B.A. LL.B. (Five Years) Sem 10 Intellectual Property Rights II 2021 Sep (100 marks) Question Paper with Solutions

For full marks, cover: the jurisprudential terms: jus in re propria and jus in re aliena; corporeal and incorporeal property (Salmond's two classes of incorporeal property); why IP rights are rights in re propria (ownership, not an encumbrance) and why their object is immaterial (the invention, work, sign or design, not the physical copy); the separation of the right from the material object, with exhaustion and the worked example; how IP behaves as property (owned, assigned, licensed, mortgaged, inherited, protected in rem; Copyright Act sections 18 to 20, 30, 55; Patents Act sections 68 and 69; Trade Marks Act section 38; Designs Act section 30); how it differs from property in land and goods (statutory origin, closed list, limited term, territoriality, non-rivalry, public-interest limits); the justifications (labour, incentive, personality); the critique; Amar Nath Sehgal, Raj Rewal, Video Master, Entertainment Network.

Why IP rights are rights in re propria

Take an inventor with a patent, an author with a copyright, or a trader with a registered mark. None of them exercises a right over somebody else's property. Each is the owner of the thing protected. His right is the whole bundle the law allows: to use, to exclude others, to sell, to license and to bequeath. It is therefore a right in re propria, like ownership of land, not an encumbrance on another's ownership.

Why the object is immaterial

The thing owned is not the physical article but an intangible:

1. for a patent, the invention as claimed;
2. for copyright, the work as expression;
3. for a trade mark, the sign and the goodwill it carries; and
4. for a design, the eye-appealing features applied to articles.

These exist independently of any copy, machine or label. One novel may exist in a million printed copies, each a separate material thing, but there is only one copyright.

Raj Rewal v. Union of India, Delhi High Court, May 2019. The architect of the Hall of Nations sought its reconstruction after the owner demolished it.

Held. The suit failed. The owner's property right in the building prevailed over the architect's statutory right, which did not extend to total destruction. The two cases show the immaterial right and the material object pulling against each other.

IP can itself be encumbered

Because IP is owned, others can acquire rights in re aliena over it. An exclusive licensee of a copyright holds such a right. So does the mortgagee of a patent, and the registered user of a trade mark. The owner's bundle is reduced to that extent, exactly as a lease reduces the ownership of land.

How IP is possessed

A material thing is possessed by physical control. An immaterial thing cannot be held in the hand, so it is possessed by exercise of the right. The owner possesses his copyright by publishing and licensing the work, and his trade mark by using it on goods. That is why non-use matters for trade marks, which may be removed after five years without use.

How IP differs from property in land or goods

1. Created by statute. No copyright exists except under the Act (section 16 of the Copyright Act); patents, marks and designs likewise depend on statute and grant.
2. A closed list. Only the classes of subject matter the statutes name are protected; ideas and facts are not.
3. Limited in time. Copyright usually lasts life plus sixty years, patents twenty years, designs fifteen. Only trade marks may last indefinitely, if used and renewed.
4. Territorial. Each country grants its own rights; treaties only coordinate them.
5. Non-rivalrous. Many people can use an idea or a song at once without using it up. That is why the law must create exclusivity artificially.
6. Limited by public interest. Fair dealing, compulsory licences and research exemptions cut into the owner's rights in ways unknown to ownership of a chattel.

Entertainment Network (India) Ltd. v. Super Cassettes Industries Ltd., (2008) 13 SCC 30. A music owner refused a radio station a licence except on terms the station considered unreasonable.

Conclusion. The statement is accurate. IP rights are rights in re propria because the holder owns the protected thing outright, not as an encumbrance on another's ownership. Their object is immaterial: an invention, a work, a sign or a design, distinct from any physical copy. They behave as property in being owned, transferred, licensed, inherited and protected against all. But as creatures of statute they are limited in subject, time, territory and by the public interest.