A month or so ago, a reader sent me a link to a report on Media Piracy in Emerging Economies. I was immediately enthralled.  The report, put out by the American Assembly at Columbia University, “is the first independent, large-scale study of music, film and software piracy in emerging economies, with a focus on Brazil, India, Russia, South Africa, Mexico and Bolivia.”  It is based on “three years of work by some thirty-five researchers,” and it argues, rather convincingly, that industry lobbying efforts to stop media piracy have largely failed because “the problem of piracy is better conceived as a failure of affordable access to media in legal markets.”

The report lists out the following “major findings,” all of which are eminently relevant for China as well:

  • Prices are too high. High prices for media goods, low incomes, and cheap digital technologies are the main ingredients of global media piracy. Relative to local incomes in Brazil, Russia, or South Africa, the retail price of a CD, DVD, or copy of MS Office is five to ten times higher than in the US or Europe. Legal media markets are correspondingly tiny and underdeveloped.
  • Competition is good. The chief predictor of low prices in legal media markets is the presence of strong domestic companies that compete for local audiences and consumers. In the developing world, where global film, music, and software companies dominate the market, such conditions are largely absent.
  • Antipiracy education has failed. The authors find no significant stigma attached to piracy in any of the countries examined. Rather, piracy is part of the daily media practices of large and growing portions of the population.
  • Changing the law is easy. Changing the practice is hard. Industry lobbies have been very successful at changing laws to criminalize these practices, but largely unsuccessful at getting governments to apply them. There is, the authors argue, no realistic way to reconcile mass enforcement and due process, especially in countries with severely overburdened legal systems.
  • Criminals can’t compete with free. The study finds no systematic links between media piracy and organized crime or terrorism in any of the countries examined. Today, commercial pirates and transnational smugglers face the same dilemma as the legal industry: how to compete with free.
  • Enforcement hasn’t worked. After a decade of ramped up enforcement, the authors can find no impact on the overall supply of pirated goods.

I was so intrigued by the report that I asked one of its lead authors, Joe Karaganis, to do a series of guest posts touching on media piracy in China.  The below is the first of three posts in this series.


Dan invited me to write a post about the recent launch of the Chinese translation of Media Piracy in Emerging Economies—an independent, 6-country study of piracy that I directed while at the Social Science Research Council.  The report is free to download, in English and Chinese, under a Creative Commons license.

There is no China chapter, per se, but there are numerous China connections and parallels that Dan thought would be interesting to China Law Blog readers.  I’ll provide a brief overview, and then try to draw some of those connections.

Our headline finding is pretty simple: developing-world piracy is driven by high media prices, low incomes, and cheap digital technologies—and has not been significantly impacted by scaled-up enforcement.  This is the sort of statement that’s obvious in most developing countries but that is still off limits in most international IP policy contexts, which are still driven by the international copyright trade associations—the MPAA, BSA, IFPI, and so on.  As a result, we continue to have a policy debate focused single-mindedly on strengthening enforcement.  But in our view, if you’re really concerned about piracy, you need to ask which of those other things will change: prices, incomes, or cheap tech?  “Income” is a fine long-term answer in some countries but the realistic short-term answer—the one that rights holders can actually do something about—is “prices.”  Let’s take the example of DVD piracy.

DVD piracy is waning in 2013, but for most of the 2000s it drove the IP enforcement debate, due in large part to the efforts of the Motion Picture Association of America (or MPA outside the US).

The MPAA ramped up its international enforcement efforts in the mid-1990s in anticipation of the launch of the DVD.  This effort played out on several fronts, from the implementation of technical measures like region coding, to mostly successful lobbying for anti-circumvention laws that criminalized the breaking of DVD encryption (this is the 1998 DMCA in the US and 2001 amendment to the Copyright Law in China), to expanded reporting on piracy rates and losses.

Year after year, the MPAA and the IIPA, the umbrella copyright trade group that lobbied the USTR, came up with loss figures and attributed them to a failure of enforcement—to weak laws, inadequate policing, protected organized crime groups, lack of judicial and popular education efforts, lack of special IP courts, and so on.  By 2005, the MPA claimed a 95% rate of movie piracy in China, with losses of $280 million (IIPA 2005).  Such numbers were fairly typical for large emerging economies.  They were also ballpark estimates at best and based on assumptions designed to maximize loss claims, such as the notion that a pirated copy always represents a lost sale.  Criticisms of these claims fell on deaf ears in the US.  MPAA reports informed the IIPA, and IIPA reports were recycled, sometimes verbatim, in the USTR Special 301 report, where China made a perennial appearance on the ‘Priority Watch List.’

This enforcement-centered worldview was very popular with the USTR and Congress, but in our view did very little to explain piracy.  In particular, it ignored the obvious relationship between the illegal and legal markets.  Between 2000 and 2005, the price of DVD players dropped from around $250 to $25—almost entirely due to the expansion of Chinese production.  By 2006-2007, household penetration of DVD players exceeded 50% in all but the poorest developing countries, including, in our study, South Africa, Brazil, Russia, and Mexico.  By 2005, there were over 65 million DVD players in China, and many more older VCD players—the pre-DVD tech that Panasonic dumped on the Asian market ahead of the DVD launch.

In the midst of this massive global expansion of the DVD player market, the studios made no significant effort to expand the legal market for DVDs.  When we conducted our primary research in 2008-2009, new release DVDs were selling for $14-$15 or more in most of the countries we looked at.  The six major studios operated a de facto pricing cartel, which also encompassed the major domestic producers.  High prices meant that legal availability was concentrated in a few central districts and wealthy neighborhoods.  It meant that available stock was usually limited to a narrow range of global hits.

In our view, global DVD piracy is the story of this widening gap between the infrastructure for consumption and the tightly constrained legal market supply.  Pirate vendors, not the studios, moved in to address the new middle and low-income consumers.  Globalized Hollywood advertising campaigns drove the demand. In most countries, this situation persists today.

The exceptions to this pattern were China and India, where top tier films on DVD were available for 2-4 dollars.  Why?  Paramount and Warner Bros. got a lot of media attention for their low price experiments in China in the mid-2000s, but they were following the Chinese studios, not leading them—and not willingly.

In our view, price differences reflected market structure.  India and China were the only countries where film production, distribution, and exhibition was controlled by domestic companies—not the international studios.  In India, domestic film accounted for 95% of the market, roughly inverting the ratio found in other developing countries such as Russia, Brazil, and South Africa.  China, of course, maintained control through state ownership, a quota system for foreign films, and restrictions on foreign investment.

In both countries, domestic studios lowered DVD prices to compete with the pirate market in 2005-2006.  In China, the US studios followed suit because they were desperate to stay relevant to the Chinese market.  The lure of the next billion consumers resulted in exceptional pricing concessions that went well beyond DVDs.  As online services emerged (and merged), top-tier online movie rental prices remained well under $1.  The 2011 Baidu search engine settlement with the major record labels resulted in a blanket license to offer free MP3 access to half a million songs to Chinese Internet users. Elsewhere, $1 iTunes-based song pricing remained the global norm.  Even Netflix has retained US pricing as it expands into developing countries (for access to weaker catalogs).

Chinese and Indian studios could drop DVD prices because, unlike the Hollywood studios, they never reset production budgets and revenue projections around the DVD bubble—around the very recent assumption that studios could double profits through DVD sales. Chinese and Indian companies could treat home video (and the DVD in particular) as a market to build rather than protect.  For the global studios, the rational strategy was to protect the profit centers—the high-income, high-priced markets—rather than engage in complex forms of price discrimination that could undermine the perceived value of the DVD in the US and Europe.  For domestic Chinese and Indian studios, the case for building domestic markets through lower prices was much clearer.  Such strategies didn’t eliminate piracy, of course, but did creating a basis for rapid growth and gradual legalization of the market.  As my colleague Jinying Li argues, Chinese DVD pirates compete today mostly on quality rather than price, beating the cut-rate products offered by the studios.

But the DVD is the past.  What about the future?

Photo of Dan Harris Dan Harris

Dan is a founder of Harris Bricken, an international law firm with lawyers in Los Angeles, Portland, San Francisco, Seattle, China and Spain.

He primarily represents companies doing business in emerging market countries, having spent years building and maintaining a global, professional network. 

Dan is a founder of Harris Bricken, an international law firm with lawyers in Los Angeles, Portland, San Francisco, Seattle, China and Spain.

He primarily represents companies doing business in emerging market countries, having spent years building and maintaining a global, professional network.  His work has been as varied as securing the release of two improperly held helicopters in Papua New Guinea, setting up a legal framework to move slag from Canada to Poland’s interior, overseeing hundreds of litigation and arbitration matters in Korea, helping someone avoid terrorism charges in Japan, and seizing fish product in China to collect on a debt.

He was named as one of only three Washington State Amazing Lawyers in International Law, is AV rated by Martindale-Hubbell Law Directory (its highest rating), is rated 10.0 by AVVO.com (also its highest rating), and is a recognized SuperLawyer.

Dan is a frequent writer and public speaker on doing business in Asia and constantly travels between the United States and Asia. He most commonly speaks on China law issues and is the lead writer of the award winning China Law Blog. Forbes Magazine, Fortune Magazine, the Wall Street Journal, Investors Business Daily, Business Week, The National Law Journal, The Washington Post, The ABA Journal, The Economist, Newsweek, NPR, The New York Times and Inside Counsel have all interviewed Dan regarding various aspects of his international law practice.

Dan is licensed in Washington, Illinois, and Alaska.

In tandem with the international law team at his firm, Dan focuses on setting up/registering companies overseas (via WFOEs, Rep Offices or Joint Ventures), drafting international contracts (NDAs, OEM Agreements, licensing, distribution, etc.), protecting IP (trademarks, trade secrets, copyrights and patents), and overseeing M&A transactions.