Courtesy Reuters

How to Copy Right

Is Piracy Productive?

PATENT PROGRESS

In their essay “Fake It Till You Make It” (July/August 2013), Kal Raustiala and Christopher Sprigman urged the United States to “relax” when it comes to the flagrant disregard for intellectual property laws in China. The authors make two essential arguments: first, that the United States in its early days, like China today, was a “pirate nation,” and second, that copying drove the United States’ economic growth. As China’s economy develops, they say, so, too, will its “balance of interests.” Like the United States before it, China will rely less on copying and “adopt a less permissive approach” to copyright infringement -- not in response to U.S. prodding but on its own initiative.

Although the authors accurately describe U.S. attitudes toward foreign intellectual property rights before 1891, they misinterpret the results. By deciding to fully recognize foreign copyrights in 1891, the United States actually reaped significant financial rewards. The move opened up entirely new markets to U.S. products, spurring cultural and economic exchanges that helped make the United States the commercial powerhouse that it is today. A Chinese campaign against piracy need not follow further economic growth; it can spur it.

A DEAD END

The authors correctly note that the United States failed to provide copyright protection to foreign creative works through most of the nineteenth century. But they draw from that history the wrong conclusion: that piracy promotes creativity.

If anything, history proves the opposite. The U.S. House Committee on Patents argued as much in an 1890 report: “Since such American publishers pay nothing to the English authors whose stories they appropriate and publish, other American publishers can not afford to pay American authors for writing stories.” Consequently, many U.S. writers struggled to establish reputations in the first place, let alone profit from sales abroad (British publishers reciprocally pirated U.S. works).

Lawmakers understood then, as they should now, that piracy of works from abroad discourages creativity at home. In 1891, at the height of its

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