labour theory can be used to justify patent protection for Watt’s steam
engine
○
○ Locke asserts that when individual exerts his labour over resources he can
claim it as his property because he has added value through his labour
○ Locke’s version of this labour justification is based on the assumption that each
individual has prior property rights in one’s body.
○ Locke would readily grant patent right if an individual exerts labour to come up with an
innovative product or machine that is useful.
○ Limitation :- property rights can be allowed only if it does not deny the others of
resources existing in nature
■ , an individual who has exerted his labour over the scarce resource cannot claim
property rights in it.
■ No monopolisation of natural resources
○ Criticism
■ No use of skills
● Meaning no novality required
○ Copy of a word will be justified
■ allowed private property right only if there is enough left for others from the
common pool of resources.
■ natural resources do not have any value until an individual exerts his labour on it
● , W.R. Grace claimed a patent for Neem extract
○ For insects ….all he did was to extract
○ Would mere extraction will amount to labour
UTILITARIAN THEORY
● Utilitarian theory is often used to justify IPR
● John Stuart Mill developed a conception of utility, which permits acts if it produces greatest
happiness amongst a vast majority of the population and ensures absence of pain
● It can be relate to the theory given by Bentham….pleasure and pain
● If the aggregation of happiness is less than the aggregate of all pain produced by an act then such
an act is not to be pursued
● Mill’s utilitarianism is taken as something that maximizes the welfare or well-being of all the
people.
● 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.
● industrial progress and cultural goods together can promote a better and significant
economic impact on the society, and the people at large.
● IPR works mainly on the incentive system and on the belief that providing protection to the
innovation or any new creation would encourage people to openly disclose their innovation
without any fear that others would appropriate their creativity.
● Mill agreed that patent monopolies are appropriate compared to earlier practices of rewards or
privileges granted by the monarchy and the government
○ It struck a fine balance between protecting the inventor’s interest and sharing or
disseminating information about new technologies.
● It is also used to justified the existence of modern trademark
○ It communicates to the customer about the source of origin of the goods and also to an
extent about the quality of the goods.
○ Talk about certification mark
○ If mark not protected it will cause loss to the business
■ Will also increase search cost for the consumers
○ a utilitarian would argue that protecting marks would reduce search costs, avoid
confusion and ensure quality by weeding out counterfeit goods from the market. This
maximizes the well- being of all people in the society and reduces harm.
● justify the existence of the copyright regime as it protects the works of authors, composers,
sculptors, painters, photographers. Lack of protection would not give authors enough incentive
to be engaged in creative works.
○ A utilitarian would argue that a monopoly for a short duration would encourage more
people to disseminate their work which would enable the public to read, enjoy and
appreciate creative works.
● Criticism
○ Not able to balance private and public interests
○ the utility gains from the impetus of a unique creation are neutralized against the
losses incurred due to exclusive ownership of the creation.
○ Private IPR restrict the dissemination of ideas
○ Granting property rights to intangible ideas impedes the flow of knowledge and also
prevents or delays downstream innovation
○ Today the owner of the invention can restrict others from freely using the invention for a
certain period of time (twenty years).
■ What if patent existed during old era and invention of wheel was patented
■ This in a way leads to patent holder controlling the price of the product in the
market and the society may not benefit from such inventions.
HEGEL’S PERSONHOOD THEORY
● The person becomes real only when engaged with a property relationship that is external
● According to this theory, any work or an invention would belong to its author or inventor
because it is the manifestation of the creator or inventor’s personality.
● in his book, ‘Elements of Philosophy of Right’, states that the individual’s will should be
given more importance compared to other elements that make-up an individual
● personality is the reflection of an individual’s will.
● intellectual property rights are also associated with safeguarding personality
development that extends to material things.
● gives prominence to the will compared to external property, which is a manifestation of the will.
● Property (self-actualisation of the will) becomes an expression of the will
● According to Hegel, society accepts the external manifestation of an individual’s personality as
property.
● Property rights are vested in the external object purely because it is the resultant manifestation
of the individual’s will.
● Labour is the means by which the will occupies the object.
● Hegel believes that this external manifestation which is seen as property cannot be alienated at
any point in time as it is a reflection of the self.
● can be used to justify claims by authors, musician, artists, sculptors, photographers etc. in their
work.
○ Example harry potter and JK rowling
○ an innovative technology is a manifestation of the inventor’s will
● Problem in applying this theory
○ would be in identifying whether there is a personality stake in the particular object which
is the external manifestation of the will
○ Hegel’s proposition that works are external manifestation of a personality also poses
problem within the realm of IPR. A person who writes (either hand-written or typed) a
book by copiously copying the works of others or a painter who imitates another painter’s
work would have done so by manifestly expressing his personality regardless of the fact
that he is borrowing from someone else.
■ has used his skills and abilities and expressed his will
■ It would be counter productive for IPR
DETERRENCE THEORY
● The deterrence theory promotes morality, virtue, and illicit commercial behavior.
● 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.
● The theory discourages misappropriation of a creation, information, etc as the secrecy
of the same is focused in this theory.
Summary
The utilitarian theory justifies IPR on the basis that it maximizes the benefit to the society. Providing
patent and copyright protection is seen as an incentive that facilitates disclosure by inventors, authors
and artists. Without such protection inventors and artists would always be under the fear that others in
the society would engage in unauthorized copying of their work. Locke’s labour theory is an extension
of the natural rights theory which can be used to justify property rights in intangible objects on the
ground that a person has exerted his labour in creating that intangible object. Hegel’s personality
theory justifies property protection for intangible ideas and expressions on the basis that it is an
extension of the creator or innovator’s personality.
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.
● validation of the efforts contributed in a particular thing
● creator must be rewarded for the creation and in doing so the ethics behind intellectual
property rights will be realized.
● 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.