Poland struggles with foiling intellectual property theft
In light of Poland's inclusion on the U.S. government's list of countries that need to beef up enforcement of their copyright theft laws, local intellectual property protectors disagreed last week on the sources of software piracy.
"Our problem is the problem of government," said Mikolaj Sowinski, an attorney specializing in software piracy cases at Warsaw law firm Soltysinski, Kawecki & Szlezak. "If someone stole your car, the state should protect you."
The "Special 301" list is based on the provision of the U.S. Trade Act that obliges the American government to conduct an annual review of its world trading partners' policies and practices related to intellectual property. The point is to determine if these partners are providing adequate protection for U.S. intellectual property.
Announced on May 2, the list cited American concerns about the distribution and use of counterfeit computer programs, compact discs, cassettes and videos as well as the illegal publication of books in Poland. Software piracy, or the illicit reproduction, distribution and use of copyrighted computer programs without the consent of the copyright holder, is one of the most widespread forms of intellectual property theft in Poland and other Central and Eastern European countries. It is one of the more pervasive copyright crimes in Poland, especially with the distribution and use of pirated versions of business software and computer games, said Sowinski, whose firm is the country's legal representative of the Business Software Alliance (BSA), an international watchdog organization for software manufacturers. He estimated that about 90% of all game software in Poland comprises illegal copies.
Although Poland has appeared on the list in previous years, 2000 marks the first time since 1995 the year after the existing copyright law was ratified that the country has been placed under "priority watch list" status for breaching intellectual property rights conventions in 1999, Sowinski said. Poland received its priority watch list status because of what the Americans see as the government's slowness in passing new copyright legislation for intellectual property reforms and its lack of enforcement of existing laws in cracking down on intellectual property thieves.
Sowinski said that Poland's placement on the list was connected with a number of conditions in the World Trade Organization's (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), a worldwide directive of copyright protection standards to which all member states, including Poland, must adhere. The WTO, an international organization that seeks to ensure free trade among its member countries, set a deadline of Jan. 1, 2000 for worldwide compliance with the agreement.
After introducing copyright legislation in Parliament last year, Poland did not enact a new law to meet the WTO's international standards before the cut-off date, Sowinski said. The Sejm passed the new copyright legislation earlier this month. The bill was then reviewed by the upper chamber and returned to the lower house for minor revisions, Sowinski said, although the requested changes did not concern the infringement of software copyrights. The new copyright bill should be signed into law by the president within the next few weeks, he said.
Sowinski said Poland's high rate of software piracy was also due to public prosecutors who failed to bring more cases of software copyright theft to court. But he added that the situation is improving.
"From the perspective of software piracy, the main change (in the new copyright legislation) is in the way in which pirates are prosecuted," Sowinski said. "So far, most cases have been brought to court by private prosecutors, but now the rule is that pirates will be prosecuted (by state prosecutors) ex officio at the request of the copyright holders."
According to the BSA's 1998 Global Software Piracy Report issued in May 1999, 61% of all business software used in Poland in 1998 was illegally copied, generating retail revenue losses of $142.5 million for legitimate software producers. In 1997, the percentage of pirated business software in Poland was also 61%, but with retail revenue losses of $107.6 million.
More than half the illegal software in Poland is used by small and medium-sized enterprises (SMEs), said Krzysztof Janiszewski, a Microsoft marketing manager who is responsible for the protection of intellectual property. Most software piracy here comes in the form of counterfeit copies of Microsoft Windows95 and Windows98 that are imported from Ukraine and other Eastern European countries, he said.
"Many (people) buy illegal copies (of software) because they say they can't afford legal ones, but for me this isn't a good explanation," said Janiszewski, who is also the BSA's representative in Poland. "If someone runs a small business, he should pay for his software because it's a tool. If I use a car, I have to pay for my insurance and gas."
Janiszewski estimated that in 1999, 60% of the business software used in Poland consisted of illegal copies that generated retail revenue losses of about $150 million for legitimate software producers.
Janiszewski said one reason for Poland's ongoing struggle with high rates of software piracy was that public prosecutors have failed to pursue intellectual property theft cases in the past due to a lack of social harm in what is typically perceived as a victimless crime. Another reason, he said, was a lack of social awareness of the legal rights of copyright holders. A third reason is Poles' cost-saving mentality, which can lead to the purchase of less expensive pirated software in local stores and flea markets.
