You won’t get many people who will tell you that America’s industrial might and prosperity is founded on theft and outright piracy. That’s because few are aware of this history; Americans themselves have erased their years of piracy from national memory, believing instead that the country was a powerhouse of innovation from the very beginning of its foundation. There is the odd person like Doron Ben-Atar who takes pains to remind the US — and the world — that not too long ago, the super power was merrily engaged in stealing trade secrets from Europe to build a fledgling nation that was technologically backward.
Ben-Atar, professor of history at Fordham University of New York, is among the more interesting thinkers I’ve met on intellectual property (IP) issues. The genial academic is hard to ignore. He is extraordinary tall (he is all of 6’ 7”) and his gentle professorial way of mocking the conceits of the industrial world masks an almost subversive agenda. I met the good professor a couple of years ago when he was one of the star speakers at a conference in Delhi on ownership of knowledge and was delighted to make the acquaintance of the author of Trade Secrets: Intellectual Piracy and the Origins of American Industrial Power (Yale University Press) which had created quite a stir when it was published in 2004.
With the US, EU and the rest of the G8 ratcheting up their campaign on IP protection in different global forums and in bilateral negotiations, I was reminded of Ben-Atar’s injunctions to developing countries. In an interview that was amazing for its unconventional attitude to IP rights, he had suggested that developing countries like India and China take a leaf out of America’s book. Its industrial power, says Ben-Atar, was founded on copyright infringement, industrial espionage and outright theft of IP who provides a fascinating expose of America’s contradictory approach to IP rights starting from the colonial period up to the age of Jackson.
On the one hand, the country was encouraging its citizens, voluntary associations and government officials to smuggle European inventions and artisans to the New World. On the other, the young republic was holding itself up as an exemplary protector of innovation by enacting legislation that surpassed standards elsewhere. For instance, its patent laws were exacting. Inventions had to be original and novel across the world and not just in America, whereas Europe was not so fastidious. It granted patents to introducers of technology in their respective countries even if it was in use elsewhere.
But these strict US laws which set new standards for protecting IP were actually a smoke screen for rampant piracy, points out Ben-Atar. Despite rigorous requirements of originality, the US patent office was handing out patents liberally for devices that were already in use. Getting a patent involved little more than successful completion of paperwork!
It’s not just the US which indulged in piracy and theft. In an earlier period, such practices were the norm in Europe, where states would do their best to steal machinery and artisans from areas which had more developed skill and technology. In the more recent past we have examples of Japan, South Korea and much later China following the same agenda, but more of that in another column. Readers might well ask how the very same nations are now resorting to all kinds of subterfuges to impose a stifling IPR regime on countries that have yet to reach a decent level of industrialisation, especially African states.
But let me come back to the genial academic with radical views on IPR. Ben-Atar believes that no amount of regulation and policing will stamp out piracy because of the huge income disparity between the rich and poor. As long as that remains, “the temptation to pirate goods will triumph over all principled devotion to an abstract notion of IP”.
Why did the history professor write Trade Secrets? Apart from the usual academic reasons, he says there was another compelling motive — to remind Americans of their past so that they have a better understanding of why piracy is now happening in other parts of the world. “Before Americans rush to condemn and prosecute those who pirate our technology, they must recall how the US became the richest and most powerful nation on earth.”
An after-thought: Why is there so much more depth and perspective in the arguments of those who question the current IP regime and seek a more egalitarian diffusion of knowledge? The arguments of the other side are pretty sterile by contrast offering no compelling moral or social justification for a maximalist IP enforcement agenda. Is it because this lobby is full of people who are well up on law but have no sense of history?
