Very quickly, following a review this morning of new articles on SSRN, I found a paper that discussed some major revisions to Syria’s copyright law in 2013, long after violence there had broken out and indeed taken over the country.

I’ll come back to Syria in a moment, but the rather amusing matter reminded me of my own time in Iraq years ago, in 2004, when the American occupation authority known as the CPA pushed through its own revision to Iraqi copyright laws. I was actually in the room at the time when the matter was presented to the Finance Committee of the Iraq Governing Council (the Iraqi advisory body the CPA had created) for their consideration. The scene, which I’ve recounted in my own book on Iraq in this pre-constitutional setting, was surreal, almost Kafkaesque. On one side of the table there were some military men in fatigues and combat boots, looking ready for battle (save weapons, for which there was no need this deep in the Emerald City Green Zone), standing behind a woman dressed quite professionally patiently explaining how important it was to protect copyrights and trademarks, and how Iraq could develop itself into the next Singapore if it began to take these obligations seriously. The military men of course suggested something of the opposite–the total absence of the type of established and ordered civil society where any of this could possibly mean anything.

On the other side of the table were the Iraqis, who were partly confused as to what this was all about (Singapore, are you serious?), and partly concerned that their cheap CD acquisition practices were in jeopardy. Their inquiries demonstrated the depth of their isolation from world events and developments, though viewed without reference to a broader global reality seemed logical enough. “There already is Dubai in our region,” they pointed out, “let them do this. Instead of being the center of intellectual property protection, why don’t we build our economy around being the piracy capital of the world. Everyone can come here to this lawless place to copy their material. We could facilitate this in our laws, like the Swiss do with the banks.” Again, viewed in the prism of Iraqi isolation, it’s actually sensible enough. One has to know something about the world to understand how thoroughly impossible all of that is.

And in the middle, chairing the meeting was the late Ahmad Chalabi, chair of the Finance Committee who, whatever else you say about him, was exceedingly smart and who, whatever else you say about him, could not contain his contempt or disdain for those who were not. His impatience with all of this was obvious in his expressions throughout, as he tried to navigate through adopting whatever it was the CPA wanted, because who gives a damn really, fending off the Iraqi demand to legalize piracy as some formal matter because that obviously was not happening, and assuring his fellow Iraqis that it did not matter because, in his words, “nothing is going to stop CD Kabab in the Shorja market.” The CPA representative did not like the latter reference, and she indicated there needed to be mechanisms to stop “CD Kabab”, mechanisms which this law would provide. He looked at her the same way I did at my three year old son last night when, after his swimming lesson at 8 pm, he thought we should go to the science museum.

Yes, son, that’s how it works. We open the museum by willing it so, and courts that tribes don’t go to in order to adjudicate murder are now going to somehow adjudicate cases of fake Prada bags.

What is particularly interesting to me is that this was not merely the curious artifact of a quasi colonial construct of post Saddam Iraq, as I thought at the time, with well meaning but fundamentally clueless Americans imagining Singapore on the Tigris in charge of a place that they couldn’t fundamentally comprehend. After all, we know that Syria as well, as noted above, has revamped its own intellectual property laws in 2013 and some commentary is taking it seriously enough to discuss–in a state in the midst of a violent civil war that has resulted in 5 million registered refugees.

Even Baghdad’s new Commercial Court, long after the CPA departure, is in on the game, with seemingly landmark decisions in the field of trademark protection. These Iraqi developments are transpiring in a state, let’s be clear, where as of the time of this writing (i) the legislature has dismissed the Speaker, who nonetheless claims to remain in his position, (ii) the chief executive is supposed to be replacing his Cabinet with a team of technocrats, and two entirely different lists of people have been produced, with total confusion as to which one will be presented to the maybe Speakerless legislature and (iii) the military remains incapable of reasserting authority in its second largest city even with air support supplied by the world’s most powerful military in history. Somehow, I’m skeptical that counterfeiters are shaking and quaking over the recent activities in Baghdad Commercial Court, and somehow, I think Iraqi judges are smart enough to know that.

So, then, , why? Why waste time on such fundamental nonsense as trademark protection in societies suffering such high levels of devastation and conflict? Surely there is something else the state can turn its attention to?

I think the answer lies in the need of these various authorities, who are demonstrably lacking in authority due to significant questions swirling around their inherent legitimacy, to project some semblance of an actual, functioning legal and political order. Intellectual property is one marker of such an order, and hence the use of it in this manner.

Put differently, the conventional case of intellectual property law (as seen on https://www.sidley.com/en/services/intellectual-property-litigation) in the developing world imagines that the authority in a state would first come together to establish some broad sense of order organized and administered by the state itself. Following this, and in particular to the extent that economic development actually took place, what would then follow would be the gradual, incremental, never perfect increase of intellectual property protection, both through updated laws and even more through more robust implementation of those laws. Think China, as conventionally told at least.

But in Iraq and Syria, the needs are different. The goal is not to impose intellectual property laws because they actually matter, given fundamentals of state order and concomitant economic development. Nor is it, really, to reverse this–i.e. create state order through imposing intellectual property protection. There cannot be that many people who are stupid enough to believe this possible to do. Rather, the goal is to project some semblance of normalcy where it does not exist. In other words, it is precisely because we associate intellectual property protection with a developed and well ordered society that these authorities have turned to it. It demonstrates things are not quite as bad on the street as people tend to think they must be. How could they be if the legislature is enacting laws to protect copyrights and trademarks, and the Baghdad Commercial Court is issuing decisions on the basis of those laws?

Perhaps, then, the problem is not the proverbial one of an ostrich whose head is in the sand. Perhaps, instead, it is an ostrich well aware of all the storms that threaten it, and it reacts by attempting to convince everyone that in fact all is fine. If they’d just bury their head in the sand for a moment, they would come to realize that.

HAH