Owning The Unownable - Intellectual Property At The Faultlines Of Creativity, Capital, And Control: From Algorithms To Attar, Memes To Medicines, And Courts To Culture
- IJLLR Journal
- 29 minutes ago
- 1 min read
Ojaswini Gupta, LL.B. (Hons.), O.P. Jindal Global University, Jindal Global Law School (JGLS), Sonipat, Haryana, India.
ABSTRACT
Intellectual Property Rights (IPR) were historically conceived as narrow, utilitarian monopolies, temporary legal fictions justified only insofar as they advanced learning, innovation, and public welfare. In contemporary legal practice, however, intellectual property has undergone a silent but radical transformation. It no longer merely protects invention or expression; it increasingly seeks to discipline culture, enclose knowledge, and commodify creativity itself. This article interrogates the modern IP regime as a site of structural tension, between creativity and capital, access and exclusion, innovation and enclosure.
Using a critical doctrinal and cultural-legal methodology, the article examines how claims of ownership now extend to the ostensibly unownable: algorithms trained on human expression, traditional knowledge refined over centuries, digital memes born of collective authorship, pharmaceutical discoveries entangled with public health, and even sensory experiences such as smell and style. Drawing upon Indian jurisprudence, comparative foreign case law, international treaty frameworks, popular culture, cinema, music, and digital media, the article argues that the contemporary crisis of intellectual property is not one of piracy or enforcement, but of legitimacy.
The Indian experience, particularly in patent law, traditional knowledge protection, and copyright jurisprudence, offers a critical counter-narrative to global IP maximalism. The article concludes by contending that the future of intellectual property law lies not in stronger monopolies, but in restoring humility to ownership, recalibrating incentives against access, and recognising that not everything valuable can, or should, be owned.
Keywords: Intellectual Property; Commons; Indian IP Jurisprudence; Creativity and Capital; Cultural Ownership.
