Intellectual property has unique characteristics compared to other forms of traditional property. It is non-exclusive and non-rivalrous. Hence the existing body of law governing such traditional property is not appropriate for governing the ownership, transfer and utilization of Intellectual property. Therefore, Intellectual property rights find their backing in four distinct schools of thoughts. They are:
1. Utilitarian Theory
2. Personhood Theory
3. Labour Theory
4. Social Planning Theory
This theory is purely supported by economic principles as it seeks to maximise social welfare. According to it, protection of intellectual property is necessary if such protection causes economically positive output in favour of the majority in a society. Traces of this type of justification can be found in primitive IP Laws. For example, the initial United States copyrights and patent law contained this sentence in its preamble- ‘to Promote the Progress of Science and useful Arts’.
The protection of IP, hence, is done with an intention to incentivise the creator/inventor to produce more intellectual property for the general public's consumption. This is also one of the main reasons for the restricted nature of rights over intellectual property as compared to the rights awarded over other traditional forms of property. Most intellectual property rights are limited and are not perpetual (subject to conditions). This is to create a balance between the benefit accorded to the public and the exclusive rights of IP owners.
The personhood theory is mainly penned by Immanuel Kant and Hegel. The theory contends that intellectual property is the physical manifestation of one’s personhood and hence the creator must be enabled to protect the same. The personhood theory provides for moralistic grounds for protection of intellectual property; in contrast to other economically driven justifications. All intellectual property is considered to be an extension of the creator’s will and by this association, such property is a part of the creator’s identity and person.
Hegel’s ideology propagated that the intellectual property system must be devised in a way that more expressive works get higher protection as compared to inventions such as genetic researching. This is because expressive works require a higher degree of personalization, therefore making it a bigger part of the creator’s personhood.
The writings of John Locke provide us with the labour theory. According to it, if a person infuses their labour on commonly held resources, they deserve to enjoy natural ownership over the results of their effort. Hence, a person investing time, money, knowledge and other resources in creating intellectual property must receive the ownership rights over it as a result of their labour.
The theory is incomplete without the two provisos given by Locke himself; they are-
· No wastage of property (which is owned through the infusion of labour)
· There must be enough and as good amount of property left for others to own and use.
This proviso is usually not considered while discussing this theory in the context of intellectual property law as it was traditionally meant to be applied to physical property. However, there are numerous qualified writings regarding the same by the likes of Dr.Carys Craig and Professor William Fisher which establish a connection between the proviso and intellectual property.
Social Planning Theory:
This theory is similar to the utilitarian theory. According to it, property must be protected in order to create a rich and robust cultural environment. It is similar to the utilitarian theory as they both place the society at its base. They both differ as social planning theory doesn’t concern itself with economic welfare per se; it is only concerned with the promotion of culture. Neil Netanel, Keith Aoki, Rosemary Coombe, Niva Elkin-Koren and Michael Madow are few of many renowned thinkers who back this theory as a justification for intellectual property rights.
1. William Fisher, Theories of Intellectual Property, https://cyber.harvard.edu/people/tfisher/iptheory.pdf
2. John Locke, Two Treatises of Government (P. Laslett, ed., Cambridge: Cambridge University Press, 1970)
3. Jeremy Bentham, A Manual of Political Economy (New York: Putnam, 1839)