[A2k] Media Piracy in Emerging Economies A Report by the Social Science Research Council

John Bergmayer john at publicknowledge.org
Thu Mar 10 05:46:23 PST 2011

It's not exactly what you're thinking of, but I've been working on a compulsory license issue that doesn't come up that much in IP circles.

From 1976 through 1992 cable systems in the US only had to pay a nominal fee to qualify for a blanket license that gave them the right to retransmit all of the content in broadcast signals.  (Prior to that, they just retransmitted content without permission. This was not illegal as retransmissions of broadcast signals weren't considered to be public performances and thus did not come within the scope of exclusive rights of a content owner.  When the law was to be changed to make it so that such retransmissions were within the exclusive rights, people quickly realized that the transaction costs for cable systems would be too high, so the compulsory license was simultaneously created.)

This is a precedent for the notion that compulsory licenses can make sense in diffuse rightsholder, high transaction cost situations.  That's not to say it's good or bad policy, just that it's been done.

Now, TRIPS wasn't around in 1976, but the compulsory license is still in place although now cable systems have to pay broadcast stations for their "signal" (not for the content) and theoretically some of that money gets back to rightsholders, which makes the whole situation harder to analyze.

On Mar 9, 2011, at 10:45 AM, corporacion innovarte wrote:

> Dear All,  does anybody knows if there are countries where have enacted
> compulsory licensing for allowing the reproduction of movies or music, as a
> strategy to reduce piracy.?
> Do you think that this could resist a TRIPS test.
> 2011/3/9 Teresa Hackett (eIFL) <teresa.hackett at eifl.net>
>> FYI
>> A precursor of this report was presented at WIPO ACE in December 2010,
>> http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=142793
>> Licensed under a "Consumer’s Dilemma license".
>> http://piracy.ssrc.org/
>> Media Piracy in Emerging Economies
>> About the Report
>> Media Piracy in Emerging Economies is the first independent, large-scale
>> study of music, film and software piracy in emerging economies, with a focus
>> on Brazil, India, Russia, South Africa, Mexico and Bolivia.
>> Based on three years of work by some thirty-five researchers, Media Piracy
>> in Emerging Economies tells two overarching stories: one tracing the
>> explosive growth of piracy as digital technologies became cheap and
>> ubiquitous around the world, and another following the growth of industry
>> lobbies that have reshaped laws and law enforcement around copyright
>> protection. The report argues that these efforts have largely failed, and
>> that the problem of piracy is better conceived as a failure of affordable
>> access to media in legal markets.
>> “The choice,” said Joe Karaganis, director of the project, “isn’t between
>> high piracy and low piracy in most media markets. The choice, rather, is
>> between high-piracy, high-price markets and high-piracy, low price markets.
>> Our work shows that media businesses can survive in both environments, and
>> that developing countries have a strong interest in promoting the latter.
>> This problem has little to do with enforcement and a lot to do with
>> fostering competition.”
>> Major Findings
>>       • Prices are too high. High prices for media goods, low incomes, and
>> cheap digital technologies are the main ingredients of global media piracy.
>> Relative to local incomes in Brazil, Russia, or South Africa, the retail
>> price of a CD, DVD, or copy of MS Office is five to ten times higher than in
>> the US or Europe. Legal media markets are correspondingly tiny and
>> underdeveloped.
>>       • Competition is good. The chief predictor of low prices in legal
>> media markets is the presence of strong domestic companies that compete for
>> local audiences and consumers. In the developing world, where global film,
>> music, and software companies dominate the market, such conditions are
>> largely absent.
>>       • Antipiracy education has failed. The authors find no significant
>> stigma attached to piracy in any of the countries examined. Rather, piracy
>> is part of the daily media practices of large and growing portions of the
>> population.
>>       • Changing the law is easy. Changing the practice is hard. Industry
>> lobbies have been very successful at changing laws to criminalize these
>> practices, but largely unsuccessful at getting governments to apply them.
>> There is, the authors argue, no realistic way to reconcile mass enforcement
>> and due process, especially in countries with severely overburdened legal
>> systems.
>>       • Criminals can’t compete with free. The study finds no systematic
>> links between media piracy and organized crime or terrorism in any of the
>> countries examined. Today, commercial pirates and transnational smugglers
>> face the same dilemma as the legal industry: how to compete with free.
>>       • Enforcement hasn’t worked. After a decade of ramped up
>> enforcement, the authors can find no impact on the overall supply of pirated
>> goods.
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> -- 
> Luis Villarroel
> Director de Investigacion
> Corporación Innovarte
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John Bergmayer
Staff Attorney
Public Knowledge
(202) 861-0020

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