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

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 myopia when dealing with the “nation” whose engineers built the Pacific Railway across the Rockies, drawing on a millennium of expertise and innovation, thus helping build the fragmented United States of America into an equally centralised “nation”. But neither China nor the United States are really “nations”. They are “empires”, united by common language, currency and communications networks which enable the executive of the central government (whether personified by Emperor, General Secretary or President) to enforce its will on the “provinces”.

The big difference is that modern China is led by engineers, the intellectual descendents of those who built the great canals which held the empire together. The United States is commonly led by lawyers (like the Clintons, Nixon and Obama), intermixed with career politicians (Johnson and Truman), soldiers (From Jackson, through Grant to Eisenhower) and the representatives of semi hereditary clans which mix business and politics (the Bushes, Kennedys and Roosevelts): the intellectual descendents of that strange alliance of libertarian constitutional lawyers (like John Adams), wealthy traders (like John Hancock)  and authoritarian, slave owning, landowners (like George Washington) which brought it together.

Hence the reason that the Chinese have an attitude to copyright akin to ….

    that of 18th Century England, when most of thepolitical leaders were busy employing engineers andmechanics to build wealth creating industrial complexes on their estates or funding canals and trading fleets to transport the results. MeanwhileAmerican 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 thelength and nature of the protection they give fosters innovation.

In the middle of the current fierce debate as to who are theworld’s innovators and who are the protectors of the past, I find a curiousreluctance to look at what, to a scientist, or even to a historian (my originaldiscipline) are some obvious questions and to seek evidence to supportthe “answers” being thrown around.

Is it easier for a small UK or European firm to defend its intellectualproperty rights in Brazil, China, Europe, India, the UK or the USA? 

Is it easier for a dominant player to block innovativecompetitors (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 inmind the differing policies of Universities within the UK let alone the differentapproaches in other parts of the World?

Where is it easiest to turn new ideas into productsand 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 theEnglish Industrial Revolution. This was a fashionable topic when I was a student but onewhich appears taboo (apart from the mythology) today. Whatever the overall mixof causes, change was accelerated by a “interesting” mix of intellectual piracyand protection.

as Nobleson the grand tour brought back German metal-working technology, the designs ofItalian machines for manufacturing fine cloth and silks and French steamengine technology, to be blended (often by refugees from the religiousand secular wars across Europe) with the ideas and designs brought back bymerchants from Indian and China.

Protection underpatent and copyright was limited in scope and time and treated with suspicion (monopolistic restraint of trade) at least as much as with respect (reward forendeavour). More-over that protection was lost by those who did not actively manufacture orpublish 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 toextend their patents failed and former windmill engineerswere 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.

Meanwhile the fledgling UnitedStates 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. Thisperspective adds an interesting dimension to the mindsets of that the alliance of interestgroups which fought for independence from Westminster and Whitehall while their neighbours fled to Canada. Italso adds to the irony of the decenends of intellectual pirates, slave owners and their lawyers seeking to set the protection rules forthe rest of the world.

I do not have a conclusion – other than that the time hascome to look more seriously at the evdience as to which IPR regimes best mixencouragement 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 smilar 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 helplead 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