FROM PROPERTY TO INTELLECTUAL PROPERTY

1. Meaning of the Word Property

The word Property is rich with meanings. The Latin word proprius is the root of
the word proprietas much in the same way as the word property in English is the
noun formed from the word proper by using the suffix ty. So literally in
Latin the word Proprius means: ones own, special. That means ones property is
what one owns or what one has as specially his.

The Sanskrit word swatva used for property in Indian philosophy, is a noun
derived from the word swa i.e. self, with the help of suffix tva and, therefore,
etymologically it means the attribute or property of ones self.

Taking into account the above roots of the respective words used to connote
property, it means that ones property is an attribute of ones self and roughly
means what one owns or what one has as ones own. A persons property
therefore, is anything owned by that person. A thing may mean a tangible or an
intangible one, a movable or an immovable one, a material or an abstract one etc.
Thus, a thing may have in its ambit, an idea or a feeling or a right or an object
with equal ease.

In English the word property means among other things: a thing owned,
possession(s) especially real estate, an attribute, quality or characteristic. It can be
observed that English language has combined the meaning of property derived
from the above-mentioned two languages. The extended notion of property may
also be observed in Dixon v. Holden, (1869) 7 Eq. 488 where it was quoted that
A mans reputation is his property, and if possible, more valuable, than other
property. In the recent times the meaning has underwent lots of transition and has
gained recognition of ideas and expressions as a kind of property in the name of
Patents, Copyrights etc.

2. Concept of Property in India

Property was one of the four pillars upon which stood firmly the complete
framework of ideal Indian life. They are:
Dharma Religion or that which one ought to bear as ones solemn duty
Artha Finance, loosely meaning all roots of worldly property
Kama Desires, ambitions and
Moksha Liberation from worldly connections or salvation.

Geeta divides property into two forms i.e.
1) Daivi Devine and
2) Asuri Demon like

1) Daivi Persons born with divine property are fearless, simple hearted, learned
in Vedas, devoid of anger or enmity towards all, truth speaking and having a
sense of reverence towards God, gods and gurujana (teacher).
2) Asuri - Persons born with demon like property are marked by their sense of
pride, arrogance, anger, ego, rigidity and also ignorance.

Persons with property enjoyed social respect and recognition in olden times much
in the same they do in the modern world.

The law of property comes under substantive law, which deals with law of things,
law of persons, contractual obligations, torts and crimes. The law of things covers
the ownership, pledge, various kinds of bailments etc.

3. Kinds of Property

According to John D. Mayne while individual property is a rule in the West;
corporate property is the rule in the East. He says that three forms of corporate
system of property exist in India.
a) Patriarchal Family
b) Joint Family and
c) Village Community

4. Acquisition of Property

Dharmashastras describe various means of acquisition of ownership. According to
Manu there are 7 virtuous means of acquisition of wealth: -
a) Inheritance
b) Gain
c) Purchase
d) Conquest
e) Application (of wealth)
f) Employment of work and
g) Acceptance of gift (from proper person)

5. Property over Ideas in Ancient India

Indian Jurists and philosophers always made it clear that vidya, that is, knowledge
was greatest of all gifts a man could make in favour of the other. It was said that
Annadaanam Param Daanam, Vidya Daanam Tatah Param. This philosophy
would lead one to believe that knowledge was not a marketable thing. This may
be true theoretically but when it comes to practicality we may find aberrations of
this rule (e.g. a Sanskrit scholar Bharavi sold his shlokas for a few gold coins to
the kings men).

The scholars and jurists did relate knowledge with money is seen shlokas.
Bhatrihari declared it as best of all the assets one could have because, ones
property of Vidya cannot be: - 1) stolen by a thief, 2) confiscated by the state, 3)
partitioned by the brother, 4) nor does it have any weight of its own. Its greatness
is that it increases as it is spent (essence of dissemination of knowledge as in the
case of Patents). In this case the Vidyadhanam can be categorised under the
category of self-acquired property i.e. property over the ideas and skills.

Right of a person over a self-acquired property which could also, to use a modern
phrase, an intellectual property was not exclusive; rather it was to be kept in
harmony with the rights of the society in that property. It may be noted that even
in the modern times this may hold good because a man having an intellectual
property right cannot be allowed to use it in exclusion of the rights of the society
to be benefited by the use of that property.

6. Western Concept of Property

The early Roman jurists believed that it was a popular usage, followed by small
societies the world over, which permitted a hunter to acquire property in an
animal which had been trapped or killed by him, a farmer in the soil which had
been added to his land through imperceptible river deposits, a land owner in a tree
which had struck its roots in that land; and such other cases. To the later Roman
Lawyers these modes appeared to be the simplest ones and, hence, the natural
ones.
Things, which either did not have an owner or had never had one, were termed by
the Roman lawyers as res nullius. For example, the wild animals, fish, wild birds
and lands newly discovered or cultivated never before etc. can be taken to be the
things which never had an owner; while the movables which have been deserted
and the property of an enemy can be regarded as things, which, for the moment do
not have an owner. In all such objects the full rights of dominion were acquired by
the occupant who first took possession of them with an intention of keeping them
as his own.

7. Meaning of the Term Property

The Roman law dealt with the concept related with acquisition of property but it
did not define the term property. Res Nullius would become the property of the
first occupant and termed this concept occupatio (occupancy); but shunned the
definition of the term itself.
Sometime it may mean ownership or title and, at others, the res over which the
ownership is to be excercised. The term also takes in its ambit assets, which in the
eyes of law are only the rights in personam e.g. share certificate.

8. Kinds of Property

1) Corporeal Property
2) Incorporeal Property

1) Corporeal Property
a) Movable and Immovable Property
b) Real and Personal Property

2) Incorporeal Property
a) Jura In Re Aliena
Leases
Servitude
Securities and
Trusts
b) Jura In Re Propria
Patents
Litrary Copyright
Artistic Copyright
Musical and Dramatic Copyright
Commercial goodwill, trademarks and trade names

9. Theories of Property
a) Occupation theory
b) Labour theory
c) Metaphysical theory
d) Utilitarian theory
e) Functional theory
f) Social trust theory and
g) Socialist theory