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Property, Intellectual Property and the Origin and Development of IP

Study of Industrial and Intellectual Property Rights · Unit I · Topic 2 of 15 · 7 min read

The meaning and nature of property in jurisprudence, why rights in intangibles count as property, the characteristics of industrial and non-industrial IP, and the origin and development of IP from Venetian privileges to TRIPS, with the Indian history alongside.

On this page
  1. 1. The meaning of property
  2. 2. Why IP is property, and how it differs
  3. 3. Industrial and non-industrial IP: characteristics
  4. 4. Origin and development: the international sequence
  5. 5. Origin and development in India
  6. How this is examined
Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. Unit I asks three things: what property is, why IP is a species of it (and how it differs from property in land and goods), and how IP law arose and grew. Answer the first with Blackstone, Honoré and the bundle of rights; the second with the incorporeal and intangible character of IP; the third with a dated sequence from Venice (1474) to TRIPS (1994), followed by the Indian statutes.

1. The meaning of property

In everyday speech property means a thing that someone owns. Lawyers use the word for the relation between a person and a thing, enforceable against others. Blackstone, in his Commentaries on the Laws of England (Book II, 1766), described the right of property as “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” That is the absolute model. It was never accurate even for land, which has always been subject to easements, taxes, nuisance law and compulsory acquisition.

The modern view treats property as a bundle of rights. Wesley Hohfeld's analysis of jural relations (1913–17) showed that “ownership” breaks down into claims, liberties, powers and immunities, each held against particular persons. A.M. Honoré, in his essay “Ownership” (1961), listed the standard incidents of full ownership: the rights to possess, use, manage and take the income; the right to the capital (to consume, alter or alienate); security against expropriation; transmissibility; absence of term; the prohibition of harmful use; liability to execution for debts; and residuary character. No owner holds all of them without limit, and a thing can be property though some incidents are missing.

Salmond classified property by its object: corporeal property (rights over material things) and incorporeal property (rights over immaterial things, such as debts, shares, easements and patents). English law sorts personal property into choses in possession, which can be physically held, and choses in action, which can be claimed or enforced only by legal action. Patents, copyrights and registered trade marks are choses in action.

2. Why IP is property, and how it differs

IP rights fit the bundle model well. They are rights to exclude (s.48 Patents Act; s.14 Copyright Act; s.28 Trade Marks Act), they can be alienated by assignment and licence, they pass on death and insolvency, and they can be mortgaged. Section 18 of the Copyright Act and section 68 of the Patents Act treat them as transferable estates, and the Trade Marks Act speaks of the “proprietor”. Indian courts call them property in injunction and tax cases alike.

They differ from property in land and goods in five ways:

  1. Object. The object is information (an invention, a work, a sign), which is non-rivalrous: many can use it at once without depleting it.
  2. Source. Tangible property pre-exists the law; most IP is created by statute. Without the Patents Act there is no patent. Only passing off and confidential information are products of the common law.
  3. Duration. Ownership of land has no term. Patents (20 years), designs (up to 15) and copyright (life plus 60) expire; only marks and GIs can last indefinitely, and then only while renewed and used.
  4. Territory. An Indian copyright or patent is enforceable only in India.
  5. Separation from the carrier. Owning the copy of a book or a patented machine does not carry the IP in it. Section 14 of the Copyright Act and the exhaustion rules decide what the owner of the copy may do.

The result is a narrower bundle: IP usually gives a right to exclude, not a right to use. A patentee of a drug cannot sell it without regulatory approval, and the owner of a copyrighted film may still need certification before exhibiting it.

3. Industrial and non-industrial IP: characteristics

The first note of this unit gives the Paris Convention list and the comparison table. In summary, industrial property (patents, designs, marks, GIs, layout-designs, plant varieties) is used in trade and manufacture; it is usually acquired by registration after examination; it is judged by technical or commercial tests (novelty, inventive step, distinctiveness); and it protects against independent use, not only copying. Non-industrial or cultural IP (copyright and related rights) arises automatically on creation, is judged by originality, protects expression only, and is infringed only by copying. The line has blurred with software, databases and designs, and TRIPS treats all categories as one field of trade regulation.

4. Origin and development: the international sequence

DateEventSignificance
Antiquity to 15th c.Potters' marks, guild marks, royal privilegesMarks of origin and grants of monopoly by favour, not right
1474Venetian Patent StatuteFirst general patent law: protection for new and ingenious devices for a fixed term, on condition of working
1624Statute of Monopolies (England)Abolished royal monopolies but kept, in s.6, grants of up to 14 years to the true and first inventor of a new manufacture
1710Statute of AnneFirst copyright statute: rights to authors, for a limited term
1787–1790US Constitution Art I s.8 cl.8; Patent and Copyright Acts of 1790IP justified expressly as promoting progress
1791–1793French patent and author's rights lawsNatural-right language: the invention as the inventor's property
1875Trade Marks Registration Act (UK)First register of marks
1883, 1886, 1891Paris, Berne, MadridNational treatment, priority, minimum rights; international registration of marks
1893BIRPIJoint secretariat for Paris and Berne
1967WIPO Convention (Stockholm)WIPO replaced BIRPI; a UN specialised agency from 1974
1994TRIPS AgreementMinimum standards for all IP, with enforcement and WTO dispute settlement
1996WIPO Copyright Treaty and WIPO Performances and Phonograms TreatyCopyright for the digital environment

Three movements run through this history. First, from privilege to right: early grants were favours of the sovereign; by the nineteenth century they were claims an applicant could demand on meeting statutory conditions. Second, from national to international: territorial rights forced inventors and authors to seek protection country by country, and the Unions of Paris and Berne were the answer. Third, from manufacture to information: the subject matter widened from machines and books to chemicals, software, genetic material, databases and broadcasts. The objectives of this paper describe the third movement as a shift in the concept of property itself in the post-industrial period. The nineteenth-century debate shows it was never settled: the Netherlands abolished patents in 1869 and restored them only in 1912, and Switzerland had no patent law until 1888.

5. Origin and development in India

The Indian story moves in the opposite direction to the global one for a time. The 1970 Act narrowed protection (process patents only for food, drugs and chemicals, short terms, licences of right) to build a domestic industry; TRIPS reversed this from 1995, and the 2005 amendment restored product patents with domestic safeguards such as section 3(d).

Debate: does calling IP “property” matter? Those who favour the label say it gives rights holders security and makes IP tradeable. Critics, including Peter Drahos and James Boyle, say the label carries Blackstone's absolute model into a field where the right is a limited privilege granted for public ends, and so pushes towards longer terms and fewer exceptions. The Indian statutes take the second view: they define the right by its limits (s.52 Copyright Act, s.47 and s.107A Patents Act, s.30 Trade Marks Act), and section 83 of the Patents Act states the public purposes of the grant.

How this is examined

Expect “Explain the meaning and nature of intellectual property” or “Trace the origin and development of intellectual property” as an essay, and “Industrial and non-industrial property” as a short note. For the first, use sections 1 and 2 with the five differences. For the second, draw the table in section 4 and add the Indian list. Close either answer with the property-or-privilege debate.

Now try the real questions: Study of Industrial and Intellectual Property Rights past question papers.