As the war in Ukraine enters its second year, many things in Ukraine and in its neighbouring countries– Belarus and Russia to the north and east, Poland, Slovakia, Hungary, Romania and Moldova to the west and south—have changed. While the Ukrainian people have clearly suffered the worst direct consequences of the war, none of the people living in countries adjacent to Ukraine have been left untouched. Its neighbours to the west have mainly felt the impact of the influx of refugees, while “normal life” for people in Russia and Belarus has also changed as the sanctions imposed by western governments have impacted various aspects of daily life.
If truth is the first casualty of war, a comment widely attributed to early 20th century US Senator Hiram Johnson, although versions of the saying are claimed to go as far back as the Greek playwright Aeschylus in the 5th century BC, then the next casualties are usually those ordinary “taken for granted” things that constitute the normal rhythms of life—wide availability of goods, reliable sources of power and other utilities, organized sports, cultural activities and entertainment. That is quite apart from the really serious consequences of war, like safety and security, injury or worse, that often follow. It may seem trivial to look at the consequences of war upon culture and entertainment, but “spiritual sustenance” is an important part of a nation’s morale and when normal life patterns are disrupted, people turn to familiar things for comfort and sometimes to escape reality. A current case study is Russia’s invasion of Ukraine. Among other things, this has affected entertainment choices and availability in Russia, as well as having a major impact on copyright industries, and other IP stakeholders. (By contrast, in Ukraine people are just struggling to survive). But in Russia, and now in Belarus, in addition to all the other war-related measures they are taking, these governments have weaponized copyright piracy.
Back in May last year, just weeks after Russia’s invasion of Ukraine, I wrote a couple of blog posts focusing on the cultural and content aspects of the conflict, noting that Russia was attempting to both deny and eradicate any expression of Ukrainian culture. (Russia’s Invasion of Ukraine: It’s Also a Content and Culture War; Ukraine: Protecting its Culture and its Future). Ukrainian art, music and literature are anathema to Vladimir Putin because they give the lie to the “justification” for the invasion advanced by the Russians; the false narrative that Ukraine is and always has been an integral part of Russia. There are of course common historical antecedents and a close relationship between the Russian and Ukrainian languages (some prominent Ukrainian writers like Andrey Kurkov, Ukraine’s most famous and successful living writer, in fact write in Russian), but Russia’s attempts to destroy Ukrainian culture has just one purpose; to deny Ukraine’s legitimacy as a people and as an independent nation. Culture and entertainment thus become very much caught up in the fabric of warfare and propaganda.
It is not clear to what extent the war truly enjoys support in Russia. Many have made their opposition clear by leaving or trying to leave Russia. Others have protested, and have paid the price for doing so. Still others are no doubt just keeping their heads down. Inside Russia, western sanctions have brought about some changes to lifestyles (although recent reports indicate sanctions have been only partly successful); US streaming services have shut down and supply of content to broadcasters and movie theatres has been interrupted. Microsoft, Apple, Dell, Samsung, Adobe, Cisco, IBM and Intel, have stopped sales to Russia. Certain other western products and brands are no longer available. As part of its response, Russia has turned a blind eye to, indeed has tacitly encouraged, copyright piracy for both software and audio-visual content. In August of last year a bill was introduced in the Duma to introduce compulsory licenses for content and other copyrightable objects not available in Russia because of sanctions. It applied to all content subject to copyright protection, such as theatrical and TV content, music, books, software, databases, videos, and artwork. In December a bill to “legalize piracy” of software was under consideration by the Ministry of Digital Development. In a sense, this is a largely empty threat since the software piracy rate in Russia has remained stubbornly high over many years. These legislative actions are apparently still pending.
On the movie front, where until the invasion of the Ukraine, about 7/10 movies screened in Russia were Hollywood films, Russian cinema owners have resorted to showing downloaded, unauthorized and unlicensed films to “private showings” in order to stay in business. What the impact will be of the unravelling of the already weak IP regime in Russia after the war is over remains to be seen.
The idea of suspending the enforcement of copyright law when it comes to nationals or companies from “unfriendly” countries, i.e. those that have imposed sanctions (Russia’s list includes the US, UK, members of the EU, Norway, Switzerland, Canada, Japan, South Korea, and Australia among others) has been picked up by Russia’s acolyte, Belarus. As reported by TorrentFreak;
“Belarusian dictator Alexander Lukashenko has signed a new law that legalizes piracy of movies, music, TV shows and software owned by rightsholders from ‘unfriendly countries’. The law also allows goods protected by intellectual property law to be imported from any country without obtaining permission from rightsholders.”
Lukashenko is the first and only president that Belarus has had and has been in power almost since the day that it emerged from the ruins of the Soviet Union. He is Putin’s closest ally among the republics that made up the former USSR. So far, he has managed to stay out of the war against Ukraine, although Russia has launched rocket attacks from Belarus. Lukashenko himself and the war are unpopular in Belarus and Lukashenko has a strong stake in survival, thus his caution, but he also counts on Putin for support if needed. Until now, he has kept his powder dry. However, the new Belarus copyright exception law mimics similar legislative efforts underway in Russia. (Western sanctions against Russia have also generally been applied to Belarus.)
The new law does not completely remove the obligation to license copyrighted content but requires users of unlicensed copyright-protected content to instead pay into bank accounts operated by the National Patent Authority, which is in turn authorized to collect a “management fee”. The actual amount of payment will be determined not by rights-holders but by the Belarusian Parliament. Rights-holders will have up to three years to claim payment. But the National Patent Authority’s bank is owned by the Government of Belarus and is under sanctions! Don’t expect western rights-holders to be lining up to collect license fees owed. It is worth noting that all these measures are a violation of commitments that Belarus has made under its WIPO commitments. (Belarus is not a member of the WTO, thus not a signatory to the TRIPS Agreement, but Russia is, and would be in contravention of both WTO and WIPO commitments if it brings in similar measures).
The loss of licensing fees in Belarus, or in Russia for that matter, by western rights-holders may seem like small potatoes compared to the suffering of the people of Ukraine. But copyright protection, and the content that it delivers, is one more casualty of war, inflicted not only on western rights-holders but also on the everyday folk who live in Minsk, or Moscow or elsewhere in these two countries who find themselves on the wrong side of a very nasty, morally unjustified war.
Hopefully one day in the not too distant future, this war will end—with a Russian withdrawal. The people of Ukraine will be able to live in peace, not in fear. They will be able to exercise their rightful cultural heritage as well as direct their own future. Hopefully also the people of Russia and Belarus will accept this outcome, and once again, the bonds of culture and entertainment, through music, film, television and other content, will become bridges to build understanding and mutual acceptance. Copyright piracy won’t go away, in Russia, Belarus (or indeed in Ukraine or elsewhere) but in a postwar world one assumes it will no longer be aided and abetted by the state, as is currently the case in Russia and Belarus today.
© Hugh Stephens, 2023. All Rights Reserved