November 27, 2020

Intellectual Property Rights- Theoretical Justifications

“Property” as per Stanford Encyclopedia of Philosophy has been defined as the rules that govern access to and control of land and other material resources[1]. As such, there are two types of properties- tangible and intangible. Those that have physical attributes (which can be seen and touched) are tangible and those which are abstract –invisible to the eye (such as thoughts and ideas) (lack physical attribute) are intangible. IPR falls under the latter category, since it protects creative expressions and ideas. Property relations consider three aspects to create a holistic perspective (of said property) –

1. Resources- informational goods, intangible resources, ex- what is a “patent”, “copyright” under certain Acts

2. Individuals- creators of the expression/idea, ex- who an author is under Copyrights Act, who can claim to be a patent?

3. Other parties- rights and responsibilities of third parties, ex- section 48 of the Patents Act, gives exclusive right to patents to prevent third parties from making, selling importing or using the patents work without prior consent, Section 14 of the Copyrights Act gives exclusive economic rights to the creator/author to have the rights of first public distribution, reproduction, performance of work in public, and have subsidiary rights (like abridgement, translation, movie adaptation) and prevent third parties to the same without due consent.

The examples given here are in the context of intellectual property laws, in terms of intangible goods and resources. On analyzing the Indian IPR laws (copyright, trademark and patent), a clear link has been made with each dimension/aspect. However, the question with respect necessity of protection of these abstract objects arises. When can they be protected? And if so, in what manner must they be protected? These questions have lead philosophers and intellectuals to come up with certain theories that justify the same. The aim of this article is to briefly identify certain theories that justify the use of intellectual property laws.

Unmistakably the theory of natural law forms the basis for protection of Intellectual Property. The theory states that an individual owns their creation/s to the extent of (their) intellectual effort and labour used[2]. This principle played a crucial role in forming John Locke’s Labour theory, which justified property if it was created through their own labour[3]. This principle allowed IPR as such to be recognized, more importantly patents and copyrights. Edwin Hettinger reiterated that the labour theory gives an individual the right to reap the benefits of their efforts and intelligence, which no other person can claim[4].

Locke’s writing validates Intellectual Property Rights since it shows that natural justification essentially relies on the concept of community and its metaphysical scheme[5]. It interlinks two concepts, firstly that, Locke’s theory assumes the earthly resources are public resources, i.e., common to humankind, thereby making individual property an issue. Secondly that, Natural law identifies the existence of commons and private ownership. Integrating these concepts, we can reiterate that a person becomes entitled to his property when he combines his labor with an object that has previously been in commons (labour theory)[6]. Intellectual products are created using current information to make new products hence are fundamentally known as social products[7]. The use of Locke’s Labour theory in IP Laws is still debated by many scholars.

Foundations of the Personhood theory has been derived from the works of Kant and Hegel, which assumes that private property plays an important role in fulfilling basic human needs[8]. This thereby places responsibility on policy-makers to create policies and laws that would allocate entitlements to resources in a manner that can ensure such need are fulfilled. Using this theory, IP laws can be justified on two grounds- one, that it acts as a shield from appropriation or modifying works that have been created by authors and artists, or two, that social and economic conditions created help further intellectual activity thereby flourishing human-kind[9]. Intellectual Property protects the manifestation of the creators personality that have been expressed through their works, be it a poem, book, or even an invention.

However, Justin Hughes from Hegel’s Philosophy of Right identifies certain guidelines that must be followed in order to form a well-functioning IP system[10]. He states that-

  • More Legal Protection must be given to highly expressive works of creators, be it in the form of novels or poems than to less expressive activities.
  • The authors works is a “receptacle of his personality” hence must be treated with utmost respect through proper legal protection, regardless of the fact that it doesn’t ordinarily result from labour.
  • Works of an author or inventor must be recognized and honored by permitting it to be sold, however it should also protect them from surrendering their rights to others to avoid mutilation or appropriating of work[11].

Essentially, justification of IPR by the personhood theory depends on how central the interest is to the fulfillment of their personhood[12].

The last, and probably the most important theory is that of the economic/utilitarian one, which is wide and diverse in nature. There has always been a close connection between Intellectual property and economic markets because these rights creates market information[13]. This theory with respect to intellectual property states that high initial creation cost and marginal distribution costs (of intellectual products) are the reasons for failures in the market. Creation of certain economic incentives can help overcome this failure, thereby justifying the use of IPR.

Information is a common good, i.e., it is made available to the public, is non-excludable and non-rival.[14] It becomes difficult to satisfy multiple people at 0 or close to 0 marginal cost. This leads to under productivity because of low incentive. This is where intellectual property comes into light, by forming adequate incentives to create that boost productivity[15].

However, the critique to this theory is that no conclusive proof shows property rights to induce an incentive to create[16]. It is often seen that the creators are not the owner of the property rights hence questioning the incentive provided. Even if the incentive was given, the question comes down to the amount of compensation required to ensure that it was an adequate incentive.

These are a few of the many theories that justify the necessity of IP laws. They not only form the jurisprudence to legal protection of these intangible objects, but also provides substantial information and guidelines that help judiciary in determining the legitimacy of the intellectual expression. It provides the basic foundation of many legislations, rules, and other philosophy/theories. These theories have largely attributed to the foundations of the current IPR Act such as the Trademarks Act, Copyright Act and Patent Act. It essentials boils down to protection of intangible expressions and these theories help aid that purpose.


[1] Jeremy Waldron, “Property and Ownership“, The Stanford Encyclopedia of Philosophy (Summer 2020 Edition)

[2] Mikhalien Du Bois, “Justificatory Theories for Intellectual Property Viewed through the Constitutional Prism”, Potchefstroom Electronic Law Journal 21, (2018)

[3] Ibid.

[4] Ibid.

[5] Mikhalien Du Bois, “Justificatory Theories for Intellectual Property Viewed through the Constitutional Prism”, Potchefstroom Electronic Law Journal 21, (2018)

[6] Ibid.

[7] Ibid.

[8] William Fisher, “Theories of Intellectual Property”, New Essays in the Legal and political Theory of Property (Cambridge University Press, 2001)

[9] Ibid.

[10] Justin Hughes, “The Philosophy of Intellectual Property”, 77 The Georgetown Law Journal 287, (1998)

[11] William Fisher, “Theories of Intellectual Property”, New Essays in the Legal and political Theory of Property (Cambridge University Press, 2001)

[12] Ibid.

[13] Mikhalien Du Bois, “Justificatory Theories for Intellectual Property Viewed through the Constitutional Prism”, Potchefstroom Electronic Law Journal 21, (2018)

[14] Ibid.

[15] Ibid.

[16] Ibid.

Author Details: Janavi Venkatesh (OP Jindal Global University)

The views of the author are personal only. (if any)

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