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Does The WIPO Copyright Treaty Work? The Business Software Association Piracy Data

By Michael Geist

The Business Software Alliance is out today with their annual report on global piracy in 2008.  The data shows declining numbers in many countries (the report covers 110 countries), though there is an overall increase due to very high rates in parts of the world.  It also points to the growing importance of open source software, which the report says commands 15 percent of the market.

Piracy rates in Canada have been steadily declining in recent years - down to 32% in 2008 from 36% in 2004.  Canada ranks among the 25 countries with the lowest piracy rates, ahead of many European countries including France, Spain, Italy, Greece, and Portugal (notwithstanding claims of CAAST).  The 32% is lower than the European Union average, lower than any country in Africa, Latin America, Central and Eastern Europe, the Middle East (tied with Israel), and lower than all but three Asian countries (Japan, Australia, and New Zealand).  In fact, only five countries that have ratified the WIPO Internet treaties have software piracy rates lower than Canada.  So much for Canada as a piracy haven and deserving of a place on the USTR Priority Watch List.

Beyond refuting many of the claims about Canadian piracy rates, the data is interesting since the BSA uses it to argue that implementing of the WIPO Copyright Treaty (WCT) is part of a blueprint for reducing software piracy.  It says it is one of five key elements:

In 1996, in direct response to the growing threat of Internet piracy, the World Intellectual Property Organization (WIPO) adopted new copyright treaties to enable better enforcement against digital and online piracy. More than 1.2 billion people around the globe now have Internet access - increasing the power and potential of software but also opening new doors for pirates to distribute their wares. In order to ensure protection of copyrighted works in
the digital age, countries need to update national copyright laws to implement their wIPo obligations. Among other things, these measures ensure that protected works are not made available online without the author's permission, and that copy protection tools are not hacked or circumvented.

But does the BSA's own data support the claim that implementing the WCT is a key element in combating piracy?  The short answer is no.  WIPO lists seventy countries as having ratified the WCT.  The BSA does not offer data for 16 of them (Belarus, Benin, Burkina Faso, Gabon, Ghana, Guinea, Jamaica, Kyrgyzstan, Liechtenstein, Mali, Mongolia, Saint Lucia, Tajikistan, Macedonia, Togo, Trinidad and Tobago) and there is no comparative data for Georgia (this is the first year of data at 95% piracy rate).  That leaves 53 countries.  The full chart can be downloaded here, but the data shows that:

Modest increase (5% to 9%)	No countries
Minor increase  (4% or more)	4 countries
No change	4 countries
Minor decrease (4% or less)	28 countries
Modest decrease (5% to 9%)	14 countries
Significant decrease (10% or more)	3 countries

In other words, 68% of the countries that the BSA tracks that have ratified the WCT have shown no change or only a minor increase or decrease in software piracy rates. The three countries that showed a significant decrease are Russia (which only ratified in February), China (which ratified in 2007), and Qatar (which ratified in 2005).  Russia and China are important markets, yet their numbers remain very high (68% in Russia and 80% in China) and few would argue that the big declines are as a result of anti-circumvention legislation.  Moreover, the average software piracy rate among WCT ratifying countries is 62% and, as mentioned, only five countries that have ratified the WCT have software piracy rates lower than Canada's.

What does all of this really mean?  My take is that where software piracy rates are declining, this is due largely to the increasing use of open source alternatives and tougher enforcement.  Notwithstanding the rhetoric that seeks to link the WIPO treaties with addressing infringing activities, anti-circumvention legislation required by the WIPO Internet treaties is largely irrelevant for the purposes of combating commercial piracy.

Full post as published by Michael Geist on May 12, 2009 (boomark / email).