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The effect of piracy on Africa’s entry into the global knowledge economy

Wednesday, July 8th, 2009

Recent news reports point to an instance in which piracy has delayed the access of  Africans to the global knowledge economy. ITNews Africa reports:

The increase in pirate activity during April and May 2009, both in terms of intensity and geographical coverage, necessitated a change in SEACOM’s cable installation plans which resulted in a delay in the ready for service date from 27 June 2009 to 23 July 2009. The planned route required the ship to transit an area of increased pirate activity where other ships had been attacked or seized.

The cable deployment in the troublesome waters has since been completed and splicing to connect the section of cable from Mumbai to Africa is expected shortly.”

The piracy referred to here is piracy as it is legally defined. The United Nations Convention on the Law of the Sea (UNCLOS) defines piracy in  Article 101:

“Piracy consists of any of the following acts:

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).”

I referred in yesterday’s post to the spurious use of the term ‘piracy’ to refer to some type of infringement copyright. To be more precise the use of the term is polemical, and should generally be avoided by serious copyright scholars.It is favoured by the press, likely because its shorter than the phrase “copyright infringement”  and so fits better in a headline. The naked attempt to equate real piracy, a violation law s of the nations back to ancient times with non compliance with a statutory monopoly cannot pretend to objectivity.  Its fundamentally disrespectful to the many people who have been murdered, raped, robbed and beaten by pirates to try to harness the appropriate moral outrage at their suffering to the cause of extended or justifying a statutory monopoly.Its therefore a term which I would  avoid except when engaging in counter-discourse tactics, such as my ironic use in yesterday’s post. Of course its possible to use it counter discursively as Prof Lessig does in Free Culture or as Matt Mason does in The Pirate’s Dilemma. Counter discursive use alerts us to the polemical nature of the term, at least if we have a capacity to be alerted.

The casual use of  “piracy” to refer, vaguely, to copyright infringement trivialises real piracy. Its akin to using the term ‘holocaust’ to refer to loss of profit due to defaulting debtors. The polemical nature of the term render it incapable of bearing a clear meaning.  So called copyright piracy is not defined in any multi-lateral international treaty, nor is it defined in any national copyright law as far as I know. If anyone is able to point me to a national copyright law which uses the term piracy please let me know, I am looking for examples of legislative capture for a paper I am working on. Instead the term is used to describe a vast range of acts, from large scale commercial copyright infringement which is illegal and even criminalised in most jurisdictions, through the indirect infringement of making file available on-line for others to copy which is prohibited in some jurisdictions, through to  to time and format shifting which is permitted in many jurisdictions but regarded unfavourably by certain corporate intermediaries which have become rights holders. This latter category of acts is constantly expanded as various groups seek monopoly rents,  so that soon no doubt reading a book aloud will be a termed a ‘pirate reading’.

Implementing WIPO’s Development Agenda

Friday, July 3rd, 2009

Implementing the World Intellectual Property Agendais now available at IDRC’s Open Books.

Implementing the DA, edited by Jeremy De Beer, is a series of essays, emerging from the work of the EDGE network series about to develop concrete strategies for implementing the Development Agenda. Formally the Development Agenda is a series of 45 recommendations adopted by the General Assembly of the World Intellectual Property Organisation in October 2007. These recommendations were adopted in an attempt to focus WIPO on its mandate as a United Nations agency to support development. Although its unlikely to be acknowledge in official pronouncements the adoption was also an attempt to restore confidence in the World Intellectual Property Organisation as a multilateral organisation which represents the interests of all its members, rather than a vehicle for rent seeking by a handful of multinational corporations based in the global North.

More broadly though, as de Beer points out in the introductory chapter the Development Agenda is far more than a the list of recommendations, it is an attempt to change the paradigm for intellectual property laws in the 21st century.

Essays examine how to define the DA, how the DA may take into account different levels of development, how the impact of the DA might be assessed, the governance and leadership of WIPO and the DA, how emerging economies interact with the DA. Eleven of the twelve essays approach the DA from a process perspective, how may it be implemented. One chapter, which I wrote, on Treaty Provisions on Minimum Exceptions and Limitations for Education takes a different approach, considering how on aspect of the Development Agenda might be concretely implemented by WIPO through an international agreement setting minimum exceptions and limitations for education. In so doing it draws on specific recommendations from the 45, shows how these relate to the Millennium Development Goals adopted by the United Nations, and makes a case for minimum international exceptions.

As a contributor I am very grateful to Jeremy de Beer for the work involved in bringing together a range of scholars, encouraging the conversation, and editing a timely and important book. Most importantly I hope that this book will contribute to implementation of the Development Agenda, because as Jeremy says in the opening chapter: “Implementation is the litmus test for the Development Agenda’s success”.