Intellectual property. Analysis of the general concept and roots of its rights in Indians systems

Wissenschaftlicher Aufsatz , 2020 , 119 Seiten

Jura - Medienrecht, Multimediarecht, Urheberrecht

This work is an attempt to analyse the concept of intellectual property and to check its authencity as a ‘property’ on the basis of proprietary jurisprudence. It also tries to trace the roots of intellectual property rights in Indian legal and social system and to look for the need and justifications of intellectual property rights. Finally, it shall make an effort to derive something innovative.

In the beginning, meaning, definition, subject matter, characteristics, kinds etcetera of property are discussed and the present status of concept of property is presented. The text introduces the concept of intellectual property and intellectual property rights and a detailed discussion on the history and development of intellectual property rights, in international arena as well as in India, is given.

That followed, it measures the authenticity of the concept of intellectual property rights on the basis of proprietary jurisprudence, elaborates upon the different principles and checks the applicability of such over the concept of intellectual property rights.

The concept of intellectual property rights is compared with the basic Indian thoughts. Basic ideas of different Indian philosophies, namely, the Sanatan dharma, the Islamic thoughts, the Sikh, Jain and Buddha philosophies, are given; and the concept of intellectual property rights from ancient to modern India are traced. Furthermore, the work investigates the need and justification of intellectual property rights through various theories and thoughts.

Table of Contents

Introduction

Property : The Conceptual Analysis

An introduction to ‘intellectual property or intellectual property rights (IPR)

Proprietary jurisprudence and intellectual property rights

Concept of IPR in Indian jurisprudence

The need and justification of intellectual Property Rights

Conclusion and Submissions

Introduction

The awareness towards the self-interests is the very nature of human being. A man always wants to own what he earns, acquires or creates. In this reference various protective measures have been applied from the very beginning of the society. The origin of state is one of the attempts made for the protection of interests of society. In the ancient society there were mainly two problems of living that is to say, the food, and the security. The responsibility of food arrangements and security has been given to the State. Since begining the maintenance of state is dependent on society (concept of taxation) and the state protects the life and ‘property’ of the individuals.

Initially; the word ‘property’ described the belonging of a person which he earns or acquires by his labour. It included only the material objects such as, land. There was no concept of immaterial or incorporeal property. The fruits of physical labour were considered as the ‘property’ but, intellectual labour was generally ignored. The intellect of a person was deemed as a gift of nature use of which should be in the welfare of others and the whole society had a share in the intellectual products of a member of society.

The concept of ‘property’ indicated that ‘what belongs to whom’ (particularly in reference to lands). The then concept of proprietary rights did assure to the persons that the fruits of your labour such as, your land, your food; will not be shacked from you but let the fruits of your intellect available for all.

In fact the concept of property emerged due to the natural needs of the developing society. The development of a society depends on the development of individuals. So this is essential for a society to protect the means of better living. The concept of property thus, maintains a system for the proper living and development of the society.

‘Property’ in its ancient form, covers a very little scope but, with the changing face of society, the concept of property has also been changed and now, it covers a very wide field. At present; in addition to the material objects; the immaterial objects (including rights) too come in the ambit of the concept of property.

The material and immaterial objects are the subject matter of property. The material objects may be movable or immovable but, always perceptible to the touch and sight such as, land, chattels car, books etc. Whereas, the immaterial objects include the rights over a property (whether material or immaterial) and, the products of human skill or intellect.

The branch of the proprietary jurisprudence, which deals with the immaterial products of human intellect is known as the ‘Intellectual Property Rights, and more particular as IPR. Under the concept of intellectual property rights’, the products of human brain, intellect, and skill are recognised as the property of the person concerned.

Different jurists have different views about the concept of intellectual property rights. But, there are mainly two strong views in the favour of the IPR concept. The first vision focuses on the idea that a ‘person has a property in his life and personality’, so he should be given the proprietary right over the things which he produces by his personal or intellectual efforts. The second view, in this reference, is based on the thought that the ‘creator should be given the ownership of which he creates by applying his labour, skill or intellect’.

Such thoughts in favour of IPR theory, strengthened their roots during the era of industrialisation and commoditisation. In the later part of 19th century, the International bodies were very much concerned about the economic interests of industrialists as well as the artists. Various International conventions and treaties were adopted to establish and to give a systematic form to the concept of intellectual property. At primary stage, the concept of IPR deals with a handful issues and covers a limited scope. But, today it has a very wide field and unlimited issues to be dealt with. The scope of intellectual property rights is still expanding.

The concept of IPR has its main focus on the economic benefits of the individuals arising out of the products of their intellect. IPR protection exclude others from taking the commercial benefits of a person’s intellectual property. But, the societal interest, in this reference, is not ignored. Society can deal with and have limited benefits of such products in a fair and prescribed manner. Thus, a balance between individual and societal interest has been made under the intellectual property laws. Again, under the IPR protection the exclusive rights are given to the owner to commercially exploit the products of his intellect. Such rights are given for a prescribed time period. After the expiration of such time period the intellectual property falls in the public domain and then no restriction remain on the part of public at large to deal with such a property.

As the concept of intellectual property is a modern outgrowth of the concept of property, the conceptual base of IPR is traced in the proprietary jurisprudence generally. Though the principles of proprietary jurisprudence are applicable in relation to the intellectual property, yet, due to the very nature of intellectual property, some changes have accrued in the nature and form of the proprietary jurisprudence.

The principles of proprietary jurisprudence, which are easily applicable to the basic concept of property; in reference to the intellectual property, it becomes very hard to apply. The concepts of possession and ownership; while applied on intellectual property become more complex. Similarly, the other basic theories of the proprietary jurisprudence are though made applicable in respect to the intellectual property, but in a modified version.

The concept of IPR is one of the essentialities of the modern global society. In common to other developed and developing countries, India has also adopted; and established in its territory, the concept of intellectual property rights. The concept of IPR had been introduced to India by Britishers as the concept had emerged in western countries. It is just impossible to find a concept like IPR in ancient Indian culture. The basic Indian thoughts and philosophies, except the thoughts of Islamic philosophy, are more or less, in contrast of the IPR theory. The philosophy of Sanatan Dharma, in this reference, is the philosophy of ‘Karmaism’ (as propounded in ‘Geeta’) which says that there is nothing yours own and you have the right to just do your work. The Sikh philosophy supports the thoughts of Geeta. Similarly, in Buddha and Jaina philosophy there is generally no reflection in favour of IPR theory. But, the thoughts of philosophy are not always strictly followed by the society. So a few instances can be traced in social system and in jurisprudence of ancient India, which might be correlated with the concept of IPR.

In the medieval era, the concept of IPR had begun to emerge in Indian social and legal system. A few events of medieval period show that a sense to protect the intellectual property was existing in the then society, though there was a lack of an effective legal system to protect the rights in someone’s intellectual property.

With the arrival of Britishers the modern concept of intellectual property rights reached to India. During the British ruling over India, the concept of IPR was grown up in Indian territory. Various laws were formed to secure the proper protection of intellectual property rights in India during this period.

After Independence, India had chosen to continue the British system in respect to IPR protection. Different laws of British period, were amended and several new laws were enacted and implemented for the proper protection of intellectual property. Today, India is a signatory of several International treaties and conventions, and complies with the International norms in respect to IPR protection.

Intellectual Property Rights is one of the most focused and universally accepted theories of modern age. But, inspite of a solid conceptual base and better practical response of IPR theory; there are some critics who consider the concept of IPR as an unnecessary and unjustified thought. There are numerous theories which condemn or justify the concept of IPR.

In order to justify the concept of IPR, it is expedient to know whether there is a need of concept like IPR? There are numerous factors which show the need of IPR protection. The first reason behind the necessity of IPR concept is the technological development; the second one is the finance centered living and increasing commercial activities; and the third one is the gloablisation and requirement of international developments.

The technological developments make possible to reproduce the intellectual works; and communicate it with public, at a large scale. In such a situation the copying and unfair use of such intellectual works must be restricted. Further, the day-today life, has become more complex and the finance is now considered as a solution of all problems. Therefore, everyone is inclined to protect his economic interests. Another point is that in view of global economy and international trade, the protection of intellectual property rights has become a matter of International concern. It is the need of hour to protect the commercial interests of all those who contribute in the strengthening and development of world economy.

This work is an attempt to analyse the concept of intellectual property; to check its authencity as a ‘property’ on the basis of proprietary jurisprudence; to trace the roots of intellectual property rights in Indian legal and social system; to look for the need and justifications of intellectual property rights; and finally, to make an effort to derive something innovative.

The whole work is divided into six chapters :

Under the first chapter , the ‘conceptual analysis of the property’ is given. The meaning, definition, subject matter, characteristics, kinds etc. of property are discussed under this chapter. Further the chapter throws light on the present status of concept of property.

The second chapter introduces the concept of intellectual property and intellectual property rights. Under this chapter, in addition to the the meaning, definition, concept and, kinds of Intellectual property rights; a detailed discussion on the history and development of intellectual property rights, in international arena as well as in India, is given.

The third chapter measures the authenticity of the concept of intellectual property rights on the basis of proprietary jurisprudence. In its first part, the chapter elaborates upon the different principles of proprietary jurisprudence and, the second part of the chapter checks the applicability of such principles over the concept of intellectual property rights.

The fourth chapter compares the concept of intellectual property rights with the basic Indian thoughts and traces the roots of a concept like IPR in Indian legal and social system. Under the first part of this chapter the basic ideas of different Indian philosophies, namely, the Sanatan dharma, the Islamic thoughts, the Sikh, Jain and Buddha philosophies, in reference to IPR theory, are given; and the second part of the chapter traces the concept of IPR from ancient to modern India.

The fifth chapter investigates the need and justification of intellectual property rights through various theories and thoughts.

The sixth and last one consists of the gist and, derivations of the whole work .

CHAPTER – I Property : The Conceptual Analysis

1.1. General

All the things in the world are, ultimately, connected with the nature. Nature gives the life as well as provides the means to being alive and grown up. The fruits of nature are equally available to all but, the beneficiaries thereof are not equal. The gifts of nature, if not be dealt in a proper manner, it would lead some to greed and others to hunger. So the concept of ‘property’ emerged to determine what is yours; what is his; and, what is for all.

The word ‘property’ generally, denotes a person’s belonging. In legal sense, it includes both, the objects (whether material or immaterial) and, the rights over such objects but, all a person rights or all material or immaterial objects do not construct a property. There are some essential characteristics of property such as, transferability, possession and, ownership. Property may be of different kinds according to the subject matter and its nature. The ownership of a property confers some proprietary rights on the owner of property, subject to the conditions and limitations of respective laws.

This chapter is an attempt to explore the meaning and definitions of property, kinds, characteristics and its subject matter etc.

1.2. What is meant by, and, how to define the property

The term ‘property’ is generally, used to describe the belonging of a person. In a wide sense, almost all the natural and artificial things (except human being and some environmental heritages like, air, cloud etc), may come in the ambit of the word ‘property’.

In traditional manner, the term ‘property’ is commonly used in relation to tangible objects such as land, house, car etc. but, in modern conception; property is not restricted to its traditional limits. Several new forms of property has evolved, for instance, incorporeal property, industrial property, intellectual property etc. further, various rights are also treated as a property. Thus, the scope of property has become very wide and become of the widening horizons of the term property, it become more difficult to define it.

Encyclopedia Britannica defines the property as:

“Property is a term used popularly to refer to a thing owned by a person, but used more accurately in law to refer a scheme of relationship that are recognized or established by government and that exist between individuals with respect to an object. The object may be tangible, such as, land, or completely the creature of law, such as, patent or copyright”.

A more elaborated definition is given by the encyclopedia Americana in following words:

“Property, in its broadest sense, is anything that may be possessed or become the subject of ownership. In its legal context, property emphasises the rights of ownership the rights to possess, enjoy, use and dispose of things, either tangible or intangible. An essential element of property is the transferability of the thing owned. Tangible property, consist of physical things, such as land, buildings and furniture. It may be real or personal, and it is necessarily corporal in that it is perceptible to the touch and sight. Intangible property has no intrinsic value as such, but acts as evidence of value. It includes socks, franchise agreements, patent rights, business goodwill and rights of action. ”

Similarly, Webster ’s new encyclopedic dictionary defines the property as ‘ any thing that is owned’.

Almost some pattern is followed by the Supreme Court of India to defining the property¹:

“property means the highest right a man con have to anything, being that right which one has to lands or tenements, goods or chattels which does not depend on other’s courtesy : it includes ownership, estates and interests in corporeal things, and also rights such as trademarks, copyrights, patents and even right in personam capable of transfer or transmission, such as debts, and signifies a beneficial right to or a thing considered as having a money value especially with reference to transfer or succession and to their capacity of being injured.”

Another considerable definition of properly is given by Salmond. Salmond takes the property as a ‘right-in-rem’, possesses different applications having different degrees of generality. He states about four applications of the term property. According to Salmond:

‘Property, in its broadest sense, includes all a person rights, of whatever description. In second sense, property includes the ‘proprietary rights’ of a person. In a third application, the term includes only proprietary rights ‘in-rem’. Finally, in the narrowest use of the term, it includes nothing more than corporeal property’².

Salmond, thus, describes different subject matters in reference of which, the term property is applicable. In Salmond ’s conception, these are basically, the rights known as a property. The rights may be proprietary or non-proprietary one. Such proprietary rights may be right in rem or right in personam. Besides the rights, the term property is, in its narrowest sense, applicable only to corporeal property. The meaning of corporeal property, according to Salmond, is the right of ownership in a material object or that object itself³.

On analyzing all above definitions we find that property is something can own or possessed. Ownership or possession is one of the essential characteristics of property. Infact, a thing becomes a property while it is possessed or owned by a person. Further, the second essential element of property is its transferability. It may be say, in this respect, that anything which is transferable is property. A property may be tangible or intangible according to its subject matter. If the subject matter of a property is a material object (i.e. Land, house, furniture etc.), the property is called tangible and, if such subject matter is immaterial (i.e. rights, skill, knowledge etc.), it will form an intangible property. Property can again be divided into two heads i.e. movable and immovable property. The division is based on the nature of subject-matter concern. When the subject-matter is fix or static in nature (land, house), it called immovable property while, the things of dynamic nature (car, furniture) are known as movable property.

Finally, a general definition of property may be given as follows:

“Property is a material or immaterial object (including rights), a person have own or possess; not being a mere right necessary to growth and development of human life ⁴ or, anything in contrast to law, morality and natural justice⁵.

1.3. Subject Matter of Property :-

The Subject matter of property can be divided into two heads, that is, (i) material objects or things and, (ii) immaterial objects or things. The material objects, in this reference, include a physical thing perceptible to touch and immaterial things include the skill, knowledge and rights of a person. All these aspects are discussed in detail under the further heads:

1.3.1. Material Objects

A thing which we can see and touch is called material object. There may be different forms of material objects, broadly divided into movables and immovables or land and chattels. Another classification of material objects is known as real and personal. Immovable or real property includes the land and all that is permanently fixed with or vested in the land, for example building and minerals. The movables or chattels or personal property includes all that is not immovable. A car, a book, a dog are the examples of movable material objects.

Thus, the material objects of whatever description (i.e. movable or immovable) are the subject matter of property. But there is a point to note that a material object is just a subject matter of property, not the property in itself.

1.3.1.1 When a material object becomes a property

Material objects are naturally not a property. Such an object becomes a property when a person owns or possesses it. The proprietary value of a material objects thus depends on the external intervenes. In other words, there can be no property unless and until, there is a person (owner or possessor) to deal with it, for example, there is a valuable pearl in the open ocean, the pearl is not a property but just a material object. A person finds it and takes it in his possession, here; as soon as the person possesses it (if not in contravention to any law); the pearl becomes a property (of the person).

Thus, it may be said that, a material object accompanied with a person’s interest is a property. The property always belongs to someone. A wild animal, for instance, is not a property (it may be a natural heritage) but, a pet animal is always a property of its owner⁶.

The rule is not applicable only to material objects but also to other types of property. For example a copyright or patent is a property of its owner. But, as soon as the duration of such copyright or patent terminates and it falls in public domain, it does not remain as a property. Although, it may be said that, now, such copyright or patent has became a public property but, this is not so, because, the public do not have the same rights an owner has⁷.

1.3.2. Immaterial Objects

An immaterial object is something which can be realised but not perceptible to the touch and sight. It includes the skill and knowledge of a person, the rights and, some other things like, gases, spectrums, computer programmes etc.

According to Salmond:

the only immaterial things which are recognised by law as the subject matter of rights of this description (re-properia) are the various immaterial products of human skill and labour. In modern law every man owns that which he crates. These material forms of property are of five kinds, namely, (i) Patents (ii) Literary Copyright, (iii) Artistic Copyright, (iv) Musical and dramatic copyright and, (iv) Commercial good will : trademarks and trade nam es ⁸.

1.3.2.1. How an immaterial object becomes a property

Nature blesses everyone with some special qualities. The qualities or skills in a person are like a pearl in open ocean i.e. not a property in itself. But, as soon as someone trace and apply (or at least tended to apply) it practically, it become a property (of that person). The law, thus, does not protects the skill of a person but, the products of such skill and the rights there over, for example, a person skilled in literary writings does not comes in the ambit of copyright protection unless he write something. Such writing is an application of his skill and thus protectable under the law.

As mentioned earlier, a property is always accompanied with an interest and a person’s interest is in the ‘application’ of his skill. Such skill accompanied with such application is a property of person concern. Hence, a person possesses a skill of singing or of playing a particular game or having some innovative thoughts; he can apply his skill in any manner he pleases. In such cases, if a player contracts to play for a particular team, he, thus, transfers his property i.e. application of playing skill in favour of the team. Thus, the auction of players does not the auction of person playing the game but, of the application of his playing skill because; a human being can not be a subject matter of auction or sale.

1.3.2.2. Rights as an immaterial property

Rights are also a subject matter of property with immaterial nature. According to Salmond, the property, in its widest sense includes all rights of a person of whatever description⁹. But, there are various rights, in contrast of Salmond’s view, can not be construed as a property. Fundamental rights and human rights, for instance, are although a persons’ rights but not someone’s property.

In order for a right to be a property, it is necessary to have some distinct characteristics. First of all, such a right should be independent in nature. ‘Independence’ in this reference, means that the existence of the right should not be vested in something or someone to such a extent that it (right) can not exist separately or it would become meaningless on any such separation. For example, right of easement is not a property in itself because this is not an independent right; its existence is vested in the main property and can not be separated from it.

Similarly, the moral rights of an author, in a copyrighted work, are exclusively confer on the author of the work and cannot be enjoyed by any other person because, the moral rights protect the distinctive and creative personality of the author. The whole object of moral right protection would be failed on the separation of such rights from the author’s personality. Thus, moral rights also do not construct a property. The same rule is applicable to several other rights such as, right of maintenance, right of pre-emption etc.

Further, there are some rights of such a high sensitivity and significance, as can not be treated as common as property. For example, fundamental rights and human rights of a person are the rights multiple time valuable than a property. These rights are the great heritage of human civilization and a heritage can never be someone’s property.

1.4. Legal Impact of Being a Property

When a subject matter becomes a property, the first important impact occurs on the part of the subject matter holder i.e. owner of such property. Such a person becomes entitled to deal with the property as he wishes. The property can be used, transferred, charged, waived or destroyed by the owner.

Another impact occurs on the part of the public at large. The general public may be excluded by the owner from dealing with the property.

The most common and significant impact occurs on the part of property itself. The property comes within the ambit of respective laws. The laws protect the property and the related rights as well as may impose some duties or conditions regarding the use (etc.) of the property.

1.5. Characteristics of Property

The property has some distinctive characteristic which differ it from the non-proprietary objects. There are mainly three essential characteristics of a property namely, transferability; able to possess and own; and, accompanied with an interest. These characteristics of the property are discussed below.

1.5.1. Transferability

A very common and essential feature of a property is its transferability. A property can be transferred in different modes such as, sale, lease, mortgage, bailment, assignment, license etc. Different modes of transaction have different effects on the interests of the concern parties. Modes of transfer also get affected by the nature of property concerned. Thus, with the very nature and form of the property the modes of transfer and its impacts too vary.

1.5.2. Able to possess and own

Another important characteristic of a property is its ability to be earned or acquired. Anything which can not be earned by human efforts can not be a subject-matter of property. Such as, human life is not a subject matter of property as it cannot be earned or created by human efforts. Thus, property is always the subject matter of possession and ownership. Such possessor or owner is always a human being i.e. person (natural or juristic).

Again, a notable point is that a subject matter will not necessarily become a property on the sole ground that it is able to possess or own. But, there must be a real owner to deal with it. There can be no property without an owner. Here, another important thing is that there should be a definite person or group of persons to deal with the property, otherwise the subject matter would not be treatable as a property. Where, there is a thing for the benefit of public at large or for the common society (such as a river), it can not be construed as a property. Although, such things are named as public property, but, this is conceptually not right.

1.5.3. Accompanied with interests

One more common feature of property is that it is generally accompanied with the interests of the person concerned (i.e. owner or possessor). As soon as a person owns a thing, it becomes his property because his interests have been affiliated with the thing. Similarly when an owner of a property relinquishes his rights (or interests) in such a property, it does not remain as a property because, there is no interest affiliated with it. Hence it may be said that a subject matter with an interest of a person is equal to property. So, the owner of a lost property although does not possess the property and even has no information about it but remaining the owner as the subject matter is still the property of the owner because of the interests attached to it.

1.6. Kinds or Classification of Property

From the point of view of the subject matter, property may be of two types i.e. (i) tangible or corporeal property and (ii) intangible or incorporeal property.

As mentioned earlier, there are two main subject matters of property i.e. material objects and, the immaterial objects. So, when a material object becomes a property it is known as the corporeal or tangible property, such as land, furniture, books etc. whereas, an immaterial object constructs an intangible or incorporeal property.

Tangible property consists of the physical things (along with a person’s interest). Thus, the subject matter of tangible property is the material object. The nature of material object may be movable or immovable. So the tangible property may be movable or immovable according to the nature of subject matter concern. A land or a building, for instance, is an example of tangible property and as the nature of the subject matter is immovable or static or fix, so, it would called the immovable tangible property. While, a car, furniture, a pair of shoes books etc. are known as the movable tangible property because of their movable or dynamic nature.

Intangible property, unlike the tangible, is based on the material things. Such immaterial objects include the rights and the knowledge, skill, wisdom of a person and the applications and productions of such knowledge, skill, or wisdom and also the rights there over.

As the rights, whether over material or immaterial things, are immaterial and do not has a physical form so the classification of movables and immovable is theoretically not applicable in respect of rights. But there is a trend, reflected in various judicial decisions, to classify the rights in movables and immovables¹⁰. The trend is based on the opinion that the rights over movable property are the movable rights, and thus itself the movable property and similarly, rights over the immovable property are immovable and should be known as immovable property. The classification of proprietary rights in movable or immovable property is theoretically meaningless. But, it plays a significance role in cases of transfer of the properties.

Salmond classifies the incorporeal property in two kinds, namely (i) ‘ Jura in re aliena’ or encumbrances, whether over material or immaterial things (for example, leases, mortgages and servitudes); and, (ii) Jura in re properia ’ over immaterial things (for example, patents, copyrights and trade-marks¹¹.

Tangible and intangible properties though possess the different features but, the nature of both is not contrary to each other. The two are often interconnected and supplementary to each-other. The proprietary rights over a tangible property form an intangible property. Similarly, the intangible property often provide a base for the physical format of a tangible property for example, if I have a land, building, car, furniture etc.(the tangible property), but my rights over such property like, right to use it or right to transfer it, are my intangible property. Again, if I have a copyright in a novel i.e. intangible property, and the novel itself, in the print form, is a tangible (movable) property.

1.7. Public Property or public heritage

A property always belongs to someone. There must be a person to deal with it. Such a person may be an individual i.e. natural person or, a juristic person like a company. Whenever we use the word “property”, in reference to a subject matter, the first question comes that “of whom”? There is no problem to answer the question, where the property belongs to a certain person or a group of person. But, the problem occurs in the cases where a subject matter belongs to general public or society at large rather to a certain person. In order to solve this problem a solution has been deduced that in later cases the subject matter to be understood as a public property (the former is obviously the private one).

In such a situation a problem occurs about the ownership and proprietary rights over the so-called public-property. The first question, in this regard, is that who is the owner of such property? In answer, it would say that the owner is public at large. Now, the point to consider is that whether the general public has the same rights of ownership an owner has? As we know, the owner of a property has the right to use it as well as to dispose it off. Whether the general public has the right to destroy a railway track, or to set a fire in a public bus, or to dispose off a public-park (i.e. so called public-properties)? The answer is an emphasised NO. Then how can we call a thing ‘property’ owner of which does not has the proprietary rights there over?

In fact, the things, for whom the word “public property” is used, are the things of such a vital importance (for public at large) as can not be given in the ownership of a definite person. All the persons have the equal rights to use it but, generally, no one has the right to dispose it off. So, in the place of words (public) “property” the word (public) “heritage” should be used because, the word ‘property’ itself guarantees the proprietary rights over the subject matter, while the word ‘heritage’ indicates that the subject matter is not your property at all, you can take the benefits of it but can not dispose if off. Further, the word ‘heritage’ also imposes an implied duty over its ‘protectors’ (i.e. public at large) to take care of it. Hence, the words like, “public property” or “natural property” ought to be understood as “public heritage” or “natural heritage”, respectively.

1.8. Present Status the concept of Property

The concept of property, emerged to facilitate the society, has, today, been became a significant legal conception. The basic concept of property and various principles related therewith have been well established. Similarly, the proprietary laws have been, no doubt, cemented very strongly. But, it does not mean that the development of the concept of property has achieved its end. In fact, the routes of the tree (of property) have been established but, branches there of are still growing up. Several new branches of the concept of property are emerging and new laws are taking place respectively. In this reference, one of the most significant modern outgrowth of the concept of property is known as the “Intellectual Property”. This branch of property is a bunch of various sub-branches (of property) like, industrial property (i.e. patents, trade mark etc.); copyright; geographical indication etc. The whole concept of intellectual property is being discussed in next chapters.

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¹ Rustom Covasjee Cooper V. U.O.I., AIR, 1970 SC 564

² Salmond, Salmond on Jurisprudence (edited) by Fitzgerald PJ (1966) at pp 419-422

³ Ibid

⁴ That is the reason why human rights and fundamental rights are not treated as a property.

⁵ For example, a human being can not be a property of another human being because in order of nature all humans are equal. Further, it is also in contrast to morality as well as law.

⁶ See the head 1.5.2 and 1.5.3 of this chapter

⁷ See the head 1.7

⁸ Supra N.2 at p 422

⁹ Supra Note 2

¹⁰ See the cases of Hussain Khan Vs. Saddat Khan, 1990 PLR 127, Mausammt Bibi Sayeeda Vs. State of Bihar, AIR 1995 SC 1936

¹¹ Supra note 2 at p. 421

• Hochschule: Manipal University
• Autor: Amit Yadav (Autor:in)
• Erscheinungsjahr: 2020
• Seiten: 119
• Katalognummer: V540103
• ISBN (eBook): 9783346204516
• ISBN (Buch): 9783346204523
• Sprache: Deutsch
• Schlagworte: analysis, indians, intellectual