By David Durbach
In the past 10 years, piracy has moved into the centre of most discussions of the state of the music industry. It is a complex issue largely related to inevitable technological advances, complicated by economic and historical factors. This essay looks at the different types of piracy, the various methods used to fight piracy in South Africa, the reasons for piracy and the various attitudes towards it.
According to the International Federation of the Phonographic Industry’s 2013 Digital Music Report, major inroads have been made to curb illegal downloads, suggesting that the global music industry has finally adapted to the internet world[i]. Music piracy is dropping steadily in certain countries due to tighter controls and the rise of legal alternatives[ii]. South Africa, however, still lags behind the rest of the world – unsurprising perhaps for a country where television was only introduced in the late 1970s, where cassette tapes were popular well after the turn of the millennium, and where broadband internet has only recently taken hold. Piracy remains a challenge for the near future, particularly as the country’s internet connectivity finally begins to catch up with the rest of the world.
Types of piracy
The term piracy is used to describe the deliberate infringement of copyright on a commercial scale. Broadly speaking there are two types: physical and online. Physical piracy is the unauthorised duplication of music for commercial gain without the consent of the rights owner - either as compilations/mixtapes (with packaging that is different from the original), counterfeits (packaged to resemble the original as closely as possible) or bootlegs (unauthorised recordings of live or broadcast performances). Internet piracy, on the other hand, is music that is compressed, posted and transmitted globally via the internet without payment to those who invested in the creation. In South Africa most pirate activity has traditionally been bootleg and counterfeit recordings. These are arguably easier to combat, and many have been restricted by organized anti-piracy campaigns. Online piracy is a more complex problem, however, and continues to grow in South Africa.
Over the past few years, government has become increasingly involved in the fight against music piracy, largely through the enforcement of existing legislation. Raids may be organized under the Copyright Act (No. 98 of 1978) in conjunction with the more general Criminal Procedure Act (No. 51 of 1977). Those caught breaking the Copyright Act face fines of up to R5 000 and/or imprisonment for up to three years for each infringing article, penalties which rise with subsequent convictions. South Africa is also party to most international conventions protecting intellectual property.
Methods of fighting piracy
While initially criticized for being slow to act, South Africa’s government has taken an increasingly active stance, particularly following President Jacob Zuma’s sector consultation with the industry in November 2009. Government campaigns often work in partnership with NGOs and musicians themselves, for example:
- Operation Dudula: One of the first co-ordinated attempts to fight piracy was set up in 2006 by musicians led by “the People’s Poet” Mzwakhe Mbuli following media reports of music greats dying in poverty. The operation organised marches by musicians and music industry workers around the country. Its organising committee identified various distributors of illegal CDs and cassettes through undercover efforts and worked closely with the SABC’s Special Assignment television crew. Dudula eventually folded in 2008 (Primo & Lloyd, 2011:130). Mbuli remains a prominent public voice amongst musicians in their fight against piracy.
- RiSA Anti-Piracy Unit: The Recording Industry of South Africa (RiSA)'s Anti-Piracy Unit (RAPU) is tasked with protecting the rights of members (particularly record companies) from piracy. Made up of specially trained ex-police officers, the unit also has an awareness and education raising mandate and regularly conducts workshops with prosecutors and members of the police, as well as engage with artists and the public at public events. Since 2011, RiSA has conducted numerous successful raids, seizing tens of thousands of CDs, pursuing criminal charges and shutting down websites[iii].
- Department of Trade and Industry Anti-Piracy Campaign: The Department of Trade and Industry has since 2010 led its own campaign in conjunction with the police, SARS and the departments of Arts and Culture, Home Affairs and Communications. The first phase was launched in 2010. The campaign has seen sporadic public relations events taking place, such as in the Western Cape, Free State and Gauteng in mid- 2011. In November 2013 the second phase of the campaign saw officials distribute pamphlets to motorists at a busy traffic intersection in Boksburg to spread the message of anti-piracy[iv].
- AIRCO Anti-Piracy Campaign: The Association of Independent Record Companies of South Africa in October 2012 launched its own anti-piracy campaign to protect the intellectual property of members. AIRCO’s anti-piracy strategy aims to complement existing anti-piracy strategies implemented by government, corporate and civil organizations. Set for the time period 2012 to 2015, AIRCO’s campaign has three facets: working with the police on counterfeit raids by a joint task force; a drive to reform laws by engaging relevant government structures; and public education on the economic effects of consuming pirated goods[v].
- Police National Anti-Piracy Campaign: AIRCO’s campaign works hand in glove with the police’s own national anti-piracy campaign, launched on 2 December 2011 by Police Minister Nathi Mthethwa, following the announcement of several major raids in Gauteng that netted R50 million worth of counterfeit goods. At the time, Mthethwa announced to the public: “We shall not allow criminals to destroy our artists’ legacies because such acts are tantamount to daylight robbery. That is why from now on we want to clean out the streets”[vi].
- Creative Workers Union ‘Shoot The Pirate’ Campaign: The Creative Workers Union of South Africa (CWUSA) represents the needs of artists and serves as a platform for expression and networking for musicians and other artists. In November 2011 CWUSA president Mabutho ‘Kid’ Sithole with Mzwakhe Mbuli announced its ‘Shoot The Pirate’ campaign, following reports of musicians being assaulted by vendors when confronting them about selling their work, and the mounting criticism that government was not doing enough[vii].
- POSA Trust anti-piracy handbooks: The Performers’ Organisation of South Africa Trust (POSA) is a trust established to administer Needletime Rights on behalf of recording artists/musicians who have assigned their rights to SAMRO. POSA along with SAMRO publishes short handbooks for various age groups aimed to educating them about piracy and copyright laws. It offers advice to businesses and individuals, for example urging parents to ‘teach your kids good copyright habits’[viii].
- Southern African Federation Against Copyright Theft (SAFACT): This NGO helps pursue legal actions against film, music and game pirates and promotes awareness campaigns. Working closely with RiSA and SAMRO, figures for September 2013 show that SAFACT raids saw well over 10 000 illegal discs confiscated, primarily from street vendors in Joburg and Durban. In July 2013 they launched their e-Task Team initiative as a result of ever-improving bandwidth in South Africa. SAFACT also operates a hotline for people to report piracy[ix].
Reasons for piracy
Numerous explanations have been offered to explain piracy. Economic factors do play a large role. Consumers will typically gravitate towards music that is cheap and accessible. This is particularly so for those who are not familiar with the legal implications of their actions. In South Africa this is complicated by historical factors. Until the early 1990s music was censored by government, the SABC and the police. Music that was banned – usually either for political, religious or sexual content – was still available through alternative channels. Many of today’s consumers grew up breaking the rules of the music industry in order to hear the music they wanted[x].
Another key factor shaping piracy has been technology. Physical piracy has become more widespread as the equipment needed to copy CDs and DVDs has become ever cheaper, more powerful and more accessible. Online piracy in South Africa has lagged behind the rest of the world due to the country’s relatively poor internet connectivity, although this has changed since 2009[xi]. The rise of internet piracy brings into question the role of internet service providers (ISPs) in controlling piracy[xii]. The local interpretation of international laws remain murky, although RiSA is increasingly hold ISPs accountable for site caught selling cheap, illegal MP3s, for example.
Attitudes towards piracy
Public and professional attitudes remain piracy remain varied. The campaigns outlined above typically resort to moral arguments that may not necessarily resonate with young music consumers. Music industry bodies routinely depict the struggle against piracy as a fight between good and evil, when the reality is not so simple. The word itself has deliberately criminal connotations. Other words to describe the process, such as ‘sharing’, are seldom heard. In South Africa, as elsewhere, there is a significant disconnect between the media narrative and actual consumer attitudes[xiii].
For many young musicians and producers, online sharing platforms enable them to get their music heard without needing a record deal. However, such platforms are the target of anti-piracy campaigns. For example, in January 2013 RAPU shut down Kasimp3.co.za, a popular local music sharing site. Founder Mokgethwa Mapaya issued the following statement on the site: “We apologise for the inconvenience, but the South African Music Industry was not comfortable with independent artists having their own platform”.[xiv]
A recent survey on online piracy by MyBroadband revealed that the majority of broadband users pirate TV series (80%), movies (70%) and music (53%). Importantly, however, most do so because the content is not available in South Africa. The survey found that availability and convenience were far more common reasons for piracy than the desire to save money or break the law[xv].
Yet media campaigns often frame piracy as a moral issue. Industry bodies such as RiSA and SAMRO both insist: “Music piracy is one of the main reasons why young and upcoming local artists don't make it as artists in South Africa” - hardly a vote of confidence in the many young musicians who have embraced new models of recording, distribution and earning through live performances rather than record sales. The POSA Handbook goes so far as to suggest that if young people don’t respect copyrights they are not only likely to pirate music, but also to plagiarise their schoolwork[xvi]. These kinds of arguments do little to help the cause. They often talk of musicians dying in poverty due to piracy, when in fact musicians were dying poor for many years before piracy became an issue. Piracy has become a scapegoat for all problems facing the industry.
South African labels have been slow to adapt to the changing market, viewing the internet as a threat rather than an opportunity. Though the fight against piracy grows increasingly well-organized, the question remains as to whose interests are being served – musicians, consumers or record companies. Is piracy really destroying the music industry, or is it simply another unavoidable consequence of the internet age, one that requires new thinking and new business models? Reducing the debate to notions of right and wrong, or vague precepts of morality and respect, risks distracting from the real issues at hand.
[i] IFPI Digital Music Report 2013.
[ii] “Music and film industries winning war on piracy, says report”. Independent online. <http://www.independent.co.uk/arts-entertainment/music/news/music-and-film-industries-winning-war-on-piracy-says-report-8714499.html>
[viii] POSA Handbook. http://www.posatrust.org.za/downloads/2013-10-04/Anti-Piracy%20Handbook, %2026%20 Years%20&%20Above.pdf
[x] Primo, N & L Lloyd. 2011. “South Africa”. In J Karaganis (ed). Media Piracy in Emerging Economies. p99.
[xi] Primo, N & L Lloyd. 2011. “South Africa”. In J Karaganis (ed). Media Piracy in Emerging Economies. p117
[xii] Vigneswaran, D, Y Masibulele & J Homberger. 2010. Policing The Beat: Piracy in Downtown Johannesburg. Open Society Foundation for South Africa. p27. <http://www.migration.org.za/sites/default/files/reports/2011/Policing_the_Beat.pdf>
[xiii] Primo, N & L Lloyd. 2011. “South Africa”. In J Karaganis (ed). Media Piracy in Emerging Economies. p120.
[xvi] POSA Handbook. http://www.posatrust.org.za/downloads/2013-10-04/Anti-Piracy%20Handbook,%2026%20Years%20&%20Above.pdf