Theories of IPR

1. Theories of IPR
Intellectual
Property Rights
Professor M.Z.M.Nomani
Department of Law, AMU, Aligarh
Unit: 1
Lecture: 2

2. Propounded by: Jeremy Bentham
Based on the Idea: Greatest good for the greatest number
According to this theory, the law should guarantee maximum benefits for the maximum
members of the society.
Criticism: The main criticism of this theory is that the utility gains from the impetus of
a unique creation are neutralized against the losses incurred due to exclusive ownership
of the creation. Thus the issue arises if at all the benefits of intellectual property rights
can be weighed against the casualties or not.
Utilitarian Theory

3. Propounded by: John Locke
A person has a natural right to the fruits of his labour and this should be recognized
as his property, whether in tangible or intangible terms.
Criticism: This theory does not deal with temporal limitation of IPR. The usage of
IPR is time bound, which means that after expiration a certain period of time, the
IPR protected objects will be available in public domain. But the Lockean theory
talks about unlimited term of ownership of tangible properties.
Labour Theory

4. Propounded by :Kant and Georg Wilhelm Friedrich Hegel
A person would be more self-assertive when she/he owns property. He will feel
more equal (equality) and free (independent).
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.
Criticism: If a work of art were part of an individual’s personality then it would
cease to exist after the person dies.
Personality Theory

5. Social Planning Theory
This theory is rooted in the proposition that property rights in general and
IPR in particular can and should be shaped so as to help foster the
achievement of a just and attractive culture.
Criticism: It cannot achieve agreement on what are the goals that such
"social planning: seeks to achieve.

6. Incentive Theory
Technological innovation, science and creative activity are considered as essentials
for cultural, social, scientific and economic development. Inventors who make
inventions and creators who create works would be unlikely to engage in creative
efforts unless there is guaranteed protection for their endeavours. A free market
with no intellectual property rights will offer little promise for intellectual works.
Intellectual property right is, thus, the government’s attempt to encourage creative
output by ensuring creators certain rights that limit or control the unauthorized use
of their inventions.

7. Bargain Theory
IPR provides an excellent balance between competing interests by (i) protecting
private interest of the inventor by giving him exclusive rights for a certain period of
time, on the one hand and promoting investment on the other hand; and (ii) by
providing benefits for society at large in terms of increased wealth, knowledge, and
employment. Thus, not only the creators of intellectual property but the public also
benefit from the protection of IP. Also, the system encourages new products and
processes to reach the market and bolster the trade in ideas. Hence, it provides
adequate benefits and protection for the inventors/creators, the consumers and the
state simultaneously.

8. Trade Secret Avoidance Theory
Once the period of protection expires, by the requirement of disclosure, the
invention/work falls into the public domain and anyone is free to produce and sell
it. By requiring disclosure, the IPR system facilitates the exchange of information
and encourages further invention. IPR laws thus, by discouraging reliance on
commercial secrecy and encouraging ‘trade secret avoidance’, aim at protecting the
knowledge created through human endeavor in order to stimulate and promote
further creativity.

9. Economic Theory
Economic future of any country primarily depends on the superior corpus of new
knowledge and technological development. IPRs help in the successful marketing
of know- how in the competing global market. Progress in technology is a
quintessence of industrial development. IPR protects the know-how involved in the
invention stimulating more technological developments which in turn strengthen
the economy of the country. It also helps in accumulating foreign currency and
enhances the export of the country as other countries have to procure the IP
products from the country of protection.

10. Thank You