Back story: As 3-D printing gets increasingly scaled up industrially, IP law might well be fighting a losing battle. The foreseeable future is not one of just cultured diamonds aplenty but also imitation Lamborghinis a dime a dozen.
A COMPANY called Algordanza Singapore claims to be able to make “memorial diamonds” for the bereaved, using the carbon found in the ashes of a loved one.
These sparklers are “cultured” in a chamber that replicates the extreme temperatures and pressures of the Earth’s interior which enable natural diamonds to be formed. Under such conditions, the ashes’ carbon can be turned into a flawless diamond, which is also a form of pure carbon.
Of course, any other source of carbon can be used to culture these artificial diamonds as well.
“Cultured diamonds” are different from “simulant diamonds”. The latter includes cubic zirconia, an artificial crystal made of a natural material called baddeleyite.
Zirconia looks like mined diamond to the naked eye but does not have its atomic structure, chemical composition or physical properties. The expert eye can discern zirconia from diamond.
By contrast, a cultured diamond has exactly the same atomic structure, chemical composition and physical properties as those of a mined diamond. Thus, even an experienced diamantaire may not be able to tell them apart.
In truth, diamonds abound in nature but their prices are set by a global cartel led by De Beers, the firm that has dominated the world’s diamond market since it was founded 130 years ago.
Since cultured diamonds cannot be told apart from natural ones with the naked eye, the latter’s distinctiveness may become diluted by the former. To fight this, the natural diamond industry issues certificates of authenticity.
Lately, however, it has also begun resorting to intellectual property (IP) law as well. In 2004, for the first time, De Beers began distinguishing its diamonds with a laser-inscribed trademark.
It is in this sense that some experts argue IP law may be doing the work of what are called sumptuary laws.
These were legislation that was actually passed by lawmakers in ancient times across cultures, to govern the consumption of high-value goods and fashions in order to limit them to certain social classes.
According to author Alan Hunt’s Governance Of The Consuming Passions: A History Of Sumptuary Law (1996), England passed a law in 1463 so that shoes of important persons may extend beyond the toes by no more than two inches (5cm). In 1514, Venice appointed a fashion police outfit called Provveditori sopra le Pompe, which sought to enforce its sumptuary laws. Ancient China and early 17th-century Edo Japan had similar laws too.
The distinctiveness of high-status, luxury items and fashions was what enabled the members of the upper classes to signal their similarities to one another and also their differences from those of the lower classes. That is, there was a system of social distinction based on consumption patterns.
Sumptuary laws helped to combat the problem that arose when the existing system was in danger of being upended. This was typically when rare commodities became abundant through substitutes or copies. Or when upstart groups of merchants, say, emerged with new money, who audaciously went for the distinctive goods to which only old money had access previously.
In this way, sumptuary law was used to prop up the distinctiveness of high-status goods which were at risk of being diluted as lower social classes began to be able to afford and indulge in their consumption.
Experts suggest that IP law today can serve the same sumptuary function. Today, IP law is meant to promote innovation by giving monopoly market rights to inventors for a limited time. But it also seems to help enforce a sumptuary code, even if there is no law that enforces such a code.
No modern legislature would pass a sumptuary law: Imagine the consumer-voter rebellion at the elections if lawmakers ever decreed who could or could not drive a Lamborghini or tote a Louis Vuitton bag.
But by preventing the unauthorised copying of anything from trademarked diamonds to copyrighted music, from patented pharmaceuticals to registered design rights-protected apparel, IP law does, in effect, enforce a sumptuary code, dividing consumers into those who can afford the real McCoy from those who can afford only imitations.
IP law thus indirectly enforces a way of recognising relative social positions. It does so by making some goods scarce – limited-edition Lamborghinis, for instance, or De Beers-trademarked diamonds.
Of course, IP law does protect inventors’ rights, thus incentivising innovation. But it also surreptitiously enforces a sumptuary code.
Still, this covert function of IP law is being threatened by quantum leaps in copying technology, especially 3-D printing, which promises to replicate any item down to the last nanometre. As 3-D printing gets increasingly scaled up industrially, IP law might well be fighting a losing battle. The foreseeable future is not one of just cultured diamonds aplenty but also imitation Lamborghinis a dime a dozen.
When small workshops can fabricate reproductions of anything that are well nigh identical to the original – when many will be flaunting cultured diamonds, faux Lambos, simulated Louis Vuittons and everything else in between – IP law will have to be reformed root and branch.
That says nothing of course of the appeal of an “authentic memorial diamond” which is in the end a matter of sentiment and nostalgia, not social status or economics.