Attachment Of Intellectual Property In The Execution Of A Decree

THIS ARTICLE WAS WRITTEN BY MONALISA SARKAR, A STUDENT OF WBNUJS.

Introduction:

According to Black’s Law Dictionary, a decree is defined as –

“A decree in equity is a sentence or order of the court, pronounced on hearing and understanding all the points in issue, and determining the right of all the parties to the suit, according to equity and good conscience[1].”

It has the same effect as a judgement pronounced by a court of law.

When a property gets attached to a decree in accordance with the mandate laid down under sections 60, 61, 62, 63 and 64 and Order 21, Rule 41 to 59 of the Civil Procedure Code (hereinafter the Code), 1908 this means the same will now be transferred to plaintiff for the purpose of recovery of money.

Section 2 of the Code states that –

““decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final[2].”

The property belonging to the judgement debtor or property or profits arising out of the property over which he has a disposing power pursuant to his own benefit, is liable for attachment and sale in the execution of a decree.

As distinct from any other form of property which is used as attachment in the execution of a decree by a court of law, intellectual property involves an individual’s innovation and creativity. Protection of intellectual property is a legal right which grants its owner the power to have exclusive right of commercial gain over his unique property, and thereby excluding all others from wrongfully gaining from the same[3].

Constituents Of Intellectual Property:

The modern concept of property is no longer static and has evolved to include the intellectual properties which incorporate patents, trademarks, trade secrets etc[4].

Right of intangible personalty is conferred through legal action, which was not admitted in early common law practise. Therefore, even today the right over intellectual property in terms of possessory lien is not granted by common law courts[5].

The right to sue is based on the possessory right of the concerned individual at the time of the commission of the act[6], and in case of intangible personalty, of which intellectual property forms a sub-category, cannot be said to be always in immediate possession of the debtor.

For example, if the matter in question is a computer software which is being considered for attachment to a decree, if the same falls under the category of a thing which was preserved for future convenience, then strict liability cannot be imposed with respect to the same. Only when such act is in accordance with the execution of a contract, then strict liability can be imposed[7]. But if the same thing is in possession of the parties, thus qualifying as chattel which now falls under the definition of goods, then it may be used to fulfil strict liability[8].

The European Convention on Human Rights[9] provides protection to intangible personalty up to the stage of possession however the provision has been liberally interpreted so as to include contractual rights within its ambit, which can further qualify as intangible personalty depending upon their proprietary character[10].

Why Intellectual Property Cannot Be Attached In A Decree:

As stated by M. Karpagavinayagam, J. in the case of Mani v Jayakumari, future salary not being tangible corporeal property could not be seized and the same did not belong to the husband because he could not be said to have earned the same[11], thereby not making it liable for attachment.

In order to have a clear idea about what falls within the category of intellectual property as laid down by B. H. Marlapalle, J. in the case of Sudhir Vasant Karnataki v The State of Maharashtra[12], we have to go by the definition as laid down under the General Clauses Act, 1893, under section 3 sub-section 36 which states that,

“”movable property” shall mean property of every description, except immovable property[13]”

Going by the definition as laid down under this section, intellectual property cannot be said to fall under this ambit since the requirement of tangible and intangible ‘movable’ assets is not fulfilled.

A similar contention was raised in the case of Ahmed Pasha v. Wajid Unisee[14] where it was reiterated that the husband could not be said to have earned his future salary and thereby not making it liable for attachment since the same was not in his ‘possession’.

Basing my argument on this logic, in my opinion, intellectual property owned by an individual is also capable of providing future profits – profits which are not in his possession at the present moment, therefore attachment of the same in the execution of a decree should also not be made valid.

Violation Of Individual’s Right To Protect Intellectual Property:

Intellectual property is an individual’s invention, which is in complete contradiction to the other forms of property that can be attached under Order 21 of the Code[15], therefore his right to retain the same should not be taken away, and these rights include one’s interest to secure his future monetary gains.

Through the execution of a decree, the judgement delivered by a court is put into effect, but in the process of enforcing the same, an individual’s right to protect his creation which is in the form of intellectual property should not be violated[16].

As has been stated in the case of Atlantic Monthly Co. v. Pos Publishing[17], the owner of the intellectual property has the right to preserve his property until he voluntarily allowed publication of the same, whereby his right to preserve could be waived off only after he had ‘voluntarily’ given the right for its publication.

Attachment of Intellectual Property in the execution of a decree would essentially mean that the other party can use the ideas of the former without their consent, protection of individual’s creation and his right to future revenue thus getting violated.

Conclusion:

The primary objective of passing a decree is to preserve the rights of the parties involved, but in the process, while preserving the right of one party, the rights available to another should not be violated. In general cases where any property gets attached, it is in the form of assets where innovation does not form an essential part. But intellectual properties, due to their distinct nature form a class in themselves and according to my views, the existing statutes are not sufficient to adjudicate upon the matter at hand.

Stronger and more specific legislation should be brought into effect to provide an effective solution in matters pertaining to the attachment of intellectual properties in the execution of a decree, whereby it is ensured that the rights of the decree holder for repayment of his money is preserved and adjacently the rights of the judgement debtor to preserve his innovation also does not get violated.

Judging this issue form moral and ethical standards, I firmly believe that innovation and creativity should not be taken away under any circumstance whatsoever. If there is no other available option of repaying the debt, the court can at most direct the party concerned for the attachment of the profits that he has received or is likely to receive by virtue of his intellectual property, thereby not infringing his right of preservation of his invention which is an outcome of his labour and ingenuity[18]

[1] What is Decree?, The Law Dictionary, https://thelawdictionary.org/decree/.

[2] The Code Of Civil Procedure, 1908, No. 5, Acts of Parliament, 1908 (Indian).

[3] Christopher M. Kalanje, Role of Intellectual Property in Innovation and New Product Development, World Intellectual Property Organization, http://www.wipo.int/sme/en/documents/ip_innovation_development_fulltext.html.

[4] Michael Bridge, Personal Property Laws 206 (4th ed. 2015).

[5] Your Response Ltd v Datateam Business Media Ltd, [2014] EWCA Civ 281, [2014] CP Rep 31.

[6] Michael Bridge, Personal Property Laws 236-37(4th ed. 2015).

[7] Michael Bridge, Personal Property Laws 483(4th ed. 2015).

[8] Id.

[9] Convention for the Protection of Human Rights and Fundamental Freedoms, European Convention On Human Rights, https://www.echr.coe.int/Documents/Convention_ENG.pdf.

[10] Wilson v First County Trust Ltd (No. 2) [2003] UKHL 40, [2004] 1 AC 816.

[11] Mani v Jaykumari, 1998 Cr. LJ 3708.

[12] Sudhir Vasant Karnataki v The State of Maharashtra, 2010 SCC OnLine Bom 1808.

[13] General Clauses Act, 1897, No. 10, Acts of Parliament, 1897 (India).

[14] Ahmed Pasha v Wajid Unisee, 1983 Cr LJ 479.

[15] The Code Of Civil Procedure, 1908, No. 5, Acts of Parliament, 1908 (Indian).

[16] Y. Srinivasa Rao, Attachment in Execution Proceedings, Articles On Law (Jun. 2017), https://articlesonlaw.wordpress.com/2017/06/06/attachments-in-execution-proceedings/.

[17] Atlantic Monthly Co. v Post Pub. Co., 27 F.2d 556 (D. Mass. 1928).

[18] Roderick T. Long, The Libertarian Case Against Intellectual Property Rights, Free Nation Foundation, http://freenation.org/a/f31l1.html.