Theories of IPR.pptx

Theories of IPR

1. Theories of IPR Intellectual Property Rights Professor M.Z.M.Nomani Department of Law, AMU, Aligarh U nit: 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.

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