Ho Ho Ho and a Pirate DVD

10 Jan, 2013 | Harriet Marsden

Urban living

"Harriet Marsden takes us on a tour of some of the places and players in the pirate industry in Bolivia:
- From a pavement in downtown La Paz alongside Eusebio, a street vendor of
pirate DVDs.
- Through the office of Luis Dorn, a well-respected lawyer with a particular interest in intellectual property,
- To the doorway of an established pirate DVD shop with Roger, its owner
- To Petrus, the lead singer of one of the most popular bands in the city."

Let’s say you’re in Bolivia for the first time, and you hear a band you like, or fancy renting a DVD for the night. You soon notice the nearcomplete absence of original material in the country - no large record shops to speak of and just one or two video clubs with an impoverished catalogue. And well, the reliably unreliable internet connection - incidentally, one of the slowest in the continent - means that downloading is out of the question. Do not despair though, as the gods of entertainment may be smiling down on you.

Photo: Joel Balsam

Wandering through the streets of La Paz in the cold evening air, you suddenly notice a man on the street with an impressive array of DVDs laid out on the pavement, in proper cases with legitimate-looking covers. He shows you recent Hollywood blockbusters for just a few Bolivianos. You can’t believe your luck - you’re sorted. Before you know it, you’ve become a cog in the underworld of Bolivian piracy.

In 2006, the International Intellectual Property Alliance (IIPA) reported that 90% of fi lms and music in Bolivia came from pirated sources, with 80% for software - the figures are among the highest in Latin America. It would be grossly inaccurate to say that piracy in Bolivia is a contained, or even containable issue. It is a massive, sprawling, amorphous industry.

This so-called industry is an extensive spiderweb of smugglers, lawyers, pirates, musicians, distributors, and many, many consumers – a network to which a vast majority of Bolivians are in some way connected. I wonder, does this spiderweb give people access to universal culture, or does it damage the country’s creative industries? From the legal to the illegal, and creator to distributor – this web sprawls across every echelon of society. One thing that is clear from the start is that it is impossible to stand inflexibly on one side of the argument.

Luis Dorn, a highly educated and specialised lawyer, looks at me across his mahogany desk and stresses that the case is far from simple. He calls piracy ‘an informal, living economy’, towards which the government ‘turns a blind eye’.‘They’re not really interested in fighting against piracy’, he tells me disdainfully.

In theory, video and music piracy of this sort is totally outlawed and a punishable offence. However, Luis explains that the 1322 Law of 1992, designed to protect intellectual property, sets out punishments too lenient to act as a deterrent to pirates. He also mentions the creation of a national intellectual property entity, following the IIPA’S calls for revision of copyright laws – the snappily named SENAPI.

However, this organisation is underfunded, and is lacking in both trained personnel and the means with which to enforce intellectual property rights. Although the Worldwide Organisation of Intellectual Property (OMPI) exists to protect the rights of the author, in reality it allows for countries to self-regulate. In short, any Bolivian attempts to bring piracy under control are hamstrung by failings in their own legal system and its corresponding enforcement.

We must also consider the corruption that is rife in the police force. Standing on the street by Plaza Avaroa, I ask Eusebio, our local DVD street vendor, what he would do if a police car drove past. Would he quickly pack up and hide his wares? ‘A policeman is one of my best customers!’ he grins.

Even if the correct laws and means of enforcement were in place, carrying out the punishment is harder than it sounds. There actually exists legislation that states that all preparatory proceedings, such as inspections, must be carried out with prior notification of the defendant. Of course, in this way the police lose the element of surprise. Even more strangely, the target is entitled to object to the search – and a judge must rule on this objection, wasting more time and money.

Lawsuits can take up to five years of court proceedings just to determine if there even was a copyright infringement. And even if the court finds that the software was indeed pirated, there has to be a damages trial – yet more money, time and bureaucracy. Luis explains wryly (and unsurprisingly) that ‘musicians do not like entering into legal proceedings’.

In other cases, street vendors have attacked the police as anti-piracy actions were taking place. To date, there has never been a final civil judgment for copyright infringement in Bolivia.

Luis goes on to name a legal intellectual property issue which he finds particularly comical – and disappointing. When the diablada, a typical Bolivian dance, began to appear in Peru, Bolivia made a formal, legal complaint against the country for infringement of copyright. They did this in the name of folklore protection. So, Peru, in retribution, decided to initiate proceedings in Bolivia, relying on the failings of the legal system and the light potential punishments. Luis calls for stronger punishments for pirates. But this seems logistically unfeasible. Mauricio Ruiz, another lawyer from La Paz, estimates in a press statement in 2012 that without piracy there would be 10,000 people out of a job. Luis Dorn’s estimates are even higher – he believes 30,000 people’s livelihoods are dependent on piracy. ‘It is ridiculous that they would try to fine me,’ declares Eusebio from his roadside vigil. ‘I could never pay that fine – it wouldn’t work. If they put me in prison, I don’t know what my wife and children would do’.

So, in theory, the government is tackling this problem, yet in reality the industry is thriving. Supply and demand – if the only possible way for the average Bolivian to purchase music or videos is through illegal means, then that is what will occur, laws notwithstanding. Piracy is morally and, to a certain extent, legally tolerated, as it makes available resources from around the world that otherwise would be closed off.

Consider the case of Roger, the owner of a legal-ish shop selling DVDs. It looks like any normal DVD rental shop, except you actually buy the films, and they are all copied from originals. He is quick to point out that what he does has a ‘social function’ and therefore, he claims, is not strictly illegal (see the Bolivian Constitution for an understanding on how the illegal can become legal if it’s in the interests of society). He also explains that his films are used by NGOs, cinema clubs, and even seven Bolivian universities.

As a customer of Eusebio tells me, smiling, ‘If it weren’t for these men, my dates would be chapi!’ And when I ask her how often she buys a pirate DVD, she answers plainly: ‘whenever I have a date’.

‘Look at this street’, Eusebio points out. ‘It is full of people like me, and it’s only one street. If they arrest me, they arrest everybody. And all those families would have no money’.

An important factor to consider is the poverty of the average Bolivian, an estimated half of whom are living on less than $2 USD per day. In one of the poorest countries in South America, buying a full price DVD or CD at 20 dollars would seem ludicrous to most – even if they were available. As Roger points out, ‘my customers would not buy original price DVDs. They can’t afford to’.

What we have is an access issue. There simply are not sufficient distribution outlets to get your hands on music or films in their original, legal forms – or, the originals are far too expensive. If piracy did not exist, only a small elite of the country would have access to this media. The estimated trade losses due to musical piracy was around 15$ million at the turn of the millenium, primarily due to lack of action from the Bolivian government, high levels of police corruption, and lack of commitment of SENAPI and Bolivian judiciary – but who is losing?

Not Eusebio, who earns just a few Bolivianos for every DVD sale. Luis explains that the real money in piracy goes to the ones recording or copying, not those who are on the front line selling.

Bolivia has not traditionally been a source of pirated music and film. Until recently, most of the pirated goods sold in Bolivia were imported from Peru and Colombia. Interestingly, Petrus, who records his music in Bolivia, must send it to Peru to be copied onto CDs. These come back to Bolivia and are sold, legally. Some of these are taken back to Peru to be copied, illegally, and these come back across the border to Bolivia as pirate copies, expanding his reach. Although he scorns the Peruvian pirates, he admits that this situation amuses him greatly.

Petrus, incidentally, is not losing out either. He explains that for a Bolivian musician, a pirate copy of their music is a huge compliment. ‘It’s the only way to get our music out there’, he says, ‘and most of the money a musician earns comes from gig ticket sales’. The more people that hear their music, the more people come to their concerts. ‘It’s part of our lives and cultural mindset’.

Roger, too, is sceptical about losses, because he maintains that without the pirate industry ‘nobody would buy these films; nobody would see them’.

So, who is really losing out?

The underlying concern in international discussions of this problem? The US market. While the US (in theory) acknowledges that Bolivia’s government does not prioritize American concerns for intellectual property law enforcement, they continue to press their own stance upon the nation, disregarding the unique situation of piracy in Bolivia. The approach taken by the US Embassy in La Paz is changing the mindset of the Bolivian public. They’re trying to persuade Bolivians to pay much higher prices and acknowledge that piracy is ‘stealing’ and ‘wrong’. However, while there is considerable sympathy among Bolivians for domestic production and local artists, there is very little for wealthy transnational companies. Basically, few people care if the Americans are losing money. People do not see how this affects Bolivians.

While the lawyer Max Orellana declares that ‘piracy impedes innovation’, Roger disagrees entirely. In addition to selling pirated DVDs, his business allows him to spread original Bolivian material, which would otherwise be lost. Indeed, he declares his business a ‘cultural project’, stressing the importance of access to films, literature and music for cultural growth. He also encourages his customers to copy their DVDs amongst themselves, and pass them on. He ironically names his DVDs ‘desprotegidos’.

Even Luis - although he declares himself morally against piracy - recognises the important role it plays in conserving traditional Bolivian music and independent films. However, he also warns of a state of ‘intellectual drain’, and explains that, with the legal failings concerned with intellectual property, local intellectuals prefer to publish their work abroad. He estimates that 80% of musicians have their music registered in Europe, particularly Germany and France, while photographers are publishing photos of Bolivia in Italy. So, Bolivian cultural output begins to belong to other countries. This, he emphasises, is a ‘sad paradox’.

So, it is clear that there is a strange dichotomy when it comes to piracy in Bolivia. People need it, people love it, and although the government consistently makes shows of tackling it, in reality they are forced to let it lie. Some believe it destroys industries and damages the idea of intellectual property, and yet our musician declares otherwise. Our lawyer calls for stronger punishments – and yet acknowledges the intrinsic difficulties in the prospect. Our street seller claims that without this livelihood, he, alongside countless other families, would starve. Our shop owner names his pirated DVD business a ‘cultural undertaking’.

It is also clear that evicting video and DVD piracy in Bolivia remains a farflung possibility. While the poverty levels and access issues remain the way they are, this industry cannot be eradicated- notwithstanding the 30,000 people who depend upon it. Eusebio sums it up: ‘I don’t know about the laws or the punishments. I can’t tell you where my movies come from. But I get them and I sell them and this is my life. And there will always be people like me’.

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