Copyright Warfare


Review of Patents For Power: Intellectual Property Law And The Diffusion Of Military Technology, by Robert M. Farley and Davida H. Isaacs

Chicago, IL: University of Chicago Press, 2020


Described by the authors as “a work of international relations theory” (6), this book explores the relationship between nation states and developers of military technology in terms of intellectual property rights and the law. It is advertised by the University of Chicago Press as “discussing a range of inventions, from the AK-47 rifle to the B-29 Superfortress bomber to the MQ-1 Predator drone.” This is true, but unfortunately for students of military technology, these discussions are limited to case studies or “vignettes” ahead of each of the seven chapters. These do add much-needed real-world interest for the non-specialist reader, but vary in length and depth. They serve as little more than framing devices for the chapters proper, which in any case feature their own separate introductions. 

The result is that the vignettes feel tacked-on, with a distinct jump from each interesting real-world example to the inevitably more “top level” and abstract discussion of intellectual property frameworks that follows. The rest of the book is not without illustrative real-world examples, but the only “deep dives” are these opening vignettes, which could perhaps have been better integrated into the book. 

The opening vignette in the first of the seven chapters in the book attempts to explain the unparalleled proliferation of that most iconic piece of military technology–the Kalashnikov AK type rifle–through the highly specific lens of intellectual property (IP). Of course, no aspect of history is the result of only one causal factor, and the authors do acknowledge that IP is only one contributing factor. However, they nonetheless argue that IP underpins the other reasons for the AK’s proliferation (here “diffusion”), specifically the “original development of the weapon, its early manufacturing, and finally the presence and frequency of reproductions” (3). Essentially, the claim is that a permissive IP environment allows for effective design and manufacture of a capable weapon and also encourages mass design, manufacture, and proliferation of copies. In other words, a lack of restriction results in greater proliferation. 

This hypothesis is intriguing, but unfortunately suffers from a number of technical errors (see below) and is rather superficial in this limited vignette format. More research is needed to make this case convincingly. The rest of the chapter sets the scene for the remaining chapters, which are prefaced with a series of clear questions that Farley and Isaacs seek to answer, namely how intellectual property law affects the process of innovation “in the military sphere” and its subsequent “diffusion across the international system” (5). They then expand upon this by outlining the various relevant types of organization and their relationship to one another. The “meat” of Chapter 1 outlines the “revolution in military affairs” literature, which is essential background for any reader not already au fait with this material. The authors do well to explain the key terminology early on, rather than relegating this important information to a glossary or leaving it opaque as a traditional academic work might. 

Chapter 2 does a good job of defining and explaining patents (specifically, the more common “utility patents”) and provides an excellent (and well-referenced) potted history of them. It will doubtless be of interest and use to those without a grounding in the subject. This reviewer learned, among other things, that the British and U.S. patent systems were in part created to actively encourage appropriation of existing technologies invented elsewhere. 

Disappointingly however, it contains no examples relevant to the subject matter, instead referencing steam engines and Coca-Cola. It is also odd, given the book’s remit and title, that no details of any actual patent are given (no patent references appear in the bibliography). Also conspicuous by its absence is the “Technical Data Package” (TDP)–the means by which specific technical designs are controlled by governments to prevent close copies and afford a monopoly to either state or contracted manufacturers. 

This aspect is hinted at with mentions of “technical data” and “trade secrets,” but is not explained or explored in any detail. Notably, it is the TDP that prevents illicit manufacture of a “milspec” M16 or M4 rifle and, conversely, has allowed other countries to precisely copy the Russian Kalashnikov. The upshot being that there are far more true AK rifles in existence than there are AR-15s. Some exploration at this level of detail might have aided the book’s thesis and added additional interest for the reader. But it is acknowledged that the authors have much to cover, and limited pages within which to cover it. 

The chapter goes on to provide a brief history of the relationship between states and producers, from the traditional pre-twentieth century solicitation by gentleman inventors to up-front investment by the state and a system of increasingly large private companies with a more complex relationship with government (the latter being what the rest of the book focuses upon). Given this, it is perhaps surprising that no mention is made here or in Chapter 5 (which greatly expands upon the themes introduced in Chapter 2) of the U.S. state arsenals – Springfield Armory, a research, development, and manufacturing facility shuttered in 1968, and Rock Island Arsenal, which is still in operation, although it no longer manufactures complete weapons. These facilities at least arguably parallel the Soviet system in terms of concentrating the design and manufacture of military technology of all kinds under state control, and so their omission would appear to be an oversight in a book about state control over warlike intellectual property. This, again, is likely a result of the relatively high “frameworks” level at which the book must operate in order to provide an overview of an entire field of study.

If Chapter 2 is a primer on the background to military IP, Chapter 3 launches into the meat of the subject. The opening vignette in this case is certainly relevant in that it summarizes a legal dispute between a technology firm and the U.S. Navy, and the ability of governments to effectively negate the concept of IP where it suits them. Perhaps in order to show that IP applies to the most mundane and unwarlike equipment, this example pertains to a form of electrical connector rather than any form of weapon, vehicle, or other defense-specific technology. The chapter introduction again outlines the U.S. “defense industrial base” of “large private sector corporations,” and the contemporary “national innovation system” which adds various government organizations able to help bear the ever-increasing cost of military technology. 

The remainder of the chapter demonstrates that the result of this arrangement tends to be legal dispute from companies seeking to retain or best leverage their IP, and frequent invocation of the Invention Secrecy Act by the U.S. government in order to evade this and get what they want. Although primarily theoretical, a legal case brought against the U.S. government by widows of dead B-29 bomber crew members is a useful and welcome non-vignette case study. 

Chapter 4’s opening vignette harnesses fictional defense mogul Tony Stark in an effort to sustain reader interest, which is a nice touch. Again the comparison of Soviet and U.S. IP rights is drawn, again invoking the experience of Mikhail Kalashnikov. Unfortunately the comparison is a little forced (and not a little ironic) since, in the movie, the Russian scientist cedes his personal IP under the American corporate system, not the Soviet one under which Kalashnikov lost his personal rights (or, more accurately, never had them). 

Likewise, the real-world example briefly referenced here seems oddly chosen. The authors seek to illustrate the handing over of private IP by governments with which it is shared, yet they cite the invention of torpedo technology by Sydney Undercliffe Hardcastle (not “Sydney Upton Hardcastle” as the book has it). Although Hardcastle protested the nature of the reward due for his invention, he was in fact a serving Royal Navy officer who would have expected and presumably welcomed the sharing of his invention with Britain’s wartime allies. The chapter proper compares IP rights and “national innovation systems” in the Russia and the Soviet Union, China, and the Republic of Korea, again emphasizing state versus private ownership (“state-owned defense enterprises”) and the pros and cons of invention secrecy as a means of control. 

Again the detail of systems and infrastructure is very well laid-out and structured into national case studies, but again the content is largely theoretical with little detail of the technology or people in question. The summaries of the three national experiences are nonetheless excellent, especially that regarding China, which fleshes out the tired stereotype of Chinese copyright piracy with much important detail and context. The South Korean defense situation will be new to many readers and details the different ways in which the country has been able to build a defense industry using foreign and indigenous expertise. It also features more of a technology-centric narrative, featuring the development background of the KF-X fighter aircraft (if not the aircraft itself) in some detail. The three case studies are convincingly pulled together in the conclusion, emphasizing that in the modern world, IP has been increasingly important in all three nations (and by extension, globally).

Chapter 5 contains perhaps the best realized case study or “vignette.” Lasting several pages rather than the sparse one or two that appear elsewhere, this details the licensing of Su-27 variant fighters from Soviet Union to China post the Sino-Soviet split of the 1960s, and the disagreements that ensued when China allegedly breached the terms of the arrangement. This more naturally segues into discussion of the economic, political, and legal background and elucidation of the pros and cons for governments of transferring technology (and in different ways). It is perhaps the most important chapter for this reason. This chapter also does an excellent job of clearly and logically explaining the means by which intellectual property is transferred in order to procure military technology, i.e., licensing (in which the IP owner retains the greatest control) and overt technology transfer (in which IP is exchanged for financial or other benefit, such as political capital). 

This is followed by an account of the modern globalized and interdependent network of defense multinationals and national governments and the rise of the centrality of IP law. There is also a well-researched introduction to 3D printing as both a nascent technology and means of transfer in its own right, threatening the ability of nations and designers/manufacturers to control their legally-owned IP, and a discussion of the various relevant control measures around export. Finally, Chapter 5 finishes with an impressive analysis of the nature of the U.S. arms export relationship with its clients that reinforces the book’s overall message, and a conclusion that emphasizes the importance of an emergent “IP protection regime.”

Chapter 6 shifts focus to the arguably more exciting theme of intellectual property theft. The very relevant vignette cites the famous example of the B-29 bomber, reverse-engineered wholesale from a single captured example, and the less well-known case of the F-35 Joint Strike Fighter, from which specific technologies have been stolen by electronic means. The chapter picks this up in the broader, and very interesting, context of the U.S./Soviet arms race of the Cold War, and later the modern U.S./Chinese situation. There are specific and very detailed discussions of the means of both achieving and preventing reverse engineering and industrial espionage, with a strong emphasis upon in the digital age, which perhaps inevitably tends away from military technologies themselves toward overarching politics and legalities that may be a little dense for the casual reader. However, it draws an interesting picture of a burgeoning international IP “regime” that might stand a chance of constraining future international infringement.

The final chapter (7) opens with a short vignette on the subject of Unmanned Aerial Vehicles that seems to be of limited relevance to the content that follows, reverting to unproven accusations of IP theft by China and speculating upon the possible ramifications of this. The actual chapter effectively summarizes the effect of IP law (primarily in the U.S.) upon innovation, manufacturing, export, and industrial espionage. It also offers advice for the future on how the international community (and the U.S. specifically) might bring China into line by legal means, sanctions, but also by establishing norms and customs. Possible avenues for future research are also briefly suggested. The final paragraphs, titled as “Conclusion” (within a chapter with the same title) make for a rather abrupt end to the book, and might have been better placed as a coda/postscript or even within the introduction. Nonetheless, the chapter does its job in proving the point that IP is indeed central to the defense sphere.

Unfortunately, the book suffers from a number of technical errors and misunderstandings, most of which (to be fair) occur in the opening vignette of the first chapter. This opens with the admittedly common misconception that all Kalashnikov rifles are “AK-47s” (only the initial prototype of the AK was so designated), and uses the U.S. military designation “M16” rather than the correct overarching name of “AR-15.” The book incorrectly states that the M16 is “the primary firearm for most NATO countries” (3), a misunderstanding of the cited source. The claim that “only three countries have produced fourteen million or so M16 originals and variants” (1) is both incorrectly referenced and demonstrably false; at least eleven countries have produced around eleven million AR-15 type rifles. The meaningful comparison, which would actually reinforce the claim being made, would have been with the M16 as a specific variant, which has only been produced by two nations–the U.S. and Belgium–due to strict control of the Technical Data Package. Anyone can make an AR-15–only these companies can make a true M16. 

Vertical/short take-off and landing (V/STOL) capability is stated as “central” to the F-35, yet only one of three variants of that aircraft (F35B) was designed to achieve V/STOL. This might appear to be nitpicking, but here the oversight creates a needless point of comparison with the Chinese J-31 that slightly detracts from the argument in question. Some claims surrounding military hardware are simply not well enough supported. An assertion that China has had “significant problems with engine production” (which may be true) is not actually to be found in the referenced source (97). The sweeping claim that “several regular customers have complained of poor maintenance and workmanship on Russian weapons” (77) is based upon a single reference to the supply of MiG-29 fighters to Algeria, and an implication that U.S. firm Lockheed-Martin unfairly appropriated technology from a joint project with Yakovlev is based upon a single questionable online account. There are also a very few unfortunate proofreading errors: as with Sydney Hardcastle’s name, the important firm of Armstrong-Whitworth is incorrectly named as “Armstrong-Wentworth,” and Russian design bureau Yakovlev is misspelled throughout Chapter 4 as “Yakolev.” 

As noted, these oversights do not seriously detract from the book, but they do undermine the book’s credibility with subject matter specialists and could easily have been avoided by means of a technical review. Some are likely a result of unfamiliarity with the military technological literature, if the bibliography is any indication; the only publication specific to military technology (Chivers’ “The Gun”) appears no fewer than 15 times in close succession in the notes for Chapter 1. Notably, Matthew Ford’s “Weapon of Choice” (2017), an important study into the many influences upon military small arms procurement, is absent. There is extensive reliance throughout the book on media reports and enthusiast websites, especially for (again) military weapons, vehicles, and aircraft. The book would have benefitted from greater use of industry publications and the specialist literature; a few references to the Jane’s series alone would have added some credibility here. 

Overall though, the book is an academically rigorous and comprehensive survey of the infrastructure and history behind defense technology in the context of international relations theory. It should serve as an excellent introduction to the subject for anyone interested in military procurement. It is engagingly written, although like many “crossover” books from the academic world that deal with inherently dense subject matter, it can at times read a little like a compilation of journal articles loosely edited together. The use of vignettes as relatable “hooks” is clever, but (perhaps inevitably) fails to provide a cohesive narrative or to successfully ground the book in the “nuts and bolts” of military technology. As a result, it remains a relatively inaccessible read for the layperson or even the military technology specialist, who will also notice some of the aforementioned technical issues. 

This is unfortunate because the authors lament the lack of interdisciplinary research in this area: “Scholars of military innovation simply do not concentrate on legal factors, while scholars of international law rarely dive deep into how military organizations make procurement decisions” (5). The book seems to favor the latter group to the exclusion of the former. Some more in-depth research into any of the case studies or examples used in the book (more along the lines of Chapter 5) would have added much, given that military technology is central to the book, although it would inevitably add length. Nonetheless, if one accepts that weapons technology is not in fact the focus of this publication, despite the marketing around the book and the framing of its chapters, the core of the book remains sound and important. Patents for Power will no doubt be a definitive “one-stop shop” for those in relevant fields requiring the information and onward references found within, and a useful introduction for newcomers to the subject who are unlikely to engage with the bodies of literature behind it.



Posted on 11 February 2021

JONATHAN FERGUSON is Keeper of Firearms & Artillery, based at the Royal Armouries Museum in the UK. His research interests include the use and effect of firearms and their depiction in popular culture. His publications include the book The ‘Broomhandle’ Mauser (2017), a contribution to The Right to Bear Arms: Historical Perspectives and the Debate on the Second Amendment (2018), and the forthcoming Thorneycroft to SA80: British Bullpup Firearms 1901 – 2020.