The Evolving Landscape of Intellectual Property Rights

Intellectual property law did not emerge fully formed. It grew – sometimes reluctantly, sometimes urgently – in direct response to how human beings create and compete. From the hand-operated looms of the Industrial Revolution to the lines of code powering today’s software platforms, each wave of technological change has forced the law to ask: what counts as intellectual property, and who deserves protection? India, as a developing economy deeply integrated into global trade, sits right at the centre of this evolving story. Understanding how the IP regime has changed over time is not just a matter of legal history – it is essential context for anyone working in or studying law today.

From narrow origins to a broader definition 🔗

The earliest intellectual property laws were built around a small set of identifiable creations – inventions that could be patented, books and artistic works that could be copyrighted, and commercial marks that could be registered as trademarks. This was a sensible framework for its time. But it was also a narrow one, designed primarily to handle tangible, easily categorised output.

The shift began with the Industrial Revolution, which placed innovation at the heart of economic growth. Technological advances such as textile machinery and steam engines demanded more sophisticated patent systems to safeguard inventors’ rights. Nations like Britain, France, and the United States refined their laws to balance public access with innovation incentives. During the 18th and 19th centuries, new forms of IP emerged – trademarks became vital for distinguishing goods in competitive markets, trade secrets gained importance as manufacturing processes grew more complex, and industrial design protections began recognising the aesthetic and functional aspects of products.

In other words, the definition of intellectual property expanded because the economy demanded it. What once meant only books and patents began to include a much wider range of commercially valuable knowledge and creative output.

The role of international treaties in shaping national law 🔗

No country’s IP regime operates in isolation. The modern framework is deeply shaped by international agreements that set minimum standards and push national governments toward alignment.

The Paris Convention (1883) brought clarity and cooperation among international jurisdictions, and the Berne Convention (1886) extended protection to written expressions. These regional offices later merged into what became the World Intellectual Property Organization (WIPO). WIPO today serves as the central multilateral forum for developing and administering international IP treaties.

The most consequential agreement for India, however, was the TRIPS Agreement – the Agreement on Trade-Related Aspects of Intellectual Property Rights. TRIPS was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) between 1989 and 1990 and is administered by the WTO. It introduced intellectual property law into the multilateral trading system for the first time and remains the most comprehensive multilateral agreement on intellectual property to date.

The IPRs covered under the TRIPS agreement include copyrights and related rights, trademarks, geographical indications, industrial designs, patents, layout designs of integrated circuits, and the protection of undisclosed information including trade secrets. This was a significant expansion over what national laws like India’s had traditionally recognised.

How TRIPS transformed India’s IP landscape 🔗

Before TRIPS, India’s approach to intellectual property was shaped by developmental priorities – keeping medicines affordable, protecting agricultural interests, and preventing monopolies in essential sectors. Before TRIPS, India’s Patent Act of 1970 allowed for process but not product patents in drugs and chemicals, with a protection term of 7 to 14 years. TRIPS required India to amend its laws to offer product patents in all fields of technology, including pharmaceuticals, with a uniform protection term of 20 years, marking a significant shift towards stronger patent protection.

India did not simply comply wholesale – it negotiated its transition carefully. The 2005 amendment to the Patents Act introduced product patents as required, but also included Section 3(d), a safeguard provision designed to prevent the practice of “evergreening,” where pharmaceutical companies make minor modifications to existing drugs to extend their monopoly. The landmark Novartis v. Union of India (2013) case upheld this provision, affirming India’s right to use TRIPS flexibilities in the public interest.

TRIPS also pushed India to formally recognise forms of IP it had not previously legislated for with clarity, including trade secrets, geographical indications, and new plant varieties.

Trade secrets: protecting what cannot be patented 🔗

One of the most important expansions of the IP regime has been the formal recognition of trade secrets – confidential business information that derives its value precisely from not being publicly known. Formulae, business strategies, client lists, manufacturing processes: these are assets that companies rely on, yet they cannot always be patented without disclosure.

The TRIPS Agreement requires undisclosed information – trade secrets or know-how – to benefit from protection. According to Article 39.2, the protection must apply to information that is secret, that has commercial value because it is secret, and that has been subject to reasonable steps to keep it secret. The Agreement does not require undisclosed information to be treated as a form of property, but it does require protection.

While India did not have specific legislation for the protection of trade secrets before TRIPS, the agreement’s requirements pushed India towards adopting practices and laws that safeguard undisclosed information, primarily through contractual agreements and common law principles. India still lacks a standalone trade secrets statute – enforcement depends on contract law, breach of confidence doctrine, and sector-specific provisions. More light is shed on this form of IP with the increase in litigation over trade secrets, the growing economic value of confidential information, and the heightened focus on protecting such information from both companies and policymakers.

Farmers’ rights: IP meets agriculture and biodiversity 🔗

Perhaps the most uniquely Indian dimension of the evolving IP regime is the protection of farmers’ rights. TRIPS required member countries to protect new plant varieties, but left open how this could be done – either through patents or through a specially designed system.

India chose a distinct path. India enacted the Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act in 2001, demonstrating its commitment to fulfilling its TRIPS obligations while safeguarding national interests – particularly ensuring that farmers’ rights are respected and that traditional knowledge associated with plant varieties is adequately acknowledged.

The PPV&FR Act is notable because it does something most IP legislation does not – it explicitly recognises the contribution of farming communities who have bred and conserved plant varieties over generations. Under this Act, farmers can save, use, sow, and exchange seed from protected varieties (with certain limits on sale for commercial purposes), and breeders who have commercialised a variety using traditionally developed genetic material may be required to share benefits with the community. This reflects a broader shift in IP thinking: moving beyond purely commercial interests to accommodate biological diversity, food security, and traditional knowledge.

Computer programs: from unprotected code to literary works 🔗

The digital revolution posed a direct challenge to traditional IP categories. Software – a set of instructions enabling a computer to perform tasks – did not fit neatly into any pre-existing category. It was not a mechanical invention in the patent sense, nor obviously a “literary work” in the traditional copyright sense.

India resolved this through legislative amendment rather than by creating an entirely new IP category. The change came with the Copyright (Amendment) Act, 1994, which explicitly expanded the Copyright Act to include computer programs. This amendment added “computer programmes, tables and compilations including computer databases” to the definition of literary work. From that point on, all the rules that applied to books and writings also applied to software.

This approach aligned India with the international consensus. TRIPS requires that computer programs must be regarded as “literary works” under copyright law. In February 1985, WIPO and UNESCO jointly convened a group of experts on the copyright aspects of computer program protection, marking a decisive breakthrough in choosing copyright as the appropriate form of protection for computer programs, which can be assimilated to literary works.

The practical effect is significant. A programmer’s source code and object code are both protected under the Copyright Act, 1957 as a literary work. Protection arises automatically upon creation, without any need for registration (though registration is advisable for enforcement purposes). The term of protection extends for the author’s lifetime plus sixty years. Unauthorised copying, distribution, or use of a computer program constitutes copyright infringement and carries both civil and criminal liability under Section 63B of the Act.

The digital era: new challenges, ongoing evolution 🔗

The amendments described above addressed known categories. But the digital era keeps generating new ones. Online streaming, artificial intelligence-generated works, blockchain-based assets, and biotechnology all present fresh questions about what deserves protection, how protection should be enforced, and who benefits.

The Copyright (Amendment) Act, 2012 brought the most substantial changes since 1957, including extension of copyright protection in the digital environment, aligning India’s law with two WIPO internet treaties – the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty – concluded in 1996.

The broader picture is one of constant calibration. The tech revolution has brought a whole new set of challenges related to privacy, spectrum allocation, and IP infrastructure. Intellectual property architecture must adjust and respond to dynamic advances in developing technologies like artificial intelligence and genetic engineering. India’s National IPR Policy (2016) acknowledged this, setting out a framework for IP awareness, commercialisation, and enforcement that takes the digital economy seriously.

What the expansion of IP tells us about the law 🔗

The steady broadening of the IP regime – from patents and copyrights to trade secrets, farmers’ rights, geographical indications, computer programs, and beyond – reflects something important about how law works. Legal categories are not permanent. They expand when economic and social realities make expansion necessary. They are shaped by the political economy of international negotiations, by the interests of developed and developing nations, and by genuine attempts to balance private rights against public access.

For India, this story is particularly layered. India has had to comply with international obligations while carving out space for domestic priorities – affordable medicines, food security, biodiversity protection, and the interests of small farmers and traditional communities. The result is an IP regime that is more complex, more inclusive, and more contested than the one that existed thirty years ago. Understanding that complexity is the starting point for anyone engaging seriously with IP law.

What do you think? Given that India designed a sui generis system under the PPV&FR Act to balance breeders’ rights and farmers’ rights, do you think this approach offers a model other developing countries should follow? And as artificial intelligence begins generating creative works and inventions independently, does the current expansion of IP categories give courts and legislators enough tools to respond – or does it require an entirely new framework?

References

1. https://faculty.wcas.northwestern.edu/jmokyr/IPR-AER09.pdf
2. https://copyright.gov.in/