Theories of Intellectual Property

In his Second Treatise of Government (1690), Locke argued that God gave the world to humankind in common, but a person owns his body and therefore his labour. When labour is mixed with a thing in the common, it becomes the labourer's property. Applied to IP, the author who labours to compose a work or the inventor who toils to create an invention deserves ownership. Two limits are famous: the "enough and as good" proviso (appropriation is justified only if enough and as good is left in common for others) and the spoilage limitation. Critics say ideas are not scarce, so the proviso is hard to apply, and that labour theory cannot justify a time-limited right. The theory underlies the old UK "sweat of the brow" standard (University of London Press v. University Tutorial Press, 1916), later displaced in India by the "modicum of creativity" standard (Eastern Book Company v. D.B. Modak, 2008).

Kant treated a book as an act of speech by the author to the public, an expression of personality that cannot be fully alienated. Hegel argued that property is the embodiment of the will and personality of the owner. Radin's "personhood" version distinguishes personal property (closely tied to self-development) from fungible property. This theory explains moral rights: the rights of paternity and integrity that survive assignment of copyright (Section 57, Copyright Act; Article 6bis Berne). It is dominant in civil-law countries (France, Germany), where author's rights (droit d'auteur) are central, while the common-law tradition leans utilitarian.

Bentham's maxim "the greatest happiness of the greatest number" supports IP only where benefits of creativity exceed the costs of monopoly. The economic form is the incentive theory: information is a public good (non-rival: my use does not diminish yours; non-excludable: hard to stop copying), so without legal exclusivity the creator cannot recover costs and too little will be created. This theory explains why terms are limited, why fair dealing and compulsory licences exist, and why the US Constitution grants Congress power "to promote the progress of science and useful arts." TRIPS Article 7 (objectives: "mutual advantage of producers and users of technological knowledge") is explicitly utilitarian. Criticisms: it rests on assumptions that are hard to measure, and it cannot explain moral rights.

Fisher's social planning theory asks that IP be used as a tool to achieve a just culture, giving weight to democratic participation, diversity and access. It underpins public-interest limits: Sections 31–31D (compulsory/statutory licences) and Section 52 (fair dealing) of the Copyright Act, and Sections 84 and 92 (compulsory licences) of the Patents Act. The commons and anticommons arguments warn that over-protection harms follow-on innovation.

• Idea–expression dichotomy: copyright protects expression, not ideas (R.G. Anand v. Delux Films, SC 1978).

• Originality tests: sweat of the brow (UK, old) vs modicum of creativity (US Feist v. Rural, 1991; India Eastern Book Company, 2008).

• Rights vs welfare: natural-law and personality theories are rights-based (deontological); utilitarian and economic theories are consequence-based.

• Public domain: works whose protection has expired or never existed, free for all to use.