B.A. LL.B. (Five Years) Sem 9 Intellectual Property Rights I 2016 Jun Question Paper with Solutions

1. Corporeal property has a physical body. Land, a house, a car and a sack of rice can be seen, touched, held and handed over.
2. Incorporeal property has no body. It exists only as a legal right enforceable against others. A debt, a share in a company and an easement are examples.

Intellectual property belongs to the second kind. It is "intangible" because it cannot be touched. It is "incorporeal" because the law gives it no body; it is a bundle of rights.

Why intellectual property is intangible

What the owner owns is not the book, the bottle or the machine. It is the creation of the mind that the object carries: the literary work, the brand, the invention. The physical copy is only its vehicle.

The law protects the form in which an idea is expressed, not the bare idea. In R.G. Anand v. Delux Films, AIR 1978 SC 1613, the author of the play "Hum Hindustani" sued the makers of the film "New Delhi", which was also about provincial prejudice. The Supreme Court dismissed the appeal. There is no copyright in an idea, theme or plot, only in its form and manner of expression. So even within intellectual property, the subject matter is defined in abstract terms, not by any physical thing.

The consequences of intangibility

1. No possession, so registers. Nobody can prove ownership by holding a patent or a mark. So the law keeps public registers: of patents, of trade marks, of designs and of GIs. Copyright is the exception. It arises on creation, and registration is optional (Copyright Act, section 45). In Burroughs Wellcome (India) Ltd. v. Uni-Sole Pvt. Ltd., 1997 3 MhLJ 914, the Bombay High Court held that no provision of the Copyright Act deprives an author of his rights for want of registration.

2. No delivery, so writing. A car passes with its keys. An intangible right cannot be handed over. So an assignment, licence or mortgage of a patent is valid only in writing, duly executed (Patents Act, section 68). An assignment of copyright must be in writing signed by the assignor (Copyright Act, section 19(1)). A trade mark "assignment" means an assignment in writing (Trade Marks Act, section 2(1)(b)).

5. A limited term. Land is owned without limit of time. Intellectual property lasts only for the statutory term. A patent lasts twenty years (Patents Act, section 53). Most copyright lasts for the author's life plus sixty years (Copyright Act, section 22). A trade mark is registered for ten years at a time, renewable without limit (Trade Marks Act, section 25). When a patent or copyright ends, the subject matter passes to the public. A trade mark lasts only while it is renewed and used.

6. Territorial reach. Land is protected where it lies. An intangible right exists only in the country whose law grants it. In Penguin Books Ltd. v. India Book Distributors, AIR 1985 Del 29, the defendants imported American editions, lawfully printed in the United States, into India, where Penguin held the exclusive rights. The Delhi High Court restrained the imports. Trade marks too are territorial (Toyota Jidosha Kabushiki Kaisha v. Prius Auto Industries Ltd., (2018) 2 SCC 1).

The thing and the right are separate

The physical object and the intellectual property in it are two separate pieces of property.

1. Buying a book does not buy its copyright. The buyer may read, lend or resell his copy. He may not reproduce it for sale (Copyright Act, section 14).

Conclusion. Intellectual property is a right "in the nature of intangible incorporeal property". It has no body, and its subject matter is the expression of an idea, not the idea or the physical copy (R.G. Anand). It is still true property: it can be exclusively enjoyed, assigned, licensed, mortgaged and inherited, and taken away only by law (Article 300A). Because it is intangible, the law replaces possession with registers, though copyright needs none (Burroughs Wellcome). It replaces delivery with writing and theft with infringement remedies (Microsoft Corporation v. Yogesh Papat). It also limits the right in time, in territory (Penguin Books) and in the public interest (Entertainment Network).