Intellectual Property Right: Colonial Impact and Eurocentrism

Property traditionally confers the right to use and exploit tangible assets—such as land, vehicles, or buildings. In contrast, intellectual property (IP) refers to intangible creations of the human intellect. These include inventions, literary and artistic works, designs, symbols, and names used in commerce. Just as tangible property gives rights to its holder, intellectual property grants certain legal entitlements to the creator.

Intellectual Property Rights (IPRs) offer creators exclusive rights over the use, distribution, and commercialization of their intellectual output for a limited period. These protections are intended to foster creativity, encourage innovation, and promote economic development. As Drahos argues, IPRs establish a "temporary monopoly" over the use of an idea or invention, incentivizing creators by ensuring they benefit from their work.1 Maskus further describes IPRs as “legally enforceable power to exclude others from using a resource, at least under certain terms.”2 Furthermore, when we talk about form of IPR, it encompasses various legal protections:

a) Copyrights, which protect original works of authorship, including literary, musical, and artistic creations.

b) Patents, protect technological inventions.

c) Trademarks, which protect distinctive signs and symbols used in trade.

d) Trade secrets, which safeguard confidential business information.

e) Geographical indication

The purpose of these rights extends beyond mere legal recognition. They serve to encourage innovation, improve competitiveness, and foster job creation by protecting creative endeavours.3 While copyright and patents are based on innovation and originality, trademarks primarily function to protect consumers by preventing confusion in the marketplace.4

COLONIAL LEGACY IN INTELLECTUAL PROPERTY LAW:

The evolution of global intellectual property law is deeply embedded in colonial history. Many foundational frameworks, while appearing neutral, were designed to prioritize European systems and marginalize non-Western knowledge and creative traditions.

The Berne Convention for the Protection of Literary and Artistic Works of 1886 represents the first major international copyright treaty. While it aimed to protect authors globally, its underlying structure was profoundly Eurocentric.5 Scholars such as Okediji have noted that the Convention excluded the legal systems, cultural practices, and creators of non-European societies.6 Article 2 of the Convention limited protection to works rooted in European artistic traditions, including books, musical compositions, and sculptures.7 Moreover, Article 19 included a "colonial application clause", allowing imperial powers to extend the treaty’s application to colonies unilaterally, without input from the colonized peoples.8 As Drahos and Braithwaite note, this effectively allowed European countries to impose their IP systems on colonies without regard for local customs.9 for instance, when we particularly talks about the evolution of Copyright the invention of printing press have very much role in it. With the invention of the printing press by Gutenberg in the 15th century, book production increased dramatically. Prior to this, books were laboriously copied by hand. Printing not only enabled widespread distribution of legitimate publications but also facilitated piracy. Publishers and authors began to demand legal protection against unauthorized copying.

In response, sovereigns introduced the concept of printing privileges, temporary monopolies granted to booksellers to publish specific manuscripts.10 These privileges benefited both the printers and the state, which collected revenue. However, as authors gained awareness of their own rights and monopolies became abused, the system lost its effectiveness.

The modern concept of copyright began with the Statute of Anne (1710), which marked a shift from publisher centered privileges to author-centered rights.11 It granted authors the exclusive right to copy and sell their work for 14 years, recognizing their creative labour. This concept spread throughout Europe and North America and laid the foundation for subsequent international treaties.12

EUROCENTRIC CONCEPT OF AUTHORSHIP AND COLONIAL TRANSPLANTATION OF LEGAL FRAMEWORK:

The modern notion of authorship—cantered on individuality, originality, and fixation— emerged during the European Enlightenment and was enshrined in copyright law.13 It assumes that a single, identifiable individual produces a creative work that can be legally attributed, commodified, and protected.

However, this concept of authorship marginalizes many indigenous and non-Western systems of creativity, which are often communal, oral, and fluid. These traditions do not always conform to the Eurocentric legal requirement of a fixed, tangible, and original work.14 Scholars like Foucault and Barthes have critiqued the romanticized Western notion of authorship and highlighted its role in excluding non-Western creative practices.15

Examples of this are:

a) In South Africa, indigenous oral stories and cultural expressions were not recognized under copyright law.

b) In India, Vedic literature transmitted orally over generations was excluded from protection due to lack of tangible fixation.

c) Nigeria and other African nations with rich traditions of music and folklore faced similar exclusions.

d) TRIPS Agreement does only provide stronger protection to Wines and spirits; the same level of protection and enforcement doesn't not offer to traditional handicrafts such as Kolhapuri chappals. which sparked the need for robust international protection to traditional handicrafts.

These systems dismissed the value of local traditions, enforcing a cultural hierarchy that positioned Western individualism as superior to communal creativity.

when we look back at the practice of colonizers then we will find that they do not generally acquire a country or colony, unlike ancient ruler, by way of military actions rather their act and action of validated by themselves by their own home-made legal principle and theory. European imperial powers, particularly the British Empire, systematically exported their legal frameworks, including copyright laws into colonial territories. This phenomenon, often referred to as legal transplantation, disregarded local customs and knowledge systems.16 As Diane Kirby and Catherine Coleborne argue, colonialism exercised authority through law, imposing European legal traditions in the name of civilization.17 however, The Eurocentric copyright model was ill-suited to the creative outputs of colonized societies. In countries like South Africa, oral storytelling traditions did not qualify for protection under copyright laws.18 In India, ancient Vedic knowledge transmitted orally through generations was similarly excluded for failing the fixation requirement. This reflects how colonial IP laws were designed to privilege Western forms of authorship and exclude others.

CULTURAL EXPLOITATION AND ECONOMIC INEQUALITIES:

Colonial powers not only imposed legal systems but also appropriated indigenous innovations. Local medicinal practices, agricultural knowledge, and artistic expressions were documented and patented in Europe without recognition or compensation.19 This process mirrored broader colonial practices of economic extraction and knowledge plundering.

For instance, while European authors enjoyed protection in colonies, the same protections were rarely extended to colonized creators.20 The British Copyright Act of 1842 was enforced throughout the Empire but served imperial interests rather than those of local innovators. These acts codified a one-sided system where the legal benefits of intellectual labour flowed toward colonial metropoles. The Eurocentric and colonial roots of intellectual property law have had enduring consequences. International treaties such as the Paris Convention (1883) and the Berne Convention (1886) entrenched Western models of IP protection, shaping a global regime that still marginalizes indigenous and traditional knowledge.21

The colonial IP framework had long-term effects, creating asymmetries in global knowledge ownership. Colonizers often appropriated local innovations, republishing or patenting them in Europe without acknowledgment. For instance, traditional medicines or indigenous technologies were documented by colonial scientists and later claimed as European discoveries. This process parallels the Eurocentric claim that Vasco da Gama "discovered" India, ignoring its millennia-old civilizations.

Legal systems such as the British Copyright Act of 1842 extended across the Empire, protecting European authors in colonies, while offering no such protections to colonized creators. Colonies had no role in shaping these laws, despite being bound by them.

IP systems became tools not just of legal control but also of economic extraction, redirecting knowledge and innovation from colonies to European metropoles. The requirement of tangibility further marginalized oral traditions and community-based knowledge, which could not be patented or copyrighted under Western standards. While these frameworks were presented as tools for global progress, they often functioned to consolidate imperial control and cultural hierarchy. Fixation requirements, individual authorship, and novelty standards all serve to exclude community-generated knowledge that exists outside the Western paradigm.22

CONCLUSION:

The international intellectual property regime, rooted in colonial legal structures and Eurocentric concepts of creativity, continues to shape the global distribution of knowledge and innovation today. The exclusion of indigenous and communal traditions, the imposition of foreign legal standards, and the prioritization of Western interests have all contributed to structural imbalances that persist in contemporary IP systems. If today's IP laws remain uncritical of their colonial foundations, they risk perpetuating the imperial dynamics they were built upon. A more inclusive and equitable approach to intellectual property must recognize and validate diverse forms of creativity—oral, communal, indigenous—alongside traditional Western frameworks. Only then can intellectual property truly serve as a global tool for innovation, empowerment, and justice.

REFERENCES:

1. Peter Drahos, A Philosophy of Intellectual Property (Ashgate Pub. Ltd. 1996).

2. Keith E. Maskus, Intellectual Property Rights in the Global Economy (Institute for International Economics 2000).

3. Ibid.

4. Ibid.

5. Sam Ricketson & Jane C. Ginsburg, International Copyright and Neighbouring Rights: The Berne Convention and Beyond (2d ed. Oxford Univ. Press 2006).

6. Ruth L. Okediji, The Limits of International Copyright Exceptions for Developing Countries, 21 Vand. J. Transnat'l L. 689, 695–97 (2019).

7. Ibid.

8. Carolyn Deere, The Implementation Game: The TRIPS Agreement and the Global Politics of Intellectual Property Reform in Developing Countries (Oxford Univ. Press 2008).

9. Peter Drahos & John Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (Earthscan 2002).

10. Ibid.

11. Statute of Anne, 8 Ann., c. 19 (1710) (Eng.).

12. Ibid.

13. Martha Woodmansee, The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the Author, 17 Eighteenth-Century Stud. 425 (1984).

14. Boatema Boateng, The Copyright Thing Doesn’t Work Here: Adinkra and Kente Cloth and Intellectual Property in Ghana (Univ. of Minn. Press 2011).

15. Michel Foucault, What Is an Author?, in Language, Counter-Memory, Practice: Selected Essays and Interviews 113 (Donald F. Bouchard ed., Donald F. Bouchard & Sherry Simon trans., Cornell Univ. Press 1977).

16. Alan Watson, Legal Transplants: An Approach to Comparative Law (Univ. of Ga. Press 1974).

17. Diane Kirby & Catherine Coleborne, Introduction: Law, History, Colonialism, in Law, History, Colonialism: The Reach of Empire 1 (Diane Kirby & Catherine Coleborne eds., Manchester Univ. Press 2001).

18. Peter Burger, The Berne Convention: Its History and Its Key Role in the Future, 3 J.L. & TECH. 1 (1988).

19. Pedro A. Malavet, Reparation Theory and Postcolonial Puerto Rico: Some Preliminary Thoughts, 13 BERKELEY LA RAZA L.J. 387 (Fall 2002).

20. Supra N.18

21. Ibid.

22. Ndene Ndiaye, The Berne Convention and Developing Countries, 11 COLUM.-VLA J.L. & ARTS 47 (1986).