By Naana E. K. Amonoo – LL.B, LL.M (I.P).

It is forbidden in the intellectual property world to condone anything to do with copying without the owner’s permission. It is of course understood that the hard work of any IP owner ought to be rewarded and acknowledged. No one is disputing that fact. However, it is important to mention that copying had not always been taboo in the IP world. In fact, copying is how the world’s now most powerful economy rose to success, and perhaps we should all copy its example because what it did was the best thing for its people and should be commended.

The American IP system is simply the most successful and thriving system in the world, and as such, it is beneficial to try to analyse the reason for this growth and how it has been sustained. When asking ourselves why the dramatic expansion of IP took place in the United States, there is not one factor attributable to it. Instead, there are a host of factors, ranging from economic to ideological to political power, which merged together to cause the growth.

America changed from a net consumer of intellectual property to that of a net producer. In mid-nineteenth century, the United States had no interest in protecting the rights of foreign authors and inventors in its country. After its independence, it now had to start building a system from scratch that suited it alone, not Britain or other European countries that had already established their IP systems.

America was to benefit, immensely, through its piracy of foreign protected copyrighted works and patented inventions. Congress refused to heed to the many and often loud pleas of the foreign nationals and their governments to put an end to the piracy by Americans. One of the lead lobbyists against the piracy was Charles Dickens, whose outstanding works were being reproduced, reprinted and distributed by American publishers without his permission. This constituted grave copyright infringement. However, due to the fact that America had not implemented certain international conventions requiring it to give national protection treatment to foreign works, it was under no obligation to extend any protection. And until it had established its own IP system, it was not prepared to jeopardise the rights of its people by signing conventions that would force it to protect foreign rights when it did not have rights itself to protect.

In the twentieth century, though, with the increase and power of America’s own IP system, there became a need for it to protect the rights of its people internationally. It had become the world’s most vigorous and effective IP system and accordingly had to make sure that the rest of the world would enforce and protect the rights of its people if the rest of the world wanted it to protect their rights. It was now that there was a need for reciprocity of the protection of rights between America and other countries.

In the Harvard Business School Review, Reprint 97510, 1997, entitled “Needed: A New System of Intellectual Property Rights”, Lester C. Thurow explains that many developing countries have copied in order to “catch up” with the developed world. This is not surprising, as the gap between the developed and developing world economies keeps growing, and there is a pressing need to do something drastic. He describes how in the early nineteenth century, US engineers copied British textile mills in New England and how the Japanese toured and copied American factories after the Second World War. It’s a vicious circle of what goes around comes around. What he goes on to describe is quite intriguing. He suggests that the level on intellectual property protection that a country should adopt is “…related to whether its comparative advantage resides more in innovation or in the imitation and adaptation of innovation made elsewhere”. He therefore concludes that a single system of protection to cover all technologies or sectors will not provide the best solution.

Pedro Roffe, in “The Political Economy of Intellectual Property Rights – An Historical Perspective”, 2000, makes a worthwhile analysis that the history of IP legislation was typically introduced when a country had attained its middle income level of economic growth. When this occurs, he states, “…an innovative base exists and the benefits of protecting innovations outweigh those of copying”.

The developing world has not attained middle income status yet. As such, it is important to foster opportunities where they can copy, learn and develop. Many developing countries believe that the IP system does not help them now, when they are struggling to develop. Instead, they view the system as an instrument to enable developed countries to control the world market. As such, the IP system is at present seen by some policy makers as contributing little or nothing to the developing worlds’ industrialization process.

Knowing that weaker economies will find it difficult to compete because they are net product consumers, not producers, it is important that these economies are afforded the chance to import inexpensive imitation products, because frankly, that is all they can afford!

Aptly put by Richard Gerster¹, “…The introduction of patent protection in countries with weak economies, that are primarily importers of technology, constitutes a form of taxation of the indigenous population which benefits industries in the North…the less developed countries have a fundamental interest in unrestricted access to technology under the most favourable possible conditions. It is not surprising that the history of economic development reveals that no country has enjoyed substantial benefits as a result of patent protection for inventions…it is well known that the very absence of a modern patent system, i.e. unrestricted copying of foreign inventions, allowed Japan, Korea and Taiwan to achieve economic success”.

But it seems that the past has been forgotten. It seems that America has forgotten how it chose its right as a sovereign nation to self-determination and its right to decide on what and how to protect its citizens’ rights or what international treaties it voluntarily wished to sign, without the coercion of any other country. Yet, some developed countries and especially America, have forced a lot of developing countries to sign treaties that protect only their IP rights, and ignore the fact that most developing countries are at the grassroots of understanding, let alone creating, sustainable IP systems and do not have rights that they need to protect as yet. As such, these countries ought to also have the right to create their own systems, not systems that have to be created in conformity with international treaties that they were coerced into signing, for fear of being sanctioned. It would seem only equitable for developing countries to also be left alone to exercise their self determination and to also copy until they reach a point where they also have IP rights of their own to protect.

Naana Amonoo obtained her LL.B from the University of Kent, UK and her Masters in Intellectual Property (LL.M I.P) from the Munich Intellectual Property Law Centre, Germany. She is helping to promote awareness of IP in developing countries, especially in Africa, through her work with her country Ghana’s Registrar General’s Office. Ms. Amonoo is head of the fast-growing IP Division at Fugar & Company Barristers and Solicitors, Ghana, and an IP consultant.

¹ ”Patents and Development: Lessons learnt from the economic history of Switzerland” – Richard Gerster