A study of the evolution of property theory reveals that the idea of property has changed drastically from its original conception as “the right to exclusively own an object.” Indeed, modern theories of property, such as the bundle theory, propose that there is no core concept that 1 guides how property entitlements should function or be understood; 2 instead, it is the law that determines the nature of these entitlements. Substantive ownership, then, is wholly irrelevant to proponents of this 3 school of thought. Thus, the bundle theory eviscerates the concept of property altogether by reducing it to a set of jural relations between individuals.

The bundle theory’s conception of property was the dominant line of thought for most of the 20th century. Eventually, however, the theory 4 came under fire as it was deemed “impractical” and fostered insecurity. As a result, newer theories of property emerged, which sought to resuscitate a consolidated notion of property and refute the 5 disintegrative premises of the bundle theory. Of these theories, two—the theory of exclusion and the theory of full liberal ownership—succeeded in establishing a consolidated notion of property, but only the integrated theory could effectively counter the bundle theory argument.

Traditional property doctrines in India have followed a trajectory parallel to that of theoretical conceptions of property. The Indian Constitution originally declared the right to property as a fundamental right. Subsequent amendments to the Constitution, however, continually conscribed the scope of this provision, culminating in the 6 removal of its status as a fundamental right. Similarly, the property foundations of some forms of intellectual property, specifically copyright, were weakened due to considerations surrounding India’s socioeconomic ground realities.

For the better part of India’s independent history, copyright policy centred around facilitating access. This is primarily because India was a large country with a predominantly poor population, limited research faculties, and expensive knowledge products. The politics surrounding the standard-setting process in international copyright, however, often prevented the government from realising its goal of an access-based copyright regime. Consequently, the government had to resort to an achronistic measures to actualise such a framework, e.g., the lack of emphasis on enforcement-centric provisions in its new copyright 7 statute, the Copyright Act, 1957.

Just as new theories emerged to refute the premises of the bundle theory, property rights jurisprudence in India saw a movement to strengthen the right to property and imbue it with its former 8 “fundamental right” status. Both shifts were spurred largely by the changing political and economic exigencies of the time. Unfortunately, there has not been a concomitant shift in India’s attitudes towards copyright, despite the economic success and significance of the domestic creative economy.

This paper argues that India must make a concerted effort to reconstruct its copyright narrative in a way that balances the requirement for access to creative products against the need to extract commercial value from these items. India’s copyright policy must be adapted to mirror the economic and political urgencies of the present. Part I delineates the trajectory of theoretical conceptions of property. Part II discusses the journey of the right to property and how it has mirrored the course taken by the theoretical conception of property. Part III expounds the history and development of copyright in India and some of the issues stemming from the disproportionate focus on access. Finally, part IV talks about the way forward, specifically the economic urgency of reconstructing the copyright narrative and how to operationalise the process.