Suktika P. Banerjee and Sharngan Aravindakshan write on Intellectual Property Law and its compatibility with the Indian Constitution.

Abstract

India is new to the field of intellectual property law. While much of the Western world already has an established jurisprudence on the subject, India is only just scrambling to join the race. The recent amendment of our domestic laws to comply with the WIPO’s intellectual property laws is only the first step taken on the road to the fully developed field of intellectual property.

But whether the amending of legislations or statutes such as the Indian Patent Act or the Copyright Act, etc. would alone be sufficient to develop our own jurisprudence and keep pace with the rapid changes that are taking place in the field of intellectual property law, is questionable. In this regard, it would be pertinent to take a look at the supreme law of the land, the Constitution of India and examine its compatibility with intellectual property law. One would say it certainly is compatible, seeing as how it provides for patents, copyrights, trademarks and designs as a subject in the Union List. This by itself, however, is not enough. The Constitution needs to be in sync with the true spirit of the intellectual property. And for that, one needs to see if the philosophies for intellectual property, which embody the spirit of intellectual property, can be read in consonance with the Constitution.

The authors have attempted a comprehensive analysis of the main provisions in the Constitution which have potential for interpretation or those that could be interpreted along the lines of the philosophies. Through a study of case laws and scholarly works, the authors will try to identify the implications of the Constitution bearing such philosophies on everyday IP law. Finally, the authors would attempt to determine the role played by case laws in this regard.