As you, dear reader, will know, this is a blog focused on copyright and content related issues, rather than politics, although at times there is an inevitable political spillover when dealing, for example, with the copyright dimensions of trade agreements, given that many such agreements are driven as much by political objectives as economic considerations. Given current political circumstances, and the horrific images we see daily as a result of Russia’s appalling and brutal invasion of Ukraine, I have decided to dedicate this week’s blog post to the people of Ukraine and their brave and tragic defence of their homeland. Since so much has already been written about what is happening there, and why, I will try to look at the issue from a slightly different perspective-its cultural and content implications, for Ukraine, for Russia, and for the rest of us.
When it comes to IP protection, and respect for copyright, neither Russia nor Ukraine are exactly paragons of virtue. In the most recent edition of its global IP index, the Global Innovation Policy Center (GIPC) of the US Chamber of Commerce, ranks Russia and Ukraine as numbers 32 and 41, respectively, out of 55 countries. The index measures IP performance across a range of categories, including patents, copyrights, trademarks, design rights, trade secrets, commercialization of IP assets, enforcement, systemic efficiency, and ratification of major international treaties. In the specific area of copyright, there are seven indicators, copyright term of protection, legal measures providing exclusive rights to prevent infringement, injunctive-style relief, frameworks that promote cooperative action against online piracy, scope of limitations and exceptions, existence of technological protection measures and policies requiring that software used by government be licensed. Out of a possible copyright score of 7, Russia clicks in at 2.74 and Ukraine at 1.83. In the category of licensed software, both get a big fat zero. This makes the threat by Russia to legalize software piracy (by creating a compulsory licensing mechanism for software, databases, and technology from companies based in countries that have imposed sanctions on Russia) somewhat less threatening since software piracy is in excess of 90% anyway.
The weak IP track records of both countries is perhaps not surprising given the history of Ukraine as a country that has struggled to establish itself as an independent entity with a free market economy after emerging from the collapse of the Soviet Union. It is perhaps less understandable in the case of Russia but even here we have a country that has struggled with the legacy of a past dominated by central planning where IP was a commodity that could be expropriated by the state or stolen for national purposes. War will not improve this situation.
Although western countries have imposed financial sanctions affecting banks and credit card companies, there have also been numerous voluntary actions taken by western companies in non-financial sectors. So far, among tech and software companies, Microsoft, Apple, Dell, Samsung, Adobe, Cisco, IBM and Intel, have announced they will be stopping sales to Russia. Netflix has announced that it is pulling out. The company had refused to carry Russian news channels on its local-language service, despite a new law requiring it to do so, and has suspended all projects and content acquisitions in Russia. Sony, Warner Bros, and Disney have announced a pause on new film releases. Facebook has barred Russian state media from running ads, as has Google, which has also removed Youtube channels associated with state-controlled Russian media.
When it comes to using the media and content platforms to get the message out regarding what is really happening in Ukraine, Volodymyr Zelenskyy is running rings around Vladimir Putin. Zelenskyy has won the admiration of the world for his valiant personal stand, and ringing, heartfelt appeals for help. Dressed in fatigues and with the daily strain showing clearly on his stubbled face, the comparison with the clinical, almost chilling demeanor of Putin, perched at the far end of a marble table 35 feet from whoever he is speaking to, could not be more stark. Putin has blocked western media and social media and cracked down on any domestic coverage that does not fit his narrative of “liberation”. (It seems he is following the adage of “we had to destroy it to liberate it”). In response, the news broadcaster RT (formerly Russia Today) has been removed from TV screens in Europe, the UK, North America and Australia. From both a tech and content perspective, Russia has been put on the blacklist. Will this mean that Russian authorities will now roll back their recently strengthened enforcement of copyright laws which, according to the 2022 GIPC report, has resulted in “a decrease in online infringement”? Probably.
Culture is another important element of the current crisis; specifically whether Ukraine as a nation has a culture that is distinct from that of Russia. It is an inconvenient fact for Mr. Putin that Ukraine not only has a vigorous, distinct culture, but that Ukrainians are determined to defend and preserve it. Russia, of course, has its own rich cultural heritage—think Dostoevsky to Solzhenitsyn—and there is no doubt that Ukraine and Russia share a number of common Slavic cultural roots, but it is also a fact that Ukraine has its own rich literary and artistic history.
With the invasion of Ukraine, its museums have been scrambling to rescue invaluable cultural artifacts. Museums have been shelled, some destroyed. As some have commented, the destruction of these artifacts amounts to a form of cultural cleansing. Jeremy Maron, curator of genocide at the Canadian Museum of Human Rights is quoted by the Globe and Mail as saying;
“Putin views Ukraine not as an independent nation, but as a part of Russia that was stolen from Russian control. In his perspective, it seems like there is no such thing as Ukrainian culture, so the cultural artifacts are fake evidence of the fake Ukrainian culture.”
UNESCO has expressed its deep concern over the damage to cultural sites. There are seven UNESCO cultural sites in Ukraine including the 11th century St. Sophia Cathedral, that has been instrumental, according to UNESCO, in “the spread of Orthodox thought and the Orthodox faith in the Russian world from the 17th to the 19th century.” It is now under threat from Russian artillery shells and missiles. The Russians are shelling part of their own shared heritage.
Where this will end, (at least at time of writing), is frustratingly unclear. Ukrainians are both resisting and fleeing the carnage, especially women and children, leaving their men behind to fight. Russia’s ultimate end game is not yet clear, although the outcome for the people and culture of the Ukraine does not look positive. Many will flee, some no doubt to Canada and the US, which already host the second and third largest Ukrainian diasporas globally, 1.4 million and 1 million, respectively. (Russia is home to the largest number). Even if Russia installs some sort of puppet regime in Kyiv or attempts to reincorporate Ukraine into Russia, a Ukrainian identity and culture will survive and endure as it has for hundreds of years. And the message of what is really happening in Ukraine will reach the Russian people. Today, no one can block content forever.
Ultimately, Mr. Putin will fail. The Russian army cannot eliminate the soul of a people. At the moment, we are all Ukrainian.
© Hugh Stephens, 2022. All Rights Reserved.
