From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Thursday, 2 October 2014

When trade secrets were state secrets and copyright was chattel: the forgotten story of Jan Huygen Van Linschoten

Think about maps today and one usually conjures up Google Maps or the equivalent. Think about the legal issues that arise in connection with Google Maps, and one usually thinks about privacy issues, with copyright issues in the background (at least until one receives a cease and desist letter from a person claiming to own copyright in that map which you had added to your company’s website). There was a time, however, when maps were not about personal privacy but about state secrets, not about copyright but about rights in chattels, if at all. In those days, no map was more important to the future development of world trade and commerce (and more sadly, colonialism), than the 1596 map by Jan Huygen Van Linschoten, here, of China, Japan, Korea, Southeast Asia, the Philippines, Straits of Malacca, Borneo, Java and Beach, entitled, “Exacta & Accurata Delineatio cum Orarum Maritimarum tum etjam locorum terrestrium quae in Regionibus China" and in the 1598 English translation, “The trew description of all the Coasts of China, Cauchinchina , Camboya, Malaca, Arracan and Pegu.” The map was an integral part of Linschoten’s monumental book, Itinerario, here, which served as a principal seafaring guide for the region for not just for decades, but centuries to come.

As most Kat readers will likely recall from their schoolboy (or girl) history classes, the 16th century marked the dawn of the great explorations by European adventurers journeying both east and west. While Columbus is iconic in this regard, it was the Portuguese, embodied in the figure of Prince Henry the Navigator, and Spain, that were the first national pioneers, especially for mercantilist purposes and particularly to Asia. There then arose the great conflict between the European north, especially England and Holland, and the European south, especially Spain and Portugal. As observed by Stanley Wolpert in his well-known panorama of the history of India, A New History of India
“…Dutch as well as English sea captains hoisted sail to join the race around the Cape of Good Hope. For the Dutch, the attack against Catholic Spain’s eastern monopoly was no less than a national movement.” 
As a result, Holland became perhaps the centre for cartographic activity, as maps were fundamental to the success of these sea captains’ efforts.

Central to Portuguese wayfaring and exploration was their presence on the southwest shore of the Indian subcontinent at the port of Goa, which served as Portugal’s de facto capital in the east (Kat parents, such as I, are well aware of the 21st century Goa as a preferred destination of our back-packing children, but that is a different story.) The Portuguese prided themselves for their knowledge of sea routes and the coastal landscape. Crucial to these mercantilist efforts were certain national “trade secrets” and no secret was more important to maintain their seafaring monopoly to Asia than their maps, meticulously prepared and even more carefully guarded from disclosure to their emerging rivals in northern Europe.

Against this background, Linschoten, the Dutch explorer, historian, cartographer and adventurer, found himself in Goa between the years 1583 to 1589, serving as the secretary to the archbishop. Linschoten returned to Holland in 1592, in Wolpert’s words,
“with priceless information about India … plus priceless Portuguese navigation maps of the Indian Ocean, which taught the Dutch how to use the monsoon winds to their best advantage.”
 Linschoten relied on these maps as the foundation for his own maps, which became an integral part of his book, Itinerario. As described on cartographic-images. net, here,
“[w]hile based primarily on Portuguese portolan [nautical] charts, Linschoten also drew on the cartographic work of Plancius. Southeast Asia and Japan are based on the cartography of Fernão Vaz Dourado, and China on the map of Barbuda (#410H). The Philippine Islands are drawn from de Lasso with the curious orientation of Palawan.”
As early as 1598, a so-called pirated English version was produced (right), with the result that the cartographic knowledge, which the Portuguese had sought to keep hermetically sealed within their seafaring community in the service of the country’s mercantile efforts, entered into the early 17th century version of the public domain. The publication of Itinerario, highlighted by its cartographic contents, following his 1595 publication of “Reys-gheschrift vande navigatien der Portugaloysers in Orienten (Travel Accounts of Portuguese Navigation in the Orient), is said to have changed the course of world history (“few books have had greater influence on historical events”, here). The age of the Iberian monopoly on trade to the Asian east was over, and the rush of the English and Dutch, with its all consequences, for good and for bad (think: the English and Dutch East India Companies), had commenced.

A great tale, for sure, even if Linschoten has largely been forgotten, while raising, as it does, several interesting IP aspects. First there is the role of trade secrets in the service of national goals, where 16th century mercantilism wedded interests of security with matters of state commerce. It will be hard to find a better example of this marriage of security and commerce and, while the circumstances of those days may differ from our own times, there is a striking similarity between then and now. Trade secrets are and have been the best and worst of IP protection; “protection” lasts forever or it is lost to the public domain in a moment. That is true for a trade secret in Silicon Valley or New York, but it was equally true for Goa and points east at the end of the 16th century.

And what about copyright? The short answer, of course, is that there were no copyright statutes at that time. Maps today enjoy copyright protection, indeed, they were explicitly accorded legal protection in the first United States Copyright Act in 1790 (securing for authors the "sole right and liberty of printing, reprinting, publishing and vending" the copies of their "maps, charts, and books") Alas, for Linschoten, such legislative protection lay in the far distant future. And yet the 1596 English version of the map has been described as a “pirate” edition, here. It is not clear exactly what is meant by this. Perhaps the intention was that the physical book (presumably including its contents) was being viewed at common law, as it sometimes was, as chattel protected from trespass, presumably for as long as the “owner” maintained possession of the book. Whether an action for trespass might have been applicable to Linschoten’s maps is an intriguing possibility (though how we account for Linschoten’s possession and use of the Portuguese maps that he apparently obtained while in Goa might complicate the analysis). The same question regarding how to understand the status of the map under the Dutch law system of that time merely adds to the intrigue (indeed, in today’s digital world, neither trespass nor copyright law would be of much use to Linschoen once the map goes viral.)

The upshot is that while the field of cartography has long significantly improved on the contents of the subject-matter covered by Linschoen’s maps, the issues of trade secrets and how to protect the contents of maps are still very much with this.

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