May 29, 2006	Monday	Jumadi-ul-Awwal 1, 1427

TOMORROW, May 30, is the last day of the 40-day grace period granted by the US-based Business Software Alliance (BSA) to the Pakistani companies and vendors engaged in producing and selling pirated copies of the software products which legally belong to and have been marketed by the leading western companies.

What will happen after the grace period ends is not much clear if one goes through a recent announcement in the national press. It simply says that the April 20-May 30 period offers great opportunities for businesses to start using legal software without facing penalties of the past infringement of copyright law. It is a vague threat.

Will the BSA carry out any raids against the ‘pirates’ on its own or with the help of local security agencies or just ask the latter to do so on its behalf remains to be seen?

The advertisement in the newspapers says piracy is a crime and Pakistan lost Rs1.5 billion in 2004 alone, according to a BSA study. The products in question are computer and internet soft wares. It also asks the buying public to help the BSA and give up the habit of going for illegal goods simply because they are cheaper.

The BSA, little known in Pakistan, does not give its address and only gives its telephone numbers. Its website, mentioned in the advertisement, does not cover Pakistan.

The BSA, established in 1988, has been running an anti-software piracy campaign in 80 countries for over a decade. It speaks for the world’s commercial software industry and its hardware partners before governments and in the international marketplace. Its members represent one of the fastest growing industries. They include Adobe, Apple, Autodesk, Avid, Bentley Systems, Borland, Cadence Design Systems, Cisco Systems, CNC Software/Mastercam, Dell, Entrust, HP, IBM, Intel, Internet Security Systems, McAfee, Microsoft, Minitab, PTC, RSA Security, SAP, SolidWorks, Sybase, Symantec, Synopsys, The MathWorks, Trend Micro and UGS.

According to the BSA, 35 per cent of the software installed on personal computers worldwide was pirated in 2004; it was 36 per cent in 2003. But losses due to piracy increased from $29 billion to $33 billion. Although piracy rates decreased in 37 countries, they increased in 34 countries and remained consistent in 16 countries.

The countries with the highest piracy rates were Vietnam (92 per cent), Ukraine (91 per cent), China (90 per cent), Zimbabwe (90 per cent) and Indonesia (87 per cent). The countries with the lowest piracy rates were the United States (21 per cent), New Zealand (23 per cent), Austria (25 per cent), Sweden (26 per cent) and United Kingdom (27 per cent).

The BSA is also conducting a vigorous anti-piracy campaign in India and has announced to give a reward of Rs0.5 million to those persons who give information in confidence about the companies engaged in large-scale piracy of IPR products. Meanwhile, the United States Patent and Trademark Office (USPTO) has decided to appoint for the first time an experienced IPR attache at the US Embassy in New Delhi to monitor implementation and protection of intellectual property rights in the country.

US Consul General in eastern India Henry V Jardine said at a seminar on May 8 in Kolkata that efforts were also on to associate the FBI, Department of Justice and Customs Services, in the process and to provide other assistance to India in IPR enforcement. Representatives from some of these agencies will be working in close collaboration with their counterparts in India in this programme in the next few months. According to him, there has occurred a stupendous growth in software piracy in India in recent years.

It is surprising to note that despite India’s adoption of the product patents regime in early 2005, the United States has retained India in the most severe category of countries accused of not providing an adequate level of Intellectual Property Rights (IPR) protection.

Washington has, however, taken Pakistan off the priority watch list of countries providing inadequate IPR protection after Islamabad, it says, improved its patent laws and enforcement machinery. But it is Pakistan’s effective role in war in terror which is another reason for this change of mind.

The annual Special 301 Report by the office of US Trade Representative (USTR) has included India among the 48 countries that have been retained in the 2006 priority watch list. “India made some improvements to its IPR regime during the past year but IPR protection concerns remain due to inadequate laws and ineffective enforcement,” the USTR said in the report. China, it is noteworthy, has again topped the list this year.

Perhaps for some political reasons, the USTR appears moving closer to filing what could be the first-ever challenge in the World Trade Organisation (WTO) against China on charges of intellectual piracy by using dispute settlement options. The USTR claims that 85—93 per cent of all sales of copyrighted products made in China in 2005 were pirated. Another country to face strong criticism in the 2006 report, also for some political reasons, is Russia.

While intellectual property is in itself a new, unique phenomenon, being a kind of property having no physical existence, its piracy is equally a puzzling concept for many. The fact is that most of us do not place intellectual property piracy in the category of crime, for when we tape a TV programme or a CD, or photocopy a book we hardly feel committing a wrong, much less a crime. We take it as a routine matter. There is in fact a worldwide campaign by corporate sector to compel governments to commit considerable resources to anti-piracy battle.

Another corporate strategy is the attempt to link intellectual property piracy with organised crime – the crime that the public is afraid of. Microsoft had gone, in its response to the EC Green Paper on Counterfeiting, to the extent of claiming that software counterfeiting operations are “financed and controlled by Asian crime syndicates” and that there are “direct links between European counterfeiting operations and the narcotic trade.”

But intellectual property piracy, just like piracy on the high seas, is something that is hard to pin down legally. In fact, there is no legal definition of IP piracy. Piracy is, of course, one of the world’s oldest professions and one of the oldest sources of the West’s prosperity. When Sir Francis Drake, the great sea pirate of his time, robbed Spanish ships of their all treasures and then sank them into the bottom of the ocean, he was declared a national hero in England. Despite requests from the Spanish elite that he may be hanged, Queen Elizabeth I knighted him on the deck of his ship.

Under Elizabeth’s rule, piracy became a large-scale and respectable business and many aristocratic families and high-ranking naval officers turned to it. Since England was poor, compared to Spain, at the time, the richly-laden ships returning from Americas were looted by British pirates. Another English pirate to be honoured was Henry Morgan. He was often commissioned to loot Spanish ships and towns by the governor of Jamaica. But he once sacked Panama in violation of the terms of his commission. He was taken back to England and tried for “piracy”. But things worked out in his favour and he was knighted and sent back to Jamaica as deputy governor.

According to Peter Drahos, a famous IPR scholar, the use of piracy in conjunction with intellectual property has its political overtones as well. During 1970s, 1980s and 1990s most Asian states were accused by certain US multinationals of containing centres of IP piracy. This was part of a strategy to obtain support for the global economic agenda of these key multinationals. It proved very effective because it drew on prejudices and anxieties within the US about the future economic security in a world where successful ‘Asian tigers’ were on the prowl. And recently, it is ironic to note that some of the same corporations have been on the receiving end of this strategy as indigenous people in most of the countries have accused them of bio-piracy, the theft of traditional medicinal science.