The Term Digital Piracy

First, in usual computer terminology the term “digital” generally applies to the format in which data is stored, used and manipulated in computers, CDs, DVDs etc. In this context it is the opposite to the term “analogue” which is used to describe data stored in, for example vinyl records. Therefore, while the use in this study of term digital content refers to data presented and stored digitally, the term digital piracy is used in a very specific way that is unrelated to this general common usage and refers specifically to the infringement of intellectual property rights, that do not involve the use of physical hard media for the reproduction and exchange of pirated material. Therefore, in the context of this study “digital piracy” covers only internet and direct computer to computer transfers, LAN file sharing, mobile phone piracy and so on.

Second, in the context of this study and term piracy is used to describe infringement of copyright and related rights only. While the IP rights described in WTO agreements on Trade-Related Aspects of Intellectual Property rights (TRIPS) – which form the basis of the OECD’s work on counterfeiting and piracy, could potentially cover the digital infringement of trademarks and industrial designs, this study focuses on digital infringement of copyrights and related rights, which parallels the way the term piracy is used in TRIPS.

Third, while the term digital piracy as defined earlier is used liberally in this study, there are some difference between economies as to what is considered as a copyright infringing activity and what is can be considered to be fair dealing, fair use and private and domestic use. This is because copyright as a legal right is given effect through national laws. While these national laws have many similarities, either because they result from similar legislative interest that result in the establishment of copyright protection, or because they result from the international treaties on copyright that set minimum standards for that protection, as a general rule, countries are entitled to certain level of flexibility of their treaty obligations. Countries may provide a level of copyright protection that may exceed the treaty minimum. A more detailed review of legal foundations for copyright, and acts constituting its infringement in different economies.

Last, to my knowledge legal jurisdiction do not offer a formal legal definition of digital piracy, so this term doesn’t not necessarily have a clear and unambiguous meaning outside of this context of study. In particular while this study digital piracy means digital infringement of copyright, it is arguable that outside of the context of this study there could be distinction between the two concepts, at least from the legal perspective.

The phenomenon of copyright theft, more commonly referred to as ‘piracy’, has taken root in three different areas, inhabited by different characters, with different backgrounds and motives. The first such area is the ‘developing countries’. This is a vast market for the pirates, both professional and amateur, who abuse copyright on a worldwide scale. Copyright theft at that level is often ‘justified’ by pirates and tacitly ‘approved’ by governments as a means to meet the needs of these countries’ population who is hungry for education and technology and cannot afford to pay for copyright. The second area is the electronic world around us. Here, pirates are well-established and well-connected, and have the technical know-how to attack all the media sectors, from books, music, video and films, to cable and satellite broadcasts, and even computer software. At this level, piracy is principally a highly sophisticated, almost industrial, process. The electronic pirates often have their own factories and manufacturing plants, and the own worldwide distribution networks.

They also have become a large-scale industry which successfully competes, and frequently overshadows, the legitimate international conglomerates, and which even completely dominates whole markets. Finally, the electronic pirates have a strong presence in every country around the globe, namely in both ‘developing’ ones that ‘import’ and ‘consume’ copyrighted material and ‘developed’ ones that ‘produce’ and ‘export’ such material, they play for high stakes aiming at large profits, and their operations are often closely linked with organised crime.

The third area is very close to home, and even within it. While the piracy that occurs in the two aforementioned milieus represents a systematic and large-scale abuse of copyright, at that third level there is a casual, day-to-day, abuse of copyright which takes place in millions of private dwellings across the world. Piracy here is of a small, individual, scale, and appears relatively harmless and even innocent. For the motive of this type of abuse is not commercial profit; instead, it is the mere private use and enjoyment of copyrighted material.

Due to its nature, that form of piracy is often exempted from liability by copyright legislation under the specific headings of ‘exceptions’, and ‘free’ or ‘fair’ use. However, this phenomenon, known as ‘private copying’, is the form of piracy most feared by copyright owners because it is hidden, pervasive and, above all, difficult to control. Consequently, this form of copyright theft is probably the most troublesome area of copyright abuse and the most complex to deal with

The aforementioned three areas constitute the main expressions and ideas of copyright theft, and thus appear and reappear throughout the present thesis, occasionally overlapping but almost never dependent on each other. Finally, it must be stressed that, copyright theft, in whatever form or level, has negative repercussions which are not only social and cultural, but also, and indeed predominantly, economic. These repercussions are strongly felt at an individual, national and international level. Consequently, the confrontation of the phenomena of ‘piracy’ and ‘private copying’ has become a priority for all parties concerned: copyright owners and industries alike, governmental authorities and enforcement agencies, and finally, international intergovernmental bodies and organisations