Intellectual Property in India
In India, the first post-independence copyright legislation was made with the Copyright Act, 1957 and as amended by the Copyright Amendment Act, 2012. Literary, music, dramatic, artistic works are protected under this act throughout the lifetime of the author and sixty years after his or her death. In the case of anonymous, pseudonymous, posthumous, cinematography, photographs, government works, international undertakings, etc, this period also extends till sixty years. The Copyright Act 1957 provides three kinds of remedies for those who file a case in the court - administrative remedies, civil remedies and criminal remedies. The administrative remedies provided under the statute include detention of the infringing goods by the customs authorities. The civil remedies are provided under Chapter XII of the Copyright Act 1957 and the remedies provided include injunctions, damages and account of profits. The criminal remedies are provided under Chapter XIII of the statute and the remedies provided against copyright infringement include imprisonment (up to 3 years) along with a fine (up to 200,000 Rupees).
In 1999, Indian trademark Act was formulated under the common law. Controller General of Patents, Designs and Trademarks, a government agency looks after the issues involved in this section. In 2016, the Cabinet passed the all-encompassing National Intellectual Property Rights policy. The Policy is premised upon the idea that having strong and effective IPR laws necessitates balancing the interests of rights owners with larger public interest and taking important steps to update and improve them or to remove anomalies and inconsistencies.
What is Intellectual Property?
Stanford Encyclopedia of Philosophy defines Intellectual property as the following:
“Intellectual property is generally characterised as non-physical property that is the product of original thought. Typically, rights do not surround the abstract non-physical entity; rather, intellectual property rights surround the control of physical manifestations or expressions of ideas. Intellectual property law protects a content-creator's interest in her ideas by assigning and enforcing legal rights to produce and control physical instantiations of those ideas.”[i]
Intellectual property refers to the creation of the intellect on which is a monopoly is assigned to designated owners by the law. These include protections granted to the creators of the IP as copyrights, patents, trademarks, industrial design rights, and trade secrets. The term intellectual property has been in use since the 19th century and hadn’t become commonplace until late 20th century when the corporate world and the newly emerged internet technology made it necessary for everyone to care about the IP issues that were allegedly exploited on this new domain freely.
Is there Intellectual Property?
What if, however, there is no such thing as intellectual property? After all, intellectual property is not something material, physical, tangible that we can keep in our lockers and put names on to say that it rightfully and legitimately belongs to us. How then do we know whether those asking for regulatory laws on IP are actually asking for something sensible, rational and just?
In the criticism section on IP in the Stanford Encyclopedia of Philosophy, the author says,
“The idea, for example, that one could, in the relevant sense, possess and hence own the novel expressed by the book A Tale of Two Cities makes as little sense as the idea that one could possess and hence own the entity denoted by the symbol 2…As a conceptual matter, the term intellectual property, at best, applies to nothing and, at worst, is incoherent.”
Intellectual Property is Non-Rivalrous:
Ethicist Arthur Kuflik and lawyer Edwin Hettinger make the following argument:
P1: If a tangible or intangible work can be used and consumed by many individuals concurrently (is non-rivalrous), then maximal access and use should be permitted.
P2: Intellectual works falling under the domains of copyright, patent, and trade secret protection are non-rivalrous.
C: It follows that there is an immediate prima facie case against intellectual property rights, or for allowing maximal access to intellectual works.[ii]
Similarly, philosopher Roderick T. Long, a previous defender of IP laws, says this,
“[t]o enforce copyright laws and the like is to prevent people from making peaceful use of the information they possess. If you have acquired the information legitimately (say, by buying a book), then on what grounds can you be prevented from using it, reproducing it, trading it? Is this not a violation of the freedom of speech and press?”[iii]
He goes on to quote American individualist Benjamin Tucker,
“... the patent monopoly... consists in protecting inventors... against competition for a period long enough to extort from the people a reward enormously in excess of the labor measure of their services, — in other words, in giving certain people a right of property for a term of years in laws and facts of Nature, and the power to exact tribute from others for the use of this natural wealth, which should be open to all.”[iv]
The IP laws generally serve one function- to give undeserved profit to the creators of a product. Ideas are not products per se because they are not resources; and if at all they are, they are in abundance and universally available. IP laws stop a person from using his/her actual physical property because someone else came up with the idea for it first.
A reductio ad absurdum can be provided here. Suppose a Stone Age man had patented the Sumerian alphabets he carved out on the cave walls. Every time an archaeologist or a linguist would study these carvings, they’d have to pay a certain amount of money to some obscure foundation whose money would go to the descendants of this man. What if Newton had patented calculus or Einstein had trademarked relativity theory and Darwin had copyrighted the work On the Origins of Species? A huge number of students who have otherwise been benefitted by their ingenious insight and knowledge would be denied this essential privilege and not only that, they would have had to suffer in poverty because of supposed payment.
Unjust Monopolies and Intellectual Property:
Political theorist Kevin Carson says that “patents are used on a global scale to lock transnational manufacturing corporations into a permanent monopoly of productive technology.” He continues to criticise a popular argument for IP laws,
“Advocates for intellectual property defend it as necessary to encourage innovation, asking what the incentive for innovation or artistic creation would be without it. But in fact patents suppress innovation as much as they encourage it, and many producers in the cultural and information fields have demonstrated that value can be captured without intellectual property.”[v]
Carson, further, argues that intellectual property notions such as patents prove to be a barrier to development because of the effect known as "shoulders of giants". All the new inventions are made in a background presupposition that a substantial amount of present technologies are combined and synthesised into new configurations. He says, “Patents on existing technologies may or may not marginally increase the incentives to new invention, but they also increase the cost of doing so by levying a tariff on the aggregation of existing knowledge to serve as building blocks of a new invention.” This is generally counter-productive in terms of creativity and promoting inventiveness.
Further Arguments for Eliminating Intellectual Property:
Popular and plausible arguments against IP include the free speech and social nature of information arguments. They suggest that knowledge in any form is something people should be exposed to. This not only inspires people to come up with their new ideas, but it also floods the market with competitive and cheap products which can battle each other ethically for their customers’ preference. A truly free market would allow this competition between service providers without any state-recognized crony capitalistic intervention that only helps the capitalist class to rule over the emerging start-ups.
Long discusses a case pertaining to writer J.R.R. Tolkien in his essay against IP laws. The first edition of The Lord of the Rings to be published in the US was a pirated edition from Ace Books. Tolkien was unable to take legal action against Ace. But when Ballantine publishers released an official author-approved American edition of the same book, Tolkien started a campaign against the Ace edition. The Ballantine edition released with a notice from Tolkien on the back cover declaring that this was the only authorised edition. He urged readers with respect for him as an author to purchase no other copy. Apart from this, every time while answering a fan letter from an American reader, Tolkien explained the situation while requesting that the recipient spread the word to boycott the Ace edition among Tolkien fans. Even though the Ace edition was available at a cheaper rate than the Ballantine, it soon lost readers. Eventually, the boycott turned out to be successful and the Ace edition went out of print.
Such goals which are motivations behind rigid IP laws can be achieved without coercive regulations on ideas and works of art. There are other legal options available to the creators of intellectual products as well. For instance, copy-protection safeguards on their programs or requiring purchasers to sign contracts agreeing not to resell the software are some of the methods used by software manufacturers. Moreover, a lot of protection for intellectual product creators can be attained through voluntary compliance alone. The strategy of boycotting those who fail to respect the legitimate claims of the producers can also be employed.
Groups like Pirate Cinema, Kickass Torrentz, The League of Noble Peers and BitTorrent engage in advocacy of their staunch opposition to copyright and similar laws. Many of them provide services in various fields freely over the internet to millions of customers daily. Many publishing firms also reformulate old political works in electronic form for the internet users. AK Press has been publishing works of academicians. Brian Martin provides a thorough critique of IP arguments and strategies and shows evidence of how both scientific and philosophical community can be prospered with the complete removal of such laws and utilisation of voluntary and consensual means.[vi] John Sulston, writing for The Guardian, notes how science and research are shackled by “the ubiquitous idea of ownership” that is known as intellectual property.[vii]
Ultimately, a free environment of information and people having the rightful services at their disposal to gain a better standard of living and higher quality of knowledge is all that anti-IP advocates ask for. A lot of this struggle has been seen as anti-ownership, kicking on the stomachs of inventors and artists. But ironically, the most profit is gained by the publishers and agents rather than original artists by such laws. There is a deep requirement for immediate reduction in such laws or at least an awareness among people who otherwise love the usage of torrents and other similar services but back down from sharing ideas which are anti-IP because they are seen as “anti-globalization”, “immoral piracy” by popular media. If these propagandist obstacles are tackled, then truly the markets of each country would be flooded by amazing trade and entrepreneurship.
These arguments help in looking at IP laws, including those in India, in a critical light. Of course, a systematic elimination of such laws, if ever undertaken, cannot be achieved overnight. However, this anthological article has been a modest proposal to at least take the idea seriously.
[i] Adam Moore and Ken Himma, "Intellectual Property", The Stanford Encyclopedia of Philosophy (Winter 2014 Edition), Edward N. Zalta (ed.), URL= https://plato.stanford.edu/archives/win2014/entries/intellectual-property/
[ii] Adam Moore and Ken Himma, “Intellectual Property”, The Stanford Encyclopedia of Philosophy (Winter 2014), Edward N. Zalta (ed.), URL= https://plato.stanford.edu/entries/intellectual-property/#42InfNonRiv
[iv] Benjamin Tucker, Instead Of a Book, By a Man Too Busy To Write One, second edition (1897), also available online at: http://fair-use.org/benjamin-tucker/instead-of-a-book/
[v] Kevin Carson, “Intellectual Property- A Libertarian Critique”, Center for a Stateless Society Paper No. 2 (Second Quarter 2009), URL= https://c4ss.org/wp-content/uploads/2009/05/intellectual-property-a-libertarian-critique.pdf
[vi] Brian Martin, “Against Intellectual Property”, Philosophy and Social Action, Vol. 21, No. 3, (July-September 1995), pp. 7-22, also available online at: https://www.uow.edu.au/~bmartin/pubs/95psa.html
[vii] John Sulston, “How Science is shackled by intellectual property”, Science- Opinion: The Guardian, (26 November 2009), URL= https://www.theguardian.com/commentisfree/2009/nov/26/science-shackles-intellectual-property
Subscribe to our weekly newsletters.
Get all our posts, blogs and video content via e-mail.