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Digital Piracy in Sri Lanka

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    Introduction The term “Piracy” can be define as the “unauthorized  use of works under copyright, infringing the copyright holder’s “exclusive rights”, such as the right to reproduce, distribute, display or perform the copyrighted work, spread the information contained within copyrighted works, or to make derivative works. It often refers to copying “intellectual property” without written permission from the copyright holder, which is typically a publisher or other business representing or assigned by the work’s creator” [1]. Piracy is a term which emerged since the dawn of artistic expression.

    In that era, kings and counts were demanded for painting from high class painters. But often they received low quality replicas which copied from the original one. The term “Digital Piracy” is much younger. When personal computers were introduced to the market in late 70s’, the digital properties such as software haven’t been identified as Intellectual properties. So there was no law against re-production, distribution or usage. But with the large demand for the new technology, law amendments were introduced in early 80s’ to recognize these as Intellectual properties of the people who developed them.

    Piracy of software and other digital media were emerged after this period. Sri Lanka has introduced Intellectual Property Act in 2003 to deal with these issues. But in 2012, Software piracy rate in Sri Lanka was high as 84%. This means, 84 people out of 100 are using pirated software in their computers. And on the other hand, recording industry has reported piracy rate of 99% for international repertoire CD’s. For Sinhalese repertoire in was around 35% [2]. The above numbers clearly indicate that the law suits introduced haven’t been affected on stopping piracy on software and other digital media.

    This is mainly due to lack of awareness of the society regard the negative effects of these pirated copies. And on the other hand, though there is law introduced to prevent these issues, the Sri Lankan law is not strict enough when comparing to other countries in this particular area. So idea of this document is to have a brief review on current scenario of piracy in Sri Lanka, the actions it has already taken to prevent them and recommendations to make it much more effective in perspective of law as well as in perspective of society. Digital Piracy

    Modern technology has revolutionized the concept of making reproductions and many problems with regard to copyright have risen due to the products of modern technology. “Copyright means the rights given by law to the creators for their literary and artistic works. The rights take two forms (a) economic rights and (b) moral rights. The economic rights include the right to reproduce, sell, rent, distribute, communicate to the public, and translate etc. whereas the moral rights cover the right to claim the authorship and right to oppose distortion or mutilation of the work. [3] Infringement of the copyright holder’s exclusive rights, both economic and moral rights which mentioned above can be defined as “Piracy”. 1. Software Piracy According to Microsoft, world’s leading Operating system and software provider, “Software piracy is the mislicensing, unauthorized reproduction and illegal distribution of software, whether 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 the license agreement. Hard-Disk Loading Piracy: Unscrupulous computer suppliers preload unlicensed software onto computers and fail to supply customers with the necessary licenses. • CD-ROM and Counterfeit Piracy: Illegal sellers (often organized crime rings) pass off fake software as real, trying to emulate product packaging by using company names and proprietary trademarks. • Internet Piracy: Any form of piracy involving the unauthorized electronic distribution or downloading of copyrighted software programs on the Internet. In Sri Lanka, usage of pirated software in year 2012 was high as 84%.

    In 2011 it was 86% and Sri Lanka was held 6th place of Software Piracy. 1. Reasons behind consumers buying Piracy Software Most of the people are going for pirated software mainly because, • Cost – Cost of original software manufacturing by Microsoft or other large companies are highly expensive. Operating system would cost thousands of rupees. On the other hand pirated copies can be buy around Rs. 100/= in Sri Lanka or download freely and install. 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 of the times, people mainly in developing countries like ours doesn’t even know their violating a serious law when they using pirated copies. Some of them don’t even know they have bought pirated software from the shop. • Practicality of existing law – Though there are laws to stop usage of piracy products, the usage of law in these areas are rare. So people simply ignore the fact that there is law existing.

    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

    Other than above issues, following are some common drawbacks come with pirated software. • Pirated software doesn’t offer technical support. • Doesn’t support periodic updates. • Unstable. • Doesn’t come with proper documentations (manuals) or warranty. 2. Other Digital Media Piracy By the means of other digital media, this document consider on the CDs, DVDs using in industries such as entertainment and education. When it comes to pirated CDs, Sri Lanka should be on the watch list. Only small number of international labeled CDs is legally imported to Sri Lanka.

    The recording industry reported that the piracy rate for optical discs totaled 35% for Sinhalese repertoire, but was 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$), pirated ones are only cost around Rs. 100 (Less than 1$). And they are highly available in local market. Figure 2. 1 shows a common local shop where there are thousands of pirated CDs, DVDs available for sale publically. pic] Figure 2. 1: Local Shop selling pirated CDs & DVDs 1. Issues with Pirated Media Though pirated copies are really cheap and easy to buy, there are several drawbacks with pirated copies. Following are some of major drawbacks of using pirated CDs. • Low Quality of both sounds and picture. • Cracked CDs or DVDs may harm the CD/DVD reader. • Discrepancies between disc and packing. Copyright Law in Sri Lanka The idea of a right to one’s intellectual property was initially introduced to Sri Lanka by the British regime.

    The United Kingdom’s (UK) legislation on industrial property first entered our statute book with the introduction of the British Inventors Ordinance. This was followed by a number of Ordinances. In 1964, Sri Lanka for the first time enacted her own Trademarks Act, which was inoperative due to delays. Therefore the English Act of 1911 continued in force till the enactment of the Code of Intellectual Property Act, No. 52 of 1979. The Code of Intellectual Property Act is based on the World Intellectual Property Organization (WIPO) model law for developing countries.

    To supplement the provisions in the Code, Sri Lanka had also in the international sphere, acceded to the Paris Convention on Intellectual Property, and the Berne Convention on Copyright, both administered by the WIPO and the Universal Copyright Convention administered by the United Nations Educational, Scientific and Cultural Organization (UNESCO). There was also a bilateral agreement between the United States of America (USA) and Sri Lanka, signed in 1991 and most recently the TRIPS Agreement. The TRIPS Agreement is a minimum standards agreement, which allows members to provide more extensive protection for intellectual property rights.

    Members are left 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 till the 11th of November 2003, and except for a few minor changes no major changes were made. The last amendment, namely Act No. 40 of 2000, introduced to the Code software protection under the copyright regime – an important feature in the present context. In this Amendment a ‘computer’ has been defined as an electronic or similar device having information processing capabilities.

    A ‘computer program’ is defined as a set of instructions expressed in words, codes, schemes, or in any other form which is capable when incorporated in a medium that the computer can read, of causing a computer to perform or achieve a particular task or result. The new Act, the Intellectual Property Act, which came into operation in Sri Lanka in November 2003, incorporated the same interpretation for both ‘computer’ and ‘computer program. ‘ 1. Works Protected Intellectual Property Act, No 36 of 2003 has clearly stated following as the works which will be protected under the law against piracy. “6. 1) The following works shall be protected us literary, artistic or scientific work (hereinafter referred to as “works’1) which are original intellectual creations in the literary, artistic and scientific domain, including and in particular” (a) books, pamphlets, articles, computer programs and other writings ; (b) speeches, lectures, addresses, sermons and other oral works ; (c) dramatic, dramatic musical works, pantomimes, choreographic works and other works created for stage productions ; (d) stage production of works specified in paragraph (c) and expressions of folklore that are apt for such productions ; (e) musical works, with or without accompanying words ; (f) audiovisual works ; (g) works of architecture ; (h) works of drawing, painting, sculpture, engraving, lithography, tapestry and other works of fine art ; (j) photographic works ; (k) works of applied art ; l) illustrations, maps, plans, sketches and three dimensional works relative to geography, topography, architecture or science. (2) The works specified in subsection (1) of this section shall be protected by the sole fact of their creation and irrespective of their mode or form of expression, as well as of their content, quality and purpose” [5] So Section 6, subsection 1(a) clearly shows that computer programs are protected with Sri Lankan Intellectual Law. 2. Duration of Copyright Section 13 clearly states that economic and moral rights for the work of original author should be protected during his life time and seventy (70) years after his death. So work which belong to some other cannot be copied or misuse without his/her permission during that time period. “13. 1) Subject to the provisions of subsections (2), (3), (4) and (5), the economic and moral rights shall be protected during the life time of the author and for a further period of seventy years from the date of his death (2) In the case of a work of joint authorship, the economic and moral rights shall be protected during the life of the last surviving author and for a further period of seventy years from the date of the death of the last surviving author. (3) In the case of a collective work, other than a work of applied art, and in the case of an audiovisual work, the economic and moral rights shall be protected for seventy years from the date on which the work was first published, or failing publication within seventy years from the making of the work. 4) In the case of a work published anonymously or under a pseudonym, the economic and moral rights shall be protected for seventy years from the date on which the work was first published: Provided that, where the author’s identity is revealed or is no longer in doubt before the expiration or the said period, the provisions of subsection (1) or subsection (2) shall apply, as the case may require. (5) In the case of work of applied art, the economic and moral rights shall be protected for twenty-five years from the date of the making of the work (6) Every period provided for under the preceding subsections shall run to the end of the calendar year in which it would otherwise expire. ” [5] 3. Infringement of Copyright While Section 170 covers the “General Infringement and Remedies”, Section 178 clearly states that if any person willfully violates the Copyright law can be fined not exceeding rupees five hundred thousand or to imprisonment for a term not exceeding six months or to both such fine and such imprisonment.

    Here in Section 178, Subsection 3 states accessing computer programs which infringe rights of another person, and willfully use that computer program for commercial gain can be fined or imprisonment as same as above. Following is the section which covers the infringement of copyright under Sri Lankan Intellectual Property Law (Section 178). “178. (1) Any person who wilfully infringes any of the rights protected under Part II of this Act shall be guilty of an offence and shall be liable on conviction after trial before a Magistrate to a fine not exceeding rupees five hundred thousand or to imprisonment for a term not exceeding six months or to both such fine and such imprisonment, and in the case of a second or subsequent conviction such fine or term of imprisonment or both such fine and imprisonment may be doubled. 2) Any person knowing or having reason to believe that copies have been made in infringement of the rights protected under Part II of the Act, sells, displays for sale, or has in his possession for sale or rental or for any other purpose of trade any such copies, shall be guilty of an offence and shall be liable on conviction by a Magistrate for a fine not exceeding rupees five hundred thousand or to imprisonment for a term not exceeding six months or to both such fine and such imprisonment, and in the case of a second or subsequent conviction, to double the amount of a such fine or term of imprisonment or both. (3) Any person knowingly or having reasons to believe that he is in possession or has access to a computer program infringing the rights of another person, and wilfully makes use of such program for commercial gain, shall be guilty of an offence and shall be liable on conviction by a Magistrate for a fine not exceeding rupees five hundred thousand or to imprisonment for a period of six months or to both such fine and imprisonment. 4) The Magistrate may, whether the alleged offender is convicted or not, order that all copies of the work and all implements used for the infringement, or all plates in the possession of the alleged offender, which appear to him to be infringing copies, or plates or implements used for the purpose of making infringing copies, shall be destroyed or delivered up to the owner of the right, or otherwise dealt with in such manner as the Magistrate may think fit. ” [5] 4. Act of Fair Use According to the Sri Lankan Act, the dement of fair use is defined in Article II where reproduction of copies for purposes of criticism, comment, news reporting, teaching, scholarship or research shall not be an infringement of copyright.

    Article 12 further elaborates the act of fair use, whereby it states that reproduction for personal purposes shall not be extended to computer programs except as provided in Sub-Section (7), where it states that reproduction in a single copy or the adaptation of a computer program shall be permitted without the authorization of the owner provided it is for. “7. (a) Notwithstanding anything contained in paragraph (a) and (c) of subsection (1) of section 9 reproduction in a single copy or the adaptation of a computer program by the lawful owner of a copy of that computer program shall be permitted without the authorization of the owner of copy right provided that the copy or adaptation is necessary. (i) for use of the computer program with a computer for the purpose and extent for which the computer program has been obtained. ii) for archival purposes and tot replacement of the lawfully owned copy of the computer program in the event that the said copy of the computer program is lost, destroyed of rendered unusable. (b) No copy or adaptation of a computer program shall be used for any purpose other than those specified in paragraph (a), and any such copy or adaptation shall be destroyed in the event that continued possession of the copy of the computer program ceases to be lawful” [5]. Recommendations Though there are above legislates exist to prevent piracy, the records indicate that there is lot more to done. Sri Lanka should consider the policies used in other countries and use them to make copyright policy much more effective in our country. Other than empowering law acts, increasing awareness of the society against piracy is much more required.

    The biggest issue in countries like ours is culture has been created as digital piracy is not a considerable issue. Changing this mind set of the society is much more important while making legislate effective. 1. Legislation Improvements When comparing Sri Lankan law with other countries, there are lots of areas which we can use to make effective out copyright act. Here it has considered laws in Australia, USA, Canada and UK to improve our Intellectual property act. Following are some areas considered legislation perspective; • When considering the penalties, Australian copyright act stated as an individual who is guilty may be fined up to $93,500 or imprisoned for up to 5 years, or both.

    For importation of material that infringes copyright, fines of up to $71,500 and/or imprisonment for 5 years may be imposed on an individual. Penalties can be much higher where the infringement involves the digitization of copyright material from hardcopy (for example, from cassette to CD or from video to DVD). An individual who is found guilty of a summary offence may be fined up to $13,200 or imprisoned for up to 2 years or both. A corporation may be fined up to 5 times the amount of a maximum fine [6]. On the other hand Sri Lankan laws only enabled to fine up to five hundred thousand rupees and 6 months of imprisonment. If this increased as Australian act, piracy will be decrease from some amount. Australian laws have term called “Interlocutory orders”, which are orders that are made by a court after a case has been started but before it is finalized. Interlocutory orders are about such things as preserving the status quo, obtaining evidence, or preventing further damage to the claimant. These will make sure that violators could not further damage to the work till judiciary decision. • When it comes to installing pirated software in computers of work places, legislations such as Australian copyright act clearly status that employee who infringes copyright is generally liable. This is a law which each person who working in an organization liable for the software installed in that persons own computer.

    This will make people think twice before installing software even into their official computers rather than giving the responsibility only to the employers. • Most of other countries such as 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 will prevent the incoming of piracy products into the country by large merging. As per studies done by many people, most of the piracy CDs/DVDs and other media are coming to Sri Lanka through air frames from mainly Pakistan and Malaysia. • Reducing the government taxes can be another major step which can be added to decrease the usage of pirate software and other media.

    Most of the other countries, mainly developed countries don’t give much weight from taxes for these kinds of works. But in countries like Sri Lanka, the costs on legal copies get higher due to the government taxes on them. This will be much effective as the cost is the main factor which people forced to use pirated copies rather than go to the legitimate product. 2. Technological Improvements While improving legislates and culture to prevent using pirate software and other digital media, there can be other technical improvements to decrease the usage as this is a matter related with technology. Following are some technical suggestions to prevent or decrease the usage of piracy products. Moving in to Open Source software – Open source software is described as free software that anyone can download from the Internet. A lot of different software can are licensed as open source. Open source software is normally license free products. There are also different upgrades for these open source software that can also be freely downloaded from the Internet. By using open source software, people don’t need to worry about spending a lot of money for original copies of software. This will also lessen the number of people who are using pirated software as there are alternative programs that can be used and they do not have to pay fines when they are caught. Usage of Anti-Piracy Software – There are different types of anti-piracy software that are available for free. Anti-piracy software is used to prevent illegal duplication or illegal use of copyrighted software. There is also anti-piracy software that prevents hackers from getting into the software and copying it without consent from the copyright owner. Some of them are also already integrated on the disks of the software that contains the program. This may also be for piracy music. The anti-piracy association is also looking for other ways to prevent software piracy. Reporting anti-piracy may prevent it from happening. • Hardware Key – A hardware key is a device that is used for anti-piracy.

    This tool prevents software vendors to distribute their products or use them without authorization from the copyright owner of the software. The hardware key works when it is attached to a computer. It monitors software licensing and enforces licensing of the protected software that is detected on the computer. This tool will lessen software vendors from illegally distributing the software that they have and is a good prevention measure for piracy. References [1] http://en. wikipedia. org/wiki/Copyright_infringement [2] http://www. iipa. com/rbc/2003/2003SPEC301SRILANKA. pdf [3] http://www. nipo. gov. lk/copy. htm [4] http://www. microsoft. com/en-us/piracy/default. aspx [5] http://www. customs. gov. lk/docs/25489. pdf [6] www. copyright. org. au/… /5086797654f385cd29bb40. pdf

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