Copyrights: a choice of no-choice for artists and third world countries; the public domain is losing anyway, by Joost Smiers










(3) Symposium on the Struggle Against Piracy, organized by the Stichting Auteursrechtsmanifestaties, 11 December 1997, Amsterdam

(4) Final Report on the Pan-African Colloquium on the Living and Working Conditions of the Artists, Brazzaville, 20-23 July 1994: 14,5

(5) International Herald Tribune 19 February 1996

(6) Le Monde, 30 Octobre 1997



(7) Symposium on the Struggle Against Piracy, organized by the Stichting Auteursrechtsmanifestaties, 11 December 1997, Amsterdam.

(8) M.Edwards, Head of Operations of IFPI, the International Federation of Phonographic Industry, at the Symposium on the Struggle Against Piracy, organized by the Stichting Auteursrechtsmanifestaties, 11 December 1997, Amsterdam

(9) John Gray claims: 'The truth is that free markets are creatures of state power . . . In the absence of a strong state dedicated to a liberal economic programme, markets will inevitably be encumbered by a myriad of constraints and regulations. These will arise spontaneously, in response to specific social problems, not as elements in any grand design. . . . Encumbered markets are the norm in every society, whereas free markets are a product of artifice, design and political coercion. Laissez-faire must be centrally planned; regulated markets just happen. The free market is not, as New Right thinkers have imagined or claimed, a gift of social evolution. It is an endproduct of social engineering and unyielding political will.' (Gray, 1998: 17)

(10) Interview with Bonnie Richardson, MPAA, 2 December 1994

(11) Interview with Bonnie Richardson, MPAA, 2 December 1994



















(12) Interview with Atsen Ahua, April 1998





















(13) Interview with Bonnie Richardson, spokeswoman of the MPAA, 2 December 1994









(14) World Trade Organization.


1. piracy

Who tries to follow the debates on intellectual rights must get the impression that there is only one real issue which is spoiling the atmosphere of a booming and socially and culturally useful business. This is piracy. Therefore James Boyle observes: 'Piracy of intellectual property products has become one of the central concerns in negotiations on world trade, a concern where both the figures for projected losses and the rethoric of condemnation are surprising to the neophyte' (1996: 121).

The projected losses are considerable indeed. The International Federation of Phonogram and Videogram Producers (IFPI) estimates that 25 per cent of the music phonograms sold throughout the world are pirate copies (Burnett, 1996: 88,9). The Recording Industry Association of America claims that in Thailand alone 1992 trade losses were estimated at $24 million. Its estimate for worldwide losses in 1994 was $2.245 billion (Boyle, 1996: 121). Piracy costs the recording industry in Europe an estimated $3billion per year. The side effect is that this would cost the authorities in Europe up to $750 million each year in lost VAT alone, and about 30.000 jobs, according to M.Edwards, Head of Operations of IFPI, the International Federation of Phonographic Industry (3). Hervé-Simon Jewell, president of the African Association against Piracy emphasizes 'the need to stamp out piracy in Africa, which was significantly on the increase again, bringing to some $600 million a year the sums misappropriated from artists' earnings from copyright and neighbouring rights.'(4)

Where there is piracy there must be pirates. In China there are - or there were, who knows? - quite a few of them. Greg Mastel calls in the International Herald Tribune China's Theft of Intellectual Property No Mickey Mouse Issue. 'For example, some 30 Chinese factories daily turn out thousands of illegal compact disks that find their way to markets as far away as Canada (5).' This issue troubles more the relation between the U.S.A. and China than any infringement on human rights. Singapore is also famous for piracy activities (Bender, 1994: 485). In Bulgaria some twenty five million CD's are supposed to be produced every year (6). And with the cassette Kenya got its own flourishing pirate industry (Malm, 1992: 87), which seems to have found now, after control in Kenya has improved, a save haven in Tanzania from where the whole region is provided with pirated cassettes. Those are not the only and not the last countries where the multiplication of audio, visual and literary creations has become an industry.

With the introduction of the DVD pirates will get a still bigger competitive advantage to legal producers and distributors in the audio- and image-markets. Piracy becomes more than ever a profitable calculated risk. More can be stored on a DVD which costs the pirate nothing while the legal entrepreneur has additional expenses for producing more software. There is also no quality difference between the legal and the pirated copies. One of the reasons why mass scale piracy is nearly unavoidable is the increase in excess production capacity of cd's and so on. 'There is currently more than the double manufacturing capacity available worldwide than is needed for legitimate production.' The cost of new and secondhand machinery is falling. 'For example the new ODME miniliner costs $500.000 and has the capacity to produce five million cd's a year (7).' Actually the major right holders are causing this excess capacity themselves. They operate on very tensed and nervous markets which "obliges" them to have instantly sufficient production capacity (8). Isn't this dog eats tail?

Anyway, for Bonnie Richardson, spokeswoman for the Motion Picture Association of America (MPAA) the situation is clear. 'All we are talking about piracy is theft. One of the fundamental roles of all states is to protect their citizens against theft.' Despite the proclaimed neoliberalism a strong state seems to be needed in this field the more digitalization will bring copying on the easiest level one ever could imagine (9). 'Will protection of intellectual property be adequately cared for in government regulations as the new information infrastructure evolves, or will piracy on the Internet become just a massive problem? That is a very important issue for MPAA, and for the copyright industries, book, music publishers, recording industry, computer data basis; all of us care about the protection of what we put over the new system (10).'

Later in this article we will see that new methods of reproduction and distribution are being brought under existing copyright laws. There is growing a significant expansion of the fields which are covered by intellectual property rights. For now we will concentrate on the fight against piracy which finds its organizational focus point in the U.S.A. Their first task was to get the European countries on their side, mainly the countries from the European Union. This was not that difficult because European film and television production industries share the same interests as American corporations have. 'Furthermore, the fusion of European and U.S. finance capital within the media sector puts European and U.S. filmed entertainment companies directly into alliance, giving West European media capitalists a clear stake in an effective international intellectual property regime as well as in "legitimate" homevideo markets' (Bettig, 1996: 213-219).

In order to be successful a concentrated effort has been launched, according to Ronald Bettig: 'a combination of active pursuit of copyright protection by copyright owners, stricter laws and penalties against piracy, and more effective enforcement of these laws' (1996: 213-219). There are three levels: information, monitoring, and sanctions.

Bonnie Richardson is very pleased with the initiative of the United States Information Agency. 'The USIA has a number of programmes that are helpful in getting out the message about the protection, the need for protection of intellectual property. They sponsor the dialogues with countries that are looking at reviewing their intellectual property laws, giving the MPAA the chance to participate in the dialogue and get our views known.' For instance in Russia where crime is epidemic. 'The United States is trying to assist Russia. We as an industry have participated in a seminar to help educate Russian prosecutors and law enforcement officials on how to identify pirated product (11).'

The next stage is to know whether, where and by whom piracy takes place. 'U.S. embassies are now routinely used to monitor the infringement of U.S. trademarks - whether it is Marlboro in Algeria or Mickey Mouse in China' (Boyle, 1996: 122). Inside the United States the FBI is active in this field as Bruce Sterling suggests in his novel The Hacker Crackdown. He describes that someone illicitly had copied a small piece of Apple's proprietary software. 'Apple called the FBI. The Bureau takes an interest in highprofile intellectual-property theft cases, industrial espionage, and theft of trade secrets. These were likely the right people to call . . .' (1992: 233). Outside the U.S.A. different kinds of spies are working. 'Richard O'Neill, a former Green Beret who received a Silver Star and six Bronze Stars in the Vietnam War, now hunts video pirates in Korea on behalf of the Motion Picture Export Association of America.' The Korean government, eager to increase its exports to the United States permits this private American police operation (posing as a market survey) on its territory. 'O'Neill has extended its operation to Thailand.'(Barnet, 1994: 142,3)

The purpose is of course that piracy will be stopped. A whole range of means must serve this purpose. The soft approach is the one used by several multinationals like Walt Disney, Paramount and Time Warner. Special software has been developed for them by which they search on the Internet. If an infringement has been discovered then they send a request to remove the copied material from the Net. Mostly this seems to be effective. If not, the infringer will be sued. The main interest is to fight largescale infringements. Minor cases will continue to occur always is their reasoning (Westen-brink, 1996: 88).

There exist also tougher approaches to fight piracy. Countries may expect trade sanctions. James Boyle: 'The "Super 301 Regulations" of the United States Trade Act of 1988 establish a "watch list" and a "priority watch list" for nations whose lack of intellectual property safeguards represents a significant trade barrier to U.S. business (1996: 122).' To avoid such trade sanctions countries must organize the repression internally. Richard Barnet and John Cavanagh give the example of Singapore, a small republic of malls and assembly plants, which is totally dependent on exports. 'Its authoritarian government has gone out of its way to cooperate with music giants by encating a draconian copyright law that provides for fiveyear jail sentences and $50.000 fines for possession of pirated tapes with intent to sell. Teenagers can earn up to $150 by acting as informants for the police (1994: 142).'

A comparable situation of severe sanctions has been described by Krister Malm and Roger Wallis concerning Trinidad. 'Throughout the 1980s, music piracy was rife in Trinidad. The audio cassette market, even for calypso music, was dominated by streetcorner pirates. Such cassettes often provided entertainment in taxis as well as in socalled maxitaxis (minibuses) that constitute the better part of the Trinidad public transport system. Thus they also functioned as a form of promotion of the music and artists featured/pirated. In 1986, lobbying by the Copyright Organization of Trinidad and Tobago (COTT, formed in 1985) led the government introducing fairly severe legal sanctions for cassette piracy. These include prison sentences of up to six months for the first offence and up to two years for any subsequent offence. As a result, the most obvious forms of streetcorner music piracy of calypso music have been wiped out. Cassette piracy has been limited to foreign music. Exceptions occur in the carnival season when local calypso and soca hits are likely to appear on "top hit" sampler tapes featuring "diverse artists" (1992: 67,8).' It is interesting to note that the sanctions seem to work better for local music than for foreign products.

Besides the track of information, monitoring, and sanctions there are other ways to try to prevent piracy. Ronald Bettig mentions one of them. 'The filmed entertainment industry has also resorted to market strategies to capture Middle Eastern homevideo markets for "legitimate" distributors. These efforts include offering a video product with a superior visual image to that of pirated products, supplying a dubbed audio track on the prerecorded videocassette or Arabic subtitling, and releasing prerecorded videocassettes closer to the date of initial release in the United States. The same combination of government pressure and market-based strategies are being used throughout Asia to combat piracy (1996: 213-219).'

Atsen Ahua, director of Synergies African Ventures told me (12) about a market approach to prevent piracy which comes forth from local music producers in Ghana and Nigeria as well. 'They have organized a network of middlemen and retailers by which thousands of cassettes find their way rather quickly to buyers all over the country. This makes it more difficult for pirates to break in this market structure. In cases they nevertheless have done so they got the chance to operate within the framework of the network. The market is big enough to give them also a place under the sun. If they refuse to collaborate some violence may be necessary to bring them back to order because maffia tendencies should be suppressed immediately. We tell them: "If you copy Rambo, do it, not our products, but come in business with us. Otherwise you kill us."' According to Atsen Ahua in a country like Kenya it is more difficult to introduce such a system because such an entrepreneurial attitude is lacking there, 'people are more attuned to be employed. Now this is beginning to be changed.' The system in Ghana has another protection against piracy as well. On the cassettes a numbered revenue band has been glued like on cigarette packs. This seems to limit piracy (Bender, 1994: 486).

However, piracy will continue to happen as long as it will be easy to copy. That is more and more the case. With digital technologies the thousand's copy is as good as the first one. This issue becomes even more important in the future with the further development of laser disks and other new communication technologies as well. Interesting is the observation by Richard Barnet and John Cavanagh: 'Stars now count on being seen and heard somewhere around the world many times a day. But the bigger the hit, the more likely it is that its creators and owners will have to share the profits with pirates. While intellectuals and politicians in poor countries denounced the "cultural imperialism" of the global media giants, underground entrepreneurs did something about it (1994: 142).' Dave Laing makes the probably unexpected claim that, 'piracy's most important effect is not the damage it does to the income of transnational companies and their recording artists, but the way in which it encourages the spread of international music and discourages the full development of national recordings in many countries (Quoted in: Burnett, 1996: 88,9).'

It is unlikely that the war against big maffia syndicates, which make fortunes with piracy, may be won. It looks like the war on drugs. Nowadays precise control by the state is out of fashion; globalisation has as a consequence that transport and production follow their own rules; it is not that difficult to find save heavens for black money; corruption is becoming common practice in a deregulated world: those are excellent ingredients for lucrative activities in the fields of piracy and drugs, and both circuits mix, together with illegal trade in weapons.

Undeniably a sharp contradiction exists between the producers of soft ware and hard ware. For hard ware producers it is interesting to sell machines which can copy easily. And this is exactly what film, music, and book producers hate. The risk that their soft ware will be copied manyfold the next day and even with a good quality makes them hesitate to put their stuff, for example, on pay-per-view.

Bonnie Richardson, spokeswoman of the MPAA: 'One of the things we domestically are looking at and we are talking about internationally is the need to look at technological safeguards to be build into the next generation VCRs or laser disks, the hard ware, as well as having governments their legal systems make it a crime to defeat those kinds of technological safeguards. We as an industry are working with our government on in the next years to make sure that our own legal system recognises the importance of protecting technological safeguards and we are working with manufacturers of the hard ware to get some agreement there on what kind of technological safeguards will be made (13).'

What we thus see, again and again, is that strong advocates of the free market ask at the same time for strong state regulations. What we may see too are internal contradictions inside huge corporations which produce soft ware and hard ware as well. Those divisions actually are in competition with each other while having different interests. This is one of the weak points of the synergies arguments and practices of the big mergers in the field of communication enterprises in the recent past, as described by Richard Barnet and John Cavanagh: 'All sorts of new wrinkles in hardware development could eventually render the compromise between the producers of sound equipment and the producers of music obsolete. Electronics-hardware companies have picked up three of the six record majors and several of the most successful independent record labels. This means that future fights over entertainment technology will increasingly take place inside megacorporations rather then between them (1994: 145).'

All those piracy and hunt on piracy questions have become more acute because of changes in trade and technology which have started the last twenty years. Intellectual content has become more important, and trade has reflected this change. Moreover, technology has become the driving engine of economic activity. At the core of technology are proprietary rights - copyrights, patents, trade secrets and trademarks.

In this context the ownership of intellectual rights have become one of the corner stones of international business. This has put pressure on governments to bring intellectual property protection and trade policy in the same framework, in an international framework. This has resulted in TRIPs, the WTO (14) agreement on Trade Related Intellectual Property Rights. Emery Simon describes the broad range TRIPs covers. 'The TRIPs text provides for the establishment of standards for protecting a full range of intellectual property rights and the enforcement of those standards both internally and at the border. . . . TRIPs also provides for subjecting these standards and enforcement obligations to effective multilateral dispute settlement. This is a key change and a major step forward over a world where countries could not rely on intellectual property conventions to resolve disputes, and their only recourse was bilateral action.'

He does not obscure what kind of interests are most served. 'Through trade tools, creative individuals and industries have acquired new means for advancing their business interests. . . . Integration into trade has also succeeded in establishing the precedent that the law governing these creative industries had to reflect commercial (trade) realities (Simon, 1994).'

He is also aware that not everybody may be content with this state of affairs. 'But the internalization of creative products has elicited fear and trembling from domestic competitors less able to produce and sell products with international appeal. These fears have been translated into increased pressure to reserve a share of domestic markets for local industries. Under the cloak of preserving national cultural identity - a legitimate goal countries have been enacting disguised trade restrictions - an illegitimate goal (Simon, 1994).'

It may be clear that he is referring to the French cultural exemption which has as a purpose to protect cultural life in France itself, and which is under the given circumstances rather successful. This quota policy partly has been followed by the European Union. Earlier I indicated that there is a shared interest of the United States and the European Union in the field of intellectual rights. However, Krister Malm and Roger Wallis put this in perspective. 'A growing number of European nations had also begun to consider music quotas as a means of defending local content against the flood of Anglo-American hit music emanating from the media conglomerates. A US response to this came from the American copyright organizations representing composers and publishers (and thus, indirectly, even the media conglomerates). They warned that protective national measures in Europe that were seen to discriminate against US music could result in American cancelling their traditional reciprocal relationships with their European national counterparts. There was even a threat of starting to negotiate directly with radio stations, which could result in US music being much cheaper than, say, Swedish or French. Such a scenario was also being aggravated by the increase in satellite radio and TV channels (channels which do not respect national frontiers) and the emergence of bigger and bigger media conglomerates which also live a global existence, floating up above sovereign national states (1992: 2).'

In the context of NAFTA Canada tried to build in a cultural exemption as well. This does not seem to work. Leaving technical details beside, the NAFTA provisions do not hinder that the Canadian market has been flooded by American products. Moreover, a substantial increase in the payments from the Canadian cultural sector to American producers takes place, estimated $100 million, money which was supposed to go to Canadian creators according to the 1988 Canadian Copyright Act (Mosco, 1993: 199, 200).

Canada and the European Union belong to the richest and most powerful parts of the world. In the next part of this article we wonder what the position is of poorer and less powerful nations and regions in the world concerning the intellectual rights in the audiovisual and literary fields. After this we must consider if it is right that the interests of creators and performers of works of visual art, film, music, dance and literature systematically have been put on the same line as the interests of producers and other commercial interest groups, as if they are the same which is obviously and mostly not the case. At the end we may discuss whether trade and business interests should be so dominant concerning our cultural heritage and future creations. Is there any legitimation to use the word theft so easily speaking on human creations which actually belong for a substantial part to the common good and which are necessary for future creations?

    > 2. less developed countries


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