Why the Law Protects Intellectual Creations

And ideas are not unowned in the Lockean sense. Every invention builds on what came before, so the labourer is mixing labour with a common stock that others also built.

3. Personality

The claim. Hegel and Kant, in different ways, treated property as an extension of the person's will into the world, and a created work as a particularly intimate extension.

What it explains. Moral rights. Berne Article 6bis gives the author the right to claim authorship and to object to distortion or mutilation prejudicial to honour or reputation, independently of the economic rights and even after they are transferred. Section 57 of the Indian Copyright Act says the same. No incentive argument explains why that right should survive the sale of the copyright.

The objection. It explains copyright far better than it explains patents, and it explains a novel far better than it explains a database or a corporate software product with two hundred authors.

4. Utility, or incentive

The claim. Without exclusivity, too little would be invented and written, because copiers would free ride and creators could not recover their investment. The right is a deliberate cost imposed on the public to buy a benefit for the public.

Where it is written down. The clearest statement in a legal text is Article 7 of TRIPS: the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users, in a manner conducive to social and economic welfare, and to a balance of rights and obligations. That is a utilitarian sentence and it is binding treaty text.

The objection. It is an empirical claim and the evidence is mixed. It is also self limiting: if the case rests on consequences, then where the consequences are bad the case fails, which is what the access to medicines argument says.

The Indian position

India's statutes are utilitarian in structure and personalist in one corner. Compulsory licensing, working requirements, the section 3(d) efficacy test and the farmers' rights chapter all treat the right as an instrument of policy. Section 57 moral rights and the 2012 royalty amendments treat the author as a person with an inalienable connection to the work.

The Supreme Court has put the utilitarian case in terms. In the Bayer compulsory licence case the Bombay High Court said in terms that the law of patent is a compromise between the interest of the inventor and the public, and that public interest is and should always be fundamental. That case is worked in [Compulsory Licensing in India].

A worked example

Suppose Parliament proposed to extend Indian copyright from life plus sixty to life plus a hundred and fifty years.

The natural rights argument would support it, because a natural right has no reason to end at all.

The labour argument would not, because no additional labour is performed by an author who has been dead for a century.

The personality argument would be indifferent, because the personality interest is protected by moral rights that already survive indefinitely under section 57.

The utilitarian argument would oppose it flatly, because nobody writes a book in 2026 because of royalties in 2200, so the extension buys no additional creation and costs the public a century of free access.

That is why the four arguments have to be stated separately. They do not give the same answer, and the examiner is asking which one the system actually runs on.

What it does NOT mean

These are not four ways of saying the same thing. They conflict, and the conflict is the point.

"Reasons for protecting" is not a list of the rights protected. MU's 2015 question has been answered badly for that reason.

The incentive argument is not proved. It is a policy hypothesis, adopted because the alternative is worse, and honest treatment says so.

Quick revision

• Four justifications: natural rights; labour or desert (Locke); personality (Hegel, Kant); utility or incentive.
• Natural rights: echoed in Article 27(2) of the Universal Declaration. Objection: a natural right would not expire, and every system limits the term.
• Labour: objection is that copyright rewards originality and not effort, and Locke's own proviso required enough and as good to be left for others.
• Personality: explains moral rights, Berne Article 6bis and Indian section 57, which no incentive theory explains.
• Utility: stated in binding treaty text at TRIPS Article 7, which speaks of balance, mutual advantage and social and economic welfare.
• India's statutes are structurally utilitarian with a personalist corner in section 57 and the 2012 royalty amendments.
• Test the arguments by asking what each would say about extending the term: they disagree, and that is why they must be stated separately.

Test yourself

1. Set out the reasons for protecting intellectual property, and the objection to each. Four arguments are conventionally given. The natural rights argument holds that a creator has a right to the creation in the nature of things, which the law recognises rather than confers, an idea echoed in Article 27(2) of the Universal Declaration of Human Rights; the objection is that a natural right would not expire and every system in the world limits the term, and that the theory cannot say how wide the right should be. The labour or desert argument, derived from Locke, holds that a person who mixes labour with an unowned thing acquires property in the result; the objections are that copyright rewards originality rather than effort, so that a sentence written in a moment is protected while a decade of unoriginal research is not, that Locke's own proviso required enough and as good to be left for others, and that ideas are never unowned because every creation builds on a common stock. The personality argument, derived from Hegel and Kant, treats a work as an extension of the creator's will; it explains moral rights, which Berne Article 6bis and section 57 of the Indian Copyright Act confer independently of the economic rights, but it explains a novel far better than a corporate database. The utilitarian argument holds that exclusivity is a cost imposed on the public to buy the benefit of creations that would not otherwise be made; the objection is that it is an empirical claim whose evidence is mixed, and that it is self limiting, since a right whose justification is consequences must yield where the consequences are bad.

2. Which justification does the international system actually adopt? The utilitarian one, and it says so. Article 7 of the TRIPS Agreement, headed Objectives, provides that the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations. Every clause of that sentence is consequentialist: contribution, advantage, welfare, balance. Article 8, headed Principles, goes further and permits members to adopt measures necessary to protect public health and nutrition and to promote the public interest in sectors of vital importance to their socio economic and technological development. The Doha Declaration on the TRIPS Agreement and Public Health of 2001 then affirmed that the Agreement should be interpreted and implemented in a manner supportive of members' right to protect public health, and directed attention to Articles 7 and 8 in terms. There is a personalist strand as well, since Berne Article 6bis requires moral rights, although TRIPS Article 9.1 expressly excludes Article 6bis from the obligations it incorporates. But the architecture of the Agreement, and of Indian law under it, is utilitarian.

3. Why does the justification chosen affect the shape of the right? Because each justification answers differently the two questions every system has to settle, how long the right should last and how wide it should be. A natural rights or personality theory has no internal reason for the right to end, so systems built on it give long terms and strong inalienable moral rights, which is the continental European pattern of the author's right. A utilitarian theory measures the term against the incentive it buys, so it gives the shortest term that will produce the creation, and it treats the right as an instrument that may be limited whenever limiting it produces a better result, which is why compulsory licensing, working requirements, fair dealing and the exclusion of unpatentable subject matter all belong naturally to a utilitarian system. A labour theory would produce something different again, protecting effort rather than originality, which no actual system does. The practical way to see the difference is to test a proposed reform against each: a proposal to extend copyright from life plus sixty to life plus a hundred and fifty would be supported by a natural rights theory, unaffected by a personality theory, unsupported by a labour theory since a dead author performs no further labour, and flatly opposed by a utilitarian theory, because nobody writes in 2026 in the expectation of royalties in 2200 and the extension therefore buys no creation at all while costing the public a century of free access.