Piracy as bane of creative enterprise
Chief Femi Asekun, left, Fatai Rolling Dollars and
another guest dancing at the recently held
Lagos Book and Art Festival used to honour the
late Cyprian Ekwensi.
Piracy, which is the unauthorized reproduction of
intellectual and creative works, is a major clog hindering
the progress of the creative enterprise worldwide. Such intellectual works include patents, trademarks, industrial designs and copyright.
As noted from the topic, the slant of this paper shall be towards infringement on copyright, which is specifically concerned with the expression of ideas as in literary works. Copyright infringement itself has two broad dimensions. One is the illegal reproduction through photocopy for private use technically referred to as reprography while the other is piracy. Piracy refers to the illegal reproduction and offer for sale to consumers of such literary works.
The publishing world is trying to control reprography through licensing by instituting Reproduction Rights Organisations (RROs), but piracy is more complex and conducted surreptitiously. It is also profit driven.
Historical Perspective
The Gutenberg hand-operated press came into operation in the fifteenth century and this clearly marked the beginning of the mass production of books. Just as it is today, the advent of faster and efficient means of production through new technology, sometimes bring about undesirable consequences. Because books can now be produced more quickly and less expensive than they had been under the Scribes, the production and sale of editions of books that have not been authorized by their authors; in short, book piracy began to emerge as a commercial threat.
Therefore, not long after the printing press was introduced in Europe, stakeholders in the business began to regulate the printing trade. For example, in England, the Stationers’ Company received a royal charter in 1557, which granted it a monopoly on domestic printing and publishing and it maintained this for almost a century and a half.
In the seventeenth century, the political equation in England changed and this affected the legal monopoly of the Stationers’ Company over the book trade as it lost same in 1694. However, the various printer/bookseller members of the Stationers’ Company persistently petitioned Parliament for restoration of copyright protection. Their lobbying and perseverance for 15 years paid off as the Statute of Anne, which is the first copyright law was enacted in 1710.
International Copyright Conventions
Berne Convention
National copyright laws could only be effective within the confines of a particular country. Infringements on copyright in another country could not be readily redressed unless the two countries have a bilateral copyright agreement. European countries first attempted to negotiate such agreements but it proved cumbersome to accomplish.
However, beginning in the 1850s, the idea of a uniform international legal framework for copyright protection emerged as an idea to solve the problem of reciprocity of copyright protection. Eventually, the International Literary and Artistic Association prepared a draft copyright convention.
This initiative after series of inter-governmental negotiations held in Berne, Switzerland, eventually resulted in the International Convention for the Protection of Literary and Artistic Works, more commonly referred to as the Berne Convention in 1886. Member countries are obliged to tailor their domestic laws on copyright in line with that of the Berne Convention. The convention has since undergone a few revisions since then.
Universal Copyright Convention (UCC)
In 1952, the United Nations Educational Scientific and Cultural Organisation (UNESCO) convened a conference in Geneva to work out another multilateral copyright agreement. It was organized to satisfy the yearnings of some countries that had refused to join the Berne Convention then, mainly the United States and other countries in Latin America. Eventually, the Universal Copyright Convention (UCC) came into effect in 1955. The UCC, like the Berne Convention does not apply to works that have fallen into free public domain.
The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)
Globally, piracy refused to abate despite the Berne Convention and the Universal Copyright Convention (UCC). Stakeholders then pushed for the enactment of stiffer laws to curb copyright infringement, by including intellectual property rights in the General Agreement on Tariffs and Trade (GATT). Developing countries who are mainly in the web of piracy did not welcome the idea and feared that the GATT dispute mechanism would be used against them. However, TRIPS was finally concluded on April 15, 1994 at the Uruguay Round of the General Agreement on Tariffs and Trade (GATT).
The World Trade Organisation (WTO) succeeded GATT and it is now the responsibility of WTO to administer TRIPS. Thus TRIPS succeeded in introducing for the first time, intellectual property law into the international trading system and it is currently the most comprehensive international agreement on intellectual property. TRIPS contains requirements that national laws must meet for copyrights. TRIPS also specifies enforcement procedures, remedies and dispute resolution procedures. It should also be noted that the ratification of TRIPS is a compulsory requirement of World Trade Organisation membership. Therefore, any country seeking to obtain easy access to the numerous international markets opened by the WTO must enact strict intellectual property laws mandated by TRIPS.
How to combat piracy
It would be observed that from the Statute of Anne to TRIPS, the essential issue is the taming of piracy through appropriate legislation. Because pirates’ cost of production is meagre compared to that of publishers; they churn out cheap imitations of genuine books. Pirates do not pay royalties to authors, do not pay taxes to government and pirates do not incur any cost on the extensive promotion of books usually carried out by genuine publishers. Book pirates do not incur any editorial overhead and their origination cost is inconsequential compared to that of genuine publishers. They only reproduce original copies.
As a result of all these, the pirates make huge profits from their nefarious activities. Unfortunately, because of the socio-economic and political conditions in most developing countries, piracy thrives within them. However, it should be noted that theft is theft, whether it involves a physical property or someone’s intellectual property. Therefore, curtailing piracy should be of utmost concern to all of us. The approach to tackling it should be multi-pronged. The multilateral agreements have provided a good legal framework for copyright protection and, what is left now is monitoring and enforcement procedures.
Practical Steps
Public enlightenment; monitoring of printing presses; availability of books; diplomatic interventions; surveillance at seaports and land borders; rights acquisition; special editions; provision of adequate infrastructure; provision of books in schools; special incentives to publishers; tracking technology and physical raids.
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