www.diena.lv

By Egils Zirnis, Saturday, April 26, 2003 (p. 18)

THE STOLEN FREEDOM MONUMENT

The photographer Armands Lacis, who has been professionally operating in the field of photography since late 70-ies and acquiring a distinguished position in the society of photographers, has already faced cases when his or his colleagues' works were "borrowed" without permission to be used as, let's say, a background for this or that advertisement. However, recently it has happened really very rarely. Still, right before the last Parliament election the photographer was taken by such surprise that in no way corresponded even to the ironic conclusion about the nice difference between the intellectual property theft and other theft types - once your intellectual property has been stolen you can at least be proud that the product of your intellect has been favorably evaluated. In this case the photograph depicting the Freedom Monument by A. Lacis, which had already been published in a number of calendars, had been "borrowed" by the Socio-democratic Welfare Party and "improved" by adding in one case a crowd of naked people and in another case - a tank and slogans against the EU and NATO. A. Lacis, who has now started legal proceeds, says indignantly that his colleagues might now think that his intention has been to blaspheme the nation's symbol of freedom and that he has sold himself to the Welfare Party. This is a clear case of authorship right violation, says A. Lacis' representative in the civil case, Attorney-at-Law S. Varpins: "An argument whether A. Lacis' photograph has been used for the photo mounting is not even valid because clouds in the sky cannot appear twice in one and the same position."

THE LEMON TREE OF DECEIT

This is just one of the most clear-cut and latest recent authorship right violations. Latvia welcomes the International Intellectual Property Day on 26 April and also the 10th anniversary of the first renewed Authorship Law of Latvia on 15 May with other lawsuits (including such where a former creative tandem of Zigmars Liepins (Radio SWH) and Mara Zalite (Authors' Association of Latvia) hold opposing grounds of the authors and the users of their work), appealed judgments, easily accessible pirate records, the specter of counterfeit goods and numerous stories on the weak protection of intellectual property. The intellectual property is even more elusive than electricity, whose thieves in comparison with other thieves, also feel very little remorse. Electricity at least burns one's fingers, but in the case of intellectual property, especially in the case of authorship right the thief sometimes even takes on a sufferer's role, namely, — be happy author that your daub has actually been of interest to me.

On the one hand, such situation is easy to understand because during the Soviet times art, as everything else, belonged to the people, and the concept of authorship protection was, to put it mildly, rather approximate. Due to this it is still very difficult for our society to admit that everybody having business with works of authors, should add the authorship to the base costs in the same way that we add electricity, gas and heating, for the use of which the bills are paid, in contrast to the authorship right, without loudly complaining about the high tariffs. The attitude towards the authorship right, may on the contrary be compared to a group of merry guys, who having entered a supermarket and loaded full baskets of goods announce at the cash-desk, that they will not pay what the goods actually cost but less, because outside the shop nice girls, who want to eat, are waiting for them, and the producers of the goods, i.e. the authors, who frequently enough have much less healthy looks than the above mentioned guys, are actually obliged to seek social assistance because it happens sometimes that the group of the merry guys have already managed to eat some of the goods in the shop, not even taking them as far as the cash-desk.

It might seem at a first glance that the intellectual property is stolen by one author from another, in order to adorn themselves in borrowed plumes. This, however, has already long ago been overcome by simple greed. The cases surrounded by foolish naivety, like the song plagiarized by Madara Celma, by means of which she wanted to win participation in the Eurovision contest are rarities in comparison with frequent cases when authors' works are cold-bloodedly stolen by users - publishers, producers, radio organizations, who then acquire huge profits. The range of intellectual property "borrowing" cases is sufficiently wide, from clearly visible theft to very difficult to define cases. For instance, to prove that the author of Harry Potter's "twin sister" Tanya Groter, so popular in Russia and now available also to the Latvian reader — Dmitry Yemets (or, to be more precise - the publisher who ordered the "groterade") has misused the work of another author will not be much easier than to catch the Flash from the calambole game invented by Rowling (although the multimedia corporation and producer of the Potter films, Time Warner, managed to terminate publishing of "Groter" in the Netherlands). And what to do with the anonymous Chinese authors who have already written several Potter sequels?

The failure to observe authorship right only stand for blossoms in one huge lemon tree in which, as everybody knows, the blossoms and fruit are simultaneously of different ripeness stages, maintains Executive Director of Latvian Authorship Organization AKKA/LAA, Inese Paklone: "The one who does not observe authorship right usually violates other laws as well." The talk here is about distribution of unregistered tickets, money laundering, tax evasion, submitting incorrect income returns to State Revenue Service ... The attitude towards authorship right is a barometer indicating the situation in the company. Failure to observe legislation has not brought happiness to anybody. "Krisbergs had a pub Klosterpagrabs. Was it closed because he did not pay for authorship right for the music that sounded there?" I. Paklone asks, "No, while Kirsons, who pays for the music for all his establishments is developing wonderfully because the public like orderly people."

KIDNAPPING OF CHILDREN

Intellectual property, whose never-to-be-reached ideal remains a patent of perpetum mobile, is almost as old as the intellect, because one may doubt whether Homer existed while his authorship for Iliad and Odyssey is never doubted. However, the opinion that the author should live only upon the favor of their patrons and initial sale of their work damaged in the 15th century by the printing of books invented by Gutenberg, was significantly changed only in the 18th century when in 1777 Beaumarchais united French playwrights under Bureau of Drama Legislation which managed, after three years of authors' strike, to achieve amendments to legislation and payment of certain interest to authors from the income for every performance instead of the single payment.

The idea of collective management of authorship right in the field of music occurred in the mid 19th century when two composers and one author of song lyrics brought to court a cafe at the Garden Elysee in which their works were played in concerts because they thought it to be a contradiction that they have to pay for food and drinks while nobody is ready to pay for their works played by the orchestra. Winning of the case opened vast possibility for composers and lyrics authors, however, it became clear that the newly acquired rights cannot be implemented and controlled individually - therefore already in 1850 a payment collection agency was founded. In 1886 Berne Convention for the protection of works of art and literature was adopted. (The Soviet Union, contrary to the United States who joined the Convention in 1989, prior to that using by way of pirating works created in England for a long period of time, did not manage to do it at all therefore the understanding of how works by foreign authors should be protected came extremely slowly for Latvia.)

While ideas are in the air they are equally accessible for everyone and they are not protected by law — and here is the progress of stolen intellectual property. However, it is so extremely difficult to catch a fish from the pond of possibilities that many rather prefer a fish caught by a more successful fisherman to the fishing rod. Although intellectual property is one of the types of private property, a lot of people who would never even take another's purse if found in the middle of a forest, purchase pirated music records or films and use pirated computer software without any special remorse, thus indirectly proving that their understanding of intellectual property has remained at the level of the times of national awakening when Andrejs Pumpurs got his dinner paid by the publisher to remunerate him for a publication of poems. In the age of Internet such understanding means enormous possibilities to earn easy money for other's work, although on the other hand, the cyberspace has not only started new discussions about what exactly is to be considered the object of intellectual property but also opened new possibilities to identify authors' works and register their application.

In the field of music, contrary to literature, plagiarism or forwarding another's work as one's own (in Latin plagiarus means also a kidnapper of children) may sometimes happen unconsciously. The principle of "somewhere heard" operates there. The composer Martins Brauns was once told by a sound director that another composer had once brought to him an advertisement jingle to record. He had recorder it and then asked this composer whether he had really been serious about it. The composer got nervous and asked whether something was wrong. The director went to the piano, played a tune and told him that it was a melody from a 20 years old musical Alberts by Martins Brauns. The composer started to laugh and said: "Oh, this is why it was so easy for me to write!" He had preserved this melody in his unconsciousness.

In future composers will have to take into consideration that the latest technologies allow recognition of works of music from just the first few sounds even in the quality of mobile phone melody. At present "authorization" of another's work is quite widespread in another creative field — journalism. Representatives of central Russian press tell that from time to time they happen to come across their articles signed by another name in one or another of the multitude of small regional newspapers, where the plagiarist has not even tried to change, compile or adjust the source material.

The most primitive and also the most profitable violation of authorship right is, indeed, piracy. The market of Russian pirated production, which concerning its volumes only retreats in front of the Chinese one, cannot be liquidated even by such magicians as Groter and Pory Gater, who together make magic at Moscow's bookstore tables. In Latvia CD, video and DVD pirates do not feel worse than in Russia, as was proved by newspaper "The Diena", who observed on 14 March a possibility to buy qualitatively counterfeited film Chicago and Catch Me If You Can records, which legally have to appear here only in autumn. In the EU Progress Report Latvia has been reproached as to inactivity in the field of intellectual property protection.

BETTER FOR COMPUTER SOFTWARE

One completed and several criminal cases at their different stages of proceeds, as well as the rate of 57% pirated software of all characterize the situation in Latvia in the field of software protection, which was named hopeful by Sandis Voldins, Executive Director of Latvian Committee for a software authorship protection organization Business Software Alliance (BSA): "57 per cent is quite a lot, although, strange as it might seem, statistically the field of computer software is the field in which the level of piracy is the lowest in comparison with music records, films and games." Besides, while the rate for phonogram and music piracy grew last year, the rate of pirated computer software decreases continuously (only three years ago it was really impressive — 89%): it is a very good indicator for a country where acquisition of computer software in fact started with application of stolen software. Up to date BSA has mainly focused on detecting the end users, but the new tactics involve arrangement of the whole system, which would eventually create a situation when the use of pirated software would become disadvantageous. Main attention presently is turned to the companies because it is obvious that it will be very difficult to fight the small home users, says S. Voldins. The company control does not happen by way of random choice. If the police or BSA receives information that a company is using pirated software, inspection is organized. "Usually we already know before what is awaiting us," says S. Voldins. At present the level of software piracy in Latvia is a bit higher that it is in Estonia and Lithuania. There is no place where the situation is ideal - in Europe there are 35% pirated software, and in the USA the rate is 30%.

It is a modest comfort to know that at least in the field of inventions the thieves are not very active here. The Head of Invention Examination Department of Patents Board, Guntis Ramans tells that we have a comparatively small number of lawsuits concerning inventions in Latvia and also there are ten times less national applications than in Finland — only about 200 per year due to the fact that goods with high added value are not produced in Latvia. Presently there are about 1800 patents in Latvia and they are effective for 20 years provided the inventor does not withdraw it earlier.

SUPPORT TO TERRORISM

Another offence against intellectual property may cause grave consequences not only to the state economy but also to the health of people, namely counterfeiting of brand names. (A separate and extended issue is the use of misleadingly similar brand names, the mot recent example in Latvia being the dispute whether the label of the vodka Boris Smirnov distributed by Jaunalko is not too similar to the world-famous Smirnoff vodka.) Let's mention medicines and spare car parts. The truck detained in Latvia carrying counterfeited cigarette brand allows one to presume that the counterfeit goods are also produced in Latvia, warns the representative of Coalition of Intellectual Property Rights (CIPR) in the Baltic States, Romans Baumanis, saying that the Intellectual Property Development Concept of Latvia for 2001-2005 envisages establishment of a supervision mechanism: "It is year 2003 now but the supervision institution has not been established yet. Counterfeiting causes great harm both to producers and the state because the taxes are not collected, and also to the consumers who might buy various kind of trash for the origin of which nobody bears responsibility.

The last and also the most terrifying fact has been revealed by surveys conducted after the terror acts of 11 September letting the US FBI and Customs come to threatening conclusions - not every counterfeiter cooperates with terrorists, but almost every terrorist organization raises its funds for financing terrorist activity by means of counterfeit goods. Governments of many countries, including Latvia, do not fully realize the extent and dangers of goods counterfeiting problem, therefore punishments are lighter than for trafficking of drugs and human internal organs. As a result the counterfeiting of goods spreads like a flu."

The trend of last years is to counterfeit all that is bought, including services. The largest known increase of 225% is for electric household appliances during 2000-2001. All one can do is nostalgically recall the times when the geographical closeness of producers and consumers did not create necessity of brands, therefore counterfeiting did not exist. As soon as the brand became valuable on the market, counterfeiting started; besides, counterfeiters used complicated distribution schemes to avoid the arrival of the police to the producer. In the courts of Latvia it is difficult to prove the malicious intention of the receiver of goods if they maintain that they have had no information about the fact that the goods are counterfeited. CIPR wants to move the burden of proof to the defendant in Latvia, informs R. Baumanis: "If you are involved in legal business, you have obligations towards consumers, so you have to ensure the compliance of the goods with the quality criteria."

One might hope optimistically that many of violations of intellectual property right will be liquidated by our accession to the EU, because in the EU countries authorship right alone accounts for 3-6% of domestic product. But what if it happens another way round - our currently so weak institutions simply do not manage the new load of work? The amount of counterfeit goods detained on the external EU borders has grown nine hundred times during last three years… However, unachievable this task may seem, it is still easier than the possibility of the thieves of A. Lacis photography to prove to the court that clouds in the sky can be in absolutely the same position twice.