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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 153
January 23, 2010

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Reviewing the views

Is software piracy wrong?

Fayazuddin Ahmad

Software is not restricted to programmes but also extends to computer data, programme languages, databases, flow charts and user manuals. To differentiate them from hardware, software programmes have been classified as intangible, abstract ideas and/ or mental processes and this has lead to questions as to whether they can be pirated. Piracy, especially when it comes to information goods which software is classified as one, has been legally termed as the infringement of intellectual property rights through the unauthorized use and distribution of the software. Software piracy includes soft lifting, downloading software programmes on the internet, renting and hard disk loading and software counterfeiting. It is important to note that for an act to be considered as piracy it must be contrary to the software licensing agreement, which is a contract transferring less that all the intellectual property rights in the software. In this context, intellectual property is the broader label for patents, which denotes a temporary right to exclude others from using a novel and useful invention. Thus software patents have been referred to as any patented innovations that can be embodied in software.

There are debates as to what extent can software be said to be an innovation since it is mostly based on mathematical algorithms which are already in the public knowledge and also that most of the software programmes are simply clones of products already in the public domain and this in itself does raises intellect issues and whether indeed software production can be considered as an innovative process. It may be sufficient to say that the debate does raise the question as to whether software patents are being used to make monopolistic proprietary claims over the global commons and whether this in itself is an abuse of Intellectual Property Rights system.

At the same time, information and technology of which software is a major component, has fuelled the process of economic globalization and the propagation of neo-liberal economic policies of trade liberalization, which have contributed to the economic underdevelopment and exclusion of countries in the South. Trade liberalization includes, addressing the problem of non-existent or weak intellectual property systems in countries of the south thus making intellectual property part of the neo-liberal agenda of exclusion and a contributing factor to the 'digital divide'. In this context, the issue of software piracy shifts from just being seen as a matter of simple theft but rather as a complex social-legal issue, which raises the question whether software piracy is a means to a justifiable end.

Just as with economic development, in the world of hegemonic globalization, the existence of the neo-liberal economic consensus which advocates for a free market based approach to trade in goods and services and the concentration of market power in transnational corporations present an obstacle towards the realisation of access to information and technology. It is therefore not surprising that the prediction that with economic globalization, technology will spread to Developing Countries and Least Developing Countries and produce a “digital dividend” failed to materialize, instead it produced a “digital divide”. Defined in terms of differences in access to the essential tools of the information society and to the infrastructure of the networked society or economy, the digital divide is recognised as a great impediment to development and thus a critical problem for countries of the global south. Notion of the digital divide is one that ought to be considered in the wider context of social inclusion and as an aspect of the inequalities within forms of globalization. This is in the light of assertions that the digital divide has served as a market ploy in the globalization game used by the big multi-national corporations based in developed countries. Indeed as observed, the Global Information Infrastructure, which is supposed as a strategy for technological diffusion was designed by the World Trade Organisation based of free market rationale for economic growth; through trade liberalization and addressing the problem of weak or non-existent Intellectual Property Systems in countries of the South.

Economic globalization, through the neo-liberal agenda, serves as a setting for the digital divide, with information technology, because of the intellectual property structure, inducing highly unequal distribution of the gains from globalization. Indeed, Intellectual Property Rights, through patents, have ended up giving monopolistic licensing power to companies in the developed word where most patents are registered thus suppressing of the creative power and technological development of the countries of the South. This in turn has relegated the countries of the south to dependent passive users of technology, relying on handouts of technology from the north, which in most cases is either obsolete or inappropriate for the needs of the south.

Further, the structuring of the intellectual property system has been done in such a way that it requires considerable investment to obtain a license. For most countries in the south, their level of development level of development is such that paying for royalties does impose economic constraints, especially in relation to their balance of payments which impedes their ability of catching up with the countries in the north economically and in terms of overall development. Yet at the same the developing countries do consider free flow of information as essential for economic development, thus to avoid the costs of intellectual property developing countries look for cheaper ways of obtaining technology, which is either through free riding or piracy.

In fact higher levels of piracy have been observed in countries whose economies are underdeveloped or in transition. Such countries view strong intellectual property systems as being against their economic objectives, hence there is no political will to enforce intellectual property rights or recognise patents. Indeed from the perspectives of the South, less piracy could mean more imports and hence higher demands on their balance of payments, higher licensing fees, which are a drain of foreign exchange and a reduction in jobs offered by the piracy industry However, it could have been worthwhile to do a comparative analysis in terms of how much the countries with the highest software piracy rates save in terms of balance of payments and whether that offsets the possible gains from tax revenues. At the same time, it does seem that the more a country develops the lower the piracy rates, which is what is now happening in China.

Contrary to the popular belief that Intellectual Property rights were going to promote economic growth and transfer technology from the global north to the south, promote innovation, and allow innovators to recover their research and development costs, Intellectual Property rights have also been used as tool for political coercion. The United States using Intellectual Protect rights to preserve its advantage over Japan in the area of technology and pointing out that this was done through an extensive foreign policy. By the end of the day, Intellectual property rights become more or less tools for a government sanctioned monopoly; aiding a few firms in the global north reap higher profits by maintaining, what others have referred to as an 'illegal' monopoly over technology development and advancement. The move to privatize goods that were in the public domain through intellectual property is in itself a form of theft.

The patenting system contributes to the reinforcement of the technical dominance of large corporations and the protection of their import monopoly while preventing technology transfer by the sensational articulation of the term piracy. The patent system is also misused by large powerful patent holders who by coming together and forming patent pools create patent thickets resulting in royalty stacking and causing pollution of the economic environment to the detriment of countries of the South. These thickets not only prevent innovation by other but also ensure that the patent pools continue getting royalties by preventing any future competition. With the domination of the patent system by corporations, the possibility of technological transfer and developing countries catching up economically is either very slim or non-existent as such the prospect of pirating will always remain attractive.

The conceptualization of piracy as theft by the corporations ignores the fact that information is simply too ill-defined and flexible, to allow it to be described as property as the term is presently understood and this begs the question whether one can steal an idea or an innovation, which is what copyright law seeks to protect. This has lead to comments that perhaps the whole rhetoric about piracy being theft is aimed at counterfeiting by organised crime rather than individual cases of piracy while at the same time reinforcing the notion of intellectual property qua property and masking the capture and enclosure of the global commons by the dominant information-rich. Indeed while theft deals with permanently depriving a person of ownership in property, the word has been appropriated by the software industry to protect innovations at the expense of other innovators and for purposes of exclusion of the information-poor. In this context, perhaps software piracy can be viewed as a subaltern struggle against exclusion and the digital divide. This is of course on the assumption that information goods constitute property that can be stolen.

It is also worth pointing out that software is pirated from an original copy, which would in most cases, have been legally purchased and hence it could be argued that the patent holder can no longer control its further use, under the first sale doctrine. This issue is more pertinent for the South, where the concept of copyright goes against the cultural philosophy that knowledge which is in the public domain should be shared. Thus in the cultural context, software piracy has been viewed as being socially acceptable in the South, being part of the culture of sharing what is seen as a public good necessary for their advancement in life. Software piracy should be envisaged, just as bio-prospecting of indigenous knowledge is thought to be, as something that is done for a greater good and hence legitimate. With the reason behind piracy being for the greater good and when the copying is done with an honest belief that what is being done is morally right, it would be difficult to justify the same as theft. Indeed if the owner is not permanently deprived of the goods, in this case the actual idea, which still remains with the owner after the act of piracy, it cannot be argued that there has been theft as the offence is presently framed in most statutes.

The issue of software piracy is one that is too complex and needs to be located in the realm of social justice and not only viewed from the TRIPS point of view. The categorisation of software piracy under TRIPS in terms of theft places the right of patent holders over the rights of the people of the South to access to information and knowledge. Combating software piracy, especially in areas where the authentic product has not penetrated does more harm than good. Here the harm should be seen in terms of perpetuating the digital divide and global inequality, underdevelopment and impoverishment of the south, the consequences of which are deaths, in most cases of children. In this context then perhaps software piracy can qualify as a subaltern struggle against the digital divide as a product of hegemonic globalization. And as with all counter-hegemonic struggles; they do not have to necessarily operate within the law to be considered legitimate. Software piracy, in as far it has been shown to improve the economic status of countries of the South and taking their people out of impoverishment, could not it be viewed as justifiable?


The author is an Advocate and Researcher.



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