THE STRATEGIC LAWYER

::.law + strategy.::.law + governance.::.law + politics.::. ::.you get the jist.::

The Challenges of IP Relativism

Click the image to see some other examples of TM copies

Click the image to see some other examples of TM copies

These images of buildings, architectural monuments, sculptures and entire towns or villages from different places in the West (Manhattan, Switzerland, Paris, England etc.) always make me smile. Somehow, I’ve always loved the idea of architectural replicas–like they’re an adult playground of make-believe, in a way.  Though I’ve never been to Las Vegas, that city of copies and simulacra provokes a similar reaction.

And yet, this is a signifier of a deeper issue. Though the imitation villages, and the copies of older monuments would be fair game in most jurisdictions, there are developers in China who are also creating copies of recent architectural designs–works that would be protected in other jurisdictions. These newer designs are not treated any differently to the public domain structures, and are copied with a similar gusto and enthusiasm. When set alongside the reality of the many, many examples of complete lack of regard for Intellectual Property (IP) in patent, copyright and trademark, including the discovery of not one, but two pseudo Apple stores in a single city, selling pseudo versions of Apple products, it becomes clear that there will be challenges ahead. IP protection (namely, the abovementioned patent, copyright and trademark laws) is a keystone of how we in the west view creativity, inventiveness and the creation of a brand.

There are issues that can be spotted in the western rhetoric around IP, of course. For instance, the spirited insistence on the importance of “protecting creators’ rights” somewhat distorts the reality: a more accurate rendering is that it’s usually the people who pay the creator to license or assign those rights to them that are being protected. I don’t necessarily have an issue with this–but it is a rather different, far less sympathetic-sounding scenario. Still, if we consider that such protections mean that people with money are willing to pay creators to create, it ultimately means that innovation is being fostered, in that creators are incentivized to spend more time creating than they otherwise would, without the bills-to-pay remuneration. And sure, the patent system is deeply problematic and possibly broken, but let’s set that aside.

The fact is, this difference in attitudes towards IP gets at a fundamental difference in how the two cultures view business models. We feel–in theory, at least–that putting these legally enforceable protections on creative output (including the creativity and hard work involved in building a brand) is necessary to encourage quality, creativity and innovation. Without that, success in selling product becomes a race with two types of winners: those who can make the same thing as everyone else fastest in the short term, and those who can make it cheapest in the long term. While quality and innovation may still occasionally crop up in such a scenario, they are expensive and risky–particularly since successful innovations can be copied, in a non-IP protected world, and products of comparable quality could be sold for less by rival companies that didn’t have to pay for the R&D.

We’re already seeing this, as ebay and other such e-tailers have made it easy for people in the west to access cheap, but often not as well made, versions of products that are available at a far higher price tag from western shops. In certain cases, some might argue that the protected product presents an absurdly inflated price (e.g. where you’re paying a premium for the R&D in the product itself and a second premium to purchase a peripheral piece of $1 hardware involving minimal R&D but boasting a proprietary configuration unique to the original product purchased), the workaround might be justified. But this is at best an outlier situation and at worst highly controversial.

More generally speaking, though I get the appeal of fast and cheap, it’s not a model for longevity and sustainability. It also creates a major problem on the supply side, with creators and inventors–and those who pay them–starting to worry that their investments of time, effort, creativity and money will not pay off because the results of all that effort will be undercut at the first opportunity. This was the situation in the 19th century which prompted nations to sign onto the copyright and patent treaties in the first place. And as cultures who do not value or recognize such protections gain economic standing and influence, unless those protections are affirmed or some middle ground is reached, it will ultimately mean that a disposable culture of ill-made clothes that are ditched after few wearings; of products that are used briefly and then junked; of factories in the lowest-paying jurisdictions, in which there are catastrophically dangerous conditions, in the absence of safety and health regulations for workers; and other such examples of short-term gains for long-term losses, will prevail.

Then again, perhaps it already has.

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This entry was posted on September 18, 2013 by in Branding, Copyright, Patent, Policy, Tech.
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