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Theories For Intellectual Property: Labour And Personality - Their Strengths And Weaknesses - Explain With The Interpretation Of Locke And Hegel's Perspective

The Article focuses on identification, explanation, and characteristics of two theories namely Labor and Personality theory. It will further explore their applicability and limitations with reference to Copyrights regime. At last, it will tend to show which between two theories has a better applicability in its true nature.

The idea of rewarding the authors for their own work is specified under jurisprudential nature of various nations. A normative study of theories justifies the premise of Intellectual property rights that have widely characterised to protect the work of individuals.

The concept of IP is egalitarian in nature and its application is based upon the two important theories i.e., Labor theory and Personality Theory. Numerous arguments arose in reference to the interpretation of these theories and its relation in terms of Intellectual property and protection of the rights.

Locke's theory known as Labor theory or Natural Rights theory signifies the idea of labour, as "all inferior creatures be common to all men, yet every man has a property in his own person. Nobody 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 have provided and left it in, he has mixed his labour with it and joined to it something that is his own, and thereby makes it his property."[1] In simpler terms a creator is entitled to the fruits of his own labour. Although Locke's theory was anticipated for conventional forms of property but its application in copyrights can be considered as the inherent right of a person for their intellectual labour such as artistic works and creations.

At first, Locke emphasized on what justified idea is, it can be interpreted as a set of all "reachable" and "possible" ideas that can be perceived by at least one person or the ideas that someone might think of. "The Lockean 'sufficiency' proviso can be satisfied fairly easily on the theory that the deployment of most ideas enables other people to 'reach' an even larger set of ideas and thus enlarges rather than subtracts from the commons."[2]

Certain examples like the origination of the word Olympics, images displaying Thomas Edison's invention of light bulbs and GW Carver's peanut research show the laborious idea making. Additionally, Locke's notion to protect the work of an individual is justified in three ways, that owner can only claim and enjoy his right over his intellectual labour without any harm, in circumstances no other can use such rights without his authority and transfer of such intangible property or ownership rights to others of mutual agreement under natural law.

Likewise, General Hegelian philosophy speaks about the human's will and freedom in sense, for him the person's will is the existential core seeking effectiveness and actuality. In other words "a person must translate his freedom into an external sphere in order to exist as an idea and that personality is the first, still wholly abstract, determination of the absolute and infinite will."[3]

Furthermore, artistic skills, mental aptitude, beliefs, etc. of individuals fall within the contractual agreements and if such individuals being a scholar or an artist is in possession of these qualities, and they are subject to contracts and business transactions then it is to state that these things are considered to be the possession of an individual because it has something mental and inward about it.

According to Hegel, IP has materialized these personal and mental traits, he continues to say that "attainments, eruditions, talents, and so forth, are, of course, owned by free mind and are something internal and not external to it, but even so, by expressing them it may embody them in something external and alienate them."[4]

Accordingly Hegel has a firm stand that one cannot alienate their universal part of one's self, in copyrights essence, the theory fails in alienating the work of creator as a separate and protected work, for example, a painter expresses his will and ability in producing a piece of art, if his creation is copied by another artist then Hegel's view propose that a handmade copy is the creative work by using mental ability by the copyist.

And thus, it does not infringe the rights of the original artist. "The purpose of a product of mind is that people other than its author should understand it and make it the possession of their ideas, memory, thinking, etc."[5] Therefore, it seems like it is a loophole created under Copyrights legal system, where the intellectual property of an individual is not protected as theory fails in suggesting that the original work is alienated from the copied and other works.

Keeping in mind the two theories discussed above, in my estimation, their applicability in Copyrights is widely based upon the limitations of each. Even though it has been argued that Personality theory is an alternative to Locke's model of IP yet there is a distinctive approach of theorists to analyse which theory is more applicable in the legal system. Under Lockean sense of expression, 'ideas and the common' are the basis of the distinctions among ideas and physical property has been revised consistently.

Just a single individual or group of individuals can use physical property at any one time. Ideas can be consumed all the while by everybody. Moreover, individuals cannot be avoided from ideas in the manner that they can be rejected from physical property. You might keep somebody from openly using an idea, however prevention of using an idea privately may not be imaginable.

Common as a concept, it says that under physical property there may be many goods of similar quality that an individual taking benefit from it does not hinder others from taking the benefits of such goods with same quality. Inexhaustibility under physical goods can only be satisfied if there is immense supply of goods nonetheless in scenario of ideas under Copyrights inexhaustibility is satisfied easily because an idea can be used by infinite number of individuals owing to which common of ideas fits better in IP rather than under physical property.

For example, TV shows like 'Morse' and 'Froth' was developed on the same idea but none of them infringes each other's copyright. Certain scholars to contend against IP, in any case, regardless, they propose that ideas fit Locke's sense of a "common" better than physical property, have utilized these two essential contrasts among ideas and physical property. However, the two theories may have different approaches yet they both are accepted within the elements of under Copyrights in various jurisdictions.

One of the most essential elements is originality that means anything which is new and have never been done or created before. Artistic creations and literary works are protected under copyrights if they are original; the certain condition is not defined in statute, but Article 2(3) of Berne Convention specifies on the original work and its protection.

Under UK law it says that a work is original if it contains labour, skills and judgment, this certain requirement was interpreted in London Press case[6], labour as an important criterion shows that UK has easily adopted the Locke's model of IP, also it has a lower threshold than EU, clearly shows that a copyright can be availed based on labour and skill easily and it has been preferred over the personality theory.

Labour and skill notions alone as a test of originality considered being insufficient for copyrights protection under EU legislation as in mentioned in Football Dantaco, "skill and labour in the selection or arrangement of the data, even if significant, is not sufficient as such to trigger copyright protection."[7] Moving ahead with Moral rights that are concerned with the creator's personal connection with their copyrighted work, although it is mentioned under Berne Convention yet after the implementation of CDPA Act, 1988, it has been given less protection.

Since it is less compensated with the labour and majorly focus on the emotional connection of work to the creator, its credit for due work, determination of publishing his work and protection from excessive criticism shows the derivation of moral rights from personality theory, such rights are common in civil law jurisdictions like EU which may last forever unlike in UK or common law jurisdictions where it is not enforceable unless they are explicitly stated.

Consequently, economic rights enable an artist to make commercial gains from exploiting his work, in common meaning licensing their work or selling the rights to use the work. Now under this, distribution plays a crucial role as it depicts the issuing of an author's work in public domain, exhaustion can only limit distribution of his work after it is presented in the market but not the idea attached to it or, therefore.

Personality theory applies better in economic rights because a work is not recognized by the object of a property or only the labour attached to it but it is a product of an individual which is a combination of labour and personality both, basically an extension of his personhood that he cannot control the distribution of a product after the first sale has been made yet his work is only recognized in the market by his product not just the labour or skill he has put into the work.

 Further non waste proviso introduced by Locke suggest that:
"certain condition prohibits the accumulation of so much property that some is destroyed without being used. Limited by this condition, even after the primitive state there sometimes can be enough and as good left in the common to give those without property the opportunity to gain it."[8]

This came out as a conflicting nature to Lockean theory and becomes a challenge on applicability, since ideas are the foundation in relation to copyright protection, if such are not protected even, they are not being in use under the condition then they will be exploited in public domain.

Also, we may not realize but society helps in preserving the original form of an art or creation to enjoy the creator's fruits in the original form only but in some cases the ideas can be rejected or altered owing to depletion in modern world, then society recognize and take interest to protect the personality or integrity of a creator. At last, I observed that one of the issues with the labour theory is about is that a few IP products have no obvious social worth or demand no labour in production.

The personality theory has same issue with artistic or literary works that reflect no personality from their creators. Labour theory is more grounded in comparison with Hegel's and its application in IP expressly in copyrights because a personality cannot be the only subject matter to supply the copyright protection, the essence of ideas, skills and labour reflect the enhanced method reaching the protection under IP.

Therefore, the rationale behind the better theory and its applicability the labour theory in IP is dominant but incomplete, there is a belief that the theory needs a convincing support of personality theory, where it speaks about the expression of oneself. Hegel's theory when applied to IP, it can be considered, as an idea is a possession of a creator because idea is an expression of creator's own personality.

  1. John Locke, Two Treatises of Government, Second Treatise (1988) 3rd Edition Cambridge University Press, pg. 287- 288.
  2. Justin Hughes, The Philosophy of Intellectual Property, (1988) 77 Georgetown Law Journals, pg. 287-366.
  3. Acton H.B., 3 Hegel Georg Wilhelm Friedrich: The Encyclopedia Of Philosophy (1967) 442.
  4. Justin Hughes, The Philosophy of Intellectual Property, (1988) 77 Georgetown Law Journal, pg.337
  5. ibid pg.338
  6. University of London Press v University Tutorial Press [1916] 2 Ch 601.
  7. Case C-604/10 Football Dataco Ltd and Others v Yahoo! UK Ltd and Others [2012] Para 53.
  8. Justin Hughes, The Philosophy of Intellectual Property, (1988) 77 Georgetown Law Journal, pg. 298

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