Latha Jishnu
Doron S. Ben-Atar is hardly your usual suspect when it comes to subversion. He is a genial giant from the world of academia, a professor of history at Fordham University in New York who has written or co-authored several books, a researcher who has won prestigious fellowships. For all that, he has managed to undermine the conventional arguments in today's hotly debated question of who owns intellectual property (IP) - simply by looking at the issue through the prism of the past.
Ben-Atar's contention is that all developed nations, especially the US, did not respect IP rights and indulged in rampant piracy - and he has detailed researches to prove this - during a certain period in their history of industrialisation. Tracing the roots of patent and copyright laws in early America, he says that during the country's industrial revolution, its very prosperity was founded on copyright infringement, industrial espionage and outright theft of IP.
What could be construed as subversion is his belief that developing countries should be allowed to do the same. He believes this for two reasons. One: no amount of regulation and policing will stamp out piracy. Indeed, a new study validates this; it shows that losses due to software piracy are rampant across the world, but are highest in the US itself (see 'Topping The Piracy Charts'). Two: it would be unfair to force developing nations to devote their scarce resources to protect the interests of the rich and powerful. He maintains that as long as the income disparity between rich and poor persists "the temptation to pirate would triumph over all principled devotions to an abstract notion of IP."
And here is a radical prescription: leaders of developing nations should pay lip service to IP agreements "and occasionally raid a warehouse full of pirated CDs or prosecute a high-profile pirate". That's because US history teaches us that symbolic acts and talk of principles, accompanied by lax enforcement, are a winning combination, he says.
This unusual perspective on intellectual piracy comes in a riveting study that Ben-Atar has brought out on the historical intellectual piracy in the US and the efforts made by Britain to stem this outflow to its former colony. Published some months ago, Trade Secrets: Intellectual Piracy And The Origins of American Industrial Power (Yale University Press) has received widespread interest. Much of the buzz around the professor's thesis has been occasioned by the growing competition to a range of American industries from the giant manufacturing hub of China, and to a lesser degree, India and other emerging economies.
Ben-Atar takes pains to highlight the many ironies surrounding the IP issue in America. At the same time that the young republic was indulging in full-scale piracy, it had also enacted the most exacting patent laws which required inventions to be original and novel across the world, and not just in America - unlike Europe which granted patents to introducers of technology in use elsewhere. That set new standards for protecting IP. But, shows Ben-Atar, it was a Janus-faced approach. Nearly every branch of manufacture in the US was founded upon imported skill and machinery which was smuggled in because there were strict prohibitions in Europe, especially in Britain, against the emigration of skilled artisans and the exportation of machinery.
The IP laws were actually a smokescreen for a very different reality, says the Israel-born academic who went to study in the US 25 years ago. The statutory requirement of international originality and novelty did not hinder widespread and officially sanctioned technology piracy. In fact, most of the patent applications were for devices already in use, since getting a patent involved little more than successful completion of paperwork.
But what use is the past in the current battle by the US and allies to impose the WTO-mandated trade related aspects of intellectual property rights (TRIPS) agreement on developing countries? Does history have any lessons for today's IP warriors in an intensely contested arena? Ben-Atar says it is important to remind Americans of their past so that they better understand what is happening in other parts of the world. "Before Americans rush to condemn those who pirate our knowhow, they must not forget how the US became the richest and most powerful nation on earth."
Towards the closing decades of the 18th century, the British colonies of North America were mostly underdeveloped agricultural settlements. The foundations of the American empire were laid during the next 75 years as the US was transformed from an underdeveloped decentralised entity on the periphery of the Atlantic economy into the hub of industry, wealth, and power. "Piracy," says Ben-Atar flatly, "played a crucial role in this process."
So, if the developing world is taking a similar route, the US should not be complaining. It is no surprise, says he, that while all WTO members promise to respect international IP rights, in practice, developing nations do little to enforce those laws. His basic point is that all efforts to protect technology are destined to fail. "If past patterns are going to be repeated, within a short time, local entrepreneurs in the developing world will acquire, by whatever means, America's trade secrets and produce the desired goods and services on their own."
The latest collision between the US and China on IP violations substantiate his position. In recent weeks, the confrontation between the two trading par-tners has accelerated over US charges that China's state-owned car manufacturer, Chery Automobile Company, had stolen the design from General Motors to make its QQ model. In December last year, GM filed a lawsuit against Chery Automobile for alleged piracy of the design of its Chevrolet Spark, developed by its South Korean affiliate Daewoo. In recent days, US officials have been stepping up the heat on the Chinese government to crack down on IP theft.
According to the US commerce department, Chinese piracy is bleeding America of nearly $24 billion annually.
In a sharp attack two weeks ago, US commerce secretary Donald L. Evans told the Chinese leaders that they had to 'forcefully confront' the widespread violations of IP rights in China to avoid strains on bilateral relations. While Chery has denied the piracy charge and said that it "is one of the key state-backed automakers that depends on itself for development", the Chinese government's response has been laconic. It has advised GM to resolve the issue through mediation or legal means.
That is likely to prove costly for GM, since QQ's sales are already way ahead of the Spark, which was launched after the Chinese mini-car hit the roads. And in a most ironic twist, the six-year-old Chery - it is China's eighth largest automaker with sales of around 90,000 vehicles - has just signed a deal with a major American car firm to export cars to the US. Some analysts believe it is Chery's deal with Visionary Vehicles (in which it has also committed to investing $200 million in the Chinese company) that has prompted the high-decibel Washington response.
There are others who believe that the Ben-Atar is only too right about the impossibility of checking IP theft. The US justice department for one. It said in a recent report that the country was losing the battle against piracy. This is especially true of software. According to the first annual study on software piracy conducted in 2003 by Business Software Alliance (BSA) and IDC (the IT industry's market research and forecasting firm), the industry is losing about $30 billion annually. The rate of losses, however, are the highest in Eastern Europe (71 per cent) compared with 53 per cent for the Asia-Pacific region.
All of which, it would appear, underlines the futility of enacting legislation to prevent the diffusion of knowledge. Ultimately, says Ben-Atar, devoting resources to enforcing western standards of intellectual property in the developing world is not only hypocritical and sometimes cruel, but above all, a futile act. "A country's most valuable asset is not yesterday's invention, but tomorrow's innovation.
