Lecture 01: Introduction to IPR

Welcome, to my lecture on Introduction to Intellectual Property.

At the outset we need to know that the way a layman understands property, a lawyer having

an academic bend of mind understands property or look into the concept of property from

a different perspective.

Now, in this lecture I will be dealing with meaning of property.

To be very precise, here, I will be trying to make you understand that what does a lawyer

mean by property.

And then I will be comparing the understanding of intellectual property with that of real

property, and how intellectual property is nothing but a ramification of the jurisprudential

understanding of real property that we will understand in this lecture.

Now, whenever a lawyer or an academic lawyer thinks about property, it reminds him or her

about a broom stick.

Now, this broomstick, in fact, is the understanding of the theoretical and the jurisprudential

understanding of property—how it is, we will try to understand.

Now, when a Layman understands or thinks that this is my property, he refers to a tangible

or intangible object.

Like, he thinks that his land is a property, he or she thinks that his mobile phone is

a property, he or she thinks that his car is a property.

At the outset, it must be understood that a car is not a property, a mobile phone is

not a property, and if a piece of land is not a property.

What is property is this that the entitlements which he or she is having, and these entitlements

are created by the legal system.

So, a great scholar Jeremy Bentham once said that the law and property are born together,

taken away the property there will be no laws.

To be very precise, what he was trying to say is that the understanding of property

is an understanding of law, and if the concept of property is not there, legal system will

not be there.

However, the ancient Indian script writers were much prudent and they have said that

Dhanahingsha Shamud Bhavaid—meaning thereby that Law and Hingsha that means hatred are

the two main predicaments which legal system must address.

Whatever it may be, let us come back to the concept of property.

In fact, property means the entitlement which an individual is having in relation to the

object which he or she is holding.

Now, suppose when I say that mobile phone is my property, in fact, I can do certain

things with mobile phone.

And these certain things what all we can do is, these are all my entitlements, and these

entitlements are varied because legal system has created a structure to enforce those entitlements

and those entitlements in common parlance we call them legal rights.

Now, the question is this that, there is actually, whenever I am having a mobile phone or I am

having a piece of property, say a land, I have those rights those entitlements against

each and every member of the world.

The way I have my right against the person A who is the poorest person of the world,

in the same manner I have the entitlements against the richest person of the world because

the law in fact created those entitlements, law enforces those entitlements, and law supports

those entitlements.

To be very precise, property at the outset it means a bundle of rights and those bundles

of rights are protected by the legal system.

Now, let us go deeper into the concept of real property and we will find that the intellectual

property is nothing, but a ramification, a modification on the existing understanding

of real property.

It has taken 5000 years or more than 5000 years to develop this concept and understanding

of real property.

Real property is something which actually which was a part of human history and property

actually laid to civilization, property accumulation laid to a kind of understanding where perhaps

actually legal system was enriched by developing different concept at different point of time.

When it comes to intellectual property, it is a recent phenomenon compared to the concept

of real property which is in existence for the last 5, 6, 7 or 10,000 years.

Now, there is a simple picture.

With the help of this picture, I will try to understand, we will try to understand the

concept of real property.

As you see, if suppose a person is holding a house, and this house he is holding, and

this holding is actually called possession.

And, in order to hold that house, he needs to have two things: number one, he should

hold it, and secondly, corpus possession means actually he should not only hold but he should

have the intention to hold that particular house.

When he has that, when he owns that house, he is having that bundle of right, that pack

of stick, against the whole world.

And the whole world is having a corresponding duty not to disturb his legal right.

And if anyone disturbs it, anyone encroaches upon this regal the upon his legal right,

the legal system will come into play and actually help that person to enforce those rights against

these individuals who have violated his legal right.

Now, when it comes to, so far as the property right is concerned, we can simply understand

proper right as actually the things what we all can legally do in respect of a material

object, a tangible object or an intangible object.

And if we keep on listing what I can do with my mobile phone, what all I can do with my

say for example, with my camera, what all I can do with my car these are actually endlessly

I will be writing my entitlements.

So, the entitlements which I have this is an infinite series of right.

And, this includes I have a right to possess the mobile phone, I have a right to use this

mobile phone, I have a right to lend my mobile phone, I have a right to destroy my mobile

phone, I have a right to modify my mobile phone, I have a right to burn my mobile phone

and whatever I feel like doing with my mobile phone are my legal rights.

Now, what has happened in the recent years, the main focus of property jurisprudence has

shifted from tangible property to intangible property.

Because we find today, some hundred years back, a person used to narrate his richness

by telling how many house properties he owned.

But today they are individuals who do not hold anything which you can see or touch,

but they are more richer than those individuals who have landed property.

Think about those blockbuster movies which are coming from Hollywood or which is coming

from Tollywood, these movies are all actually the total income of a movie is millions in

dollars.

Now, in the recent days what we have seen that intellectual property is slowly replacing

the real property as the wealth of the nations.

A simple patent on a particular drug may fetch a kind of wealth which a company even by selling

all the properties real properties of the company cannot gather that kind of wealth.

With these understanding let so, we will try to find out that whether intellectual property

is also having a similar structure of entitlements or not.

We have seen that real property is nothing but a bundle of entitlements, and it is like

a broomstick where each stick is representing a single entitlement.

Similarly, intellectual property does it have these characteristics or not.

Now, to be very precise, the world intellectual property agency or sorry world intellectual

property organisation which is a specialized agency of United Nation, it has come out with

a definition of intellectual property.

The definition says that intellectual property means the legal rights which result from intellectual

activity in the industrial, scientific, literary, and artistic field.

And from these, from what we have learned so far, we have seen that at the outset intellectual

property is something which you cannot touch.

To be to be very precise, when somebody is having a copyright over a book, the book is

actually the intangible, intellectual property is embedded in the book, but the book itself

is a real property.

However, the intellectual property you cannot touch.

Secondly, the way the concept of property was developed or the legal rights pertaining

to property were developed through ages and it is there is no specific statute which is

telling us that what is property.

But, so far as intellectual property is concerned, the state has created specific statute to

define intellectual property to define the entitlements to which an individual is entitled

to and therefore intellectual property is a creation of statute.

And lastly, like real property intellectual property is also a bundle of legal rights,

and those rights are protected and enforced by the legal system.

Now, when it comes to intellectual property, there is a serious difficulty that when coming

to I can simply protect my mobile phone which is my property in respect of which I have

those entitlements by simply putting it in my pocket.

When it comes to intellectual property, if I put my writing or my patented invention

in my pocket, I will not be able to gather any economic benefit out of the property;

whereas, I can simply keep my mobile phone and whenever I feel like making using my mobile

phone or making a call I can make a phone call using my mobile phone.

Whereas, when it comes to intellectual property, the first thing what I need to do I have to

depart with possession, I have to give up my exclusive possession over the property,

then only I can get benefit from intellectual property.

And since I am in order to exploit that property, I have to basically depart with possession

intellectual property in fact, it has to public goods characteristics.

And, what is, this public good is a concept of economics.

And what are these two characteristics which intellectual property has?

Number one, it is non-rivalrous, secondly, it is also non-exclusive.

Now, what these two terms mean?

what these two terms mean?

we will try to understand by with the help of example because these are concepts of economics,

but we will try to understand it from a Layman’s perspective.

Now, non-rivalrous consumption.

We can take the example of an apple.

When somebody is taking an apple, actually he is not required to, when he is taking the

other person or his friends who are also interested to take that apple they cannot take it because

these are the limitations of real property.

An apple can be eaten by two people it can be eaten by four people, but it cannot be

eaten by a class of 40 students.

But, when it comes to playing of music or listening to a music in that case a simple

piece of CD where a music is being played that music can be heard by all 40 students

without hampering the consumption of the other student.

What I am trying to mean by this that real property by consumption it is exhausted.

When it comes to intellectual property, it does not get exhausted by consumption.

Therefore, suppose a grand party is organised by a graduating batch of students and the

person who is in charge of food he may run short of food, but the person who is entrusted

with the responsibility of organising the DJ he will not run out of the music.

Therefore, once when Mr. X is consuming, that consumption of intellectual property by Mr.

X, has nothing to do with the consumption of intellectual property by Mr. Y.

The other characteristics is non-exclusive.

See here the question is this that as an essential part of exploitation, the intellectual property

owner has no other option except but to depart with possession.

But this brings with this a problem.

See, the person who has actually paid for music the way the person who has created that

music he does have a copyright over it and the person who has purchased this CD from

the market he has paid the royalty for that music.

So, he is not doing free riding, but the others who are listening to the music they are doing

a free riding, they are listening, they are consuming an intellectual property without

interfere without paying for it and this is the main drawback.

Now, suppose say national defence.

The national defence is available to the whole of a country to all members of a country,

to all citizens of the country and those citizens include the tax payers and non-tax payers.

In fact, the tax payers are paying for the national defence, but; however, there is no

mechanism to exclude the non tax payers from getting the benefit of national defence which

protects a country from external accretion.

Now, at the outset we must actually understand that intellectual property what role it performs.

The government is basically, there are they so, we must create a structure whereby what

is happening that here actually these two problems of non-exclusivity and non-rivalrousness

is addressed.

Now, let us take the example.

Suppose, Mr. X is having a flat and he stays near.

His flat is adjacent to Mr. Y’s actually house and Mr. Y maintains a beautiful garden

in his house.

The way Mr. Y is paying for raising and maintaining the garden, whereas without paying a single

paise for maintaining the garden the other his neighbour Mr. X is enjoying the aesthetic

beauty as well as the fragrance of the flowers which are being which are there in the garden

of Mr. Y.

Now, here the fragrance is the intangible property in respect of which say Mr. Y wants

to actually achieve a kind of protection.

So, there are two options for the government.

Number one option is actually to impose taxes on the neighbours of Mr. Y and by that taxation

system a tax officer would be employed and that tax officer would be collecting taxes

from the neighbours, and then that money here a part of that after deducting the administrative

expenses the government will pay to Mr. Y to maintain and raise his garden.

The other alternative is to create a property alike structure, why not give a bundle of

right in respect of this intangibles, the fragrance, and once a person is having a kind

of property alike rights over the intangible property of fragrance and the aesthetic beauty

he himself would actually one to one will deal with his neighbours.

See, here the problem is this that if government appoints a tax payers, the question is this

that for the purpose of benefiting a single individual or an handful of individual the

government is actually taking money from the tax payers and paying his salary.

Instead of that this is the model, which is called actually a kind of model, where government

is imposing a tax on those who are enjoying the beauty of the garden.

The other model is to leave it to the private ordering of the person who is actually whose

garden is producing fragrance and aesthetic beauty.

And, there what happens?

There the person is having a similar right like property right, a bundle of rights, and

he can enforce those rights against the individuals who are enjoying the aesthetic beauty of the

garden.

This can happen by see he whosoever would be enjoying he can charge a royalty from them

and that way he is basically actually preventing the free riding by his neighbour and thereby

they are also contributing to the development to the maintenance of the garden which he

has.

So, see government is therefore, decided that there should be a bundle of rights and that

bundle of rights would be similar to the real property.

However, the main difference generally we find in most forms of intellectual property,

so far as real property is concerned these rights bundle of rights are perpetual, when

it comes to intellectual property it is for a limited period.

Now, this intellectual property system in fact, creates three different kinds of incentives.

Number 1, it is actually an incentive for the person who is having a garden to invest

in the garden; number 2 he is also having the incentive to actually grow new kind of

flowers, so, encouraging the creative mind.

And third, he is also having the incentive to go public with his garden, otherwise he

can confine his garden, he can raise high volts to protect his garden so that the fragrance

and the beauty the aesthetic beauty of the garden is not visible to the outsiders.

So, intellectual property in fact, creates three kind of threefold incentives incentive

to invest, incentive to create, and incentive to disclose and disseminate.

Now, what we have seen now, let us try to understand the major difference between real

property and intellectual property.

We have seen this.

Again, I want to emphasize that the real difference between the real property is you do not need

a mechanism a serious mechanism for protection, by possession itself you can maintain your

property, you can remain owner, whereas in intellectual property it cannot be protected

by possession.

And, therefore, we need legal system to address this issue and we need a robust legal system

and all the nuances intricacies the problems which you have seen that must be addressed

by the statute which governs the specific form of intellectual property.

Now, so far as India is concerned, we have erected so far we have the and this is in

tandem with the international practice.

We have patent law, we have copyright law, we have trademark law, we have design law,

we have geographical indication, we have semiconductor integrated circuit protection layout topographic

design act, we have actually plant varieties act, we have a trade secret law.

But we do not have a specific distillation with regard to trade secret and then some

part of biodiversity act also takes into consideration certain parts of traditional knowledge.

In the coming lecture, we will be dealing with few major forms of intellectual property

to understand that what is how to understand to compare and contrast the specific understanding

of patent with those forms of intellectual property.

Specifically, we will be looking into the copyright system and then we will be looking

at the requirements of patentability.

Thank you.