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Poverty and social inequity in South Africa have shaped the development of media culture and distribution in the country. Low incomes in a country where one-third of the population lives on less than one dollar a day, high prices for commercial DVDs and Cds and a widespread advertising culture have created a high demand for media goods which are not easily obtained legally for the great majority of South Africans. Making pirated disks, books and online digital formats the desirable alternative. A new study on media piracy Media Piracy in Emerging Economies examines why piracy has come to be so widespread world-wide, the reasons why it persists and looks at the future. APC is the contributor for the South African chapter.

Segregation and repression give birth to media piracy

Although media piracy is ubiquitous in most low and middle-income countries, piracy in South Africa is also a result of its distinctive history of repression and political tensions dating back to the Apartheid era.

During Apartheid, illicit trafficking was the only way for underground groups and the black majority to a number of cultural goods including books, videos and audio cassettes.

“The widespread theft and resale of goods from factories mapped racial divides between labour and management and blurred the lines between criminal and political behaviour,” says Natasha Primo, the chapter author. “In this fashion, the consumption of pirated goods was normalised and integrated into wider South African political and social practices.”

Illegal copying because of book bans and government censorship became an act of political resistance as it was the only way to circulate dissident points of view.

The unequal purchasing power and concentration of services in white-only areas ensured that the black population had little to no access to the legal cultural market until fifteen years after the first democratic elections.

Music retailers, theatres, book stores etc., continued to be located predominantly in the formerly white-only suburbs, whereas the majority of black South Africans continued to spend the larger part of their lives living, working and going out in the townships outside major cities.

So though formal restrictions of apartheid were lifted, the racial and economic geography of media access remained largely unchanged.

While the end of Apartheid and economic sanctions in the mid 1990s sparked a rapid increase of cultural goods in the country, high prices and an underdeveloped media retail sector encouraged the growth of grey- and black-market practices related to acquiring, copying and circulating media.

South Africa also became a consumer hot-spot and transit point for smuggling media into other African countries.

Yet, despite the strong informal economy, claims of losses to piracy in South Africa were never high.

“The IIPA (International Intellectual Property Alliance)—calculating only losses to US companies—put the figure at $129 million in 2000, of which two-thirds was attributed to business software,” cites Primo. “Brazil, Mexico, and Russia, by comparison, regularly approached $1 billion in the late 1990s in the same reports, representing two to four times the per capita loss.”

Of much bigger concern during the 90s however, were debates about intellectual property (IP) obligations of middle-income and low-income countries under TRIPS (the Trade-Related Aspects of Intellectual Property Rights agreement).

TRIPS sets minimum standards for IP protection for members of the World Trade Organisation, where South Africa had committed to implementation as of 1995.

Pro-IP maximalists in the IIPA and their partners in South Africa argue that South Africa is falling foul of its TRIPS commitments, that the country should endorse the WIPO “internet treaties,” and that the Copyright Act (of 1978) should be reviewed and IP protection strengthened in South African law.

The anti-piracy voice in South Africa

The Department of Trade and Industry (DTI) is looking to develop a responsible trade policy, and has been pushing for stronger intellectual property and enforcement measures. “The DTI has adopted the underlying assumptions of the foreign interests that dominate the copyright economy in South Africa, and it has been a very effective de facto advocate for those interests,” says Primo.

Anti-piracy discourse in South Africa revolves mainly around the impact of piracy on the South African creative industries and, especially, the livelihoods of South African musicians.
A key assumption – unsubstantiated by research anywhere in the world – is that the sale of a pirated media product equals the loss of a legitimate sale and therefore a real loss of income for a South African artists.

Based on this unproven assumption, an anti-piracy media onslaught targeting South African consumers uses a discourse that paints producers and consumers of pirated cultural goods as “criminal”, “lacking patriotism”, “immoral” and condemning artists -including pop /cultural icons – to a life of poverty.

The anti-piracy movement has gained momentum through a stronger police presence and tighter enforcement.

Enforcement efforts became more pronounced, coordinated (across agencies) and visible in the lead-up to the 2010 FIFA World Cup in South Africa, as part of the contractual obligations to host the global soccer event.

Intellectual property low on the list of social priorities

However, the enforcement agenda has also been met with some resistance due to internal constraints such as bureaucracy and a judiciary that adopts a measured approach to piracy cases and does not hand down the maximum sentences that copyright and anti-counterfeit legislation prescribes.

But there are also more pressing social problems standing in the way of IP enforcement. These other issues include public security – such as South Africa’s high murder rate – but wider issues of access to knowledge and public health.

And the question remains. Do enforcement efforts have any impact on the availability of pirated goods in South Africa?

Enforcement does not change piracy patterns

The research shows that enforcement can harass more vulnerable parts of of the piracy cycle, such as retail, but the availability of pirated goods has not declined over the years.

“In our view,” says Primo, “availability in South Africa is shaped by factors largely exogenous to the enforcement effort: poverty, cheap consumer technologies, uniquely expensive internet service, the globalisation of media culture, and the chronic weakness of legal distribution and exhibition channels.” None of these seem likely to change in ways that will diminish the availability of pirated goods in the next years.

However, authors of the report feel that the central question should be how to create vibrant, accessible media markets and how, in particular, to move South Africa out of the high price-small market equilibrium it shares with many other developing countries.

“The conventional wisdom among the industry groups is that stronger enforcement spurs legal media market growth, and thereby improves access to media markets,” says Primo however her research finds that this logic is not playing out in South Africa, and more importantly, there does not seem to be competition within domestic media markets.

“In countries where large domestic media industries compete for audiences, piracy has been a catalyst for new, legal lower-cost business models,” she says, however in a national media market like South Africa’s — dominated by foreign multinationals — competition for price and services within the legal market seems to be lacking.

While local movie exhibitors have significantly reduced their prices in an effort to build local markets, “the high-price structure of South African media markets remains intact, with only hints of change at the peripheries in the form of experiments to to sell local movies at prices that compete with the pirated versions, or in the growing presence of low-cost media from Nigeria and India,” says Primo.

Peripheral actors may prosper — lowering prices, democratising access, and creating a mass legal market — but the alternative, “is simply more of the same: slowly growing legal markets pegged to rising incomes; fast growing pirate markets pegged to decreasing technology costs; and expanded public investment in an enforcement effort with little demonstrable impact on either.”
Given South Africa’s institutional landscape, the prospect of stronger enforcement policies, including consumer-directed enforcement, is likely.

The DTI is poised to push enforcement of emerging international norms like ISP liability – making internet service providers liable for pirate activity that takes place through their services – and stronger surveillance of electronic file transfers.

However it will also come up against the claims of the visually and print disabled communities for the realisation of their human and constitutional rights to access knowledge as well as broader claims for a more developmental approach to copyright law – which is currently missing from the approach to copyright law in South Africa.

This article is a part of APC’s work on studying media piracy. It was based on the report “Media Piracy in Emerging Economies” from SSRC Books by Natasha Primo, Libby Lloyd.

Contributors: Natalie Brown, Adam Haupt, Tanja Bosch, Julian Jonker, Nixon Kariithi

Full publication: Karaganis, Joe (ed.). 2010. Media Piracy in Emerging Economies. SSRC Books.

Photo by borderlys. Used with permission under Creative Commons 3.0 license.