IPR Wars: who really are the heroes and villains, winners and losers?

Leading UK IT political analyst Philip Virgo discusses the struggle for supremacy between major trading nations in the global IPR wars.

I have regularly blogged on the theme of IPR wars over the past five years but the Indian Supreme Court Case restricting patent protection to genuine innovations indicates that the pace of change may be accelerating. I recently enjoyed an article attacking the idea that the Chinese are not innovators and rely on stealing the IPR of the West.

It reminded me of the American short-termism and myopia when dealing with the "nation" whose engineers built the Pacific Railway across the Rockies, drawing a millennium of expertise and innovation, thus helping build the fragmented United States of America into an equally centralised "nation".

Nations v empires

But neither China nor the United States are really "nations". They are "empires", united by common language, currency and communications networks which enable the central government (whether personified by an Emperor or a President) to enforce its will on the "provinces".

The big difference is that China was created by engineers (from the great canals onwards) and they now run the Government. The United States government was created by slave owning real estate agents (like Washington) and
constitutional lawyers (like Adams).

Burning Gobe, IPR Wars

Hence the reason that the Chinese have an attitude to copyright akin to .... that of 18th Century England, when most of the political leaders were busy employing engineers and mechanics to build wealth creating industrial complexes on their estates or funding canals and trading fleets to transport the results. Meanwhile American politicians, whose nascent industries were founded on stealing the IPR of Europe, have long sought to preserve and enhance their own rights, regardless of whether the length and nature of the protection they give fosters innovation.

In the middle of the current fierce debate as to who are the world's innovators and who are the protectors of the past, I find a curious reluctance to look at what, to a scientist, or even to a historian (my original discipline) are some obvious questions and to seek evidence to support the "answers" being thrown around.

  • Is it easier for a small UK or European firm to defend its intellectual property rights in Brazil, China, Europe, India, the UK or the USA?
  • Is it easier for a dominant player to block innovative competitors (perhaps mixing regulatory "capture" with predatory legal action) in China, Europe, India, the UK or the USA?
  • Where is it is easiest for Doctoral Student to retain a fair (what is fair) share of the IPR in his contribution to knowledge: bearing in mind the differing policies of Universities within the UK let alone the different approaches in other parts of the World?
  • Where is it easiest to turn new ideas into products and services and reap a reasonable (what is reasonable) reward?

One man's innovator, wishing to build on the knowledge of the past, whether or not those who "own" that knowledge wish this to happen, is another's intellectual pirate - whatever his motives. Thus St Columba, was sent into exile for breach of copyright, or rather for causing the death of 3,000 men when he contested the decision of the court against him.

One of the special subjects for my undergraduate degree (History) was the causes of the English Industrial Revolution. This was a fashionable topic when I was a student but one which appears taboo (apart from the mythology) today. Whatever the overall mix of causes, change was accelerated by a "interesting" mix of intellectual piracy and protection.

Piracy as nobles on the grand tour brought back German metal-working technology, the designs of Italian machines for manufacturing fine cloth and silks and French steam engine technology, to be blended (often by refugees from the religious and secular wars across Europe) with the ideas and designs brought back by merchants from Indian and China.

Protection under patent and copyright was limited in scope and time and treated with suspicion (monopolistic restraint of trade) at least as much as with respect (reward for endeavour). More-over that protection was lost by those who did not actively manufacture or publish that which was protected. We should remember that Boulton and Watt , for example, built only a fraction of the steam plants that transformed the England. Their attempts to extend their patents failed and former windmill engineers were more adept at harnessing the power of the cheaper (albeit less efficient and inferior in precision and power) engines built by their rivals. The Boulton and Watt company grew and survived by agreeing licensing deals based on the fuel their better engineered and serviced machines saved in locations and applications where this was important.

United States

Meanwhile the fledgling United States refused to recognise the Intellectual Property rights of Europe just as they refused to accept that Indians might have equal rights as subjects of the King or that slaves might become free by setting foot on "English" soil. This perspective adds an interesting dimension to the mindsets of that the alliance of interest groups which fought for independence from Westminster and Whitehall while their neighbours fled to Canada. It also adds to the irony of the decends of intellectual pirates, slave owners and their lawyers seeking to set the protection rules for the rest of the world.

I do not have a conclusion - other than that the time has come to look more seriously at the evdence as to which IPR regimes best mix encouragement and reward for innovation in practice. If 14 years protection was good enough for the fast moving 18th Century how can one sensibly justify, let alone enforce, the copyright extensions of today? The exception is where products cannot be legally be sold until safety testing has been completed and checked. As a former Corporate Planner for the Wellcome Foundation I have strong views on who is to blame for the drying up of medical innovation but in the context of this article I would "merely" say that it should be possible to extend patent protection to "recommence" from the date the product is licensed - but that such an extension should only available to those who organise and fund the necessary testing.

I also believe that a similar approach should apply to complex software. As one of the founding directors (back in 1984) of the Federation Against Software Theft , I recollect our discussions as to whether copyright or patent was the best approach to protecting the nascent consumer software industry (e.g games) from being wiped out by piracy. We concluded that copyright was simpler, even though the life of protection was too long. We also expected the regime to be reformed, not just extended, when the long promised DTI bill came forward.

There is no easy way forward but unless the UK and Europe help lead the way towards a win-win solution, they will cease to be among the locations of choice for those seeking to build and grow innovative businesses. They will have been crushed between India and China and their trading partners as US lawyers and lobbyists enlist the UK and EU as allies in seeking to defend positions on IPR that are no longer globally sustainable.

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