Optical Disc and Digital Piracy
The optical media piracy in the Philippines and Vietnam started in the 1990s with the rise of digital technology using the CD, VCD, and DVD discs which replaced the analog technology of the Betamax and VHS cassettes tapes. Pirated discs recording copyrighted songs, films or software with a price often ten times cheaper than the original copies, became widely accessible and affordable to millions of people of Southeast Asian region. In the early 2000s, the disc piracy has already created open piracy in the retail markets in Indonesia, Thailand, Malaysia, the Philippines and Vietnam. In the Philippines, the Quiapo Barter Trade Center piracy center in Manila was listed in United States Trade Representative Office’s (USTR) notorious piracy markets in the world. Medium size malls in the country are also constantly being watched by the International Intellectual Property Alliance (IIPA), an umbrella organization of all copyright industries in the United States, because of rampant optical disc retail piracy. Vietnam’s major cities such as Hanoi, Ho Chi Minh City (HCMC) and Danang were also being monitored for open optical disc piracy.
In 2001, the physical and optical disc piracy in the Philippines and Vietnam had reached a critical level, prompting the powerful IIPA to recommend to the USTR to place Vietnam in the Watch List (WL) and the Philippines in the Priority Watch List (PWL) for their failure to address adequately the growing problem of media piracy. It alleged that Vietnam and the Philippines failed considerably to curb piracy and to comply with international copyright standards. The local digital media markets of these countries remained counterfeit. The local courts were not deterrent against piracy and the law enforcement system was often non-existent and non-transparent. In particular, it alleged that “Vietnam’s market for every kind of copyrighted material is almost entirely pirate” and its anti-piracy enforcement has been slow, uneven, and almost totally lacking in transparency. With regard to optical media piracy, the IIPA noted that it is rare to find a legitimate copy of a U.S. copyrighted work in both digital and non-digital formats in the communist state. Instead pirated music, film, computer program and other copyrighted materials are readily available both online and in retail stores throughout the country. The optical media production lines in the country exceed Vietnam’s low consumption levels and are believed to be used for piracy (2001 IIPA Special 301 Report).
The Philippines, like Vietnam, also received a strong negative assessment and recommendation from the powerful IIPA in 2001 due to rampant optical media piracy. The IIPA report alleged “[t]he Philippines is rapidly becoming a central battlefield in the increasingly intense campaign against optical media piracy in Southeast Asia; but the country remains ill-prepared to fight this battle” (p.175). Its pirate production capacity continues to increase and its domestic market remains heavily infiltrated by pirate product in all segments, from software to audio-visual, music to books. Moreover, it alleged that the Philippines lacked regulatory controls, updated legal framework and strong enforcement mechanism on the optical media business. The production, distribution and sale of unauthorized music CDs, video CDs, and CD-ROMs containing illegal copies of business software applications and/or entertainment software as well as literary material in the country are damaging the legitimate market of the copyright industries. In its overall assessment, the Philippines remains ill-prepared to fight optical media piracy as it lags behind in meeting its international obligations under the Trade Related Intellectual Property Rights (TRIPs) of the General Agreement of Tariffs and Trade (GATT) (2001 IIPA Special 301 Report, p. 175).
As a response to the IIPA and USTR’s international pressure and in compliance with the IPR aspect of their bilateral and trade obligations to the U.S., the Philippine and Vietnamese governments took some significant legislative and administrative steps to curb copyright piracy, particularly media piracy in their own respective jurisdiction since 2001. With regard to copyright laws, the Philippines and Vietnam updated their respective IPR codes to simplify and comply with international standards demanded by the USTR and to make them deterrent to media piracy. The Philippines, in particular, amended its existing copyright law to increase the scope of, and the penalty against, unauthorized production and distribution of optical media. In 2003, it enacted the 2003 Optical Media Act to criminalize media piracy and increased its penalty thereof. To fight film piracy and illegal recording of feature films inside cinemas which often targets American blockbuster movies to be distributed illegally as camcords or masters worldwide for mass duplication, the Philippines also passed into law the Anti-Camcording Act (Republic Act 10088) in 2010. Finally, after a protracted negotiation and pressure from the U.S. to curb online media piracy, the Philippines passed into law the controversial Anti-Cybercrime Act of 2012 (Republic Act 10175). Furthermore, to make antipiracy agencies more equipped to fight piracy, the Philippine government strengthened the enforcement powers of its lead agency against media piracy, the Video Regulatory Board (VRB) which was renamed as the Optical Media Board (OMB) in 2003. Moreover, to better fight software piracy and to eliminate copyright piracy in order that the Philippines will be seen as a country with strong IPR protection, the Philippine government created the Philippine Anti-Piracy Team, a coalition of government agencies consisting of the National Bureau of Investigation (NBI), Optical Media Board (OMB) and the Philippines National Police (PNP). This coalition led by the OMB is responsible for the continuous raids of pirated discs throughout the country. It also played an important role when Mayor Alfredo Lim ordered in 20121 to close down the open optical media piracy in the Quiapo Barter Trade Center piracy market in the City of Manila, the top piracy production and distribution center of counterfeit media in the Philippines, long listed as one of the most notorious piracy markets in the world by the IIPA and USTR.
Vietnam, like the Philippines, also updated its copyright laws to combat media piracy and complied with many of the IIPA and USTR’s anti-piracy and law enforcement recommendations. With the determination to transform its economy into a market economy, Vietnam introduced a series of reforms to update its IP laws and strengthen its IPR protection system in order to comply with the international standards. One significant IPR reform is the compilation and upgrading of its IP laws. With the intention of becoming a member of the World Trade Organization (WTO) through the help of the U.S., Vietnam enacted its new IP Law in 2005 which consolidated and streamlined all its IP laws, scattered over 40 legal documents, into one version. It also updates its other laws and regulations which provide provisions related to IP such as the Criminal Code (1999), Science and Technology Law (2000), Customs Law (2001), Trade Law (2005), Investment Law (2005), Technology Transfer Law (2005), etc. (WIPO-UNU). It also issued implementing rules and regulation to enforce the new IP Law of 2005 and other related laws. On December 31, 2008, for instance, it issued Instruction No. 36/2008/CT-TTg which provided guidelines on strengthening copyright management and implementation of copyright and related rights protection (WIPO Lex, Vietnam). In recent years, the Vietnamese government has also rid government offices of pirated software and investigated, and in some cases raided and fined, businesses suspected of using pirated software”(BEBA, 2013). To combat the rising online media piracy, Vietnam, like the Philippines, also passed a similar an Internet law signed by the Vietnamese Prime Minister Tan Dung last July 15, 2013 which basically prohibits personal webpage owners to take news from news media agencies and use it as if their own—Decree 72 (Palatino, 8 August 2013).
Despite government’s efforts to regulate the Internet and improve IPR protection, and USTR’s pressure, Vietnam’s online media piracy is a growing problem. It is estimated that up to 90 percent of all digital content provided to users on the Internet in the country which includes music, movies,e-books, software and mobile phone applications is pirated. In 2012, Zing.vn, a portal run by a Vietnamese company, became the highly-publicized infringing website in Vietnam with more than 30 million Internet users and was attracting investments from major international investment firms (AmCham, 8 Feb 2013). In 2011, the U.S. embassy was forced to maintain a “Zingme” account of this notorious website to network and “to reach out to young people in Vietnam as it seeks to build closer ties with its former enemy” as there were no available legal websites with huge following like Zing.ven during this year (Brumitt, 29 Oct 2012).
The growth of online digital piracy occasioned by the increasing Internet penetration in the country and the popularity of the broadband technology in mobile phones did not, however, decrease the popularity of the optical disc piracy in Vietnam. Optical media illegally copied on CDs and DVDs and sold to the public continues to grow in major cities by mobile vendors and by registered CD-DVD shops in Vietnam. The elevation of Vietnam from Watch List (WL) to Priority Watch List (PWL) in the USTR’s 2014 Special 301 Annual Report for the first time after being listed in WL for 16 consecutive years is an indication that media piracy has not declined despite copyright reforms in the communist state (2014 USTR Special 301). This observation can also be applied for the Philippines. After more than 15 years of IPR reforms since the IIPA listed the country as a central battleground of video piracy in Southeast Asia, one can still sense the same intensity of copyright infringement in the country—albeit shifting more this time in the cyberspace. Although the Philippines was removed from the Watch List of the USTR’s 2014 Special 301 Report, massive physical and online media piracy has not substantially declined even with the “closure” of the notorious Quiapo piracy market in 2011. Thus, despite the Philippine and Vietnamese governments’ continuous efforts to improve their respective IPR protection system, media piracy or the unauthorized copying, downloading, sharing and trading of copyrighted media materials in digital and disc forms continues with impunity. By inspection, one can still observe the clandestine piracy distribution network of Quiapo and see the similar site of illegal vendors selling pirated discs in sidewalks, kiosks, wet markets, rented stores, and stalls in medium-size malls throughout the country.
The persistence of the media piracy, particularly optical disc piracy, in the Philippines and Vietnam makes one wonders: Why is media piracy persisting in these two countries despite the pressure of the USTR and government’s efforts to introduce copyright reforms and renewed drive against copyright piracy? What are the major social forces which support and sustain this persistence in these two Southeast Asian countries? What sociological insights can we cast on this phenomenon?….
Photo credit: Author
This is an excerpt of a draft of my book: “Sociological Perspectives on Media Piracy in the Philippines and Vietnam” for Springer Science+Business Media.Please don’t quote without permission.
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