The Concept and the Nature of Intellectual Property

4. It is territorial. It runs only where its statute runs. Worked in [Territoriality and the Independence of Rights].

5. It is limited in time. Twenty years from filing for a patent under section 53; the author's life and sixty calendar years for most Indian copyright under section 22; ten years, extendable to fifteen, for a design under section 11; ten years renewable indefinitely for a trade mark under section 25.

6. It is transferable and divisible. It can be assigned wholly or partly, licensed exclusively or non-exclusively, split by territory, by field of use, by period. This is what makes it a commercial asset, and it is the subject of [Commercial Exploitation: Assignment and Transmission] and the chapters after it.

7. It can be inherited and can be security. It passes on death, it can be mortgaged, and it appears on a balance sheet.

8. It is subject to public interest limits from the inside. Compulsory licences, fair dealing, government use, revocation for non-working: the limits are written into the same statutes that create the rights. This is the point Module IV builds on.

9. It is capable of simultaneous exploitation. A licensor can license the same patent to fifty people at once, which no owner of a chattel can do with the chattel.

A distinctions table students lose marks on

A worked example

Kavita Deshmukh designs a folding solar lamp for use in villages without power.

The mechanism is potentially a patent. If the folding hinge is new and involves an inventive step, section 2(1)(j) of the Patents Act is satisfied and a patent may be granted after examination, running twenty years from the filing date.

The shape is potentially a design. If the outward appearance of the lamp is new and appeals to the eye, the Designs Act protects it for ten years extendable by five, and it is registered without examination for inventiveness.

Those two cannot always coexist. Section 2(d) of the Designs Act excludes from "design" anything that is a mode or principle of construction, so the functional hinge is a patent question and the pleasing shape is a design question, and Kavita's lawyer has to separate them.

The instruction leaflet is copyright, automatically, as a literary work.

The name SURYA is a trade mark, which she can renew every ten years for ever, so long as she keeps using it.

Four rights. Four terms. Four tests. One lamp. The nature of intellectual property is the reason that sentence is not a paradox.

What it does NOT mean

"Nature" does not mean "advantages". A weak answer lists benefits: encourages innovation, rewards creators, promotes trade. Those are justifications, and they belong in [Why the Law Protects Intellectual Creations]. The nature of the right is what it is and how it behaves.

It is not true that all intellectual property requires registration. Copyright never does, and passing off protects an unregistered mark.

It is not true that intellectual property confers a monopoly over an idea. Copyright protects expression and not the idea; a patent protects a claimed invention and not the field.

Quick revision

• Concept: a bundle of statutory rights to prevent defined acts in relation to a creation of the mind, for a defined period.
• The widest definition is Article 2(viii) of the WIPO Convention, which ends with "all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields", and is therefore open ended.
• Nature, nine features: statutory; intangible; negative; territorial; time limited; transferable and divisible; inheritable and capable of being security; internally limited by public interest provisions; capable of simultaneous exploitation by many licensees.
• Indian terms to quote: patent 20 years (section 53); copyright life plus 60 (section 22); design 10 plus 5 (section 11); trade mark 10 years renewable for ever (section 25).
• Passing off is the one protection here that is not statutory; it is a common law tort protecting goodwill.
• Nature is not advantages. The justifications are a separate question.

Test yourself

1. Explain the concept and the nature of intellectual property. The concept is that intellectual property is a bundle of rights conferred by statute over creations of the mind, each right consisting of a power to prevent other people from doing defined acts in relation to the creation for a defined period. The widest authoritative statement of what falls within it is Article 2(viii) of the Convention Establishing the World Intellectual Property Organization, which lists literary, artistic and scientific works, performances, phonograms and broadcasts, inventions in all fields of human endeavour, scientific discoveries, industrial designs, trademarks, service marks, commercial names and designations, and protection against unfair competition, and then adds all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields, which makes the definition open ended.

The nature of the right is a different matter and consists of the features that distinguish it from other property: it is statutory rather than natural, so that no Indian intellectual property right exists at common law apart from the tort of passing off; it is intangible and therefore incapable of possession; it is negative, conferring a power to exclude rather than a licence to act; it is territorial, running only where its statute runs; it is limited in time, after which the subject matter enters the public domain; it is transferable and divisible by assignment and licence, by territory, field and period; it is capable of being inherited and of being given as security; it carries public interest limitations written into the same statute that creates it; and it can be exploited by many licensees at once, which no owner of a chattel can achieve.

2. Why must an answer on the nature of intellectual property not become a list of advantages? Because the two questions are different and the examiner has asked one of them. The nature of a right is a description of what it is and how it behaves, and it is answered by features that can be demonstrated from the statute: that section 48 of the Patents Act confers a right to prevent and nothing more, that section 53 fixes a term of twenty years, that section 68 requires an assignment to be in writing. The advantages of an intellectual property system are a claim about consequences, and they belong to the separate question why the law protects intellectual creations at all, which is answered by the natural rights, labour, personality and utilitarian arguments and by the objections to each. A candidate who writes that intellectual property encourages innovation, rewards creativity and promotes trade has produced three assertions about policy and has not described the right, and the answer reads as though the candidate does not know the difference. The reliable structure is to state the concept, then the features of the nature with a statutory provision beside each, and to leave the justifications for the question that asks for them.

3. Kavita designs a folding solar lamp. Identify the rights and the tests each must satisfy. The folding mechanism may be a patentable invention, which requires novelty, an inventive step and industrial applicability under section 2(1)(j) of the Patents Act 1970, and if granted the patent runs twenty years from the filing date under section 53. The outward appearance of the lamp may be registrable as a design under the Designs Act 2000 if the shape, configuration, pattern or ornament is new or original and appeals to the eye, protection running ten years and extendable by five under section 11. The two do not overlap, because section 2(d) of the Designs Act excludes from the definition of design any mode or principle of construction, so the functional aspects of the hinge belong to the patent claim and the aesthetic aspects to the design registration, and the drafting has to separate them. The instruction leaflet supplied with the lamp is a literary work in which copyright subsists automatically on creation, for the author's life and sixty calendar years thereafter under section 22 of the Copyright Act 1957. The brand name under which the lamp is sold is a trade mark, protectable in passing off from the moment goodwill exists and registrable under the Trade Marks Act 1999 for ten years, renewable indefinitely under section 25. Four rights, four tests, four terms, one product.