Trade losses to software manufacturers due to piracy are as high as $125 billion. We need to interrogate why piracy of software, books, music etc exists as a market phenomenon. Could it be an organic market reaction to the exclusion of consumers by copyright industries?
What is piracy? According to global industry lobbies like the International Intellectual Property Alliance (IIPA) and the Business Software Alliance (BSA), it is intellectual property theft, and a revenue loss to their constituents. The BSA tells us that losses to software manufacturers due to piracy are apparently at $33 billion, and the IIPA pegs the worldwide figure for trade losses due to piracy, taken across industry as a whole, at $125 billion (1).
What this perspective does is to confirm two simple facts. One: that copyright industries are big businesses with increasingly global ambitions. Two: that the circulation of copyright goods takes on myriad forms in the global South - forms that do not always correspond to market dynamics in the North.
And what is piracy according to progressive academics and activists who work on copyright law reform? Draft declarations emerging from the global access to knowledge (a2k) movement (2) have no mention of the word. For academics and activists concerned with a2k, piracy is, unfortunately, the elephant in the room -though it cannot afford to be. When the IIPA and the BSA use the term 'copyright reform' they do not mean laws that promote access to knowledge, or policies that promote open content licenses: they mean increased resources for enforcing criminal sanctions around copyright violation.
In the context of South Africa, with its relatively nascent informal economy in cultural goods, this translates into a focus on learners. In 2004, the Print Industries Cluster Council (PICC), a domestic publishers' lobby, was commissioned by the Ministry of Arts and Culture to report on the state of intellectual property in the print industries. Its analysis of the situation was thus (Gray 2004, 55-56):
Copyright infringement in South Africa is not a matter - at least not yet -- of the mass piracy of trade books, like the pirated editions of Harry Potter titles that have appeared internationally, but of systematic copying of various kinds in the educational sector, public sector and businesses. While piracy of this kind is causing concern to international rights holders like the IIPA [International Intellectual Property Alliance], popular books have not been the targets of similar piracy...
With regard to curbing learning materials piracy, the PICC report recommended:
Urgent attention to the legislative amendments to remove ambiguity on the limits of photocopying for personal use and in the educational context; the strengthening of enforcement measures; the provision of a stable basis for policy-making on copyright for digital media...[and]
Education and awareness programmes among students and lecturers on the value of intellectual property.
On occasions when the issue of piracy is raised by academics and activists who are concerned with the excesses of the copyright system, the perspectives offered in this instance do not differ significantly from the dominant state of the debate. Lawrence Lessig, legal academic, author and founder of Creative Commons, for instance, says (Lessig 2004, 63-64):
All across the world, but especially in Asia and Eastern Europe, there are businesses that do nothing but take other people's copyrighted content, copy it, and sell itâall without the permission of a copyright owner. The recording industry estimates that it loses about $4.6 billion every year to physical piracy (that works out to one in three CDs sold worldwide). The MPAA estimates that it loses $3 billion annually worldwide to piracy.
This is piracy plain and simple. Nothing in the argument of this book, nor in the argument that most people make when talking about the subject of this book, should draw into doubt this simple point:
This piracy is wrong.
Which is not to say that excuses and justifications couldn't be made for it. We could, for example, remind ourselves that for the first one hundred years of the American Republic, America did not honor foreign copyrights. We were born, in this sense, a pirate nation. It might therefore seem hypocritical for us to insist so strongly that other developing nations treat as wrong what we, for the first hundred years of our existence, treated as right.
That excuse isn't terribly strong. Technically, our law did not ban the taking of foreign works. It explicitly limited itself to American works. Thus the American publishers who published foreign works without the permission of foreign authors were not violating any rule. The copy shops in Asia, by contrast, are violating Asian law. Asian law does protect foreign copyrights, and the actions of the copy shops violate that law. So the wrong of piracy that they engage in is not just a moral wrong, but a legal wrong, and not just an internationally legal wrong, but a locally legal wrong as well.
The emergence of alternative licensing frameworks to maximal copyright, and the movement on access to knowledge have been of great significance. Within such circuits there is, undeniably, a strong wish to stay within the confines of the law. Alternative licenses seek to set out better paradigms within existing law (however bad it may be) and copyright-reform movements such as the a2k campaign seek to change bad laws for the better.
And why should such activists also start caring about piracy?
Without reifying simplistic, universal notions of North and South (such as differences based on economic power or inherent culture), we suggest that they should, in part, because of the significance of the informal economy (3) in Asia and Africa. While we would deny that practices of piracy are exclusive to economically marginalised people and nations, or that they should be navigated with an alternative moral compass when located in the South, we do assume that the relative prevalence, functionality and size of the informal economy in parts of the South (seen against the strong rule of law which inhibits similar forms from proliferating - when intended - in the North), bears analytical significance.
If piracy is a widespread global phenomenon, as almost universally agreed by a range of actors, then we need to understand why this is so. Ask anyone in the know about the price of books and the one comment you are likely to hear is that books are "cheap" in India. Is this so? We consider a cursory exercise in surveying the cost of books as a proportion of national average income, in three countries, for three titles: (4)
Table 1: Absolute cost of three book titles in South Africa/ India/ USA
Table 2: Cost of three book titles as a percentage of average income in South Africa/ India/ USA
Table 3: Cost of three book titles in USA at proportions of income paid in India and South Africa
This exercise provides several layers of insight. One: absolute prices of books can be higher in the South than in the North. Two: consumers in the South have to commit significantly higher proportions of their income to consume these books. Three: if consumers in the USA had to pay the same proportion of their income towards these books as their counterparts in South Africa and India, the results would be ludicrous: $1027.50 for Mandela's Long Walk to Freedom and $941.20 for the Oxford English Dictionary. It is instructive then, that the prospect of paying $440.50 for Roy's God of Small Things in the USA is evidently alarming: whereas, paying $6.60 for the book in India (which in Indian terms is exactly the same value as $440.50 in the USA, by this logic) is not treated with similar alarm.
Under-interrogated generalisations of what is "cheap" form the basis, in part, of the general ire against piracy in the South. But how can we read this more accurately? Rather than supply the unreasonably high cost of cultural goods in certain markets of the South as a justification for piracy, we might see it as one part of the explanation: as an organic market reaction to the exclusion of consumers by copyright industries.(5)
It is also possible that under-interrogated notions of what it means for a commodity to be 'available' inform the stigmatisation of piracy. One good explanation for why piracy exists as a market phenomenon lies within the issue of distribution. Instead of seeing the copyright industries and the informal economy as two airtight categories, observations on the ground inform us that there is seepage, and the relationship is complex and mutually dependent, with the informal economy sometimes serving as a means to go where the traditional economy cannot. In other words, it is not just the consumer in the South who needs the informal economy: it is sometimes, also, the artist and the copyright industry. Peter Manuel recounts, in this interview with an executive from a maverick start-up music company in India, that piracy could also be a deliberate distribution and publicity strategy (Manuel 2001, 76):
...I tell you that back then, the big Ghazal singers would come to us and ask us to market pirate versions of their own cassettes, for their own publicity, since HMV wasn't really able to keep up with the demand...
Implications on public culture
It is difficult to speak of ordinary people becoming content producers without also considering that changes in the means of production of culture might be a necessitating factor. For instance, there is currently a wave of excitement over the contemporary art scene in China - and indeed, it seems to be the flavour of the month in global art circles. There are thousands of people who are lining up to join art schools in the country, and one Chinese curator had this to offer by way of explanation for this sudden enthusiasm: "When you can buy Tarkovsky for a dollar, you will obviously produce many artists."
When we look a little closer at acts of piracy, we find that they have much in common with the aspiration to create a more plural, more diverse public sphere of cultural production and participation. Even as bandwidth is a significant access problem to participating in this global public sphere, yet, participants in countries of the South do find ways out of the problem - and this is usually in the form of the neighbourhood pirate who supplies cheap DVDs, or through Internet hotspots in Indian cities, which, through free software,(6) allow vast swathes of the population entry into the worlds of technology and media. The pirate, then, is the subterranean other of the hacker, lacking his urbane savoir-fare, and bereft of the moral higher ground afforded to the renegade free and open source software developer.
A final point to note is that the social conflict and struggle that marks enforcement of copyright violations, and the manner in which it plays out, must be seen in context with lived reality in the South - that is, a world where the lines between livelihood and legality are, and have always been, thin. When one examines the aims of projects seeking to "bridge the digital divide" (and the like) in countries such as India and South Africa, and honestly observes who gets to participate, produce, share and benefit, one is faced with the uncomfortable fact that it is, still, mainly the elite. But since many of the people who participate in such projects share an equitable vision of culture and information, we could all benefit from doing a little remixing ourselves - a remixing of the criminality that copyright industries produce around quotidian piracy.
- To put this in perspective, we might consider that just compensation for losses estimated by the IIPA would involve handing over a sum that is about 2.5 times the size of the total annual economic output of the Democratic Republic of Congo
- Referring to the campaign mounted by academics and activists from around the world who met through 2005 in Geneva and London to formulate and discuss an access to knowledge treaty. Draft text is available at: http://www.cptech.org/a2k/consolidatedtext-may9.pdf
- Though the use of the term 'informal sector' (and its corollary, the 'informal economy') has been highly naturalised, it would serve us well to remember that it is in fact, only 35 years old - coined by the British anthropologist Keith Hart in a study on Ghana in 1971 - and that the set of practices it refers to have always existed, but without the recent level of economic policy scrutiny
- Average income figures from UNDP Human Development Report 2005 (South Africa: $3489, India: $564, USA: 37648). Book prices: lowest-priced similar editions compared on http://www.amazon.com/, http://www.kalahari.net/ and http://www.firstandsecond.com/, accurate as of 14/02/2006
- See, generally, Shujen Wang, Framing Piracy: Globalisation and Film Distribution in Greater China, (Rowmann and Littlefield, 2003); see also Brian Larkin, Degrading Images, Distorted Sounds: Nigerian Video and the Infrastructure of Piracy, in Public Culture 16(3) Fall 2004
- Referring here to Microsoft, and implying the rampant piracy in software, rather than free and open source software
Gray, Eve [Principal Author] and Monica Seeber (2004): Print Industries Cluster Council (PICC) Report on Intellectual Property Rights in the Print Industries Sector, commissioned by the Department of Arts & Culture, Government of South Africa, on file with the authors
Lessig, Lawrence (2004): Free Culture, New York, Penguin Press
Manuel, Peter (2001): Cassette Culture: Popular Music and technology in North India, New Delhi: Oxford University Press
Sundaram, Ravi (1999): 'Pirate Electronic Cultures in India', in Third Text (47)
InfoChange News and Features, November 2006