20 Dec 2007

What are Intellectual Property Rights?

Intellectual Property Rights or IPRs are the watch word for today, not only for the legal systems but also for the common man. Everyone seems to be gripping with the this word. So why not dwell with it here. After they are, if not the latest, one of the latest additions to law.

So what is

To be simplistic enough,
IPR symbolizes Intellectual Property i.e. an outcome of intellect. But since intellect is relative or rather a subjective concept, how can there be intellectual property? Because it is not the intellect with is the subject-matter but the property element in it. Think of an artist making a portrait of a flowing river. Now anyone and everyone who passes by from the spot can see the image which the artist is seeing. But the point is that this artist puts what he sees on canvas in a manner supposedly no other person would be able to put it. Why? Because the artist is putting his intellectual abilities (also called 'skills') into usage to come up with the picture. Since this is the outcome of his intellect, the outcome is intellectual property i.e. this picture is an intellectual property. And that this intellectual property is attributable to the artist, he has got intellectual property right over it, unless he passes it on ofcourse, like by way of selling the picture etc. Similar to this, a book is the intellectual property of its author and he has rights over it.

This is how we arrive at IPRs. They are an outcome of intellectual simulation and since it takes skills, effort, investment and labour, certain rights are attributable to it. These rights i.e. IPRs are primarily conferred upon the author or creator of intellectual property such that the author or creator can exploit the intellectual property to make himself better off. Like in case of the picture, the artist has a right to sell the picture to make himself better off. Similarly the author has a right to sell his manuscript to a publisher and derive the benefits from the publication of the book (technically known as 'royalty').

But what happens if someone makes a copy of the artist's picture and sells it as his own. Similarly with the case of the author, someone makes a photocopy of the book and earns money by selling it. Is it fair and just to the author or the artist? Notions of justice demand that such situations be prevented from, as they do not allow the author and artist to realize the value of the work they have created in their fullest terms. So we have the second category of rights which are by their nature exclusionary i.e. prohibit others from making unauthorized use of the intellectual property of another. One may as well note the words unauthorized because in certain situations the author may as well transfer or sell off his right over the intellectual property and in such a case the purchaser of the property would be justly entitled to use it.

Here comes the third factor. Who ensure that a particular item is an intellectual property and that it is worth granting the protection from others? Well it is a function of the State, which defines what gives a descriptive ambit of what according to it is intellectual property, when does it qualify for protection and what are the rights associated with it. So we have various qualifying criterion such as, originality, novelity, utility etc., which are required to be satisfied before the State grants such rights over the property upon the author.

So we have IPRs, which constitute rights over intellectual property but rights of various facets such as right of paternity (i.e. to be recognized as the author or creator of the property), other moral rights (i.e. right against destruction or deprivation of one's property), exclusionary rights (i.e. right to exclude others from usage of your property against your wishes) etc.

To add a qualification, however, in cases where the State feels that it would be unjust to grant rights to an individual or group of such nature that would be harmful to the interests or a larger social group, it may as well seek to deny such rights or forcefully acquire such rights. Like the ongoing debate on the rights of the pharmaceutical companies over their products vis-a-vis the rights of the poor and suffering, poses a good illustration of this divide. In such situations it becomes a question of national or international accord as to the treatment to be meted to the circumstances but what I wish to point out is that there are negative consequences of such rights as well.

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