The expanding regime of incorporeal property: intellectual property and beyond

1. Why immaterial things became property

Immaterial goods are non-rivalrous (my use does not reduce yours) and non-excludable (once disclosed, hard to fence). Without law, others can copy at little cost, so there is little incentive to invest in invention or creation. Intellectual property creates artificial scarcity by giving the creator exclusive rights for a period. The justifications mirror those for property generally:

• Utilitarian / incentive: the dominant Anglo-American rationale; the US Constitution empowers Congress to promote the progress of science and useful arts by securing exclusive rights for limited times.
• Lockean labour: the creator mixes intellectual labour with the common stock of ideas.
• Hegelian personality: works embody the author’s personality, the basis of moral rights in continental droit d’auteur and in section 57 of the Copyright Act, 1957.
• Reward and disclosure (patents): monopoly in exchange for publication of the invention.

The expansion has been driven by trade: the TRIPS Agreement (1994), part of the WTO, requires minimum standards of protection from all members and brought IP disputes under WTO dispute settlement.

2. The categories

3. The concept behind each

• Patents protect ideas embodied in technical solutions. India’s policy limit is section 3(d): a new form of a known substance is not an invention unless it shows enhanced efficacy. In Novartis AG v. Union of India, 2013 INSC 198, the Court refused a patent for the beta crystalline form of imatinib mesylate, holding that efficacy for medicines means therapeutic efficacy. Compulsory licensing (the 2012 Nexavar licence to Natco) shows the bundle being trimmed in the public interest.
• Copyright protects expression, not ideas. The threshold of originality in India is a “minimal degree of creativity”, rejecting both pure sweat of the brow and the higher American Feist standard: Eastern Book Co. v. D.B. Modak (Supreme Court, 2007), on copy-edited judgments.
• Trade marks protect not a creation but a relationship between sign and source, goodwill. Property in a mark exists because confusion harms consumers and traders: Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., 2001 INSC 173, set out the factors for deceptive similarity in medicinal marks.
• Geographical indications are collective property: no single owner, but producers of a region (Darjeeling tea, Mysore silk, Channapatna toys). TRIPS Articles 22 to 24 protect GIs, with additional protection for wines and spirits in Article 23; India has argued for extending that additional protection to other goods. GIs connect property with place and tradition, which is why they appear in debates on traditional knowledge.
• Layout-designs of integrated circuits were protected under the Washington Treaty (1989) and TRIPS Articles 35 to 38; the Indian Act gives a sui generis right because the designs are neither inventions nor ordinary works.
• Plant varieties: TRIPS Article 27(3)(b) lets members protect them by patents, an effective sui generis system, or both. India chose a sui generis Act that also gives farmers rights to save, use, exchange and sell farm-saved seed (but not branded seed of a protected variety), a departure from UPOV.
• Confidential information: protected by an equitable obligation of confidence (Saltman Engineering v. Campbell, Court of Appeal, 1948; Coco v. A.N. Clark, 1968: information with the necessary quality of confidence, imparted in circumstances importing an obligation, and unauthorised use). Whether it is property at all is disputed: English law treats it as an obligation, not a right in rem. TRIPS Article 39 requires protection of undisclosed information. India has no trade secrets statute, and the Law Commission has recommended one.

4. The expansion continues

• Domain names treated as trade marks: Satyam Infoway Ltd. v. Sifynet Solutions Pvt. Ltd., 2004 INSC 368.
• Personality and publicity rights: the Delhi and Bombay High Courts have granted injunctions protecting the names, voices and likenesses of film personalities against unauthorised commercial use and AI-generated imitation; the commercial value of identity is becoming property.
• Data: the Digital Personal Data Protection Act, 2023 gives individuals rights over personal data without calling them ownership; the debate is whether data should be property or a matter of dignity under Puttaswamy.
• Natural resources and spectrum: the State holds spectrum and minerals in public trust and must allocate them fairly: Centre for Public Interest Litigation v. Union of India, 2012 INSC 68 (2G licences).
• Traditional knowledge and genetic resources: the Biological Diversity Act, 2002, the CBD and the Nagoya Protocol on benefit-sharing; India’s Traditional Knowledge Digital Library was used to oppose patents on turmeric and neem.
• Digital assets: crypto-assets and tokens; English courts have treated crypto-assets as property capable of proprietary injunctions, and the Law Commission of England and Wales (2023) recommended legislation confirming a third category of personal property that is neither a thing in possession nor a thing in action.
• AI: whether machine-generated works and inventions can have an author or inventor; Thaler v. Comptroller-General (UK Supreme Court, 2023) held that an inventor must be a natural person.

5. Resistance to the expansion

Critics argue that IP has expanded beyond its incentive rationale: longer terms, more subject matter, stronger enforcement, and the “tragedy of the anti-commons” where too many owners block use. Access to medicines (the Doha Declaration on TRIPS and Public Health, 2001), the public domain, fair dealing, and the rights of indigenous communities set limits. India’s law is an example of using TRIPS flexibilities: section 3(d), compulsory licences, farmers’ rights, and broad fair dealing.

How this is examined

For the 16-mark question: meaning of incorporeal property (from the previous note), the justifications, the table, two or three key cases, the new categories, and the critique. For the short note on geographical indications: definition, collective nature, Indian Act, TRIPS Articles 22 to 24, examples, and the extension debate.