About this topic
A creative work, such as a tune, is not lost to its creator when someone else uses it. The basic question behind the theories of IPR is therefore: why should the law treat such a creation as property at all?
Zoya, a young composer from Shillong, spends two years shaping a lullaby in her own language. A company quietly uses it in an advertisement. She feels robbed, yet nothing was taken out of her hands. She can still sing it every night. Each theory of IPR gives a different answer to why the law should treat her tune as her property.
Five theories justify intellectual property. Each argues from a different angle:
| Memory word | Theory | Thinker | Focus |
|---|---|---|---|
| Self | Personality theory | Hegel | The creator's self and personality |
| Sweat | Labour (natural rights) theory | John Locke | The creator's labour |
| Scale | Ethic and reward theory | Fritz Machlup (1958) | A fair scale of reward |
| Sum | Utilitarian theory (incentive theory) | Jeremy Bentham and John Stuart Mill | The sum of social welfare |
| Society | Social planning theory | William Fisher (Harvard) | The kind of society and culture we want |
Memory aid for the five theories: Self, Sweat, Scale, Sum and Society (Personality, Labour, Ethic and Reward, Utilitarian, Social Planning).
Personality Theory (Hegel): the "Self"
Core idea
The personality theory comes from the German philosopher Hegel. For Hegel, a person becomes real in the world by placing their will into things. A creative work therefore carries the personality of its creator.
Zoya's lullaby carries her memories, her language and her feeling. Twisting it injures the person, not merely the purse.
Because a work is an extension of the author's personality, Indian law gives authors moral rights.
Moral rights under Section 57 of the Copyright Act, 1957
Section 57(1) begins:
"Independently of the author's copyright and even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right"
- Clause (a): the right "to claim authorship of the work".
- Clause (b): the right "to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation".
- Proviso: excludes certain permitted adaptations of computer programmes.
- Explanation: failing to display a work, or failing to display it to the author's satisfaction, is not an infringement.
- Sub-section (2): the author's legal representatives may exercise these rights.
Moral rights exist independently of copyright and survive even a full or partial assignment of the copyright. They protect the author's honour or reputation, which is the personality theory in statutory form.
Even after selling her copyright, Zoya can stop a crude jingle made from her lullaby that harms her reputation.
Leading case
Amar Nath Sehgal v. Union of India (2005): the sculptor's huge bronze mural at Vigyan Bhawan, Delhi, was pulled down in 1979 and dumped in a store room. The Government argued that it owned the mural and had paid for it. Held: the Delhi High Court, on 21 February 2005, held that destroying a work is the extreme form of mutilation. It ordered the remains to be returned to the artist and awarded Rs. 5 lakh in damages. Principle: owning or paying for the physical work does not defeat the author's moral right against mutilation; destruction is mutilation in its extreme form.
Limitation of the personality theory
Most patents belong to companies, and it is hard to find a "soul" in a better gearbox. The theory explains an author's moral rights well but struggles to justify corporate, technical inventions.
Labour Theory (Locke): the "Sweat"
Core idea
The gap left by the personality theory is filled by John Locke's labour theory, also called the natural rights theory. It rests on the creator's effort, or sweat.
Locke's illustration: a man gathering acorns under an oak makes them his own because he "hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property".
Applied to intellectual property, mental labour should earn ownership too, just as physical labour does.
Locke's limit: "enough, and as good"
Locke added that there must be "enough, and as good, left in common for others". This condition helps explain why ideas and facts stay free and are not owned by anyone.
Criticism: where does ownership stop?
Robert Nozick asked whether pouring your tomato juice into the sea makes you own the sea, or simply wastes the juice. Mixing labour with something does not tell us how far ownership should extend.
Indian law refuses to reward effort alone
Eastern Book Company v. D. B. Modak (2007): copyright was claimed in judgments on the basis of the labour and capital spent copy-editing them. Held: the Supreme Court denied copyright to mere labour and capital, holding that copyright "does require minimal degree of creativity". Only creative touches, such as paragraphing and marking dissents, qualified for protection. Principle: sweat alone does not earn copyright in India; a minimal degree of creativity is needed.
The labour theory explains why a creator owns the work, but Indian law does not accept pure effort as the test. The test is a minimal degree of creativity (Eastern Book Company v. D. B. Modak).
Ethic and Reward Theory: the "Scale"
Core idea
If sweat cannot measure what a creator deserves, the ethic and reward theory offers a scale. It starts from fairness: a creator deserves a reward.
The economist Fritz Machlup, in 1958, described it as justice demanding a reward in proportion to the work's usefulness to society.
The ceiling on reward
The theory also sets a ceiling. A reward far beyond the creator's contribution is unfair to the public. That is why every patent and copyright expires.
Rabindranath Tagore died in 1941. In 1991, just before his works were to become free, the copyright term was stretched from 50 to 60 years after the author's death. It was not stretched again, and his works became free after 2001. Was the extension a fair reward or an excessive one? That is exactly the question this theory asks.
The ethic and reward theory explains both sides of IPR: why the creator is rewarded, and why the reward is limited in time.
Utilitarian Theory and Incentive Theory: the "Sum"
Core idea
The utilitarian theory turns away from what the creator deserves and looks at society's total benefit. It is the theory of Jeremy Bentham and John Stuart Mill, aiming at the greatest happiness of the greatest number.
Incentive theory: its legal form
In law, the utilitarian theory appears as the incentive theory. Without protection, nobody would invest in creating new works, so a temporary monopoly is a price worth paying for the benefit society receives.
A Bengaluru start-up spends three years building a voice assistant for twelve Indian languages. A copier could clone it in a week. Without protection, nobody would invest in such work.
University of Oxford v. Rameshwari Photocopy Services (2016): the Delhi High Court said: "Copyright, specially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public." Principle: copyright is not a natural right of absolute ownership; it is a tool to stimulate creativity for the public's benefit, which is the utilitarian or incentive view.
Weakness: measurement
- Nobody knows how much protection is actually needed to produce the incentive.
- Folk songs were composed for centuries without any copyright, so creation does not always depend on protection.
Social Planning Theory: the "Society"
Core idea
The social planning theory asks the widest question: not how much is created, but what kind of culture we build. William Fisher of Harvard calls it the social planning theory. It aims at "a just and attractive culture" in which:
- students learn,
- citizens criticise, and
- new artists build on old work.
Reflection in Section 52 of the Copyright Act
Section 52 of the Copyright Act reflects this theory. Under Section 52(1)(i):
- reproducing any work "by a teacher or a pupil in the course of instruction" is no infringement; and
- using a work in examination questions and answers is no infringement either.
On appeal, a Division Bench protected such copying to the extent education justifies it.
Criticism: who decides?
Who decides what culture is "attractive"? If that judgment is handed to the State, taste may be imposed from above.
Comparing the Five Theories
| Theory | Justification | What it explains in Indian law | Weakness or open question |
|---|---|---|---|
| Personality (Hegel) | The work carries the creator's will and personality | Moral rights under Section 57; Amar Nath Sehgal v. Union of India | Hard to find a "soul" in company-owned patents |
| Labour (Locke) | Mixing labour with something makes it one's property | The creator's ownership; "enough, and as good" explains why ideas and facts stay free | Where does ownership stop (Nozick's tomato juice)? Effort alone is not enough (Eastern Book Company v. D. B. Modak) |
| Ethic and reward (Machlup) | Reward in proportion to usefulness to society | The limited term: every patent and copyright expires | Is a reward fair or excessive (Tagore term extension)? |
| Utilitarian / incentive (Bentham, Mill) | Greatest happiness of the greatest number; incentive to invest | The reason to protect at all; University of Oxford v. Rameshwari Photocopy Services | Nobody knows how much protection is needed; folk songs flourished without copyright |
| Social planning (Fisher) | A just and attractive culture | Students' freedom under Section 52(1)(i) | The State may impose taste from above |
Back to Zoya: each theory wins a part of her case. Personality gives her moral rights, labour gives her ownership, reward gives that ownership its limited term, utility gives the reason to protect her work at all, and social planning gives students the freedom to use it.
No single theory explains the law. Indian law blends all five theories, each supporting a different feature of it.
Quick revision
- Personality theory (Hegel) gives the creator moral rights (Section 57, Copyright Act, 1957).
- Labour theory (Locke) gives the creator ownership.
- Ethic and reward theory (Machlup) gives the reward its limited term.
- Utilitarian / incentive theory (Bentham, Mill) gives the reason to protect.
- Social planning theory (Fisher) gives students' freedom (Section 52(1)(i)).
- No single theory explains the law; Indian law blends all five.
- Memory aid: Self, Sweat, Scale, Sum and Society.
