In January 1842, Charles Dickens arrived on American shores for the first time.
He was greeted like a rock star in Boston, Massachusetts, but the great novelist was a man with a cause: he wanted to put an end to cheap, sloppy pirated copies of his work in the US.
They circulated with impunity because the United States granted no copyright protection to non-citizens. In a bitter letter to a friend, Dickens compared the situation to being mugged and then paraded through the streets in ridiculous clothes.
“Is it tolerable that besides being robbed and rifled,” he wrote, “an author should be forced to appear in any form – in any vulgar dress – in any atrocious company?”
Monopoly: It was a powerful and melodramatic metaphor. But the truth is the case for what Dickens was demanding – legal protection for ideas that otherwise could be freely copied and adapted – has never been quite so clear cut. Patents and copyright grant a monopoly.
Dickens’s British publishers will have charged as much as they could get away with for copies of Bleak House. Cash-strapped literature lovers simply had to go without.
But these potential fat profits encourage new ideas. It took Dickens a long time to write Bleak House. If other British publishers could have ripped it off like the Americans, perhaps he wouldn’t have bothered.
So, intellectual property reflects an economic trade-off, a balancing act. If it’s too generous to the creators, then good ideas will take too long to copy, adapt and spread. If it’s too stingy, then maybe we won’t see the good ideas at all. This trade-off has always been coloured by politics. The British legal system strongly protected the rights of British authors and British inventors in the 1800s because the UK was then – as now – a powerful force in world culture and innovation.
Brazen copying: But in Dickens’s day, American literature and innovation were in their infancy. The US economy was in full-blown copying mode: they wanted the cheapest possible access to the best ideas that Europe could offer.
US newspapers filled their pages with brazen copying – alongside attacks on the interfering Mr Dickens. A few decades later, when American authors and inventors spoke with a more powerful voice, America’s lawmakers began to take an increasingly fond view of the idea of intellectual property. Newspapers, once opposed to copyright, now rely upon it.
And we can expect to see a similar transition in developing countries today: the less they copy other ideas and the more they create their own, the more they protect ideas. There’s been a lot of recent movement: China didn’t have a copyright system at all until 1991.
The modern form of intellectual property originated, like so many things, in 15th Century Venice. Venetian patents were explicitly designed to encourage innovation.
The inventor would automatically receive a patent if their invention was useful. The patent was temporary, but could be sold, transferred or even inherited during its lifetime.
It would be forfeited if it wasn’t used, and invalidated if the invention proved to be closely based on a previous idea.
These are all very modern ideas. And they soon created very modern problems.
Rivalry: During the British industrial revolution, the great engineer James Watt worked out a superior way to design a steam engine. He spent months developing a prototype, but then put even more effort into securing a patent. His influential business partner, Matthew Boulton, even got the patent extended by lobbying Parliament.
Boulton and Watt used it to extract licensing fees and crush rivals – for example, Jonathan Hornblower, who made an even better steam engine yet found himself ruined and imprisoned. The details may have been grubby, but surely Watt’s famous invention was worth it? Well, maybe not.
The economists Michele Boldrin and David Levine argue that what truly unleashed steam-powered industry was the expiry of the patent, in 1800, as rival inventors revealed the ideas they had been sitting on for years.
And what happened to Boulton and Watt, once they could no longer sue those rivals? They flourished anyway. They redirected their attention from litigation towards the challenge of producing the best steam engines in the world. They kept their prices as high as ever, and their order books swelled.
Far from incentivising improvements in the steam engine, the patent actually delayed them.
Expansion: Yet since the days of Boulton and Watt, intellectual property protection has grown more expansive, not less so.
Copyright terms are growing ever longer. In the US, they were originally 14 years, renewable once. They now last 70 years after the death of the author – typically more than a century. Patents have become broader and are being granted on vague ideas – for example, Amazon’s “one-click” US patent protects the not-entirely-radical idea of buying a product on the internet by clicking only one button.
The US intellectual property system now has a global reach, thanks to the inclusion of intellectual property rules in what tend to be described as “trade agreements”. And more and more things fall under the scope of intellectual property – for example plants, buildings and software have all been brought into its domain. These expansions are hard to justify, but easy to explain: intellectual property is very valuable to its owners, which justifies the cost of employing expensive lawyers and lobbyists.
Published in Daily Times, June 29th, 2017.