The process of well-being of a human depend on the capacity of com up with new
and different creation. Technological process requires the development and
application of new invention and application, while a vibrant culture will
always seek a new way to seek itself.
This paper goes through various thoughts of legal scholars given on the nature
and working of the intellectual property rights. This pare has tried draw out
its own conclusion after reading various articles and books written by the
various writer on intellectual property.
In the process of research and reading through the article and books. It was
found that intellectual property right is broadly classified through various
theory but in this research i have found that its usage is necessary to
determine which theory is best to tell the nature of the right that is natural
right, utilitarian and so on.
Intellectual property also called as IP has become the most talked topic
everywhere with the rise of technology and science. Thu, this topic is need to
be understand very precisely. In simple terms IP is an outcome of human
intellect and its creativity is promised to be under the protection of the laws,
There are laws which protect intangible assets which are product of human
creativity, which gets rights of protection through patents copyrights and
trademark2. it works similarly as someone’s physical property is protected by
The basic objective of the research is to elucidate about the theories behind IP
rights. Before the conclusion we will go through various theories of law which
is made for betterment of the social legal issues by different legal scholars
Problem of this research is to find out which theory has explained the
intellectual property law with a complete correct form of it. In the end this
article will provide you with a clear conclusion about the topic according to
the study done in various parts of this article
Theories on IP
For a better understanding of the nature and the validity if the rights which
prevails under the intellectual property right, we have to look into the
philosophical background of the intellectual property right. To do so we have to
look into few numbers of theorist like, Jhon Stuart Mills, Hegel and John Locke.
These theorists are those who came with different theorist in a different era,
these are not directly related to intellectual property. But here we can use
their theories to justify intellectual property rights.
First, we will begin with utilitarian theory of intellectual property rights.
John Stuart mill said in his utilitarian theory – an act is said to be good if
it results in “the greatest good for greatest number”. Now how will be known an
act is good or bad, for this john said, if the happiness outweighs the harm,
then it is said that act is good 4.
If we look into intellectual property with a utilitarian view to it then, we can
say that, for instance of patent, patent is a system which provide monopoly to
the inventor and the inventor enjoys his monopoly right for 20 years.
Now, according to the utilitarian theory, the end result of granting patent
would be beneficial for society, if the new invention does not get certain kind
of protection by the law, then anyone who has certain kind of idea which could
be proved to be better for the society, won’t come forward to show up hi
Mills has also agreed to the fact that patent monopiles are appropriate compared
to earlier award system given by the government.
The natural theory says about intellectual property rights, according to the
John Lock a book is a result of writer’s intellectual labour. Using of one’s
idea or creativity is an individual’s natural right. In basic terms natural
right is something5, what we have born with it is the supreme rights. These
rights are given by the god and is available to all men and it is subject to
benefit of whole society.
John lock, believed that what is given by the god shall be available to everyone
and should not be restricted to only one human being6. According to Lock if
anyone is adding value by his labour in process of using is labour on the
resources then the derived objective could be claimed by the individual.
each theory has its own speciality or we can say each theory which are made by
scholars has its own pros and cons. Each theory has derived from thought given
by some great legal theorist in a different era. Now through, based on those
thought given by them we tend to interpret then intellectual property law. Thus,
according to me it is very difficult to conclude with any one theory which suits
the topic perfectly.
- Mitchel B. Wallerstein, Global Dimensions of Intellectual Property
Rights in Science and Technology, 43
- Peter Drahos, A philosophy of Intellectual Property Rights, 17
- Oxford handbook of intellectual property right
- Harlan B. Miller, The Limits of Utilitarianism, JSTOR
- Balew Mersha, Theories of Intellectual Property