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Book Review

Jolly Rogering
Ian Mitchell

Piracy: Intellectual Property Wars
from Gutenberg to Gates
Adrian Johns
University of Chicago Press

ow that Russia is about to join the WTO it is appropriate to consider some of the reasons why negotiations have dragged on for eighteen years: fears about piracy, copyright theft and protection for intellectual property. Professor Johns has written a fascinating (if occasionally rambling) history of the wars for and against copyright, patents and general protection for creativity, both scientific and artistic, since the middle ages.

If Russia wants to join the modern world, it will have to learn how to promote innovation. And there is a lot to learn, not least that most of the received wisdom about intellectual property is special pleading by those who make the most profitable use of it. In fact, there has never been a consensus for the idea that strong copyright and patent laws are helpful to society at large. Too much protection can be harmful.

Until at least the 1960s many senior people in both Britain (the home of copyright) and America (the home of the application of patent law) argued that legal protection for ideas and their expression was a form of theft from the general public and an unnecessary brake on development. Shakespeare needed no copyright law to make money from Hamlet, and Beethoven never gave a thought to the problem of bootleg copies of the Moonlight Sonata circulating round Vienna while he struggled to pay his laundry bills.

A century later, things were very different. AT&T, by far the world’s largest telecommunications company, spent much of the 1920s and 30s buying up patents and not using them. It owned older patents that made money without the need for any industrial re-tooling due to improved technology. The general public was as much the loser as the inventors. The only beneficiary was the corporation and its stock-holders.

This is not just an issue of money; it can be a matter of life and death, on a vast scale. Some people will remember the anti-AIDS vaccine which was so desperately needed in South Africa, where 5 million people were HIV positive, in the 1990s. When South African pharmaceutical companies cloned it and were able to sell it at a twentieth of the unaffordable price the Americans were charging, they were sued for patent infringement.

The worst of it was that the legal drug was originally developed using publiclyfunded research. But since 1980, American universities have been allowed to “privatise” the output of their laboratories. Following suit, universities worldwide have today become more like patent factories than places dedicated to the pursuit of knowledge for its own sake. One of the reasons for the decline of Russian scientific prestige has been that no pharmaceutical company wants to commission expensive research in the universities of a country where protection for its discoveries is so weak.

But Russia has some strengths, notably the computer developers and DVD pirates who have revived the traditions of knowledge as a “commons” that emerged in seventeenth century England after the first attempt was made to bring the law to bear on publication— traditions which are stoutly upheld today in every Moscow perekhod. These ideals are reflected more respectably in open-source software and file-sharing. It is interesting that the greatest battle fought about this issue produced one of the most formative developments in European intellectual history, namely the Scottish Enlightenment.

Up to the seventeenth century there had been very little international trade in books. Every country had its printers who had a tacit national monopoly on every title they set in print. All that changed in 1707 with the Union between Scotland and England. Established Edinburgh printers started to make money from selling cheap books to provincial England and the American colonies, both of which London had previously disdained. The London booksellers called this “piracy”, while the Scots called the English proprietorial approach to what they thought of as the common intellectual heritage of mankind a “monopoly”. They had support from such thinkers as Adam Smith, who wanted free trade in ideas.

In the end, the Scots won. Out of their efforts came the idea of limited copyright, which protected living authors but which opened most of the rest of the literary world to market forces. It is easy today to cast aspersions on Russian DVD counterfeiters and software cloners, but in certain circumstances, they can have a point. Though the case for some sort of protection for creative endeavour is strong, there are important counter-arguments against too rigid a system, or one which is so expensive to operate that only multinational corporations can in practice make use of it.

It should not be forgotten that the boot was once on the other foot. Until the end of the nineteenth century, American publishers “pirated” British books ruthlessly. Only when it became obvious that this was a two-way street, did they stop behaving in a way which they now accuse the Russians of behaving, and sign up to the Berne Convention on copyright.

Likewise with patents. At the end of World War Two, American corporations took control of massive amounts of German chemical and pharmaceutical research. They patented the resulting products, and when German companies tried to restart trade with the United States, the Americans called them “pirates” and sued them for patent infringement— on their own inventions! Russians are not the only people to have flown the Jolly Roger.

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