Table of Contents

Intellectual Property............................................................................................. 4
Area of Intellectual Property Rights......................................................................6
Introduction
The Labor Theory of Property (also called the labor theory of appropriation, labor theory of
ownership, labor theory of entitlement, or principle of first appropriation) is a hypothesis of
natural law which holds that property originally comes about by the exertion of labor upon
natural resources. The core of Locke's theory of property is presented in Chapter V, "Of
Property", in the Second Treatise of Two Treatises of Government.

Though the Earth and all inferior Creatures be common to all Men, yet every Man has a
Property in his own Person. This no Body has any Right to but himself. The Labour of his Body,
and the Work of his hands, we may say, are properly his. Whatsoever then he removes out of the
State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it
something that is his own, and thereby makes it his Property. It being by him removed from the
common state Nature placed it in, hath by this labour something annexed to it, that excludes the
common right of other Men. For this Labour being the unquestionable Property of the Labourer,
no Man but he can have a right to what that is once joyned to, at least where there is enough,
and as good left in common for others. [Section 27]

This is Locke's classic statement of the labor theory of property, the theory that people have the
right to the fruits of their labor. The argument is set in a hypothetical original state of society
prior to the accumulation of capital when nature is a common resource to all. The "right" which
Locke postulates is a natural right that is not dependent on the particular laws in a society.
Indeed, the labor theory of property is sometimes referred to as the "natural rights theory of
property". The theory is intended as a normative or prescriptive theory, not a positive or
descriptive theory. A given legal system might or might not in fact recognize this natural right,
but the theory holds that society should recognize and codify the natural right to the fruits of
one's labor in the system of positive laws.1

The objective of this Project is to show the relevance of this theory to the Intellectual Property
Rights of a person/ group of persons. Intellectual Property Rights (IPR) of a person includes

1 Labour Theory on Property: Intellectual History,

http://cog.kent.edu/lib/Ellerman4/Chapter4.htm (last viewed on August 8, 2015)
Patents, Copyrights and Trademarks. Intellectual property is a term referring to creations of the
intellect for which a monopoly is assigned to designated owners by law. Intellectual Property
includes various inventions, artistic works, designs, processes and trade secrets. In most of the
cases such intellectual creations are created using labour of mind rather using labour in
contemporary sense i.e. there are some intellectual properties which dont require actual physical
labour. So in this project we have tried to find out how the Lokean labour law theory is
applicable to intellectual property rights. We have taken the hypothesis that Lockes labour
theory is not applicable to intellectual properties, because Locke says that when a person mixes
his labour with an element or a resource which nature has given to man, he makes that product
his own. But in case of intellectual property this may not be applicable because more than often
the natural element or the natural resource is missing as in the case of a software program.

To analyse this hypothesis we have taken up some research questions whereby on answering
these questions we will be able to determine whether this hypothesis holds true in this scenario of
intellectual property rights.
Report and Analysis
Intellectual Property

Intellectual Property refers to creation of mind: inventions; literary and artistic works; symbols,
names and images used in commerce. It is broadly divided into two categories-

1. Industrial Property includes patents for inventions, trademarks, industrial

designs and geographical indications.
2. Copyright covers literary works, films, music, artistic works and architectural
design. Rights related to copyright incorporate those of performing craftsmen
and their exhibitions, makers of phonograms in their recordings and telecasters
in their radio/broadcast events.2
Intellectual Property Rights (IPR)

These are like any other property rights in general. They permit inventors, or proprietors of
patents, trademarks or copyrighted attempts to profit by their own work or interest in a
creation. This holds true in accordance to Lockes Labour Theory of property as well but has
many complications. It does not deal with tangible properties. It is concerned with various
areas where the intellectual effort of an individual has enriched his business and society. At
the same time, as the statute gives a monopoly to the holder, its technicalities have to be
comprehended by the lawyer. Intellectual Property Rights have become an important tool for
harnessing knowledge for development and are steadily growing in significance.

What is Property?
Property is basically a claim to ownership of something. Locke divided property into
two types, common and private. Well focus on private property for the remainder of
the questions.
How do we get it?

2 What is Intellectual Property,

http://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf (last
viewed on August 10, 2015)
 Locke's theory of private property is a labor theory of property that builds from a
common property basis. He believed that God gave the world and all that was in it to
man for his trivial use. Private property materialized for convenience sake.

"God, who hath given the world to men in common, hath also given them reason to
make use of it to the best advantage of life, and convenience." [Chapter 5, Sec.26.]
Locke used the labor theory to make the bridge from common to private property.
Man is able to call property "private" meaning man has exclusive use and disposal
rights, by using his labor.
How long can we keep it?
You get to keep the fruits of your labor as long as you follow the basic rules, you do
not waste anything, i.e. and there is enough left in common for others. (The last
phrase of the above quote). To boast about the same, one must be able to house the
mental ability to exclude others
How would we lose it?
You would lose the rewards for your labour in the event that you conflicted with the
over two conditions, waste and sufficiently leaving for others. For example, Locke
believed that you could not go to the apple orchard and pick every one of the apples
from every one of the trees for yourself in light of the fact that there would be no
possible way for you to eat all the apples, they would go to waste. You would also not
leave enough for others.
However, there is a caveat. Locke believed you could go into the apple business and
gather more apples that you could possible eat and then exchange them with others
for goods and/or money.
What is the moral basis for our claim?
John Locke believed the moral basis for the claim was founded in Natural Law
Theory. As in the beginning of this answer, Locke was among the Natural Law
Theorists who utilized "God" as the premise for his hypothesis of property.3

3 Cited from: Lockes Theory of Property explained,

http://answers.google.com/answers/threadview?id=39026 (last viewed on August
11, 2015)
 Area of Intellectual Property Rights.
A. Patent
A patent is aright granted to the owner of an innovation to prevent others from
making, using, importing or selling the invention without his/her consent. A
patentable invention can be a product or a process that gives a new technical solution
to an issue. It can also be a new method of doing things, the composition of a new
product, or an idea on how certain things work. Once it is granted, term of a patent is
20 years from the Date of Filing, subject to the payment of annual renewal fees.
The Three Criteria:
i. New: The invention should not be publicly known in any way to anyone on
the planet. Innovators should be careful to keep the invention discreet until a
patent application has been effectively made. If the idea has already been
talked about, commercially exploited or demonstrated then the novelty* of the
invention may be compromised. Once a Date of Filing has been obtained for
the patent applicator, the inventor can claim a Patent Pending status and the
applicant can proceed to unveil the invention as indicated in the patent
application to interested parties.
ii. Inventive Step: The invention must be something that represents an
improvement over any existing product or process that is already available.
The improvement must not be obvious to a person with knowledge in the
field.
iii. Industrial Application: The invention must be useful and have some form of
practical application. It should be capable of being used in the industry.

The Following is not a patentable invention:

a) A method to treat a human or an animal body by surgery or therapy, or a

diagnosis performed on a human/animal body.
b) An invention that could encourage offensive, immoral or anti-social
behavior, regardless of the fact that it fulfills the key criteria for patents.4

4 KUSH KALRA, LANDMARK JUDGEMENTS ON INTELLECTUAL PROPERTY RIGHTS (1 ST ED.

2014)*Novelty: The quality of being novel; newness, an innovation.
 Benefits: If you register a patent, you can use it not only to prevent others from
using it but also to employ funds for your business, license it to third parties for
commercial returns or even sell the patent.
Infringement of a Patent: In such cases, the burden of infringement lies upon the
Plaintiff, who not only has to prove the patent in his favour but also proved that the
patent is being encroached by resorting to a procedure patented by the plaintiff. In
doing so, he must prove that the Defendant has produced patented goods or used a
patented process on also to prove that the good seized by the plaintiff is produced by
the defendant.
This principle was thoroughly used in The Bombay Agarwal Co. v. Ramchand
Diwanchand and Anr.,5 where the subject of infringement of patent was raised. The
court reached to a decision that Plaintiff must be regarded as the inventor who
brought the process to the notice of the public, and by that gained a monopoly to him.
Unless, it can be shown that it was not either a new process because the knowledge
was public to the manufacturer or that there was no inventive step, the patent cannot
be defeated.
B. Copyright
Copyright protects works like novels, computer programmes, plays, music and
paintings. Generally, the author of a copyright work has the privilege to imitate,
distribute, perform, communicate and adapt his work. These exclusive rights are
called copyrights and enable the owner to control the commercial exploitation of his
work.
The copyright can be owned by way of the assignment and the owner can assert the
copyright claim in that way. The copyright is a special law and thus prescribes a mode
of assignment. Section 19 of the Indian Copyright Act provides for the mode of
assignment of the copyright. The various essential ingredients of the valid mode of
assignment can be briefly summarized under:
i. The assignment must be in writing.
ii. The assignment must identify the work and specify the assigned rights,
duration and territorial extent.
iii. The assignment must provide for royalty payable to the author.
iv. The period if not stated in the agreement shall be deemed to be 5 Years.

5 The Bombay Agarwal Co. v. Ramchand Diwanchand and Anr., AIR 40 1953 NULL
154
 v. The territorial extent if not stated in the assignment shall be deemed to be
India.
vi. If the assignee doesnt exercise the rights assigned within 1 year from the
date of assignment, the same shall be lapsed.
What is not protected by copyright?
i. Ideas or concepts
ii. Discoveries
iii. Procedures
iv. Methods
v. Works or other subject matter that have not been made in a tangible form in a
recording or writing.
vi. Subject Matter that is not of original authorship.
Doctrine of Fair Use: This is a limitation and exception to the exclusive right granted
by copyrighted material without acquiring permission from the author. Black Law
Dictionary (7th ed.) defines Fair Use as A reasonable and limited use of a copyrighted
work without the authors permission, such as quoting from a book in a book review or
using parts of it in a parody. Subsequently utilization of a work, with no former
authorization of the creator of that work, does not sum to encroachment of copyright if
the said utilization can be encapsulated within the ambit of the doctrine.
Infringement of Copyright: In order to constitute infringement of a copyright in a
work, it is not necessary that the copied work should be a verbatim re-production one. It
would be sufficient that a substantial or the basic idea is involved in the work of the
plaintiff.

We can refer to Zee Telefilms Ltd. and Film and Shot and Anr. V. Sundial
Communications Pvt. Ltd. and Ors. 6 The plaintiff here contend that the defendants
infringing copy was distinctly similar to that of that original work of the plaintiff in all
material ways with a few cosmetic changes. Without the basic idea, the materials thus
produced wouldnt exist in the first place.
Copyright shall be deemed to be infringed
a) When any person, without a license granted by the owner of the copyright or the
Registrar of Copyrights or in contrast to any of the condition imposed by a
competent authority:

6 Zee Telefilms Ltd. and Film and Shot and Anr. V. Sundial Communications Pvt. Ltd.
and Ors., 2003 (5) Bom CR 404
 i. Does anything, the restrictive right to do which is by this Act conferred
upon the owner of the copyright, or
ii. Permits for profit any place, where such a communication amounts to
encroachment of the copyright in the work, unless he wasnt aware that
such a thing would cause an infringement.
C. Trademark
A trade mark is a sign that you can use to recognize your business goods or services
from those of other traders. A trade mark can be represented graphically in the form
of your companys logo or a signature. Through a registered trade mark, you can
protect your brand by restricting other people to use its name and logo. Once
recognized, a trademark can last indefinitely as long as you renew it every 10 years.
What cannot be registered as a Trademark?
i. Marks that are descriptive (e.g. super, best, cheap)
ii. Marks that are common to your trade and do not distinguish your service.
iii. Marks that could promote immoral behavior.
iv. Deceptive Marks (ones that could misrepresent)
v. Marks identical to pre-existent marks.
vi. Marks similar to well-known marks.
Infringement of Trademark: Under Section 29 in the Trade Marks Act, 1999,
Infringement of registered trademarks is constituted not necessarily on adoption of the
whole of the mark of the plaintiff and it is adequate if the mark used or proposed to be
used is indistinguishable or deceptively similar to the former. Any clever person seeking
to encash upon the reputation and goodwill of an established brand would not adopt that
mark in total and would make some changes here and there so that in case of being
challenged in court, one can plea that the mark adopted isnt completely identical to the
plaintiffs mark!
A milestone case on infringement of trademark which is referred is V.P.Moideen v. E,
Vasu7 and Anr where the resemblance of the registered trademark of the plaintiff was
used by the defendant. The Defendant was then called upon and asked to refrain from
such passing offs by the issue of an injunction.*

7 V.P.Moideen v. E, Vasu and Anr. MANU/KE/0192/1979* Injunction: A court order by which an

individual is required to perform or restrained from performing a particular act.
 The offence of infringement arises from an imitation of the registered trademark in the
course of the same, in the sense that it is deceptively similar to it. A registered trademark
is the one which is actually on the register of trademarks.8

Annotated Bibliography
List of Cases

1. The Bombay Agarwal Co. v. Ramchand Diwanchand and Anr., AIR 40 1953 NULL 154
Appeal was filed against the judgment in a matter dealing with the infringement of a
patent granted in March 1942 to the appellants. The Plaintiff in the two suits called The
Bombay Agarwal Company of Akola, in the year 1942 had obtained a grant of patent for
a drink made out of gram husk which had been processed in the way described in the
specifications appended to the patent. The case of the plaintiff was that the defendants in
the two suits had started in the year 1950 to imitate the stuff produced by them and thus
contravened their patent. At first, the defendant merely tried to meet the case of

8 Section 2(r) of Trademark Act, 1999

 infringement. Later, by an amendment, they claimed revocation9 of the patent granted to
the plaintiff company and as a result under the proviso to Section 29 Patents and Designs
Act, 1911, the case was transferred to the HC.
2. Zee Telefilms Ltd. and Film and Shot and Anr. V. Sundial Communications Pvt. Ltd. and
Ors., 2003 (5) Bom CR 404
These are appeals from an order of Bobde J. granting ad-interim injunction restraining the
defendants from infringing the copyright of the plaintiffs' original work titled "Krish
Kanhaiyya" and continuing further broadcasting of their TV serial "Kanhaiyya". In
perspective of the peculiar facts and circumstances of the case and the nature of dispute,
the parties have agreed that Notice of Motion should itself be disposed off at this stage.
3. V.P.Moideen v. E, Vasu and Anr. MANU/KE/0192/1979
Plaintiff is the proprietor of Panama Soap works, Kakkodi. The Defendant is the
proprietor of Puthiyara Soap Workds, Puthiyara, Calicut. The Plaintiff manufactures
washing soaps under the registered trademark Panama. The registration of the
trademark is obtainted by the Plaintiff with the effect from Nov. 15, 1974 under the Trade
and Merchandise Marks Act, 1958.It was alleged by the plaintiff that he has been using
the trade name Panama with its distinctive design ever since in 1970, when he first
started production of soaps. The Plaintiffs business was carried on since 1971-72. The
Defendant started manufacturing soaps since 18th June, 1974 under the mark Prameela
which is printed in his wrapper. The Plaintiff pointed out striking resemblance of his
mark in the defendants product. The defendant was told that his mark was an
infringement of the plaintiff's work.

4. KUSH KALRA, LANDMARK JUDGEMENTS ON INTELLECTUAL PROPERTY RIGHTS (1ST

ED. 2014)
A Compendious volume on IPR by Kush Kalra is a collection of major judgments on the
classic law on intellectual property rights. It covers cases in every major aspect of IPR
namely patents, copyrights and trademark. It has been promoted by the former Attorney
General of India, Ashok H. Desai. It has been thoroughly researched and is a guide for
not only a student but also a novice and a perfect professional.

9 Revocation: A cancellation of annulment of a legal instrument especially a will; the

withdrawal of an offer, power of attorney etc.