Development of IPR System

and
Jurisprudential Justification of IPRs

Amol Sapatnekar

The Development of Systems of

IPR

There was realization for necessary international as well as

national protection of these rights and properties as early as
17th Century. Therefore various international conventions,
treaties and agreements were signed (e.g. Paris Convention on
Protection of Industrial Property, 1883 and Berne Convention
for the Protection of Literary and Artistic works,1886 )

Around the middle of the last century (1944), when the Second
World War was coming to an end and Germany was losing,
some economists held a conference in Briton Woods
Hampshire, USA to restore the economic order.

They thought the world would be a better place if there were

international bodies: to solve monetary/currency problem;
to reconstruct and develop the nations; and
to harmonise tariff and international trade.

The first and the second were established and are

loosely known as the International Monetary Fund (IMF)
and the World Bank. The third one, to be known as, the
International Trade Organisation (ITO) never took off.

The US Congress did not approve it and without its

support it was not possible to establish it. But all was
not lost.

Representatives of 56 countries again met in Havana

(1947) to formulate principles to be followed by nations
to improve international trade.

This formed the basis for signing up a General

Agreement on Tariff and Trade (GATT) in Geneva by the
end of the same year.

The contracting nations also resolved to form a Board of

Trade with a Secretary General to look after its further
revision and implementation.

Thus ended the first round of GATT. Legally GATT was

not a formal Organisation, but an agreement entered
into by the contracting nations.

Broadly GATT dealt with reducing tariffs and improving

trade among the nations, though there wasnt any
dispute settlement mechanism.

Few more rounds were held and it was the 8 th round,

started in 1986, with a meeting in Uruguay, that led to
the creation of the World Trade Organisation (WTO).

It was in this round that the US sought inclusion of a

few more items, amongst others: - trade related to
Intellectual Property Rights, trade related to investment
measures, trade related to services, agricultural
subsidy, dispute settlement mechanism.

The 8th round continued for seven and half years and it
often appeared that an agreement would not be
reached.

But ultimately a draft was prepared under SecretaryGeneral Arthur Dunkel that came to be known as the
Dunkel Draft. It was debated and most of it was
approved of in December 1993.

It was formally signed on April 15, 1994 by 125

countries at a meeting held in Marrakesh (Morocco)
inter alia, it meant- establishment of the WTO from
January 1, 1995, the Trade Policy Review Body, and the
Dispute Settlement Body and accepting the agreements
forming the basis for international trade.

Most of the WTO agreement apply to all WTO members

i.e. a member has to accept all of them; he cannot
choose.

These agreements provide certain minimum standards

to be observed by members and keep trade policies of
the members within agreed limits.

The important agreements within WTO system are:

1. General Agreement on Tariffs and Trade (GATT)
2. General Agreement on Trade in Services (GATS)
3. Trade-Related Aspects of Intellectual Property (TRIPS)

TRIPS provides for the following kinds of Intellectual

Property Rights:

Copyright and Related Rights,

Trademarks,
Geographical Indications,
Industrial Designs,
Patents,
Layout-Designs (Topographies) of Integrated Circuits,
Protection of Undisclosed Information (Trade Secret).

TRIPS provide a minimum standard to be observed by

the members.

India has amended the laws to bring them in conformity

with the TRIPS.

The time limit to do so was provided in Article 65, Part

VI (Transitional Agreement) of the TRIPS. Under this
provision, we had to amend our laws by 31-12-2005 (it
received mixed response in political world).

World Intellectual Property Organization (WIPO) was established

by WIPO Convention in 1967 to promote the protection of
Intellectual Property throughout the world through cooperation
among states and in collaboration with other international
organizations.

The WIPO convention provides that Intellectual property shall

include rights relating to:
Literary, artistic and scientific works;
Performances of performing artists, phonograms &
broadcasts;
Inventions in all fields of human endeavour;
Scientific discoveries;
Industrial designs;
Trademarks, service marks and commercial names and
designations;
Protection against unfair competition;
and all other rights resulting from intellectual activity in the industrial,
scientific, literary or artistic fields. [Article 2 (viii)]

Jurisprudential Justification Of
Intellectual Property Rights

Jurisprudential Justification Of Intellectual

Property Rights
Justification

for protection of private property;

the private property resulting when labour is
applied to nature, is an incentive for
discovery and works as a foundation for an
ordered economic system the law protects private
property.
Protection of IP raises complex philosophical
questions like;
Should such IPRs be more limited than traditional property
rights?
What are philosophical justifications for IP protection ?
All

justifications for IP protection whether based on

economics, or morality; maintain a fundamental
difference between ideas and tangible
property.

Theories Of IPR
Following theories are proposed to justify the
exclusive rights in ideas
Natural Rights Theory
All of the nature is a heritage to be shared equally
by all human beings.
With the associated proposition; that a person who
labour upon resources that are either not owned
or held in common has a natural property right
to the fruits of his efforts and that State has a
duty to respect and enforce that natural right
These ideas / thoughts originating in the writings of
John Locke are widely thought to be especially
applicable to the field of intellectual property.

Theories Of IPR
The

basic core argument of

Locke's property theory is that :
Labour is mine and when I
appropriate objects from the
common, I join my labour to
them.

If

you take objects I have

gathered you have also taken
my labour, since I have attached
my labour to those objects.

Theories Of IPR
The

raw material is deemed to be held in

common and the labour contributes to
the value of finished products
'Labour theory of property '
holds that a person's productive work
is the basis for a property claim.

Locke's

theory of property provides a

strong support for most forms of IP.

Theories Of IPR
According

to this view, IP
permits to reward the creator
for his work in order to
encourage him in his
innovative work, he will be
more inspired to produce and
more willing to make his work
available to public.

Theories Of IPR
This

emphasizes a labour criterion of property,

whereby individuals may claim property in all
goods they appropriate from the state of nature
through the work of their hands
The labour theory has a seam with regard to
intellectual property .
Thus natural theory of rights justifies IPRs that
every man has a natural right over the results of
his labour.
E.g. copyright laws ( in the context of Moral Rights
of author)

Theories Of IPR

Economic

incentive Theory According to this

theory IP protection is necessary to encourage
investors, authors, and artists to invest in the
process of creation.
Because of its intangible nature, though IP poses,
what economists refer to as a 'public goods'
problem;
the application of intellectual property rights may be
seen to offer a solution to the 'public goods '
problem

Theories Of IPR
The existence of IPRs encourages; the earnest
of inventors to pursue their creative efforts.
If earnest can obtain the right to prevent
others from copying his inventions, then
he stands a much better chance to reap a
profit.
Hence he will be much more inclined to
make the initial investment in research
and development
Property
rights
are
conferred
on
intangibles to encourage production of
information through economic reward.

Theories Of IPR

Consideration Theory
According to this theory IPRs provide
consideration to creator, author, artist.
A person who creates a work or has a good
idea which he develops has a right based
partly on morality and partly on concept
of reward to control the use and
exploitation of it, and he should be able to
prevent others from taking unfair advantage
from his efforts.
Why should others be able to save
themselves all the time and efforts
required to create or invest in the thing ?

Theories Of IPR
On

this basis law should provide

remedies against those who
appropriate the ideas of others.
Person devoting his time and effort in
such creation has right to claim the
thing as his own and also has a
right to obtain some reward for all
his work

Theories Of IPR
Unfair

Competition Theory

When a 3rd Party infringes the rights of IP

owner, it constitutes an act of unfair
competition and falls under the
general body of tort law.