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28 [1997]
by
D EBORA HALBERT*
more visible. Fourth, once it is understood that stories are strategic; the
need to create alternative stories becomes dear. Again, Cobb and Rift<in
are enlightening: "Unless alternative stories are elaborated, persons are
co-opted into identities they did not author and cannot transform. "4
Finally, the ability to interpret a narrative event is an important critique
of power that helps clarify the underlying assumptions in the dominant
narrative. Ultimately, narratives serve as boundary m a r k e r s - they
authorize actions and stake out limits which cannot be crossed.5 A
narrative approach makes it possible to more dearly understand how
power operates in the intellectual property narrative.
free", yet these are illegal activities labelled "piracy". Considering the
difficulties American industry has had convincing Americans to "play by
the rules", it should be obvious that convincing other countries, who do
not operate on the same intellectual property premises as the U.S., to
follow American laws has been problematic at best. In order to protect a
relatively abstract notion of property, the law must be involved. Thus,
the narrative of the pirate emerges to help justify expanding U.S.
intellectual property protection beyond U.S. borders.
The piracy narrative is one of many that is currently operating to
construct expanded intellectual property boundaries. By analyzing the
piracy narrative, and by understanding law as a narrative process, it is
possible to begin uncovering the manner in which piracy stories are used
to cement the notion of ownership in the information age.6 Absent a
clear understanding of who owns copyrighted technological products
(such as software, data bases, T V programs, and videos), the average
person will mistakenly believe they can do what they want with their
"property". Potential uses of this property include making copies for
friends or taping movies off HBO for a permanent collection. The
piracy narrative operates no~ only to halt widespread commercial piracy,
but to outline the boundaries for law abiding citizens as well. "¢9~ho
benefits from these property arrangements is largely obscured or ignored.
Some GeneralBackground
6 Or, as Cobb and Rifkin put it, to uncover how hegemonic processes work.
See supra n.3, at 69-91.
7 This language is used in almost every analysis of copyright. For example:
"Intellectual property rights are society's attempt to achieve a balance in this
fundamental tension among information providers and users. Patents,
trademarks, and copyrights allow creative interests to extract a return to their
investments in exchange for making available new technologies, products, and
artistic efforts." See K.E. Maskus, "Normative Concerns in the International
Protection of Intellectual Property Rights", WormEconomy (September 1990),
387.
INTELLECTUALPROPERTYPIRACY:THE NARRATIVEOF DEVIANCE 59
8 For a closer look at these original metaphors see M. Rose, Authors and
Owners: The Invention of Copyright (London and Cambridge: Harvard
University Press, 1993).
9 The Berne Convention, an International agreement on copyright, has
existed since 1886. 17 U.S.C~. provides the amendment to include the Berne
Convention in U.S. Copyright statutes. The World Intellectual Property
Organization CWIPO) was created in 1967 and the Universal Copyright
Convention (UCC) was created and administered by UNESCO beginning in
1952. See R.P. Benko, Protecting Intellectual Property Rights: Issues and
Controversies (Washington D.C.: American Enterprise Institute for Public
Policy Research, 1987), 1-8.
10 Supra n.9, at 6.
11 S. Nowell-Smith, International CopyrightLaw and the Publisher in the Reign
of Queen Victoria (Oxford: Clarendon Press, 1968).
12 W.P. Alford, "Intellectual Property, Trade and Taiwan: A GATT-FIy's
View", Columbia Business Law Review (1992), 107.
13 Supra n.11, at 15, quoting Mr. Graham Pollard.
14 Supra n.11, at64-84.
60 DEBORAHALBERT
could be fought, unlike the murky domestic and economic issues at the
root of the problem.
Today, intellectual property has become a primary motivating factor
behind the United States' position on international trade, and it informs
treaties at both the bilateral and multilateral level. Implicit in this
change of heart has been an increased concern over enforcement of
intellectual property rights and a focus upon piracy. The pirate emerges
as a threat as the U.S. finds itself competing in a new environment where
legal and illegal competition are infringing upon its ability to maintain
market share. The pirate is especially threatening in countries lacking
the legal framework which provides incentives for creating intellectual
property and punishments for violating these "rights".
The economic condition of the United States in the 80s established
the groundwork for its intellectual property relationships into the 90s.
Perhaps most dramatic is the clash between the U.S. and China over
intellectual property piracy. The Chinese drama illustrates how
copyright has become a set of beliefs which the U.S. feels the entire
world should embrace. Through its link with international trade and
piracy, the U.S. version of the intellectual property story is moving
beyond U.S. borders and being forced upon the developing (and some
developed) nations of the world.
safer for American computer programmers and pop stars. "37 America
emerged victorious again. However, the price was high. China may
have given in to U.S. pressure on intellectual property, but it retained its
diplomatic dignity by rejecting an attempt to ban nuclear weapons tests
and by publishing a report, "timed to coincide with the copyright
accord, that China has no political or religious prisoners. "38 The
possible $1 billion returned to U.S. companies due to decreased piracy
may make an "enormous impact" on the trade deficit we have with
China. 39 However, as one diplomat stated: When you add up the costs
and benefits of the intellectual property accord, I wonder if it's really
worth it. "4°
The U.S. has been threatening trade war with China over intellectual
property for many years. Not surprisingly, this hard-line attitude
towards China is about trade, barriers, and untapped markets, as pointed
out by Awanohara and Kaye:
Outclassed by Japan in consumer products and unable to vie with the easy-
credit terms of European capital-manufacturers, the US' only hope of
narrowing its growing trade deficit with C h i n a - US $10 billion last year
and projected at nearly US $15 billion this y e a r - must lie in technology
exports.41
Because technology is often protected by intellectual property, the U.S.
uses intellectual property as a club to open China's markets. The much
publicized fact that China and Taiwan are the most blatant pirates,
especially of computer programs and books, justifies U.S. pressure.
However, our rocky intellectual property relationship with China can in
part be attributed to the very notion of intellectual property itself.
The United States has a well defined intellectual property system
with a long European history. The U.S., now that it is a leading
exporter of intellectual property, is concerned that other nations of the
world understand intellectual property as Americans understand it. It is
the U.S. insistence that the rest of the world follow its intellectual
property story which causes the problems. The U.S. intellectual
what is at stake in the intellectual property battles with China and other
developing countries? Let us take a closer look at who benefits from the
construction of piracy in the United States.
pirates and even more important, the lax intellectual property laws found
around the world, but found especially in Asian countries. As a study by
the Annenberg school puts it: "Though piracy occurs in every country,
it is most concentrated in nations like Taiwan - - developing countries
with active commercial sectors. "51 The Intellectual Property Alliance
has helped the USTR identify other "problem" countries. Korea,
Taiwan, Thailand, Saudi Arabia, Philippines, India, People's Republic of
China, Malaysia, Indonesia, Egypt, Brazil, and Nigeria have all been
identified at one time or another as problem countries. 52 While piracy
occurs everywhere, a disproportionate number of countries singled out
for action are developing countries centred in Asia, making this a story
based upon developing/developed lines. Additionally, the problem is
conceptualized in two distinct ways: blatant disrespect for the law, and
the lack of law altogether. Thus, in the emerging piracy narrative, the
most obvious solutions are more intellectual property laws for
developing countries. How the United States situates itself as a victim at
the hands of developing countries can be seen through the narratives
presented in government documents on the subject.
The 1986 government hearing on "Intellectual Piracy Involving
Intellectual Property" established the piracy problem as one which pits
hard working Americans against lazy foreigners, ultimately costing
America jobs and creating trade deficits. 53 Pirates, in the American
narrative, steal from hard working Americans. 54 Making foreign piracy a
moral issue instead of a legal one is an important step in distinguishing
the good from the bad. If the international piracy story were to focus
exclusively on the legal aspects of the situation there would be no case.
After all, respect for national sovereignty dictates one country should not
interfere with the laws of another country. Also, as U.S. history
Mr. Good, I think as we have all learned the hard way, they regard rhetoric
as cheap and, frankly, not at all persuasive. I think they will be persuaded
only by a dear determination to see reform or else to bring about retaliation
in order to compel it. That's not the way we like to do business. It's
unfortunately apparently the only way that we're going to secure their
attention and cooperation ...57
Senator Wilson's statements indicate that force is the only method
for dealing with piracy that will be understood.
Turning billion dollar industries into victims is perhaps the most
At Disney, story people and artists spend hour upon hour of work in
developing a number of character concepts, most of which are discarded for
a variety of reasons. Once a concept is preliminarily accepted by our
people, stories are created to provide personality and a setting in which the
characters can be perceived... As you can see, all of this activity takes
enormous dedication and inspiration, as well as large investments of risk
capital and the hard work of many Disney employees.66
Mr. Wells wishes us to empathize with those hard working Disney
employees by asking us to "imagine, then, how our Consumer Products
division feels when, after having spent all that time, effort, and money,
the see "Chinese" or counterfeit copies of their characters on the
marketplace." 67
O f course, the President of Walt Disney does not want Congress to
hear that the very artists and story designers he refers to work for hire.
This means they receive an hourly wage for their creative labour while
Disney reaps the millions of dollars in profits from their creativity. Such
a division of labour is obscured in the testimony which places the Walt
Disney company in the place of the victim.
While the moral ground lies with the protection of creative and
innovative work, the reality is that the creators are not the primary
benefactors of the intellectual property system. Creation occurs within a
fully developed industry where those who make the money are rarely
those who create. The political economy of the culture industry is
obscured, where the lions share of profits made by the creative work of
artists and authors is siphoned off by the industry these creative people
make possible. What goes as protection of intellectual property obscures
the larger and more complex economic relationships that undergird the
U.S. intellectual property system. In its place, a narrative about foreign
pirates stealing from Americans leaves little room to think critically
about American intellectual property law. Only by describing who
benefits from this narrative does the lack of neutrality in intellectual
property law become apparent.
A significant part of the story told in the 1986 Congressional
hearing is that the United States is morally superior because it values
intellectual property rights. The international action it has decided to
take is made appropriate via its moral position. Foreign countries, in
the U.S. narrative, have no moral fabric and cannot be relied upon to
it, pirates deliberately intend to "impede us, to shrink us, to exile us." 73
Unlike 1986, there are several people who voice doubt about the
U.S. intellectual property story. First, while Registrar of Copyrights
Ralph Oman, favours strong protection, he also suggests the United
States needs to open its markets to foreign intellectual property in order
to show that protection is not a one-way street. 74 A more assertive voice
of disagreement comes from Stanley M. Besen, a Senior Economist at
the Rand Corporation. He points out that the U.S. position on
intellectual property is short sighted. It assumes the U.S. will be a
technological creditor indefinitely. If we lose the upper hand, we will be
disadvantaged by the very intellectual property laws we designed. 75
Mr. Besen suggests that the exchange of knowledge is more
important, or should be more important, than immediate royalties. O f
course, the outcome of GATT, where all countries agreed to
"harmonize" their laws with the U.S., proves Dr. Besen's voice was not
successful. Dr. Besen's conservative approach, while rational, does not
comply with the intellectual property story U.S. policy makers want to
tell. By protecting intellectual property, the U.S. ensures continued
hegemony in areas of intellectual property because the law is written in
such a manner that favours the innovator. O f course, continued U.S.
technological superiority remains to be seen.
The software industry provides some final insight into how the
piracy narrative relates to real-life action. The Software Publishers
Association (SPA) estimates that the software industry lost nearly half its
potential sales in 1993, coming to a total of $8 billion world-wide. 76
The concern for profits has led American software companies to push for
strong protection at home and abroad. For example, the state of
copyright enforcement in Taiwan led computer companies such as
Apple, Ashton-Tate, IBM, Lotus Development Corp. and Microsoft to
Conclusion
79 William Preston Jr. outlines the U.S. perspective on the position of the
third world in international development. He states:
[the United States] offered the Third World] orderly economic growth,
stability, technical assistance, and political reform; [the Third World] in
turn had to fit into the world economy on [United States] terms, follow the
[United States] model of development regardless of their indigenous
culture, and stop short of choosing radical political alternatives. Order
took the precedence over democracy, and containment against fundamental
change in the world system retained a dominant priority. Dollar
diplomacy, loan embargoes, and financial sanctions against international
agencies offending United States interests served to enhance the latter's
pervasive influence.
See W. Preston Jr., Hope and Folly, (Minneapolis: University of Minnesota,
1988), 20.
78 DEBORAHALBERT