International Policy Network
1 October 2002
Amir Ullah Khan

A mindset problem: the CIPR report sounds racist

The Commission on Intellectual Property Rights, comprising a body of lawyers and academics, was convened by Britain's Department for International Development to look at how IPR can work to the benefit of the world's poor countries. The commission's report has been published on September 12th and makes recommendations for developing countries and suggests ways in which they should indegenise IPR protection to suit their conditions.

My basic problem against the report, as I focus on chapter 5 on copyrights, is the archaic mindset that seems to be the foundation of much of what has been written. Firstly the report assumes that all knowledge is sacred and therefore must be in public domain. Secondly, that intellectual property rights restrict the flow of ideas. A third fascinating proposition is that societies can close the knowledge gap only through theft and imitation. This one is clearly racist. More on this point later.

Let me expand my arguments. In ancient India, as in most of the Orient, knowledge developed in the temple. All expression was aimed at appeasing their gods. People sang, created music and danced in various forms of prayer. And as all this was religious, it was sacrilege to commercialize knowledge. In practice, however, a crass form of protectionism existed. Any commoner who dared recite the verses had hot oil poured down his ears, and the Brahmin continued his monopoly. The point being that if the rule of law is not established, a rule of the mighty prevails. In suggesting that more laws are bad, the report makes the same mistake. If the nascent IPR legislation is not reviewed and clarified, a similar problem would arise, and the monopolist would use all means at his disposal to curb competition and restrict markets.

IPRs, in this context, make knowledge available, and provide incentives to copyright holders to divulge information. And this is the second point I would like to make. Faced with a situation where expression would result in copying and allow others to make profits without paying the author, a large number of people would simply carry their work to their graves. And public access to information and ideas would suffer. Therefore the importance of protecting copyrights. And again, the CIPR argues otherwise. It suggests that IPRs restrict dissemination of knowledge. But it is patently obvious that an incentive system always encourages enterprise. Where software developers are promised returns on work done, there will be more software developed. And basic economics tells us that as supply goes up, prices come down. So also with increased competition. The entire system of intellectual property rights aims at instituting a process where authors and inventors are given adequate incentive to work on new ideas.

The report quotes UNESCO's World Information report - "The fact is that copyright ownership is largely in the hands of the major industrialized nations and of the major multimedia corporations placing low per capita income countries as well as smaller economies at a significant disadvantage" - and this is unexplained. What disadvantage? If poor per capita countries were denied access to works by way of refusal to divulge, one could understand this problem. But if an enabling system allows access at a charge, where are these disadvantages? A basic fact that the CIPR confuses its readers on is that that while expression is protected by copyrights, ideas are not. They stay in the public domain and cannot be protected by any copyright. More copyrights and more copyright owners mean more ideas, and these ideas are disseminated when copyright holders feel secure displaying their wares.

The report, repeatedly notes that the US law did not protect foreign copyright holder. This argument has been floating around for quite some time now. However, I fail to see how this can be an argument against enforcing copyrights today. US literature clearly suffered on this account, as local writing never came of age till copyright enforcement started. The nation's need for enlightenment remained unfulfilled, and it is difficult to identify but a few literary achievements of the US in the nineteenth century makes, in fact, a strong case against the short-sightedness of lawmakers then. And armed with a strong law for semi conductors, software and designs, the US achieved far greater wealth and enlightenment in the second half of the twentieth century.

To quote the report further "In the past, however, the evidence shows that weak levels of copyright enforcement have had a major impact on diffusion of knowledge and knowledge-based products in certain cases, such as computer software, throughout the developing world. Indeed, it is arguably the case that many poor people in developing countries have only been able to access certain copyrighted works through using unauthorised copies available at a fraction of the price of the genuine original product." Here the report clearly gets racist. It suggests that poor economies cannot develop without adopting illegal means. And what little development they have seen, is primarily because of a thriving trade in pirated books, stolen music, source codes misappropriated and software illegally copied. This is indeed the most appalling suggestion the report makes.

What the report implies rather astonishingly is that for Knowledge to grow, and the knowledge gap to be reduced, a large network of nefarious dealers working underground is what poor countries require. Apart from a thorough disregard for the rule of law, this also is plain misrepresentation of fact. Knowledge gaps and digital divides have been bridged to a large extent in societies that have followed the rule of law and respected property rights the most. And polities that did not have suffered. There is without exception, enough empirical evidence to back this claim.

I rest my case here.
Amir Ullah Khan, is Director, Asia, International Policy Network is an Economist and teaches at various management schools in India.

Note: We are grateful to the International Policy Network for permission to reproduce.