A PROJECT REPORT

ON

“THEORIES OF PROTECTION UNDER IPR”

BBA-LLB 8th SEMESTER

Session – 2016-2021

Submitted to: Submitted By:

Ms. ARSHIYA SHRUTI SHARMA

ASSN PROFF REG NO:-46116210006

DECLARATION
I, Shruti Sharma student of SRM University ,Haryana; hereby declare that the project work
entitled is a record of an original work “THEORIES OF PROTECTION UNDER IPR”
submitted to the Law Department is a record of an original work done by me under guidance of
Ms. Arshiya.

I further declare that the work reported is this project has not been submitted and will not be
submitted, either in part or in full. This project work is my own work. The matter embodied in
this project report has not been submitted to any other University or Institution for the award of
degree. This project has not been presented in this manner earlier. This information is purely of
my academic interest.

SHRUTI SHARMA

BBA-LLB (8th Sem)

i
CERTIFICATE

This is to certify that Shruti Sharma of BBA-LLB of SRM University has successfully carried
out investigatory project “THEORIES OF PROTECTION UNDER IPR”, under the supervision
of Ms. Arshiya.

All the works related to the project is done by the candidate herself. The approach towards the
subject has been sincere.

The original research work was carried out by her under my supervision. On the basis of the
declaration made by her, I recommend this project report for evaluation.

Ms. ARSHIYA

ASSISTANT PROFF

ii
ACKNOWLEDGEMENT

I feel myself highly delighted, as it gives me incredible pleasure to present a research work on
“THEORIES OF PROTECTION UNDER IPR” would like to enlighten my readers regarding
this topic and I hope I have tried my best to pave the way for bringing more luminosity to this
topic.

I am grateful to my faculty “Ms. ARSHIYA” who has given me an idea and encourage me to
venture this project. I would like to thank librarian of SRM University for their interest in
providing me a good back up material

And finally yet importantly I would like to thank my parents for the financial support.

iii
 INDEX
1. Declaration---------------------------------------------------i
2. Certificate---------------------------------------------------------ii
3. Acknowledgement----------------------------------------------------iii
4. Index-------------------------------------------------------------------------iv
5. Introduction---------------------------------------------------------------------1-2
6. Theories of protection---------------------------------------------------------3-8
7. Different jurisprudential approaches in IP law making-------------------9-10
8. Critical Analysis of theory of IPR--------------------------------------------11
9. Conclusion-----------------------------------------------------------------------12

iv
INTRODUCTION
The term intellectual property refers to a loose cluster of legal doctrines that regulate the uses of
different sorts of ideas and insignia.  The law of copyright protects various original forms of
expression. The economic and cultural importance of this collection of rules is increasing
rapidly. And lawmakers throughout the world are busily revising their intellectual-property
laws.  Partly as a result of these trends, scholarly interest in the field has risen dramatically in
recent years. There has been an evident mushrooming of articles deploying theories of
intellectual property in law reviews and in journals of economics and philosophy. This project
discusses those theories, evaluates them, and considers the roles they do and ought to play in
lawmaking.

What is Intellectual Property?

Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic
works; designs; and symbols, names and images used in commerce.

IP is protected in law by, for example, patents, copyright and trademarks, which enable people to

earn recognition or financial benefit from what they invent or create. By striking the right
balance between the interests of innovators and the wider public interest, the IP system aims to
foster an environment in which creativity and innovation can flourish.

Definition

Intellectual property is the product of the human intellect including creativity concepts,
inventions, industrial models, trademarks, songs, literature, symbols, names, brands,....etc.
Intellectual Property Rights do not differ from other property rights. They allow their owner to
completely benefit from his/her product which was initially an idea that developed and
crystallized. They also entitle him/her to prevent others from using, dealing or tampering with
his/her product without prior permission from him/her. He/she can in fact legally sue them and
force them to stop and compensate for any damages.

1
History of IPR

IPR is not a new concept. It is believed that IPR initially started in North Italy during the
Renaissance era. In 1474, Venice issued a law regulating patents protection that granted an
exclusive right for the owner. The copyright dates back to 1440 A.D. when Johannes Gutenberg
invented the printing press with replaceable/moveable wooden or metal letters. Late in the 19th
century, a number of countries felt the necessity of laying down laws regulating IPR. Globally,
two conventions constituting the basis for IPR system worldwide had been signed; Paris
Convention for the Protection of Industrial Property (1883) Berne Convention for the Protection
of Literary and Artistic Works (1886).

 Protection of Intellectual Property Rights

Protection of IPR allows the innovator, brand owner, patent holder and copyright holder to
benefit from his/her work, labor and investment, which does not mean monopoly of the intellect.
Such rights are set out in the International Declaration of Human Rights, which provides for the
right to benefit from the protection of the moral and physical interests resulting from the right
holder’s work; literal or artistic product.

2
THEORIES OF PROTECTION UNDER IPR

1. Natural Right theory: Labour Theory (Locke’s Theory)

Property right is a natural right. A person has a right to own the creation of his mind in the same
manner he owns creation of his labour. When a person is deprived of what he has created he
becomes.

At the beginning, everything was common but by using labour /intellect/ it has become private.
We need to protect somebody’s labour because it is a natural right. So, it may take to conclude
that intellectual property rights are natural rights.

The problem is that natural right theory doesn’t cope with the temporal limitation of intellectual
property rights. It is true that temporal limitation is applicable to intellectual property.
Intellectual property is most of the time limited in time as to the protection accorded by law. This
theory may be justifiable for corporeal ownership in which its existence may be for indefinite
period of time. In intellectual property, however, after lapse of a certain time the work will be
part of the public domain.

Nothing can be called with greater prosperity man’s property than the fruits of his labour. The
property in any article or reason of his own mechanical labour is never denied him; the labor of
his mind is no less worth of the protection of the law.

A person has a natural right to the fruits of her labour and that this should be recognized as her
property, whether in tangible or intangible term.

John Locke has two theses.

  1) Everyone has property right in the labour of his own body. The labour of his body and the
work of his hands are properly his.

2) The appropriation of an unowned object (ideas or theories) arises out of application of human
labour to that object. Mixing one’s own labour with unowned thing confers upon a property right
in the whole thing. However, after appropriation there must remain objects of similar quality in
sufficient quantity for others: “Enough and as good left for other”.

3
In order to justify intellectual property, the natural rights theory considers that everyone has a
natural property right on his ideas. As a matter of fact, the creation comes from the effort and
creativity of its author. The essence of this theory emanates mainly from John Lock’s idea that
an author has a natural right over the productions of their intellectual labour. In other words, this
theory does not make any difference between intellectual property and the traditional tangible
property including the right to use, to exclude others from use and the right to transfer the owned
object. Accordingly, anyone who violates the intellectual right of an author, creator or inventor is
considered to commit a theft.

However, clearly, there is a lack of consistency in this theory considering that intellectual rights
are based on things that are not naturally appropriable and non-rival. Indeed, we can appropriate
them only because the intervention of the public authorities permits it. Besides, such a theory is
incomplete because “he (Lock) does not expand on the level of labour required to qualify
something as your property and also, whether the property into which the labour is poured ought
to be identifiable as that individual’s property”

What’s more, apparently such a justification also denies the fact that most of the creations are
created not only from the intellectual labour of the creator but also from unowned resources. 
Indeed, “new creators inevitably and usefully build on predecessors. In this sense, intellectual
property is rarely a creation from nothing”.

4
 2. Personality Theory

Intellectual property rights are important to create personal self assertion. As propounded by
Hegel, a person would be more self assertive when she/he owns property. He will feel more
equal (equality). He will be freer. It is believed that the work is the personal expression of the
author’s or the inventor’s thoughts. So he should be given the right to decide when and how his
work may be produced or performed in public, and the right to prevent mutilations and changes.
Intellectual property laws are to be there to protect the author’s or the inventor’s manifestation of
his personality. This is also backed by the need for the safeguarding of the individual’s freedom
of expression.

According to this theory, the personality of everyone builds itself in work and creation. The
developing of the personality is inherent to the property right we have. Hegel, who is the main
source of this theory, claims that intellectual rights permit and protect the developing of the
personality, which extends to the material things. In the same way, the copier is considered as a
thief who offers to the public someone else’s spirit.

However such a justification is deficient in the sense that the personality is not linked nor
affected by the outcome of the creation because it is not constitutive by itself of the human
person. Indeed, when the creation is done, the work is independent from its creator but dependent
on the public. As a matter of fact, the work obtains substance only because the others decided to
attach importance to it.

5
 3. Utilitarian Theory

What do Intellectual Property Rights do? They make the public good a private, a non rivalorous
– rivalorous and the non-exclusive – exclusive, and the non-scarce scarce which are not scarce
by nature. The laws create artificial scarcity of knowledge. This is because creators do not have
the necessary incentive unless they have accorded some means to control their knowledge.
Unless this is done, they lack the necessary economic incentive. This is called utilitarian theory
of intellectual property.

Utilitarian is institution socially beneficial. It states that we have intellectual property systems
because it has the effect on the betterment /economic/ of the society. Its correctness is to be
assessed in the economic success of the countries. So, it is more of an economic issue. We have
witnessed tremendous technological advancements both in the science and the arts.

By definition, this theory is based on the fact that the industrial progress and cultural goods have
a beneficial effect on the society. Consequently, in order to promote the inventions and creations,
the titular needs a guarantee that the outcome will be superior to the costs of his work. As a
matter of fact, intellectual rights represent an artificial encouragement from the State for the
production. In short, the incentive theory justifies the intellectual rights because of the profit they
bring for the whole society.

However, we could question the idea that it is indispensable to have an incentive to encourage
the production. In second thought, can we really affirm that the author will give up creating
without privilege? Nothing is certain.

The other version of utilitarian theory is incentive (bargain) theory. The protection given to
intellectual property is an incentive to individuals not only to create works of the mind but also
to publicize and disseminate them into the public. It is to encourage creativity and publicity.
Works of the mind are very important to a given society for its social, cultural and economic
development.

Through literature development, the cultural orientation of a given country will be promoted.
Invention promotes industrialization. Development of the west has to do much with intellectual
creativity.

6
Those works require investment in terms of time, money and effort. So without protection people
will not invest on them. They are no less investment demanding than corporeal thing and the
protection of the law is needed. In addition, creativity by itself is not adequate. If the work of a
mind is not made available to the public, that is not useful. With protection publicity will be
encouraged thereby enabling their publicity and serve their intended purpose. Upon the expiry of
their period of protection the public will start to use the properties. When right is protected then
the creator will make his work to be known. Without protection people may not make their
works known. The state is bargaining with individuals.

4. The Ethic and Reward Theory

This theory justifies the exclusive rights of intellectual property with some moral and ethical
aspect. Indeed, the ethic requires a fair and proportional contribution for the effort that the
creator has made for the social utility. The exclusive rights are “an expression of gratitude to an
author for doing more than society expects or feels that they are obliged to do”.

However, since rewards are given to people who did something disagreeable and grievous for the
benefice of the whole society, we could question whether creators and inventors truly deserve it.
By admitting that they do, it is obvious that they definitively do not deserve it twice. Some
consider that the inventor is already remunerated considering that if the invention is really in
advance, the time between the apparition of his invention and the first copies will give him
enough profit to reward him. In this case, it is evident that the exclusive right is far more
excessive.

The need to pay the rights owner a royalty or fee may increase the price of the product or service
to which intellectual property right relates. It can be seen as a kind of tax on knowledge and
information.

Even if consumers are prepared to pay the prices charged by the right owners, the latter may not
meet the demands of the public in sufficient quantities. This will lead to compulsory license.

The grant of rights has little positive effect in promoting investment that is required for the
production of new inventions, technical innovation, literary and artistic productions and the like.

7
Whilst no monopolies in the strict sense are applied by economists, intellectual property rights
have the potential to be used to anti-competitive effect, particularly where they are pooled
together or used as a lever to obtain other ends.

Intellectual property rights can be used to suppress free speech and access to information.

8
Different jurisprudential approaches in IP law making:

Most of the recent theoretical writings consist of struggles among and within four jurisprudential
approaches of intellectual property law.

Labour theory and its jurisprudential aspect:

Robert Nozick after associating himself with Lockes argument, Nozick turns his attention to
Locke’s famously ambiguous proviso – the proposition that a person may legitimately acquire
property rights by mixing his labor with resources held in common only if, after the acquisition,
there is enough and as good left in common for others.  

Nozick contends that the correct interpretation of this limitation is that the acquisition of property
through labor is legitimate if and only if other persons do not suffer thereby any net harm.
Construed in this fashion, the Lockean proviso is not violated, Nozick argues, by the assignment
of a patent right to an inventor because, although other persons access to the invention is
undoubtedly limited by the issuance of the patent, the invention would not have existed at all had
the inventor not put in any effort due to fear of copying.

Personality theory and its jurisprudential aspect:

The premise of the third approach – derived loosely from the writings of Kant and Hegel i.e.
private property rights are crucial to the satisfaction of some fundamental human needs;
policymakers should thus strive to create and allocate entitlements to resources in the fashion
that best enables people to fulfill those needs. From this standpoint, intellectual property rights
may be justified either on the ground that they shield from appropriation or modification artifacts
through which authors and artists have expressed their wills (an activity thought central to
€œpersonhood€) or on the ground that they create social and economic conditions
conducive to creative intellectual activity, which in turn is important to human flourishing. 

Justin Hughes derives from Hegel’s Philosophy of Rights the following guidelines concerning
the proper shape of an intellectual-property system (a) We should be more willing to accord legal
protection to the fruits of highly expressive intellectual activities, (b) Because a persons persona
– his public image, including his physical features, mannerisms, and history – is an important

9
part of personality, it deserves generous legal protection, despite the fact that ordinarily it does
not result from labor (c) Authors and inventors should be permitted to earn respect, honor,
admiration, and money from the public by selling or giving away copies of their works. 

Utilitarian aspect of IP jurisprudence:

The first and most popular of the four employs the familiar utilitarian guideline that lawmakers
must put emphasis on maximization of net social welfare while shaping property rights.  In the
context of intellectual property, it is generally thought that, lawmakers must strike an optimal
balance between, on one hand, the individual rights of the creator and on the other hand
maximization of public interest.

A good example in this regard is William Landess and Richard Posners essay on copyright law. 
The distinctive characteristics of most intellectual products are that they are easily replicated.
Those characteristics in combination create a danger that the creators of such products will be
unable to recoup their costs of expression (i.e. the time and effort devoted to writing or
composing and the costs of negotiating with publishers or record companies), because they will
be undercut by copyists who bear only the low costs of production (the costs of manufacturing
and distributing books or CDs) and thus can offer consumers identical products at very low
prices.  Awareness of this danger will deter creators from making socially valuable intellectual
products in the first instance.  We can avoid this by allocating to the creators (for limited times)
the exclusive right to make copies of their creations. All of the various alternative ways in which
creators might be empowered to recover their costs are, for one reason or another, more wasteful
of social resources. This utilitarian rational, however has been criticized on the ground of its
tendency to create monopoly rights.

Social planning theory and its jurisprudential aspect:

The last of the four approaches says that, property rights in general – and intellectual-property
rights in particular – can and should be shaped so as to help foster the achievement of a just and
attractive culture.  This approach is similar to utilitarianism in its orientation, but dissimilar in its
willingness to deploy visions of a desirable society richer than the conceptions of social welfare
deployed by utilitarians. 

10
Varying jurisprudential views in US, UK, France and Germany:

Until recently, the personality theory had much less currency in American law. However in
contrast, it has figured very prominently in Europe. The French and German copyright regimes,
for example, have been strongly shaped by the writings of Kant and Hegel.  This influence is
especially evident in the generous protection those countries provide for authors and artists
rights. In the past two decades, moral-rights doctrine – and the philosophic perspective on which
it rests – have found increasing favor with American lawmakers, as evidenced most clearly by
the proliferation of state art-preservation statutes and the recent adoption of the federal Visual
Artists Rights Act. 

Critical analysis of the theories of IP jurisprudence:

Lawmakers are confronted these days with many difficult questions involving rights to control
information. The proponents of all four leading theories purport to provide lawmakers with
answers to the upcoming questions in IP jurisprudence. Unfortunately, our choice among these
four options will often make a big difference. The third, for instance, suggests that we should
insist, before issuing a patent or other intellectual-property right, that the discovery in question
must satisfy a meaningful utility requirement; the other three would not. The second would
counsel against conferring legal rights on artists who love their work; the other three point in the
opposite direction. The fourth would suggest that we add to copyright law a requirement
analogous to the patent doctrine of nonobviousness; the others would not. In short, a lawmaker’s
inability to choose among the four will often be disabling.

11
CONCLUSION

In conclusion, is intellectual property a right or a privilege? Even if both words mean actually the
same, both are considerably different in their social significance.

Clearly, none of the justifications have enough consistency to justify the artificial creation of
arbitrary limits.

The limitations of the guidance provided by general theories of intellectual property is perhaps
easiest to see with respect to the last of the four approaches. Lawmakers who try to harness
social-planning theory must make difficult choices at two levels. The first and most obvious
involves formulating a vision of a just and attractive culture. What sort of society should we try,
through adjustments of copyright, patent, and trademark law, to promote?  The possibilities are
endless.

12