Introduction:
The term “Piracy” can be defined as the unauthorized use of works under copyright, infringing the copyright holder’s “exclusive rights”. These exclusive rights include the right to reproduce, distribute, display or perform the copyrighted work, spread the information contained within copyrighted works, or to make derivative works. Piracy often refers to copying intellectual property without written permission from the copyright holder. The typical copyright holder is a publisher or other business representing or assigned by the work’s creator [1]. Piracy is a term that has been used since artistic expression began.
In that era, high-class painters were often commissioned by kings and counts for their paintings. However, they would frequently receive low-quality replicas copied from the original. The term digital piracy” is relatively new. When personal computers were introduced to the market in the late 1970s, digital properties such as software were not yet recognized as intellectual property. Therefore, there was no law against reproduction, distribution or usage. But with the increasing demand for this new technology, amendments to laws were introduced in the early 1980s to recognize these as intellectual properties of those who developed them.
Piracy of software and other digital media emerged after this period. Sri Lanka introduced the Intellectual Property Act in 2003 to deal with these issues. However, in 2012, the software piracy rate in Sri Lanka was as high as 84%. This means that 84 out of every 100 people are using pirated software on their computers. On the other hand, the recording industry has reported a piracy rate of 99% for international repertoire CDs, while for Sinhalese repertoire it was around 35% [2]. These numbers clearly indicate that the lawsuits introduced have not been effective in stopping piracy of software and other digital media.
Digital piracy is a significant issue in Sri Lanka, primarily due to the lack of awareness within society regarding the negative effects of pirated copies. Although laws have been introduced to prevent these issues, they are not as strict as those in other countries. This document aims to provide a brief review of the current scenario of piracy in Sri Lanka, including actions that have already been taken to prevent it and recommendations for making these efforts more effective from both a legal and societal perspective.
Modern technology has revolutionized the concept of making reproductions, and many problems with regard to copyright have arisen due to the products of modern technology. Copyright means the rights given by law to creators for their literary and artistic works. The rights take two forms: economic rights and moral rights. Economic rights include the right to reproduce, sell, rent, distribute, communicate to the public, and translate etc., whereas moral rights cover the right to claim authorship and oppose distortion or mutilation of the work. Infringement of copyright holder’s exclusive economic and moral rights can be defined as “Piracy”.
Software piracy is a significant form of piracy according to Microsoft, a leading operating system and software provider worldwide. It is defined as mislicensing, unauthorized reproduction, or illegal distribution of software for business or personal use [4]. Software piracy takes various forms:
- End-User Piracy: The end user or organization copies software onto more machines than allowed under license agreement.
- Hard-Disk Loading Piracy: Unscrupulous computer suppliers preload unlicensed software onto computers without supplying customers with necessary licenses.
- CD-ROM and Counterfeit Piracy: Illegal sellers (often organized crime rings) pass off fake software as real by using company names and proprietary trademarks.
- Internet Piracy: Any form of piracy involving unauthorized electronic distribution or downloading copyrighted software programs on the Internet.
In Sri Lanka in year 2012 usage of pirated software was high at 84%.
In 2011, Sri Lanka held the 6th place in Software Piracy with a rate of 86%. There are several reasons why consumers buy piracy software:
- Cost – Original software manufacturing by Microsoft or other large companies is highly expensive. Operating systems can cost thousands of rupees. On the other hand, pirated copies can be bought for around Rs. 100/= in Sri Lanka or downloaded freely and installed. This is one major reason behind high rates of software piracy in developing and poor countries.
- Ease – Most people find it easy to download pirate copies and install them rather than shop for them and buy.
- Lack of knowledge – Most people, mainly in developing countries like ours, don’t even know they’re violating a serious law when they use pirated copies. Some don’t even know they’ve bought pirated software from the shop.
- Practicality of existing law – Though there are laws to stop usage of piracy products, their usage in these areas is rare. So people simply ignore the fact that there is an existing law.
Though there are reasons which people could justify themselves for using pirated software, pirated copies have their own drawbacks. 2. Issues with Pirated Software According to Microsoft, only 15% of employee-installed software is problem free. For organizations, pirated or counterfeit software costing over $114 billion each year. Following Diagram 2. 1 shows some issues and rates according to a study conducted by analyst firm called International Data Corp (IDC). [pic] Diagram 2. 1: Problems with Pirated Software
Aside from the aforementioned issues, pirated software also comes with common drawbacks such as:
- Lack of technical support
- No periodic updates
- Unstable performance
- No proper documentation or warranty
2. Other forms of digital media piracy include CDs and DVDs used in industries like entertainment and education. Sri Lanka should be on the watch list for pirated CDs, as only a small number of internationally labeled CDs are legally imported.
The recording industry has reported that the piracy rate for optical discs is 35% for Sinhalese repertoire, but a startlingly high 99% for international repertoire and 100% for Tamil and Hindi repertoire. The main reason behind the high usage of pirated media is the low cost. While an original or legitimate CD costs around Rs. 500 to Rs. 1000 (5$ to 10$), pirated ones only cost around Rs. 100 (less than $1) and are highly available in local markets. Figure 2.1 shows a common local shop where thousands of pirated CDs and DVDs are available publicly.
![Local Shop selling pirated CDs & DVDs](figure2-1.jpg")
Figure 2.1: Local Shop selling pirated CDs & DVDs
However, there are several drawbacks to using pirated copies despite their cheap price and easy availability:
- Low quality of both sound and picture
- Cracked CDs or DVDs may harm the CD/DVD reader
- Discrepancies between disc and packaging
The copyright law in Sri Lanka was initially introduced during British rule with the idea of protecting one’s intellectual property.
The legislation on industrial property in the United Kingdom (UK) was first introduced with the British Inventors Ordinance, followed by several Ordinances. In 1964, Sri Lanka enacted its own Trademarks Act, but it was delayed and inoperative. Consequently, the English Act of 1911 remained in force until the Code of Intellectual Property Act No. 52 of 1979 was enacted. This act is based on the World Intellectual Property Organization (WIPO) model law for developing countries.
To supplement the provisions in the Code, Sri Lanka has also acceded to international conventions on intellectual property. These include the Paris Convention on Intellectual Property and the Berne Convention on Copyright, both administered by WIPO, as well as the Universal Copyright Convention administered by UNESCO. Additionally, a bilateral agreement was signed between Sri Lanka and the United States of America in 1991. Most recently, Sri Lanka has become a member of the TRIPS Agreement which sets minimum standards for intellectual property rights but allows members to provide more extensive protection.
Members are free to determine the appropriate method of implementing the provisions of the Agreement within their own legal system and practice. The Code of Intellectual Property Act was in operation for more than two decades until November 11, 2003. Except for a few minor changes, no major changes were made. The last amendment, Act No. 40 of 2000, introduced software protection under the copyright regime – an important feature in the present context. This Amendment defines a ‘computer’ as an electronic or similar device with information processing capabilities.
A computer program is a set of instructions expressed in words, codes, schemes, or any other form that can cause a computer to perform a particular task when incorporated into a medium that the computer can read. The Intellectual Property Act came into operation in Sri Lanka in November 2003 and defined both computer” and “computer program” with the same interpretation.
The Intellectual Property Act No. 36 of 2003 states that certain works will be protected under the law against piracy. Section 6(1) specifies literary, artistic or scientific works which are original intellectual creations in the literary, artistic and scientific domain including books, pamphlets, articles, computer programs and other writings; speeches, lectures, addresses, sermons and other oral works; dramatic musical works; pantomimes; choreographic works created for stage productions; stage production of specified works and expressions of folklore apt for such productions; musical works with or without accompanying words; audiovisual works; architecture designs; drawing paintings sculptures engravings lithographs tapestries fine art work ; photographic work ; applied art work illustrations maps plans sketches three dimensional geographical topographical architectural or science-related work. The subsection (2) states that these specified works shall be protected by the sole fact of their creation regardless of their mode or form of expression as well as their content quality and purpose.
Section 13 clearly states that economic and moral rights for an original author’s work should be protected during his/her lifetime plus seventy (70) years after his/her death. Therefore no one can copy or misuse another person’s work during this time period without permission.
Section 170 covers general infringement remedies while section 178 clearly states that anyone who willfully violates copyright laws may face fines up to five hundred thousand rupees or imprisonment up to six months.
Section 178, Subsection 3 states that accessing computer programs which infringe the rights of another person and willfully using that computer program for commercial gain can result in a fine or imprisonment. This section covers copyright infringement under Sri Lankan Intellectual Property Law.
Section 178 outlines the consequences of copyright infringement in Sri Lanka:
- Any person who willfully infringes any of the rights protected under Part II of this Act is guilty of an offense and may be fined up to five hundred thousand rupees or imprisoned for up to six months, or both. For a second or subsequent conviction, the fine or term of imprisonment may be doubled.
- Any person who sells, displays for sale, possesses for sale or rental, or has copies made in violation of Part II is guilty of an offense and may be fined up to five hundred thousand rupees or imprisoned for up to six months, or both. For a second or subsequent conviction, the fine and/or term of imprisonment may be doubled.
- Any person who knowingly possesses access to a computer program that infringes on another’s rights and willfully uses it for commercial gain is guilty of an offense and may be fined up to five hundred thousand rupees or imprisoned for six months, or both.
- The Magistrate has the authority to order all copies and implements used in infringement destroyed if they appear to him as such.
The Act also includes provisions regarding fair use. Article II defines fair use as reproducing copies for purposes such as criticism, comment, news reporting, teaching scholarship research without infringing on copyright laws.
Article 12 elaborates on the act of fair use, stating that reproduction for personal purposes does not extend to computer programs unless provided in Sub-Section (7). This section permits reproduction in a single copy or adaptation of a computer program without the owner’s authorization if it is necessary for: (a) using the program with a computer as obtained, and (b) archiving or replacing a lost, destroyed, or unusable copy. However, any copies or adaptations must be destroyed if continued possession ceases to be lawful.
Despite existing legislation to prevent piracy, more needs to be done in Sri Lanka. The country should consider policies used in other nations to make copyright policy more effective. In addition to empowering law enforcement acts, increasing public awareness against piracy is essential.
The biggest issue in countries like ours is that a culture has been created where digital piracy is not considered a significant problem. Changing this mindset of society is much more important than making legislation effective.
1. Improving Legislation
When comparing Sri Lankan law with other countries, there are many areas that we can use to make our copyright act more effective. We have considered laws in Australia, USA, Canada, and the UK to improve our Intellectual Property Act. The following are some areas to consider from a legislative perspective:
- Australian copyright law states that an individual who is guilty may be fined up to $93,500 or imprisoned for up to 5 years, or both.
Individuals who import materials that infringe copyright may face fines of up to $71,500 and/or imprisonment for 5 years. Penalties can be much higher when the infringement involves digitizing copyrighted material from hard copies (for example, from cassette to CD or from video to DVD). Those found guilty of a summary offense may be fined up to $13,200 or imprisoned for up to 2 years, or both. Corporations may be fined up to 5 times the maximum fine [6].
In contrast, Sri Lankan laws only allow fines of up to five hundred thousand rupees and 6 months imprisonment. If this were increased in line with Australian law, piracy would decrease by some amount.
Australian laws include a term called Interlocutory orders,” which are orders made by a court after a case has started but before it is finalized. Interlocutory orders relate to preserving the status quo, obtaining evidence, or preventing further damage to the claimant’s work. These ensure that violators cannot cause further damage until a judicial decision is made.
Regarding pirated software installed on workplace computers, legislation such as the Australian Copyright Act clearly states that employees who infringe copyright are generally liable. This means that each person working in an organization is liable for any software installed on their own computer.
This will make people think twice before installing software even on their official computers, rather than solely relying on their employers for responsibility. In contrast, countries such as the USA and Canada grant enforcement authorities, including customs officials, ex officio authority to search and seize infringing goods, as well as tools and implements used in infringement. This prevents the influx of pirated products into the country by large margins. Studies have shown that most piracy CDs/DVDs and other media are being imported to Sri Lanka through airframes primarily from Pakistan and Malaysia. Another major step that can be taken to decrease the usage of pirate software and other media is reducing government taxes.
Most developed countries don’t give much weight to taxes for these kinds of works, but in countries like Sri Lanka, the costs of legal copies are higher due to government taxes. This is a significant factor that forces people to use pirated copies instead of legitimate products.
There are several technical improvements that can be made to decrease the usage of piracy products while improving legislation and culture. Here are some suggestions:
- Moving into open-source software – Open-source software is free software that anyone can download from the internet. Many different types of software are licensed as open source, and they’re typically license-free products with freely downloadable upgrades available online. By using open-source software, people don’t need to worry about spending a lot of money on original copies of software, which will also lessen the number of people who use pirated versions.
- Usage of anti-piracy software – There’s different types available for free which prevent illegal duplication or illegal use of copyrighted material. Some anti-piracy programs prevent hackers from getting into the program and copying it without consent from the copyright owner.
- Reporting anti-piracy may prevent it from happening.
- Hardware Key – A hardware key is a device used for anti-piracy purposes.
The anti-piracy association is also looking for other ways to prevent piracy in general, including music piracy.
This tool prevents software vendors from distributing or using their products without authorization from the copyright owner. The hardware key is attached to a computer and monitors software licensing, enforcing protection for any detected protected software. This tool helps prevent piracy by reducing illegal distribution of copyrighted software.
References:
