USTR asked to use trade pressure to curtail unauthorized copying of educational materials
The International Intellectual Property Alliance (IIPA) is a coalition of several trade associations representing publishers and copyright holders. Their annual submission to the USTR forms the first draft of the USTR Special 301 list, as it relates to copyright issues. As in the past, the IIPA has asked USTR to focus on educational activities and institutions. The following are references to unauthorized copying of textbooks and other educational materials, from the February 12, 2012 (date on the document is February 10) IIPA submission for the USTR Special 301.
China, page 40
Book (Including Textbook) and Journal Piracy: In addition to the online piracy issues described above, the U.S. publishing industry continues to suffer from physical piracy including unauthorized copying of academic textbooks, unauthorized printing of commercial bestsellers, print- or copy-to-order services, and the availability of pirated or counterfeit books through itinerant street vendors. Well-known university presses suffer from trademark infringement as well, with university names and seals reproduced on content bearing no relation to the pertinent university press. Recent indicators suggest the changing nature of textbook piracy in China. Previously centered around “textbook centers” found within university premises, the evidence shows that such centers are now being replaced by smaller, often private “copy shops” on or near university campuses. These shops engage in unauthorized copying of books to order (brought in by customers for copying) to having popular titles pre-printed and available for purchase, to the most serious and sophisticated arrangements where massive catalogues of thousands of titles in digital form are available for immediate printing-to-order. Pirated or counterfeit bestsellers remain available for sale openly on the streets of Beijing in a number of locations. Individual vendors are often mobile and do not carry large stocks. Wholesalers carry larger stocks, but typically the English language titles are only a relatively small proportion of their stocks. Previous attempts to disrupt the supply chain feeding the street and wholesale traders were frustrated by the lack of personnel, e.g., in the Beijing Copyright Bureau, to conduct coordinated or simultaneous raids on multiple targets at different levels of the chain.
The partnership of the Ministry of Education (MOE) with GAPP, NCAC and local authorities remains essential to tackling the ongoing textbook piracy issues. The industry has positive relations with the authorities, but finds their attention is diverted as soon as pressure (e.g., out of the JCCT or the Special Campaign) wanes. The situation is exacerbated by changes in personnel. A complaint to the Beijing Cultural Enforcement Division in late 2010 brought about two raids (on separate dates) against four retail and wholesale vendors of pirate books. Many limitations remain for addressing hard goods book and journal piracy in China, including a lack of resources in the administrative enforcement authorities, inability to react to time-critical information, inability to handle coordinated raids against multiple targets, lack of power and/or willingness to enter unmanned premises without very clear evidence of specific infringing copies being present in the premises at that time. Generally, a lack of technical capability and legal knowledge hampers enforcement efforts.
India, page 69
Pirate Printing and Photocopying of Books and Journals: Piracy of trade books, textbooks, professional books (scientific, technical, and medical), and scholarly journals continues to harm the publishing industry in India. Book piracy occurs in a variety of ways in the country: unauthorized photocopying, unauthorized compilations in the form of course packs, pirated re-prints of trade titles, and unauthorized and scanned copies of books (particularly in the scientific, technical and medical sectors) and the hosting of such copies on sites created and maintained by university students. Photocopying remains a severe problem for the academic and professional sectors of the industry, and continues on and around university campuses and in libraries, sometimes even condoned by the institutions. Wholesale copying of entire books is increasingly complemented or replaced by use of unauthorized compilations in the form of course packs, or “self instructional material” (SIM). These are used both for classroom teaching and distance learning, with the materials for the latter sometimes found in electronic form. Industry continues to wait, apparently in vain, for the Ministry of Human Resources and Development (MHRD) to issue a long promised government order/circular to all educational and research institutions to combat illegal photocopying on university campuses. India-only editions, low-priced versions intended only for distribution in the Indian market, are being exported to Africa, the U.S., the United Kingdom and other European markets. The low-priced edition program was intended to benefit and meet the specific needs of the Indian market, but unfortunately, the export of such editions out of India is now adversely affecting more developed markets of the member publishers of the Association of American Publishers (AAP).
Brazil, page 131
Book Piracy. The primary form of book piracy in Brazil continues to be unauthorized photocopying of entire textbooks, individual chapters, lessons and study materials, resulting in significant harm to international and Brazilian publishers alike. Many universities tacitly or actively condone copying of apostilas (teachers’ notes or folders), and anthologies made up of chapters from various books copied illegally, both in English and Portuguese. The most immediate concern of academic publishers in Brazil is the problem of university administrative rules that purport to authorize high-volume infringements of foreign works, including by commercial, for-profit copy centers. (See discussion below under legislation.) This phenomenon contributes to an overall climate of disregard for copyright in the academic context among universities in particular, and among government authorities more generally.
Egypt, page 162
Book Piracy Continues to Hinder the Development of Legitimate Publishing Industry in Egypt: Publishers report that print piracy continues to hinder the development of the local legitimate publishing market. Pirate enterprises in Egypt generally profit from prints of English language higher-education textbooks, English language teaching (ELT) materials, best-sellers, and books in translation. Local Egyptian publishers, Egyptian authors, and Egyptian distributors are as negatively affected as foreigner publishing entities. Unauthorized photocopying of ELT course books at universities and piracy of key ELT trade titles, particularly grammar titles and dictionaries, continues to be a significant problem. Regarding print piracy, which is the larger phenomenon in Egypt, assistance has been inconsistent. Nevertheless, industry has had some cooperation in pursuing isolated cases through the Copyrights & Artistic Works Investigation Unit in Cairo. Efforts were initiated in 2010 to raise law enforcement awareness of book/journal piracy and it is hoped that these efforts can be resumed soon. Most enforcement actions occur on the basis of complaints, not ex officio.
As previously reported, there have been a limited number of cases where Egyptian Government authorities were willing to take measures to address piracy occurring on university campuses (for instance, when accreditation to ‘Western’ universities is threatened). Unfortunately, legalizing most universities’ practices tends to happen on an ad hoc basis and varies from faculty to faculty. For example, some faculty members only allow students to register who have a book receipt for a legitimate purchase. Others appear to encourage or condone illegal photocopying. In order to meaningfully tackle the unlawful print reproduction and photocopying that supply university campuses, the Ministries of Education and Higher Education should launch a campaign to legalize published materials used on college campuses. At present, public state-funded universities are taking no responsibility for ensuring that on campus stores, presumably subject to a lease agreement with the university, does not engage in infringing activity. Unfortunately, it appears that some university employees provide the shops with the books, informing them of the number of students, and helping sell the pirate copies to students.
Israel, page 180
Book Piracy: Illegal photocopying at copy shops limits the legitimate market on university campuses. In some cases, unauthorized copying is facilitated by students, who produce the illegal copies of textbooks and sell them to other students. University administrators are apparently aware of the illicit activity but have not acted against the ongoing illegal activity. Certain universities also offer print-on-demand services where a student can request that a customized course pack be printed, for a fee, and likewise post excerpts taken from U.S. books on the institution’s intranet for student use; in these cases, publishers’ permission was not obtained and no royalties for such uses have been paid. In June 2011, in the case of Hebrew University of Jerusalem vs. Yaakov Cohen, the Supreme Court of Israel clarified the doctrine of contributory copyright infringement under Israeli law, holding that in order to find a defendant liable for contributory infringement, a plaintiff had to prove: 1) the existence of a direct infringement; 2) actual awareness of the infringement; and 3) actual and significant contribution. If those factors are present, then in the interest of efficiency, the Court ruled it would be proper to sue the conduits of the copying.8 This case sets an important legal principle under which those who, while not directly infringing, can nevertheless be held contributorily liable for copyright infringement of others.
Lebanon, page 198
book piracy in the form of illegal photocopying on and around university campuses as well as illegal translations and some counterfeiting of textbooks and trade books,
Malaysia, page 203
Book and Journal Piracy Continues to Harm Educational Sector: Rampant unauthorized photocopying on and around university campuses continues to cause harm to publishers in Malaysia. Pirates print directly from soft copy scans of textbooks saved on computers or portable hard drives, making detection and identification of infringement more difficult. Very few copy shops keep stocks of copies or if they do, it is kept at various locations offsite to avoid detection. Other activities making piracy harder to detect include setting up shop facilities in gated residential areas, where a private security guard can warn pirates of incoming authorities. Piracy of books online is also reportedly on the rise, with students claiming that certain titles are available either for download or for copying (even from their university library).
The Philippines, page 226
Book and Journal Piracy: Illegal commercial-scale photocopying of scientific, medical, technical books (STM), as well as textbooks (on or near college, medical, and nursing school campuses), and trade books/bestsellers remains the predominant problem in the Philippines. Unauthorized scanning of books and the sale of unauthorized compilations of educational and professional review materials burned on to CD-Rs (with 100-200 titles per disc) are additional problems. Online piracy of medical textbooks, professional books, and trade books, is also increasing in the Philippines.
The large number of college and graduate students in the Philippines results in high demand for university textbooks, technical books, and professional medical and nursing books. Unfortunately, much of this demand is being met through unauthorized photocopying and through downloads of unauthorized digital (scanned) copies of books onto mobile devices. The “university belt” in Metro Manila is notorious for illegal photocopying activities occurring at the many copy shops in the area. Copy shops also operate in and around hospitals, and near government regulatory agencies. Areas such as Morayta and Dapitan Street (in front of the Professional Regulations Commission main office) in Manila are commonly known for photocopying entire books, burning onto optical discs (CD-ROMs, DVDs) educational and review materials for professional examinations, as well as the sale of pirated books and CD-ROMs with educational materials. Many shops now operate on a “print-to-order” basis, thus avoiding stockpiles of infringing books in their establishments and thereby complicating investigations and enforcement actions. Vendors of pirated books also sell the infringing copies of books door-to-door at doctors’ offices, medical establishments, and trade fairs. The Department of Education and, in particular the Commission on Higher Education, should take a more active role in developing appropriate use and copyright policies, encouraging the use of legitimate materials at colleges and universities, and ensuring that institutions of higher learning to adopt and implement such policies.
Turkey, page 266
For example, sites hosted in Turkey are making available for download pirated copies of dictionaries, online journals, textbooks, grammar, and reference books, and are thus a threat to the English language teaching (ELT) market.
page 267
Book Piracy Remains Severe: While Turkey should be a good market for English language teaching (ELT) materials and a growing market for higher education textbooks, continuing unauthorized commercial photocopying and print piracy hampers the growth and further development of the legitimate market. Various types of books are affected, including fiction, non fiction, school books, college textbooks, supplements, dictionaries, ELT texts, and scientific, technical and medical (STM) materials. Illegal photocopying is especially prevalent on and around university campuses but law enforcement agencies remain reluctant to take action on campuses. It is thus left to university administrators to address book piracy, but to date, there have been no actions directed against infringing activities occurring on campuses. Though the Turkish Publishers’ Association (PA) has raised book piracy issues with the Ministry of Culture, the Ministry has not responded to these concerns. However, there has been greater cooperation in recent years with the Turkish Police Force resulting in raids against entities engaged in unauthorized photocopying activities. In 2011, the Turkish PA conducted a number of raids and awareness raising exercises with university administrators and lecturers, urging against the use of unauthorized copies of text books at centers of higher education.14
fn/14In 2011, the Turkish Publishers’ Association aided law enforcement in a number of raids around university centers that resulted in seizures of 4889 books, several photocopying machines, external hard disk storage devices and computer hardware.
Vietnam, page 278
Book and Journal Piracy Severely Harms Publishers: Book and journal publishers continue to suffer from rampant piracy in Vietnam, in the form of illegal reprints and unauthorized photocopies. Bookshops, roadside vendors and copy shops all sell unauthorized copies of bestselling trade books, travel books and academic textbooks, and unlicensed print overruns continue to plague foreign publishers. Unauthorized translations are another problem, often being produced by university lecturers or professors, who append their name to the translated textbook with no acknowledgment that the work is not of their own authorship.19 The English language teaching market continues to be hard hit, with much of the market (private-sector education and universities) being supplied by unauthorized reprints and adaptations. State-sector publishers also have an interest in making sure their licenses (such as those of the Ministry of Youth and the General Publishing House of Ho Chi Minh City) are not misused. In 2009, law enforcement authorities raided the premises of a printer/bookstore owner engaged in unauthorized reprinting of ELT materials. Though a fine was imposed, it apparently remains uncollected.20
Hungary, page 306
Piracy of books and journals: The book and journal publishing industry reports that unauthorized photocopying of academic textbooks in and around university campuses continues to be problematic. While there has been some improvement in the market, progress remains slow. Law enforcement authorities have been responsive to rights holder requests for actions against copy shops while also undertaking a few actions ex officio. Prosecutions, when they occur, unfortunately continue to be very slow.
Taiwan, page 321
Improve Enforcement Against Illegal Photocopying On and Near University Campuses: Physical piracy phenomena, including illegal photocopying of books and journals on or near university campuses, continue to cause great harm to the publishing industry. In 2011, publishers continued to find numerous instances of unauthorized photocopying by campus photocopy centers and the majority of students using illegally photocopied texts in the classroom. Unauthorized photocopying (particularly of higher education and English language textbooks (ELT)) remains the most damaging problem for U.S. and Taiwanese publishers in 2011. There have been instances where the photocopy shop delivers cases of illegal copied textbooks to the campus mail room, and being unable to locate the intended recipients, the mail room actually delivered the pirated copies to the publishers (apparently relying on the publisher logos on the covers).
Law enforcement authorities remain reluctant to pursue actions against the copy shops that operate on
campuses, and the Ministry of Education (MOE) has failed to date to take strong actions against campus
infringement. In 2009, MOE prepared an action plan which covered illegal photocopying of academic books and journals. The plan involved a “self-assessment” by each university as to its compliance with copyright laws. However, there is no independent monitoring or audit mechanism through which the MOE conducts its own evaluation of whether the university is in fact complying with the action plan. This is a critical element to making an objective assessment of whether a university is undertaking the necessary steps to ensure that its various departments are addressing infringing activity occurring on its campuses. The plan must be fully and effectively implemented to prohibit illegal photocopying and use of unauthorized materials on campus, backed with sanctions for violations. Universities should also be required to build provisions into outsourcing agreements with on-campus photocopy facilities imposing penalties for those caught engaging in infringing conduct, including lease termination.