Intellectual Property Rights (IPRs) are legal rights that protect creations of the human mind. These creations can be inventions, artistic works, designs, symbols, and even names used in business. IPRs give the creator certain exclusive rights over their work, for a limited period of time. The main aim is to encourage creativity and innovation by protecting the creator’s efforts.
In Nepal, intellectual property law has a long history. Even in the early 20th century, legal documents like the Muluki Ain or Country Code of 1910 had some mention of these rights. One of the earliest formal laws was the Patent, Design and Trademark Act, enacted in 1933 B.S. (around 1976 A.D.), which is often seen as a landmark in Nepal’s IP legal history. It laid the foundation for protecting industrial innovations and business branding.
Later, copyright law developed more clearly. A significant step came with the Copyright Act of 2022 B.S (1965 A.D), which provided creators of books, songs, and art with legal rights over their work. However, even before that, the Chapter of Adalko under Number 31(a) included a provision for copyright. It stated that a creator could register their work with the Nepali Language Publication Committee by paying a fee of Re. 1 to Rs. 20. Once registered, the creator would enjoy a monopoly over the work for ten years. This shows how the idea of copyright protection existed even before modern laws were passed.
The Copyright Act of 2059 B.S (2002 A.D) replaced the old law of 1965 and brought clearer and broader protection. Under this law, the National Library of Nepal was first assigned the role of registrar for copyrights. Later, in 2061 B.S. (around 2004 A.D.), a separate Copyright Registrar Office was established for easier and more organized registration of creative works.
Alongside this, Nepal also focuses on protecting trade secrets, publicity rights, and moral rights. Trade secret laws protect confidential business information from being stolen or shared without permission. Publicity rights protect a person’s name, image, and likeness from being used commercially without consent. Moral rights recognize the creator’s right to be credited and to object to misuse of their work. Similarly, laws against unfair competition help ensure a level playing field in the market.
In Nepal, the Industrial Enterprises Act, 2076 B.S. supports the registration and regulation of industrial properties. The Industrial Registration Office, located in Tripureshwor, Kathmandu, handles these registrations. To avoid violations of intellectual property, people should create original work, obtain the necessary licenses from the government, and follow the proper process to transfer rights. Registration is a key step. It helps protect against misuse and proves ownership.
There are various theories of Intellectual Property Law:
- Labor Theory of Johan Locke
Labor Theory of John Locke- John Locke who is famous for his book ‘Second Treatise of Government’ has mentioned a detailed justification of property rights under Chapter V. According to Locke, Goods can be possessed through divine grant. However, such goods cannot be enjoyed in their natural condition. We must enjoy such by transferring into private property adding more value.
Johan Locke, Two Treatise of Government 1963 in Section 25 states that every person should be entitled to exploit the object of his labor without interfering with another person’s right to do the very same thing.
Furthermore, Locke also introduced a non-waste condition theory which bars from accumulating property that withers away because of no use. By allowing individuals to be engaged in labor to achieve applied property increases the collective wealth. Lockean theory can be seen in the judgment of Mazer vs Sten.
- Personality Theory by Hegal
This theory asserts that property offers an individual within self-actualization, personal expression and integrity. This theory is based on a personhood perspective. Individuals tend to control the external resources which can only be satisfied by acquiring property is the main concept if this theory. In his treatise Theologische Judgendschriften, humorously argues that property interests could destroy the harmony between two people in love.
Hegal further extended his idea by stating that copying unauthorized may be permitted if such copyist reflects the personality of the original creator.
- Utilitarian Theory by Bentham
Utilitarianism concept provides benefit to both producers and users of intellectual property, while the creator gets benefitted by getting financial reward which follows legal recognition the public on the other side also benefit in their domain. As individual works are introduced to the public, which collectively increases the wealth of a society. In the words of Bentham, such circumstances would lead to the greatest happiness of the “greatest number”.
Bentham argued that invention required immense time, knowledge, investment etc it must be protected for a period so they increase the general knowledge and wealth of society.
- Reward Theory
Reward Theory of intellectual property is based on the idea that society should reward creators for their contributions and enhancements to knowledge, culture, and innovation. This theory supports the provision of appropriate remuneration and legal protection to the creators of original works, such as inventions, literature, or artistic creations.
The justification lies in the moral and ethical standpoint that creators deserve recognition and compensation for their labor, skill, and intellect. However, the reward is not unconditional; protection is considered appropriate only when the creation contributes to social utility.
In essence, this theory balances individual rights with the broader interests of society, acknowledging creativity as a socially valuable act.
- Social Purpose Theory
It emphasizes the collective benefit of intellectual property rights rather than individual gain. Influenced by thinkers like Thomas Jefferson, Karl Marx, and the Legal Realists, this theory argues that the ultimate goal of granting IP protection should be to serve the public interest and promote the common good.
Unlike the Utilitarian Theory, which focuses on incentivizing innovation through exclusive rights, the Social Purpose Theory views IP as a means to achieve social welfare, development, and accessibility. It highlights the importance of equitable access to knowledge and technology and contends that IP laws should be designed and applied in a way that aligns with the needs and welfare of society as a whole.
In conclusion, intellectual property rights are not only legal protections but also fundamental human rights that safeguard both the moral and material interests of creators. They play a vital role in ensuring fairness, encouraging innovation, and promoting access to information while respecting personal effort and creativity. In the context of Nepal, the evolution of IP laws reflects a balanced approach blending traditional customs with modern legal principles to address the needs of both individual creators and the broader society. As such, intellectual property serves as a crucial tool for supporting economic growth, social justice, and the overall development of a knowledge-based society.