Identifying Copyright Infringment Abroad
The health and competitiveness of the U.S. economy depends on a thriving copyright sector that creates revenue, jobs and exports. However, many AAP member-publishers who sell to global markets face inadequate or limited copyright protections abroad, as well as persistent online and hard goods copyright infringement (aka “piracy”). The lack of adequate copyright protection and enforcement make it difficult to deter infringement and hamper a publisher’s ability to compete on equal footing in these markets.
Typical examples of copyright infringement abroad include:
- Unauthorized photocopying of academic, medical and professional books—both large-scale and through print-on-demand
- Print overruns made without authorization
- Unauthorized scanning of textbooks and unauthorized copies of journal articles for distribution via online websites
- Sophisticated production of counterfeit books
- Unauthorized export of low-cost, country-specific editions of books and textbooks to countries other than the intended market
- Unauthorized translations of popular books
Inadequate copyright protections and rampant piracy can have serious repercussions for publishers, creators and the economy. Infringing copies of books and journals do not provide any compensation to the authors, editors, artists and other creators who produced the book or did the research and writing for an academic, scientific or technical article. They drive up consumer costs and can hinder access to professionally-developed educational works by the consumers in developing markets.
“Commercial scale…copyright piracy cause[s] significant financial loss for rights holders and legitimate businesses [and] undermine[s] critical U.S. comparative advantages in innovation and creativity to the detriment of American workers.”
—Office of United States Trade Representative, Notorious Markets List 2014
For instance, education publishers create low-priced textbook editions for use in India to meet the needs of the country’s students and academic community. However, unauthorized exports of these low-cost editions diminish publishers’ ability to continue to make them available. Furthermore, a recent U.S. Supreme Court decision (Kirtsaeng v. Wiley) has made it easy for anyone to buy lower-cost, country-restricted physical books and ship them to the U.S. for resale in the U.S. market. The result is that publisher efforts to meet the needs of the Indian market are undermined, and local students and educators may be deprived of a variety of quality materials.
In response to these and other issues, the AAP International Copyright Protection Committee (ICPC) works diligently to combat copyright infringement and advance strong copyright protection policies in foreign markets on behalf of member publishers.
Key Markets for Copyright Enforcement
Two key tasks of the AAP ICPC are to identify overseas markets where substantial copyright infringement of AAP-member titles occurs, and to maintain country-specific “enforcement programs” to help AAP reduce infringement in those markets. AAP has active enforcement programs in the following countries:
- Hong Kong
Under the guidance of the ICPC, AAP develops market-specific enforcement programs to mitigate piracy of books and journals in these countries, based on evidence gathered by local investigators and legal advice from local attorneys.
For instance, large-scale unauthorized photocopying of academic textbooks is a common problem, so AAP regularly conducts enforcement actions against infringing copy shop operators. AAP also encourages universities and relevant government ministries to raise copyright awareness and to promote use of legitimately acquired academic materials—instead of unauthorized photocopies—in their schools and universities. Additionally, AAP works with the policy makers of foreign governments on ways to improve copyright protection and enforcement, often consulting on amendments to the foreign government’s copyright laws.
AAP’s enforcement work is complemented by our membership in the International Intellectual Property Alliance (IIPA), a collective group of copyright industries that helps keep the U.S. government informed of the challenges these industries face abroad with respect to copyright protection, copyright enforcement and unfair trade barriers. IIPA monitors global copyright developments and addresses key concerns throughout the year for its members.
The group also plays an important role in AAP’s efforts to regularly inform the U.S. government about enforcement and policy concerns. Each February, the IIPA submits a report in response to a public inquiry from the Office of the United States Trade Representative (USTR) under the 1974 Trade Act. Commonly known as the Special 301 Report, this document identifies copyright industry concerns and recommends ways for the U.S. government to address enforcement and legal policy concerns in priority markets.
Combatting Hard Goods Piracy through the Courts
An essential element of copyright law is the protection of an author or other copyright owner’s exclusive rights, such as printing or distributing a work. Countries provide meaningful protection of these exclusive rights by ensuring that copyright owners can rely on courts to stop an infringer from printing or distributing a work without authorization, and by assessing penalties that discourage future infringement, such as jail sentences or significant fines.
When publishers encounter large-scale unauthorized photocopying or counterfeiting operations overseas, AAP works with the local counsel and law enforcement authorities of the relevant country to shut down these operations—whether through court proceedings or administrative agencies. Unfortunately, in many countries where copyright infringement is prevalent, protracted court delays and inadequate penalties for infringement are common. This undermines copyright protection and the creative market for local and foreign rights holders alike. Despite these difficulties, AAP has brought or supported publisher court cases in a number of countries to help establish better precedent for enforcing copyright.
For instance, in 2005, AAP supported two of its member-publishers in a criminal case against a major producer and distributor of unauthorized photocopies of medical textbooks in the Philippines. In late 2013 and early 2014, after much delay in the proceedings, the Philippine court found the producer/distributor liable for criminal copyright infringement in both cases. AAP is now seeking execution of the judgment against the defendant in one of the cases, in which the defendant did not appeal the verdict. The defendant has appealed the verdict in the second case.
Enforcing Copyright Online
While the Internet has afforded new opportunities for creators and publishers, it has also made massive copyright infringement possible on a global scale. AAP is committed to helping publishers address online infringement, whether the infringement’s reach is limited to just one country or is a sophisticated operation spread across multiple countries.
Online infringement of scientific, technical and medical (STM) journals has been a long-standing problem in China, but AAP’s continued engagement with Chinese government agencies has resulted in some improvement to the situation. For instance, in 2013, Chinese law enforcement authorities seized the servers of an illegal online entity that was providing unauthorized access to unlicensed copies of journal articles. Although the service and its website are down, the criminal investigation remains open as law enforcement authorities continue their investigation.
While progress has been slow in the foregoing case, a separate AAP investigation into six sites hosted in China that were providing unauthorized/unlicensed copies of STM journal articles was swiftly acted upon by law enforcement agents in late 2014, resulting in the shutdown of the sites and the transfer of the domains to AAP (and the UK Publishers Association). Following the takedown, the sites, when now accessed, display an educational warning to promote deterrence in the market, informing former users/customers that the sites were shut down due to the infringing nature of the activities.
Publishers also encounter online infringement carried out by sophisticated networks of operators, with servers, hosts and mirror sites spread across multiple countries, often in jurisdictions that do not have strong copyright laws or predictable court systems. These hurdles make online copyright enforcement challenging and underlie some of AAP’s policy positions for strengthening copyright enforcement mechanisms under U.S. law and through international trade agreements.
AAP also collaborates with other publishing associations to strengthen its enforcement reach, sharing the burdens of such actions. In 2012, as a member of the International Publishers Association (IPA), AAP participated in a coordinated litigation in Germany that shut down two online sites engaged in systematic online copyright infringement—www.ifile.it and the link library www.library.nu. AAP is currently working with the IPA Anti-Piracy Working Group to pursue legal action in a number of countries to shut down another major online source of infringing books and journals.
Notorious Markets List
The Notorious Markets Lists (NML) is an extension of the Special 301 reporting inquiry led by the Office of the United States Trade Representative (USTR). Through the NML report, USTR identifies egregious examples of open and blatant intellectual property infringement occurring in physical and online markets around the world. Alongside other copyright sectors, AAP works through the IIPA to submit updates to USTR about particularly harmful online and physical markets, particularly for the publishing industry.
The Notorious Markets List heightens awareness about the serious harm caused by infringement around the world and has resulted in some positive outcomes for a number of the copyright industries. For example, it has led to improved enforcement in courts, concrete actions by governments, and closures of a number of previously identified physical and online markets. It has also spurred engagement between rights holders and certain sites. Documenting the numerous countries from which these infringing online markets operate has highlighted the need for, and led to, greater cooperation between law enforcement authorities to address cross-border copyright piracy.
Advocating for Effective Copyright Policy
In addition to AAP’s country-specific enforcement programs, AAP monitors copyright policy and legal developments in many other countries of concern to its members. Where judicial decisions or copyright law revisions may threaten to weaken copyright protection and enforcement for authors and publishers, for instance, AAP identifies appropriate measures through which to address publisher concerns. These measures may involve raising the issue with the U.S. government, promoting transparent processes for commenting on copyright law revisions, and working with local counsel and domestic publishing groups to create a dialogue between AAP member-publishers and foreign governments.
Many governments are reviewing and/or updating their intellectual property laws to support their domestic creative industries in the digital age and to better address copyright infringement. Countries currently reviewing their copyright laws include Australia, China, the European Union, Hong Kong, Indonesia, the Philippines and the United Kingdom.
AAP participates in such efforts on behalf of member-publishers by engaging directly with foreign policy makers, submitting public comments on proposed reforms, and conveying their priorities and concerns regarding the importance of copyright protection and enforcement. For example, AAP has submitted comments to the Government of Australia and worked with other industry organizations to file comments in Hong Kong, Indonesia and the Philippines. AAP also submitted joint comments with the UK Publishers Association in multiple rounds of review of the draft Chinese copyright law.
Updating copyright laws to better protect copyright holders benefits U.S. publishers in foreign markets, but also promotes and protects local authors and publishers, spurring the development of local creative industries and fostering greater creativity and fair and open markets for all.
Find Out More: International Copyright Treaties
Learn how AAP promotes international copyright norms at the World Intellectual Property Organization.