Property Without Possession: Rethinking Ownership Of Intellectual Property Under Indian Law
Gregory Koshy Thomas, Assistant Professor of Law, School of Law, PRIST Deemed to be University, Trichy–Thanjavur Highway, Vallam, Thanjavur – 613403, Tamil Nadu, India
Kiruthiga Devi S., Assistant Professor of Law, School of Law, PRIST Deemed to be University, Trichy–Thanjavur Highway, Vallam, Thanjavur – 613403, Tamil Nadu, India
ABSTRACT
Intellectual property law uses the vocabulary of ownership while regulating subject matter that cannot be possessed in the physical sense. A book, machine, or branded product may be possessed, but the literary expression, inventive concept, commercial sign, or confidential information embodied in it is protected through legally constructed exclusion, control, attribution, and transfer. This article reconsiders the idea of ownership in Indian intellectual property law through the proposition that intellectual property is “property without possession.” It argues that Indian law does not treat intellectual property as an unrestricted dominion over an idea. Rather, ownership is a legally delimited relationship constituted by statute, registration, authorship, priority, contractual allocation, confidentiality, and remedies. The Copyright Act, 1957, the Patents Act, 1970, the Trade Marks Act, 1999, and the common-law protection of confidential information create distinct and non-interchangeable forms of proprietary entitlement. Their differences become visible in the rules concerning subject matter, duration, exhaustion, assignment, licensing, infringement, public interest, and constitutional values. Indian patent jurisprudence, especially the treatment of pharmaceutical patents and section 3(d), illustrates that exclusivity is conditional upon social and statutory purposes. Copyright doctrine demonstrates that expression can be protected without granting control over ideas. Trademark law protects source-identifying goodwill rather than a monopoly over language as such. Trade-secret protection demonstrates the limits of ownership language most clearly because control depends upon secrecy and relational obligations rather than registration. The article proposes a relational and layered model of ownership for Indian intellectual property: ownership should identify the legally recognized entitlement, while possession, control, use, access, and benefit should be analyzed separately. This model better explains Indian law’s commitment to innovation, competition, public access, freedom of expression, and the constitutional value of social welfare.
Keywords: intellectual property, possession, ownership, Indian law, copyright, patents, trademarks, trade secrets, licensing, public interest.
