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Saturday / March 25.

Philosophical Foundation of Intellectual Property – II

By Paramjeet Singh

This article is the second part of a series of three articles by Paramjeet Singh. Find the first part here and the third part here.

Genesis of the Intellectual Property System

The Intellectual Property (IP) system reflects the interest of the manufacturers. However, with time, arguments of IP having a social value were advanced by IPR holders. According to this thinking, the existence of the IP system led to innovation, which is good for the society. A person would only innovate if it is known that the product of his/her intellect would be protected. But then again, the process of inventing has more to do with the working of a person’s intellect than with his/her commercial aspirations. People invent because they have the urge to do that which has never been done before, not for the commercial exploitation of their inventions.

According to my opinion, IPRs serve as a very important tool to commercialize an invention. ‘It serves as an incentive for innovation’ is not an appropriate statement unless innovation as a process excludes invention as such and is totally about commercialization of the invention. It is important to mention that some people in the field of business management call the “invention” a process of generating ideas and “innovation” as a process of commercializing those ideas. There are many ways to interpret what an innovation is. But keeping the ordinary meaning of the word in mind, it for sure takes into account the intellectual creativity which cannot be incentivized through existence of IPR system. In the last sentence we assume that the said intellectual creation satisfies all the criteria for protection as intellectual property. It is further submitted that it would not be justified if we call IPRs as a mean to incentivise commercialization. If inventors or creators are thinking about the IPRs even before they have created anything, they are actually starting to think from the point where there is a presumption that invention has been made or the work has been created.

If inventors or creators are thinking about the IPRs even before they have created anything, they are actually starting to think from the point where there is a presumption that invention has been made or the work has been created.

It is an automatic scenario. In order to illustrate this point, I would like to submit the following illustration: Mr. A is thinking about IPR system in relation to his possible invention X. In this case, the picture of IPR system crops up into the mind of Mr. A only when he has made a presumption in his mind that invention X exists in relation to the concept of application of IPR system as such. This implies that the existence of IPR system is only brought into the picture when X has been presumed to have been created or invented.

Importance of IPR system lies in the fact that it is a negative right as many scholars call it. Without doubting the sanctity of this statement, let’s discuss its importance here. If IPR is a negative right i.e. a right to exclude others then its importance becomes evident only in the commercial context. The commercial context is a wide term and may also include situations where no economics is involved. This situation where no economics is involved is mostly dealt with by moral rights. However, it is important to note that in case moral rights come into the picture, the issue can be dealt with by ethics, competition law, unfair competition and tort law. Therefore, discussion of IP system as something that ventures into the moral domain should be only in the context where some kind of commercial aspirations of the conflicting parties are involved. As far as the moral rights in isolation to the commercial aspects are concerned, the appropriate law applicable should not be the IPRs. If IPRs were made to take into account the principle of morality to the exclusion of the commercial aspect, no commercial entity in this world would be interested in its application and enforcement.

If IPRs were made to take into account the principle of morality to the exclusion of the commercial aspect, no commercial entity in this world would be interested in its application and enforcement.

In the field of copyright, it is usually important to attribute moral rights to the author which is something way beyond the commercialization aspect. However, in the practical world it would be very difficult to find an instance wherein an author would be interested in enforcing copyrights without there being any commercial feasibility of his or her work. This implies two things. The first, in case of copyright to IPR system does not play any role that leads to the creation of the work. The second, copyright only becomes significant after the work has been created for commercial reasons or for moral reasons. This takes the IPR system totally outside the domain where the work is created in the true sense of it being the product of an intellect.

Success is ensured if a manufacturer is innovative

In a vast market, innovation attracts consumers but Intellectual Property system commercializes it | Photo Courtesy: Pexels

The above analysis of the basic concept behind the genesis of the IP system provides us with a conclusion that IP system is meant to cater to the interests of those manufacturers that came up with something new vide investment of their intellect and/or money, time etc. qua rest of those who merely wanted to copy the same. It is an instrument that becomes important only in the commercial sense. Therefore, at this point, we can say that the IP law as such should reflect the individual values instead of social values. However, we shall go ahead from this point to judge the rationality of this hypothesis.

What Should a Law Reflect?

Law, as such, is subject-matter-oriented and not dispute-oriented. As discussed above, law is there to be applied to the real situations that encompass the subject matter to which the law is directed. A situation or a dispute always, in almost all cases, consists of many subject matters. It is a real world where everything has two or more perspectives attached to it. The sole reason for this is the presence of two different parties to a dispute. The presence of dispute itself indicates the two different perspectives, of two different parties, in conflict with each other. The more perspectives there are, the more subject matters they would fall into. The more subject matters are attached to a dispute, the more number of specific laws would be applicable to it. It might happen that all the applicable laws to a single dispute might not be coherent at least when it comes to the interpretation of their provisions. This causes conflict. Therefore, the discussion in this essay would take into account the fact that application of law is the inherent character of the law itself and therefore should have the bearing on what the law should reflect in combination of all the significant factors. This assumption is important here because the topic is more about value judgment based on logical analysis of all the arguments.

The question what should a law reflect is something that is totally attached to what the law is for and what it seeks to govern. Reflection in law should be more about what it is for, in the scenario that is marred by a multitude of factors including those that do not fall within the purview of what the law seeks to govern rather than only what it seeks to govern.

Law as a whole is a code that governs the conduct of human beings in the society.

According to the aforementioned discussion, it becomes apparent that the reflection of law lies in its relative situation in the matrix of the factors constituting a scenario that is characterized by various subject matters hailing from different fields of laws. Law as a whole is a code that governs the conduct of human beings in the society. For the purpose of ease of discussion, scholars divided the law into various fields and sub-fields. IP law as such is the part of this bigger field of law that governs all aspects of human conduct. Therefore, it can be implied at this stage of discussion that IP law should reflect the social values or that part of social values which it seeks to govern. And this, in turn, does not amount to the individual values.


Paramjeet Singh is a lawyer practicing before the Supreme Court of India. 

Featured Image Credits: Pexels

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