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Intellectual Property Rights And Indian Constitution

The term intellectual property refers to creations of the human mind and human intellect. The creators are given sole right to their inventions abstaining others from using their work which may include literary work, designs, patents, trademarks, copyrights, trade secrets, etc. The authors and creators may license another individual, organization, or industry to use their inventions in return for monetary gain, they may provide the license for work, but at the same time have the right to refrain any organization from gaining ownership over their discoveries and inventions.

The creation of Intellectual property has led to the introduction of Intellectual property rights (IPR) for the protection of the creator's work. Intellectual property rights include all the rights associated with intangible assets owned by an individual, company, or any other organization and provides protection against unauthorized use. Many leading countries have recognized the importance of IPR in strengthening the global economy and society and building strategic alliances, expanding the socio-economic and technical growth.

Thus, at an international level, the protection of creative ideas has been recognized and laws to protect and govern them have been brought into action including that of Indian law. This research paper will focus on Intellectual property rights (IPR) and their stand in the Indian legal system. IPRs are vital for economic growth of India and thus it's imperative to know the constitutional aspects of Intellectual property rights in India. Are intellectual property protected as fundamental rights? This research would solely explain the constitutional protection of IPR in the Indian constitution and the need for a new regime as per new trends. Whether fundamental rights guaranteed under part III of the Indian constitution in alignment with Intellectual property rights?

Intellectual property relates to the human mind applied to new inventions, creative ideas, and expressions. Creators are bestowed with the right to refrain others from using their works in an unauthorized manner. Intellectual property rights are legal protection given to intangible assets such as trademarks, patents, geographical indications, designs, copyrights, etc.

IPR provides exclusive rights to creators to reap commercial benefits, and monetary gain through their works and licenses other individuals, and organizations to carry out authorized work which may include manpower, time, energy, skill, and money or investment of another individual to carry out the final step. Through IPR owners may gain lifetime benefits as their creation is perpetual which may last generations to come.

IPR fosters economic growth, innovations, creative ideas scientific temper, etc., and helps build a secure environment for investors, traders, artists, designers, scientists, etc. Intellectual property rights (IPRs) are territorial rights that can be registered to their country of origin with appropriate authority, and whose rights can be transferred through legal process or they can be licensed like any physical property. The development of IPR policy is crucial for promoting high-end innovations, and development objectives. The growth of any society depends upon IPR and its policy framework.

IPR helps build a strategic alliance and foster international trade, promoting technological advancement, which is vital for facilitating trade, encouraging collaboration, and enhancing cultural development on a global scale. Further, IPR grants authority to owners, and creators to prevent others from using, reproducing, distributing, or displaying their intellectual property without permission and reap rewards for their ingenuity.

Development Of IPR Laws In India

With the expansion of Intellectual property in the International market, the need for incorporating Intellectual property rights (IPRs) in the Indian legal system was recognized. To protect the rights of owner of intellectual property, to foster innovation and creativity, expand the market across the domestic borders, and maximize the economic growth of society, etc. Thus, the government of India introduced The Indian Merchandise Act, of 1889, the first-ever law enacted with respect to IPR.

Later on, The Indian Trade and Merchandise Act, of 1958 was brought into action for the protection of trademarks and prevention of the use of fraudulent marks on merchandise, and was replaced by The Trade Marks Act, of 1999, with the objective of bringing the Indian trademark laws in compliance with international practice and ensure that India maintains its commitment to TRIPS agreement.

Classification Of IPR

The term Intellectual property (IP) relates to the human mind applied for innovation, creative ideas, and inventions. IP is an intangible asset owned by individuals, companies, and organizations, they include trademarks, copyrights, patents, geographical indications, trade secrets, industrial designs, Semiconductor Integrated Circuit of Layout Designs (SICLD), protection of biological diversity, etc.


A patent is a form of intellectual property that grants its owner a monopolistic right to use, sell, and import an invention for a limited period of time, typically 20 years from the filing date of the patent application. An invention will only be patentable when it is new, involves inventive steps is capable of industrial application, and further promotes generative ideas. Patents intend to encourage innovation by providing inventors with a period of time during which they can potentially reap the benefits of their invention without competition. There are a few components to be kept in mind for a patent to be patentable.
  1. The invention must not be obvious to someone with knowledge, and experience in the subject area.
  2. The invention must be new and should not have previously existed.
  3. The invention must be useful to have industrial application and operate effectively to perform its purpose.


Copyright is a form of intellectual property that grants the monopolistic right to creators of original works of authors, literary, dramatic, and artistic works. This exclusive right prevents others from copying or reproducing their work.[1] The copyright law is brought into action to encourage and reward authors, composers, artists, designers, and other creative people as well as the publishers and film producers, and ensure a secure environment for creators by giving them exclusive rights.[2] For the creator to have the monopolistic right over the work they must ensure that their work is original and shows some degree of creativity, creative expression must be fixed in a tangible medium of expression, be permanently available to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.


Trademarks The Trademark includes any label, sign, device, brand, signature, word, icon, shape of goods, packaging style, combination of colors, etc., to identify products and differentiate them from of others. The primary function of trademarks is to serve as indicator origin, signaling to consumers that the goods or services bearing the trademark come from a specific source. Trademarks protect the public from confusion, and deception by helping them differentiate the identity of the brand through colors, icons, logos, etc., protecting the trademark owner's goodwill. Trademarks must be distinctive, and capable of identifying the source of a particular good or service, trademark should not be descriptive of the product or service it represents, trademarks are often visually identifiable signs, including words, phrases, symbols, designs, or a combination of these.

Geographical Indications (GI)

Geographical indications are types of intellectual property that identify goods originating from a specific territory, region, or locality in the region. This helps consumers identify that goods come from a specific area with given qualities, reputation, and characteristics of the product are attributable to its geographical origin, promotes goods from producers of a particular area. GI is primarily used for agricultural products but is also applied for industrial and manufactured goods. Geographical indications must have a few characteristics:
  1. association with a specific region or locality
  2. associated with certain qualities, natural factors, and reputation
  3. serves as a link between product and territory.

Industrial Designs:

Industrial Designs Industrial designs refer to three-dimensional features such as the shape of an article, or two-dimensional features such as patterns, lines, or color applied to any article during the industrial process. Industrial designs are concerned with the visual appearance of objects or products and encompass elements such as shape, configuration, pattern, ornamentation, and color, among others. The legal protection of Industrial design is deemed necessary for it adds to the commercial value of the article by making it look attractive. The creativity and originality of the design need legal protection against copying. Industrial designs must focus on the visual appearance of products, emphasizing their aesthetic appeals, incorporating functional features, and legal protection of industrial designs giving their owners exclusive rights.

Trade secrets:

Trade secrets Trade secrets are confidential pieces of information about business, trade, or profession. Trade secrets unlike copyrights, patents, and trademarks are in entirety based on trust and confidentiality, as these are information that is essential in the operation of the business and may have economic advantage over business competitors or rival companies and industries. Upon, unauthorized use of such information by an unauthorized person will be regarded as a fraudulent act, unfair practice, or violation of trade secrets, and protected without registration. It must ensure confidentiality, economic value, and independence of protection since trade secrets are not usually registered.[3]

Protection of biodiversity

The Biological Diversity Act covers the traditional knowledge in the preamble itself. It also provides for issues related to traditional knowledge under the umbrella of associated knowledge within various provisions of the Biological Diversity Act, of 2002[4].12 The benefit claimers are conservers of biological resources, creators, and holders of knowledge and information related to the uses of biological resources. The protection of biological diversity under IPR encompasses unique challenges and considerations related to living organisms, genetic resources, and traditional knowledge associated with biodiversity.

Indian Constitution And IPR

The structure of India is the foundation of the Indian vote-based system, with principal rights as its most critical highlight which are made accessible to its citizens and non-citizens. These rights are respected as principles since they are most basic for the fulfillment of the person's mental, ethical, and otherworldly status. The protest behind the incorporation of crucial rights in the Indian structure was to set up a government of law and not of man.

Intellectual property rights (IPRs) in India are represented by particular statutes compared to diverse sorts of mental property. The Indian Structure gives for essential rights but Mental Property rights not one or the other explicitly discover put in any of the essential rights nor have been explicitly prohibited by any sacred arrangement from the domain of the essential rights. At the graduation of the Structure, the right to property was a principal right beneath article 19 (1) (f) but it was corrupted to an insignificant Protected right in 1978 by the 44th Protected Revision by embeddings article 300A.

There is no particular arrangement in the Structure with respect to the Mental Property right. We get a few clues about Mental Property right in Section 49 of List 1 of the 7th Plan of Indian Structure. Section 49 particularly recognizes mental property rights as it notices "Patents, innovations, and plans; copyright; trade-marks and stock marks". Passage 49 does not particularly recognize the concept of conventional information, biodiversity, or topographical signs.

But it can be expected that such IPRs would moreover incorporate in Section 49 as IPRs are not identified in List I and List III. Assist Article 248 confers select control to parliament to make law on any matter not recorded in State List (List-II) and Concurrent List (List III).
  • Article 19(1)(g): This article guarantees the right to practice any profession, or to carry on any occupation, trade, or business. The protection of intellectual property can be seen as a reasonable restriction on this right, allowing creators and inventors to enjoy the benefits of their work.
  • Directive Principles of State Policy (DPSP): While not enforceable by courts, DPSPs guide the state in formulating policies. Article 39(e) and (f) of the DPSP emphasize the state's duty to ensure that the ownership and control of material resources are so distributed as to subserve the common good and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. These principles indirectly support the idea of protecting intellectual property for the common good.
  • International Agreements: The state is required under Article 51(c) of the Constitution to promote observance of international law and treaty commitments. India's intellectual property laws are shaped in part by its adherence to international accords like the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
  • Legal Interpretation: Indian courts have acknowledged the value of intellectual property rights while interpreting constitutional clauses. The judiciary has always maintained the constitutionality of intellectual property laws, stressing the need to strike a balance between the public interest and individual rights.

It's crucial to remember that while the Constitution offers a more general framework for government, individual laws like the Patents Act of 1970, the Trade Marks Act of 1999, the Copyright Act of 1957, and others provide more specific rules for the protection of intellectual property.

In conclusion, even though the Indian Constitution does not specifically mention intellectual property rights, a number of its clauses subtly encourage their preservation. Particular laws and adherence to international agreements form the comprehensive legal framework for intellectual property rights protection in India.

IPR Legislation and the Indian Constitution:

The specific IPR laws in India, such as the Patents Act, of 1970, the Trademarks Act, of 1999, the Copyright Act, of 1957, and others, are structured around these constitutional provisions. They aim to balance individual rights with societal interests. For instance, the Indian Patent Law includes provisions for compulsory licensing under certain conditions to ensure that the rights granted by patents do not impede public health and access to essential medicines.

Judicial Interpretations:
The Supreme Court and various High Courts in India have also played a significant role in interpreting constitutional provisions in the context of intellectual property. Courts have often balanced IPR protection against the public interest, especially in landmark cases involving pharmaceutical patents and copyright disputes, referencing both the fundamental rights and directive principles.

In summary, while the Indian Constitution does not explicitly mention intellectual property rights, its provisions concerning the right to business, protection of property, and directives on economic policy form the bedrock upon which IPR laws stand. The legal framework for IPR in India is thus a blend of constitutional principles, specific statutes, and judicial interpretations that together aim to protect the rights of creators and innovators while ensuring that such protection does not thwart public welfare and economic equity.

Landmark Judgments:
  • Bayer Corporation v. Union of India
    This landmark case was India's first ever to give a more liberal and flexible interpretation of Indian patent linkage in line with its compulsory license regime and application of the bolar provision. The petitioner, Bayer Corporation Ltd incorporated in the USA invented and developed a drug named 'Nexavar (Sorafenib Tosylate)' used in the treatment of persons suffering from Kidney Cancer (RCC). The petitioner got the patent for the drug in India in 2008. Bayer turned down the request and did not give Natco a grant of voluntary license.

    After 3 years it was up. Natco put in a request for a compulsory license. Natco had been provided with a forced license to sell and make drugs that Bayer invented and patented. Bayer later asked for a 6% royalty from the company for drugs sold. The court ruled in favor of the respondent claiming that all three requirements in clauses (a), (b), (c) of section 84(1) for giving an obligatory license.

    Bayer Corporation vs. Union of India is a landmark case in the realm of intellectual property rights in India, particularly concerning patents related to pharmaceuticals. It illustrates the complex interplay between intellectual property rights and public health policies, especially in a developing country context where access to affordable healthcare is critically important.
  • Diamond v. Chakrabarty
    This was the historical decision in which the US Supreme Court considered the patentability of a living micro-organism. The decision is one which will have a huge impact on the field of Biotechnology. Ananda Chakrabarty, a microbiologist filed patent claims for the human-made, genetically engineered bacterium that was capable of breaking down multiple components of crude oil. A patent examiner rejected the patent because it was outside of the scope of the patentable subject matter under 35 U.S.C. ยง10.

    Moreover, the Court rejected the appellant's argument by holding that the patent protection afforded under the Plant Patent Act, 1930, and Plant Variety Protection Act, 1970 was not evidence of Congress' intention to exclude living things from being patented. The court pointed out that genetic technology was not foreseen by Congress do not make it non-patentable unless expressly provided. The Court held that the language of the Act was wide enough to embrace the respondent's invention.
  • Yahoo! Inc. vs. Akash Arora & Anr
    This landmark judgment is the first case relating to cybersquatting in India. Cybersquatting has been defined as the registration, trafficking in, or use of a domain name that is either identical or confusingly similar to a distinctive trademark or is confusingly similar to or dilutive of a famous trademark. The plaintiff is a global internet media who is the owner of the trademark 'Yahoo!' and the domain name 'Yahoo.Com', which are very well-known and render services under its domain name. While the application of the plaintiff for registration of the trademark was pending in India, the defendant Akash Arora started providing similar services under the name " YAHOO INDIA".
The present case is brought out by the plaintiff for passing off the services and goods of the defendants as that of the plaintiff by using a name that is identical to or deceptively similar to the plaintiff's trademark 'Yahoo!' and prayed for a permanent injunction to prevent the defendant from continuing to use the same name.

The Delhi High Court extensively examined the issues and rejected the defendant's contention that an action for passing off could only be brought against goods and not services rendered by virtue of Section 2(5), Sections 27, 29, and Section 30 of the Act. It was held that the passing off action could be maintained against the service, as the service rendered could be recognized for the action of passing off.


The Indian constitution specifically does not mention about Intellectual property rights, despite not having any direct provision on Intellectual property rights, many of its clauses subtly encourage their preservation. while the Indian Constitution does not explicitly mention intellectual property rights, its provisions concerning the right to business, protection of property, and directives on economic policy form the bedrock upon which IPR laws stand.

However, there are few constitutional provisions dealing with intellectual property, Entry 49 of List 1 of the seventh schedule commands the power to parliament to enact laws relating to Intellectual property. The legal framework for IPR in India is thus a blend of constitutional principles, specific statutes, and judicial interpretations that together aim to protect the rights of creators and innovators while ensuring that such protection does not thwart public welfare and economic equity.

  • Indianparliment.Nic
  • Indian Copyright Act, 1957
  • Indianparliment.nic

Written By:
  • Shubhangi - Student, Amity Law School, Amity University
  • Dr. Rajeev Kumar Singh - Student, Amity Law School, Amity University Assistant Professor of Law (Sr. Grade)

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