Why ‘book piracy’ matters?

One of the unpleasant aspects of pursuing legal education in the United States is the considerable expenditure needed for procuring mandatory textbooks. Some would say that this pales in comparison to the inordinately high tuition fees that range between US$ 38,000-48,000 per annum, depending on the reputation of the law school in question. From the viewpoint of yours truly, who loudly identifies himself as a LL.M. student from a developing country, the amount spent on both semesters’ casebooks is roughly equivalent to a year’s tuition in an Indian law school. Such quantitative comparisons don’t necessarily reflect the qualitative differences between legal education in the two countries and one would need several posts to even cursorily examine the latter subject. Nevertheless, having contributed hundreds of dollars to the coffers of Aspen Publishers, Thomson West and some anonymous sellers on Amazon, I feel compelled to highlight the stark contrast with my undergraduate years in Bangalore where access to used textbooks and pirated books (of all descriptions) at throwaway prices was and presumably still is considered a matter of right. While there are several lending libraries and a few shops that trade in ‘used books’ within the immediate vicinity of the University of Pennsylvania, I am yet to encounter a first world variant of the street-side vendors who deal in unauthorised books at ‘student-friendly’ prices.

In this note, I will not ramble on about the sky-high costs of legal education in the United States. Instead, I am recycling some portions of a term paper (written in July 2006) that dwelt on how the market for pirated books works in Bangalore. After speaking with several street-side vendors in some prominent commercial areas such as the Mahatma Gandhi (M.G.) Road, Commercial Street and Shivajinagar Market, I had confidently made some sweeping comments about how the prevalence of book piracy contributes to better knowledge-dissemination in society by undoing the designs of profit-seeking publishing houses. Since copyright fundamentalists will certainly disagree with those views, I reproduce some of them here in the hope of provoking some debate.

It must be clarified that not all of the offerings of street-side vendors consist of unauthorised copies of popular titles. A significant number of them describe their businesses as that of trading in ‘used books’. Their supply is fed by contributions from local residents and discards from organised book retailers, libraries and educational institutions. I had posed some predictable questions to the vendors that I got to meet, i.e. about the volume of their regular sales, the profile of customers, the margins that they make, problems encountered in bargaining with customers and the frequency of bribes (read protection money) that need to be paid to the beat constables. A visible feature among most vendors was the mobile nature of their operations. While a few of them displayed books on carts, most of them carried books in canvas bags, ostensibly to ensure a quick getaway in case there is a raid at the behest of senior police officials. One of the vendors located on Church Street was unexpectedly cooperative and took me to the location of the printing machine that fed his supply of unauthorised copies.

The vendors are of course just the front for what can sometimes be elaborate operations. The central figure in these operations is the owner of an offset printing machine. One of the better educated agents in the racket regularly visits prominent book shops and keeps track of which titles are doing good business and getting attention. A few copies of these books are bought for making ‘positives’ and the printing machines go to work and churn out copies by the hundreds. The printer next ties up with a group of vendors who then sell the books in and around prominent commercial locations. There is a substantial initial investment in some cases with offset printing machines costing around Rs. 5 Lakhs and in the alternative, reliable photocopying machines costing approximately Rs. 1 Lakh. However, the margins being made are substantial and sufficient enough to guarantee returns on investments within a few months. The profits from sales are of course shared between the vendors and the printer with a certain amount earmarked for bribing policemen to look the other way.

There is not much security or predictability in such a business model. Each vendor’s sales ultimately depend on the location of operations and the nature of bargaining with customers. The pervasive risk of course is that of police-raids and seizure of goods. One of the vendors on Church Street admitted to paying a daily bribe of Rs. 200 to the local beat constable, irrespective of the amount of sales on a given day. Another vendor in Shivajinagar said that he paid Rs. 4,000-5,000 every month at the nearby Police station. The identification of ‘zones of tolerance’ tended to correspond with the vendors’ ability to make higher margins and consequently offer higher amounts as bribes. For example, one could see a concentration of vendors on M.G. Road and Church Street since there is a higher likelihood of making healthy profits in those areas by selling to foreign tourists who don’t bargain as hard as the locals. In comparison, the policemen are less tolerant of vendors attempting to sell off-set prints and photocopies of books in areas where they know that the vendors have smaller profit margins. The sustenance of the business is clearly dependent on the incidence of police corruption in each locality.

Some of these operations even have inter-city networks, where the flow of copies runs from bigger cities (where most of the prominent publishers are located) towards smaller towns where the assured demand for prominent books presents a business opportunity for the copiers. It is clear that the continuance of ‘book piracy’ on the streets has obvious benefits for customers by way of making available otherwise expensive books or those which have not been published in the domestic market. In some ways it is a value-addition for customers who can quickly make purchase decisions on the roadside without putting in the time needed for careful browsing in a book shop. Another way to look at a pirated books market is that the latter serves the interests of some clearly identifiable sections of society, i.e. the vendors who are mostly from low-income backgrounds as well as buyers with limited purchasing power.

Besides being a means for sellers to earn a livelihood and for readers to gain cheap access to books, a ‘grey market’ is also a site of contestation in the larger debate about the need for copyright enforcement in developing societies. Those who argue in favour of piracy often point to an alternate conception of societal legality that tolerates and sustains such markets despite their illegal status under the state-administered law. The dominant discourse emphasizes the need for stronger copyright enforcement as a necessary condition for economic advancement. The message that resonates through governmental practices, the mass media and education is that better copyright protection is essential for attracting foreign investment and the expansion of business in ‘information goods’ such as books, films, artistic works and software among others. With particular reference to the book-retail trade, the mainstream view is that more publishers will enter the market and make quality titles available only if there is a severe clampdown on the grey market of cheap offset prints and photocopies of popular titles. Rooted in international conventions this discourse filters down to localised interventions by non-state actors as well An example in the major Indian cities is the commonplace practice of law firms (mostly specialising in ‘intellectual property’) relying on private security firms (headed by retired army and police officers) who in turn aid the police in conducting raids on vendors who stock pirated movies, music, software or books.

Some scholars have described copyright infringement as a cultural problem in societies with strong communitarian conceptions of sharing information. This idea comes into a clash with the individualistic notion of authorship which is at the core of a strong ‘copyright protection’ regime. The obvious rejoinder to this reasoning is that markets for pirated goods are sustained even in developed countries which presumably have strong traditions of individual ownership over information goods. There are also some attempts to draw linkages between authoritarian governance and the extent of copyright piracy. The example of China is frequently invoked to argue that its’ government’s disregard for intellectual property rights as well as excessive censorship on personal consumption of information combine to encourage the expansion of grey markets for pirated movies, songs, software and books. A far more simpler explanation is that this phenomenon allows cheaper access to products which are otherwise not easily available or overpriced by corporate interests. As hinted earlier, a benign view is that the prevalence of piracy in information goods allows for more equitable distribution of useful information among differently placed social groups.

Defenders of book piracy can also make arguments in a historical frame. Prior to Johann Gutenberg’s invention of the ‘movable type’ in 1455, access to written works was largely confined to those with the requisite purchasing power, namely the ruling classes and the priestly classes who could also be described as the beneficiaries of an order of ‘information feudalism’. The invention of the printing press brought with it the ability to disseminate knowledge widely and the same has been improved upon for several centuries. However, in the view of the sceptics, the evolution of the modern copyright system has created a new set of barriers (such as unduly long periods of protection and repeated extensions of copyright terms), thereby reinforcing an order of ‘information feudalism’. For a sketch of these objections, a good place to start would be some articles by Lawrence Liang of the Alternative Law Forum (available here). Many of these issues have also received considerable attention in light of the Google books settlement and interested readers may want to learn more about that here.

Organised publishers and retailers continually harp on the extensive loss of earnings that is readily attributed to the markets in pirated goods. The same message is clearly conveyed in ‘Anti-piracy’ awareness campaigns where it is routinely argued that the ‘black market’ eats into the legitimate means of livelihood for authors and by extension of those engaged in organised publishing and retail. The quantum of the loss in profits is calculated while assuming that for every pirated book bought on the streets, the industry loses an amount equivalent to its regular sale price. This premise is questionable since it cannot be assumed that a customer who buys a cheap offset-print of a bestseller would have necessarily bought a legitimate copy of the same title at the regular sale price. Barring some circumstances where consumer behaviour may be driven by considerations of urgency, most book-buyers in India primarily look at the price, while being less responsive to factors such as the quality of printing and binding. In fact the rationale behind buying the cheap copy in the first place is to avoid paying the regular price or to procure a copy of a title which is otherwise not available in the local market. This simple fact about consumer behaviour casts doubts on the estimates of the loss in profits which are highlighted in Anti-piracy studies.

As far as the portrayal of the ‘suffering author’ is considered, one must first consider the profile of the book titles whose unauthorized copies are produced and sold in the grey markets In the limited sample of the street-side vendors that I had met in Bangalore, the offerings were mostly those of contemporaneous bestsellers (novels as well as non-fiction), educational text-books, preparatory books for public examinations and self-help books. These books are usually printed in large volumes and the number of pirated copies circulating in localized grey markets is marginal in comparison. Authors usually receive pre-negotiated royalties from the publishers which are usually not altered except in rare circumstances where the volume of sales exceeds expectations. Celebrity authors can dictate terms to their publishers and make sufficient earnings from legitimate sales, thereby not being affected by the marginal diversion that can be attributed to the pirated books market. On the other hand, lesser known authors are unlikely to earn beyond their fixed royalties and the purported loss of profits is primarily born by the publishers. One response to arguments in favour of protecting the author’s monetary incentives for creativity is that the stimulus for creativity could instead be based on factors like self-satisfaction and the desire for prestige and appreciation from peers. There is of course something to be said in favour of the publishers despite my grouse with overpriced textbooks in the first world. Stated briefly, the main grievance of organised publishers is that books are illegally copied even when they publish a higher number of volumes and offer lower prices. This dilutes the incentives for publishers to search for promising new authors and to expand their printing and distribution networks, thereby harming the consumers’ interests in improved access to diverse content.

Another justification that is offered for the continuance of piracy in developing countries is that it enables access to works which are otherwise not available in domestic markets owing to externalities such as import restrictions and governmental censorship. Foreign publishers may also find it unviable to expand their operations in certain countries (primarily owing to the lack of economies of scale) thereby impeding access to the latest titles in spite of considerable demand. There is also a school of thought that supports copyright piracy as an instrumentality for ensuring the availability of diverse content in a marketplace. The idea is that piracy enables obscure and lesser-known works to reach consumers even if they are rejected by mainstream publishers. Needless to say, this argument loses a lot of its force in view of the increasing reach of the World Wide Web which has made it considerably easier for creators to directly share words, images and audiovisual content with consumers. There is of course another debate about the internet’s impact in terms of the role of information intermediaries such as publishing houses, recording companies and broadcast networks. While some would argue that these intermediaries perform an essential filtering function, the contrarian view is that they are an unnecessary barrier between the creator and the consumer. If nothing else, the undoing of information feudalism also promotes creativity by making it easier for potential creators to borrow ideas and collaborate. Without digressing further into that debate, the limited point here is that book piracy can be defended as an important means of access to diverse content, especially for those who fall on the wrong side of the digital divide.

Does the prevalence of copyright piracy actually stand out as a black mark in a country’s pursuit of a development-oriented agenda? In the context of the book publishing and retail-trade, the central question is whether ‘book piracy’ actually hurts the interests of authors and publishers. The mainstream ‘Anti-piracy’ discourse would have us believe that the prevalence of these ‘grey markets’ in most of urban India acts as a strong disincentive for the expansion of the publishing industry. Nevertheless, the empirical experience has been otherwise. In recent years, the publishing industry has grown both in terms of the scale of operations of domestic publishers as well as more foreign publishers entering the Indian market and offering a wider variety of titles. Though this maybe attributed to the increase in the general literacy levels and the consequent demand for more books, one can foresee further growth if copyright protections were to be liberalised and prices were to be reduced. It must also be recognised that in some settings, piracy actually expands the growth of markets by introducing previously unknown goods in a local setting and consequently shaping consumer preferences.

One may even see the pirated books market as a necessary periphery of the organised book retail industry. It serves the interests of those at the margins of the supply chain, i.e., the unauthorised printers and the vendors, as well as consumers with lesser purchasing power. In doing so, the street-side book vendors are subjects of an alternative conception of societal legality which in theory is in direct conflict with the State-administered legality, but in practice is not only condoned but also aided by the police. As mentioned several times in this note, the availability of cheaper books actually enhances the access to information for the average buyer in a developing society. If an individual’s acquisition of information is equated with improvements in personal capabilities, then the prevalence of ‘book piracy’ possibly serves the cause of societal development as well.