Democracy of Sound: Music Piracy and the Remaking of American Copyright in the Twentieth Century

by Alex Sayf Cummings

  Similarly, the People’s Republic of China experienced an influx of foreign music despite its long struggle to control what the Chinese people could see, hear, and say. By the early 1980s, some of the prodigious flow of bootleg tapes from Taiwan and Hong Kong crossed into China, as the Communist government opened up “special economic zones” along the eastern coast to foreign trade. In the early 1980s, the Chinese authorities felt it necessary to issue a booklet called “How to Distinguish Decadent Songs,” which warned against music with a “quavering rhythm,” “a frenzied beat, neighing-like singing and a simple melody.” It singled out jazz, rock and roll, and disco for their perverse qualities and damaging effects, while declaring that the Chinese pop music of Hong Kong and Taiwan celebrated “deformed love in a colonial or semicolonial society.” While the government condoned the sale of Yugoslav folksongs and agitprop like “Medical Teams in Tanzania,” Chinese listeners looked for “Puff the Magic Dragon” and The Sound of Music. Most of these recordings were pirated, since foreign companies were not allowed to distribute such decadent material in China. Ironically, in the early 1980s, the Chinese government took the sort of proactive steps to suppress piracy that Western leaders later implored the Communist state to take in the 1990s. Customs officials in Shenzhen began confiscating cassettes, records, and videotapes smuggled in from nearby Hong Kong, while the administration of Qinghua University demanded that students turn in all foreign recordings. Officials at another school in Beijing requested that students register their records and tapes with the authorities.27

  Networks and Flows

  Nearby Taiwan was one of the vectors of piracy in the world economy, although it would largely cede that role to other developing countries later in the 1980s. The island’s bootleggers were just as eager to export their wares as the legal manufacturers who had begun to supply cheap labor and goods to the West, and counterfeit sales were driven both by rising incomes in Taiwan and demand from abroad.28 Buyers came from the Middle East, Africa, America, and India to browse for pirated books, hair dryers, motor parts, and, of course, sound recordings. Meanwhile, Taiwanese law allowed judges to consider their own “moral convictions” in sentencing, and many were reluctant to condemn entrepreneurs for copying foreign trademarks, copyrights, and patents. Most convictions carried a six-month jail sentence, which was frequently commuted to a small fine; many infringers could simply factor these costs into their bottom line. Like fines, bribes could also be a matter of operating cost for pirates. “One counterfeiter was unable to pay a bribe to turn things his way in a civil law case because he had exhausted his resources on bribery to head off a previous criminal prosecution,” journalist Jonathan Fenby reported in 1983.29

  Whomever a pirate bought protection from, local authorities showed a general attitude of indifference or even tacit support for pirate industry, well into the early 1980s. Vincent Siew, the director of Taiwan’s Board of Foreign Trade, compared his nation to Japan in the 1960s. “Twenty years ago,” he said, “Japan was branded as a major source of imitations. Now Japan has burst through that period to produce its own designs and technology.… It becomes inevitable for developing countries in this stage to imitate in order to learn.”30 Siew condemned counterfeiting of all kinds, but he also suggested that Taiwan had a legitimate need to catch up in the process of economic development, regardless of property rights claims from abroad. Singapore’s prime minister, Lee Kuan Yew, echoed this sentiment. The Japanese, he said in 1979, “learnt, they imitated; they were poor imitators at first; they caught up, they surpassed. The Koreans are doing likewise and Brazil and Mexico are making the grade. And they could make the grade better and faster if the industrial countries and their governments were not so self-centred and took a longer view in terms of one interdependent, inter-reacting world.”31

  Lee spoke broadly of imitating the West, of acquiring its technologies and learning its ways of production; in other words, he likely did not mean his remarks to refer narrowly to copyright infringement or music piracy. His comments imply, though, that industrializing countries had to reach a certain level of economic or technical sophistication before they could afford to adhere to Western copyright laws. Singapore’s position in the world economy was not unique. The UK Anti-Piracy Group cited the “developing and newly-industrialized countries” of Asia, such as Indonesia, Malaysia, and Taiwan as the biggest culprits, suggesting that piracy flourished in neither the wealthiest nor the poorest countries.32 In the rich world, more energetic enforcement of copyright law and the inclination of affluent consumers to buy the real thing kept piracy to a reasonable, if persistent, minimum. In the very poorest countries, cassette recorders and other new media had not disseminated fully enough to support a brisk pirate trade. But in rapidly industrializing countries, the technical means were easily at hand, and growing consumer markets beckoned throughout the Third World.

  Industrialization had proceeded furthest in East Asian nations like Singapore and Taiwan, where entrepreneurs seized on available technologies to set up tape mills and export counterfeit copies to less-developed countries throughout Africa and Asia. Pirates in Singapore shipped tapes to the United Arab Emirates, which were in turn sold in Saudi Arabia, and then resold in poorer countries like Egypt, Somalia, and Yemen. Taiwanese book pirates sent “trade delegations” to Nigeria. Antipiracy investigators from the International Federation of Phonograph Industries (IFPI) caught up with one of their shipments in Nigeria in 1983; raids the next year nabbed containers of pirate books in Benin, Cameroon, and Ivory Coast. The shipments subsequently entered through Liberia, which had no copyright laws. Nigeria had been the main point of entry into West Africa, where books and tapes passed through traditional commercial towns to a network of smaller settlements through the countryside.33

  For instance, the city of Kano in northern Nigeria offered consumers a wide variety of Hollywood blockbusters, Bollywood musicals, and Islamic sermons in local markets, while entrepreneurs reproduced a new genre of Hausa “videofilms” on the same rickety tape decks used to pirate foreign works. For centuries the city had functioned as a trade center for a region that stretched from Cameroon to Ghana, and this network of exchange became part of a larger circuit that connected Taiwan and Dubai to peddlers and nomads in West Africa. A man in rural Nigeria could watch a Jean Claude Van Damme film with Chinese dialogue superimposed over Arabic subtitles. The name and fax number of a pirate in Abu Dhabi might scroll across the screen; if the farmer watching it understood English, he might be amused to see the warning “Demo tape only. Not for rental or sale. If you have rented or purchased this cassette call 1-800-NO COPYS” appear every few minutes.34

  The phenomenal growth of this shadow market since the 1970s had paradoxical consequences. Nigerians were more connected to the world market and foreign culture than ever before, yet the anthropologist Brian Larkin observes that the country has “become progressively disembedded from the official global economy (with the single exception of its oil industry).”35 Piracy, the drug trade, and even online scams reflect Nigerians’ engagement with a broader world, albeit on illicit terms. The state, which controlled important systems such as telephone and radio in the early years of independence, encountered new media that it could scarcely control. The sociologist Manuel Castells described the growth of the black market as the result of “perverse integration,” suggesting that unofficial and often criminal enterprises were a central feature of globalizing capitalism. While multinational corporations linked certain parts of the world—say, Taipei and Tokyo in the 1980s or the high-tech industries of Bangalore, India, more recently—other regions became less connected to flows of capital, labor, goods, services, and communication. Such neglected areas provided bases of operation for criminal enterprises, as drug cartels, arms dealers, and human smuggling rings formed international networks and exploited the same technologies relied upon by multinational corporations.36

  Perverse integration, though, was not always so perverse. It comes as little sur
prise that the widening scope of global trade brought with it not just “legitimate” foreign investment by multinational corporations but a range of underground transactions such as bootlegging. Whether one was more perverse or detrimental than the other depends on the commerce in question. In an age of globalization, criminality progressed by degrees, from the criminal mischief of Nigerian e-mail scams to violent operations like human smuggling, from Union Carbide to Pablo Escobar and back again. Along this spectrum, piracy occupied a kind of middle point. Selling bootleg tapes was in many ways a prosaic act in the marketplace, like selling newspapers or fruit. But piracy also tied in at times with the organized criminal empires that colonized the world alongside Western corporations. In its varied forms as small and big business, underworld enterprise and agent of the spread of Western pop culture, piracy connected people to technologies, sounds, and images from beyond their borders. It showed how culture and technology traveled not just from the wealthy nations to the countries they hoped to “develop” but through a variety of channels that crisscrossed the developing world, as production and trade proceeded apace in ways that Western powers could not fully control. As Brian Larkin suggests, it was part of the “infrastructure” of globalization—a globalization made by many hands, in many places, for often contrary purposes.37

  The Antipiracy Movement Goes International

  Copyright interests did not merely resign themselves to a global pirate pandemic, nor did their political allies stand idly by. The 1970s saw international organizations take a series of tentative steps to stem the rising tide of piracy around the world. The United Nations World Intellectual Property Organization won the support of numerous countries for the Phonograms Convention, which did not create new rights but instead mandated that signatories reciprocally recognize each other’s copyright laws for sound recordings and work to stop piracy.38 Thirty-four countries signed onto the Convention by the end of the 1970s; the United States, United Kingdom, Australia, and France had joined earlier on, while India was the first large developing nation to join, in 1975. South Korea and China waited until 1987 and 1993, respectively, to sign, once they had experienced significant pressure from the United States and Europe.39 However, such agreements were not worth the paper they were written on if the signatories did not take enforcement seriously. Peter Manuel’s study of “cassette culture” showed that piracy in India flourished long after it signed the Convention, and numerous scholars and journalists have documented the copying of everything from music to “razors, soap, and cornflakes” in China, regardless of its participation in international agreements.40

  Anyone who has paid attention to the opening minutes of a VHS tape or DVD will likely recognize the next step taken by the international community in its fight against piracy. The warnings that precede most movies (even bootlegs) warn viewers of the declaration by Interpol, the International Police Organization, of its opposition to “audiovisual piracy” at a meeting in Stockholm in 1977. The police group said it was mindful of how piracy hurt national economies, sapping businesses of revenue and fostering unemployment, and it pledged to coordinate efforts between states to stop unauthorized reproduction of movies and sound recordings. Interpol planned to keep governments apprised of international pirate activities and to convey information between the police forces of its members. It also promised to encourage countries to join international agreements such as the Phonograms Convention and to pass new legislation that would allow for adequate copyright protection.41

  Beyond these measures, Interpol could not go; by its very nature, the organization served chiefly to coordinate activities between national law enforcement agencies. Problems such as smuggling, terrorism, and the high-seas piracy of ships occupied far more of the group’s attention in the 1980s.42 Indeed, apart from the declaration’s ubiquity on VHS, Interpol’s commitment to fight piracy barely figures in the group’s history, and little has changed in the twenty-first century. In 2000, the IFPI pressed for a “global police response” to international piracy, which it said “thrives on weak legislation and poorly coordinated law enforcement across national borders,” and Billboard magazine noted that the IFPI had been “actively liasing” with Interpol for over a year.43 Twenty-three years after Interpol added music piracy to its list of concerns, global police protection for intellectual property was still a new idea.

  Interpol’s 1977 declaration was more a reflection of anxieties in developed countries over ills such as unemployment and sluggish economic growth than of purposeful policy. The United Kingdom, for instance, hoped to remedy the problem by updating its 1956 Copyright Act. When the Whitford Committee took up copyright reform in 1977, it focused on concerns that American legislators would have found familiar: how to regulate photocopying in libraries, schools, and businesses; how to prevent commercial piracy and home taping from harming the music industry; and how to fit computer programs into the existing copyright law. The Committee proposed that libraries and other institutions in the United Kingdom pay a blanket licensing fee to publishers that would allow their users to copy freely—much like the compensation that restaurants and radio stations pay ASCAP in order to play music in the United States.44

  The idea of imposing a tax on copiers was appealing to many in Europe and North America. The Whitford Committee proposed a fee on all tape recorders that would compensate the music industry for sales lost to home recording. It cited surveys showing that 88 percent of respondents in Belgium said they copied recordings, while prerecorded tapes accounted for only 22 percent of cassettes owned by consumers. Presumably, the other 78 percent of sales were blank tapes that consumers used to duplicate and share copies of the original albums.45 As early as 1965, West Germany had imposed a levy on recording equipment that provided compensation to composers, record companies, and performers whose works were presumably being copied with tape recorders.46 When the Council of Europe met in 1980 to debate cultural policy, speakers recommended both lower sales taxes on recordings and a levy on blank cartridges that would funnel revenues to the record industry—in essence, shifting the burden of taxation onto consumers and away from the music business, which would also reap a windfall from the sale of products it did not make. Their own products would become cheaper to consumers, and they would get a cut of the blank tape business. What was not to like?47

  The consensus was not absolute, though. A few participants at the Council of Europe’s conference expressed the oldfangled notion that consumers might benefit from lower prices and more competition in the music industry. Gillian Davies, a British intellectual property lawyer who attended the proceedings, remarked ruefully on these ill-informed views. “The opinion was voiced by one or two speakers that piracy and private copying of phonograms were activities to be encouraged, on the ground that it was in the public interest that consumers should have access to recorded music as cheaply as possible,” she said. “Indeed, a surprising ignorance of the principles of copyright law was demonstrated by the speakers.”48 Davies took for granted that strong copyright served the public interest, much as the Whitford Committee had chided those who failed to recognize the importance of property rights in its report to the UK government: “It is always hard for those brought up to believe in competition as the most beneficent market force to realize that the exclusive rights which are granted by national copyright, patent, trade mark and design laws are granted because it is in the public interest to grant them.”49

  The more property rights were disrespected, the Committee assumed, the worse off consumers would be. Property rights trumped free competition as the prime consideration for safeguarding the public interest. Anyone who thought that the state should not restrict the way people used creative works was just ignorant; so was the person who thought that lower prices would benefit consumers. The Whitford Committee presented strong copyright protection as good and wholesome, suggesting that stronger copyright is always better copyright—more of a good thing.

  From Bootlegs to Bullets


  Conferences, conventions, and committees did not stop people all over the world from pirating music. In the 1980s, the IFPI and other representatives of the record industry took a more aggressive approach to fighting copyright infringement, acting as intellectual property police where local governments refused to do so. Investigators traced the movements of bootleg tapes and seized shipments believed to contain illicit goods, while lawyers pushed for prosecutions under whatever local copyright laws existed. “Working with 10 investigators, the federation identifies shops selling pirated tapes and brings them to the attention of the police,” reporter Steve Erlanger wrote of Thailand in 1990. “Unfortunately, enforcement varies with the part of town and the susceptibility of the officers to outside inducements.”50 Seeking redress in foreign courts could be costly and even dangerous. According to the International Federation of Phonogram and Videogram Producers, prosecutions in Pakistan sometimes dragged on so long that plaintiffs had to appear in court dozens of times, while exposing themselves to intimidation and even retaliation.51 One industry representative in Thailand claimed to have received “four bullets in the mail” and refused to give his name when speaking to the New York Times in 1990.52

  If they can be believed, the IFPI’s figures for the early 1980s reflect an impressive campaign to suppress piracy. The group claimed to have confiscated a million and a half cassettes in raids throughout Southeast Asia, though adding that the amount was “a small percentage of the total.”53 Seizures in 1980 were confined to wealthier countries: 4,500 recordings were seized in Japan and 50,000 in West Germany. Spain, which was poorer than some of its neighbors, turned up 300,000 bootlegs. Investigators seized 25,000 records in Egypt the next year, and Chile, India, and Peru came under target in 1982. As the decade went on, various operations in the developing world made ever-greater gains in their pursuit of pirates; raids in Benin, Cameroon, Ivory Coast, Nigeria, and Singapore netted hundreds of thousands of tapes in the mid-1980s. The most developed countries posted big figures as well, even as antipiracy campaigners turned their attention toward illicit markets abroad. The Netherlands saw 250,000 recordings confiscated in 1983, and 350,000 were found in France the following year. The bigger the figures they announced, the more dramatic the problem looked to policy makers and the public.54