Intellectual Property Meets Military Technology

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Intellectual Property Meets Military Technology

Copying advanced foreign military systems has a long, distinguished history. What does the future hold?

Intellectual property, including patents, copyrights, and trade secrets, increasingly dominates the exports of advanced economies.  However, intellectual property is uniquely vulnerable to appropriation, whether by states, firms, or individuals.  Consequently, exporters like the United States have taken increasingly aggressive steps to protect their intellectual property owners and producers. Some of the most significant complaints made by the United States against China have involved poor enforcement of intellectual property law.

The economic relevance of intellectual property extends into the military sphere. Patents and trade secrets have long constituted an important proportion of the value of particular weapons systems.  On the patent side, states have generally been reluctant to directly copy the weapons of their allies without permission; even China and the Soviet Union (states not otherwise known to respect intellectual property norms) concluded licensing agreements with one another in the 1950s. Trade secrets, on the other hand, constitute the difference between Russian made engines and Chinese made engines.

Still, copying advanced foreign systems has a long, distinguished history. Russia famously replicated the B-29 Superfortress as the Tu-4, producing 847 bombers (10 of which were exported to China). More recently, the PLAAF developed the J-11(SU-27) and J-15 fighters (alleged from the SU-33) from Russian technology, exporting the former in direct competition with the Russians.  Short of completely copying foreign systems, China is widely suspected of adopting elements of U.S. aircraft designs for its own recent stealth fighter prototypes.  Nevertheless, such efforts have a cost. Reverse engineering is expensive, often doesn’t work, and always leads to hard feelings. 

As the technical sophistication of weapons systems has increased, these systems derive an increasing proportion of their value from intellectual property. The value of the F-35, for example, lies not in its airframe or engine, but rather in its software and capacity for managing networked combat. The increasing importance of intellectual property will undoubtedly affect patterns of diffusion of military technology.  Intellectual property concerns have already made Russia hesitant about additional exports of airframes to China, and of exporting the Russo-Indian Brahmos cruise missile project.

Three propositions, which we will return to in future posts:

1. The nature of intellectual property theft in the military sphere will change.  Rather than purchasing (or otherwise appropriating) entire systems and then reverse engineering, future theft will likely involve cyber-attacks on states, companies, and even the law firms that protect patents. 

2. While states such as India, China, and Russia have had strong incentives to defect from intellectual property compliance in the past, their status as producers and exporters will increasingly make them IP defenders, in general. In specific instances, however, they will continue to pursue the appropriation of critical foreign technologies, often through illicit means.

3. There is potential for cooperation between the major arms producers on an international IP compliance regime, which would set guidelines or “rules of the road” for export.  However, continuing political and strategic disagreement between these producers will limit the overall impact of such a regime.

The Tu-4 is the wave of the past. While China will continue to produce the J-15, the copying process carries too much political and legal baggage to represent a viable option for future appropriation efforts.  Instead, intellectual property law will increasingly structure how military technology diffuses across the system, affecting behavior even when its tenets are honored in the breach.