Xinhua announced today that this presages a new era in China’s fight against IP infringement, suggesting that China is indeed winning the battle against piracy. But is that just wishful thinking?
In some ways, I’d definitely go along with that opinion, but with some caveats. First, we’re talking here about copyright infringement of digital media. One cannot use this development to make any generalizations about other kinds of copyright infringement (e.g., illegal copies of Windows or counterfeit Mickey Mouse T-shirts). Moreover, this certainly doesn’t tell us anything about trademark or patent infringement.
Second, getting the major sites involved is significant, but it only works in the long term if rigorous enforcement ensures that no new players enter the market. For example, shutting down Napster and cleaning up YouTube wouldn’t have had nearly as big an impact if sites like Isohunt and Demonoid were still up and running. Yes, it is true that a lot of unsophisticated users would never go to smaller sites, preferring to stick with one or two large portals, but you never know what can happen if a torrent site gets sufficient traction, particularly with the younglings out there and the viral nature of online information.
Third, we still don’t know what the business models will be for the new fee-based systems. Along with enforcement, you need realistic fees to get users to opt out of piracy. Apple finally gained traction in the U.S. with a $0.99 price point, and others have gone with ad-based online listening systems (e.g., Pandora) or flat fees for listening and/or downloads. What will it be here in China, where price elasticity is probably quite high? Xinhua says that the rising incomes in China will make this easier; probably, but if everyone is used to paying nothing, the range of acceptable prices is quite limited.
Fourth, and I’m not sure how significant this is, remember that it is not illegal in China to download copyright infringing works. Rather, it is the uploading and hosting that are the primary infringing acts. No one really knows how effective industry-initiated lawsuits in places like the U.S. were as opposed to other enforcement activities, but targeting a few downloaders definitely scared a lot of people. The law in China does not allow for that kind of strategy, and that difference might mean that infringement will be more difficult to stamp out here.
All that being said, I am optimistic. We’ve already seen significant action on the video side, and it does seem that when industry and large portals get together to make deals based on reasonable business models, most unsophisticated viewers will opt in and avoid complicated or dodgy sites.
I am not, however, willing to get on board with Xinhua’s recommendations for further action, which include going after manufacturers and distributors, more public awareness campaigns, and other education initiatives such as courses on IP infringement in universities.
Look, I know that arresting folks who make DVDs makes for good statistics, and television footage of steamrollers flattening great piles of CDs is by now traditional, but really, who cares about that sort of distribution anymore? I don’t know too many people who still buy DVDs, and I assume that with young people, the numbers are tiny. Physical media like that will eventually die out. Enforcement budgets are better spent on online activities.
Most of you out there in China Hearsayland already know that I have little to no respect for public awareness campaigns. People know that infringement is wrong, but they do it anyway if it’s easy, relatively safe, and (in countries where it is illegal) they know they will not be caught. Money spent on Jackie Chan advertisements and university courses is a waste. That might sound odd coming from someone who teaches intellectual property law, but I’m in the business of training future lawyers, not dissuading kids from stealing IP.
The recent news concerning online music was welcome and a significant step in the right direction, but we still have a long way to go.