Music piracy: Where are we today?

25 Aug 2022 - 12:20

Going through lockdown in 2020 seemed to leave me wondering about the state of music piracy. Are you feeling the same? It seemed to me that, as the major CD retailers closed in South Africa in 2019 and we were then thrust into the streaming era from March 2020, the hawkers who used to stand in the streets and shove fake CD and DVD covers in our car windows had finally been caught out.

But what really happened and is piracy still a thing now? In the music industries, the most obvious form of music piracy that we think of falls under the banner of ‘counterfeit recorded music’. This refers to the illegal copying and sharing of packaged recordings. Here, recordings are made by performing musicians of legally licensed music, which lands up as the final masters we hear on radio and streaming services. When someone copies this master, an infringement of rights occurs, which we call piracy. This affects the record owner (usually record labels) and music owners (usually music publishers).

Dividing this wrongdoing between ‘physical’ (CDs and DVDs) and ‘internet’ piracy, and ‘for gain’ or ‘personal use’ helps us get an idea of where pirate behaviour is headed (see Fig 1 in PDF below).

Physical piracy of CDs and for commercial gain is a pretty serious crime, and this characterised the news stories in the 1990s about busting counterfeit rings and confiscating millions worth of counterfeit CDs. Its activity has been linked to terrorism syndicates. If you alone ripped a track from YouTube – that being piracy on the internet and for personal use – it would still very much be a crime, but it would only pay a relatively small fine, or the perpetrator would face jail time. This is basically a slap on the wrist for your first offence if the authorities ever came after you – so don’t do it. My understanding, however, is that the penalty in every case is the same, just multiplied a thousand times for commercial crimes. Offenders selling counterfeit CDs could potentially get fined into the millions of rand, in the case of South Africa, and lengthy sentences, although the judges are known for scaling these down.

The South African context

The real hurt is that for every pirated copy bought or consumed, the industry suffers and royalties are lost. The Recording Industry of South Africa (RiSA) says that this stunts the growth of the sector, costing some R500 to R690m ($40m) every year. RiSA is a trade association of the recorded music sector in South Africa responsible for tracking recorded music piracy. Recently established pan-African group Partners Against Piracy (PAP), inaugurated in South Africa in April 2022, highlights that content piracy erodes local industries, which are then diluted by cheap, foreign content as a result.

Piracy is one reason why local breaking musicians are stunted in their growth and end up becoming ‘struggling artists’. Once they have gained popularity, pirates often rob them of money that would potentially sustain their careers into the future. South African consumers turned to pirating content the moment that the country came under COVID-19 lockdown in March 2020. RiSA reported a spike in online recorded music piracy, determined by some 8 000 top-40 tracks legally being downloaded each week before lockdown, which dropped by some 1 000 tracks once we were in it.

Physical piracy

Physical piracy is still a problem in South Africa. The socio-economic conditions of the country mean that the passing around and sale of physical CDs and USB sticks is still a thing for those who cannot afford the technology and subscription fees of digital music services. This is despite the availability of free ad-funded streaming services, with high internet costs in the country deterring many from using them. As such, I’ve heard that many popular artists’ music is ripped from digital media and made available to consumers sitting with older technology, typically in poorer socio-economic conditions. These consumers do not care less about the aspirations of companies and artists wishing to earn a living. If these consumers cannot afford the services, do they really affect the bottom line?

From a policy perspective, a ‘blank tape levy’ or ‘private copying levy’ has been proposed for legislation since the mid-2000s, but has remained on the table. It may be too late to install a punitive measure to curb this kind of physical, personal piracy. It is an ethical concern that remains a fair debate.

Internet piracy

In the category of music on the internet and for commercial gain, the goal has been to rather try and licence services legally. The online music services that offer recorded music for a subscription fee have become the predominant way that ‘privileged’ people now access music, and as alluded to above, the idea is to move excluded consumer markets to these platforms, where ad-funded freemium options can provide wider adoption. Here, we need a few more cross-sections: that of ‘public usage’ and ‘private usage’, and ‘authorised’ and ‘unauthorised’ use. These music streaming services are private, but authorised usage of recorded music would entail having to obtain a separate licence in order to play music in public. Therein is a new type of piracy: the lack of copyright law compliance as a direct infringement of rights.

Besides these new retail-like platforms, there are countless online communities where music is central. There are social media platforms such as Facebook, Twitter and many others. For these, the trading of music, for the most part, is simply blocked and the details of how music may come to be shared on these platforms remain under construction. For example, you cannot simply post an MP3 on Facebook; you must use some type of link to digital service providers like Spotify or YouTube. Both services have authorisation protocols in place, and I would encourage you to take up a workshop or class in music business to understand this in detail beyond this article.

As far back as the early 2000s, no self-respecting Gen Xer could forget the Napster and torrenting debacles. Napster originally provided a platform that facilitated the sharing of MP3s, while Pirate Bay – appropriately named – still provides any content that can be digitised. Since the Metallica v Napster, Inc. lawsuit, Napster has become a licensed streaming service. More recently, the chat app Discord was taken on by the American cousin of RiSA, the Recording Industry Association of America (RIAA), where a server called RipRequests shared recorded music to a private, invitation-only space on the service, often of special material such as pre-release leaks and unreleased versions of songs. Here, unauthorised files were shared in a private space, much like CDs sold in car boots (hence the term bootleggers). In these cases, there is a wrestling match between software companies that say they cannot control the actions of their users, and the rights of creators who need protecting. RiSA has revealed that WhatsApp, Instagram and other messaging platforms also remain a hotbed for privately shared pirated content.

Direct infringement

Direct copyright infringement is an even more heinous crime, as it strikes at the very fabric of creation itself. Playing music in public without authorisation of the copyright owner is one such devious misdemeanour. In South Africa, composers and music publishers have clumped together in an organisation called the Southern African Music Rights Organisation (SAMRO), while performers and record companies have huddled into either the South African Music Performance Rights Association (SAMPRA) or the Independent Music Performance Rights Association (IMPRA). These collective management organisations (CMOs) concern themselves with public performances, divided between songs for SAMRO and recordings for SAMPRA or IMPRA.

Simply put, playing a track in public without a licence delivers the same dagger to the heart as ripping a track from YouTube. Places of entertainment are responsible for licences most of the time, but there can be special conditions attached, so it is best to find out if you can perform at your local theatre without any problems. The same goes for music videos, with RiSA Audio Visual (RAV) and the Association of Independent Record Companies (AIRCO) operating in this space.

Interestingly, global levels of piracy saw a massive decline between 2017 and 2020. Data from MUSO, a global repository of piracy data, shows a rapid downward trend, which rebounded in 2021. MUSO believes that this ‘positive’ movement is attributed to the recorded music industry not keeping content exclusive to various streaming platforms, meaning consumers do not have to go hunting for exclusive content that they may need to pay for elsewhere and end up pirating as a result. Most of the negative rebound was from stream-ripping sites, such as ripping sites from YouTube links, which accounted for almost 40% of this behaviour. Unlicensed streaming services and illegal downloads were cited as other sources of infringement. However, a survey completed in the UK in 2022 saw infringement levels decreasing from 18% in 2020 to 15% in 2021 from any illegal source of music.

To put things in perspective, piracy of TV series accounts for more than half of global pirated content, according to MUSO. Music is only second while software was the least pirated content in 2021.

Research conducted by Karla Borja and Suzanne Dieringer in May 2022 at the University of Tampa in the US found that Gen Zs are less prone to recorded music piracy than millennials. And those who do pirate often have a grudge against the industry. The authors called for the industry rather to assist consumers to understand their actions, and that piracy is just a way of life for the sector, which would not change any time soon. Many people still do not understand what a legal platform is or what it looks like, and are often duped into acquiring music from bogus platforms at small fees. Affordability of music content is a sore point, not only for consumers but for the artists who complain about minute royalty payouts from legit services.

Currently, there are strides being made in monitoring music uploads and connecting social media services to use legitimate music. Artificial intelligence (AI) is touted as a technological solution to piracy, where technologies like blockchain can create a decentralised ecosystem where ownership is managed easily while payments take place with the help of cryptocurrency. The benefit for consumers is the freedom to access content on the blockchain wherever they are on the net, without being tied to the many service providers entering the market at the moment. But we’ll have to wait and see how this all pans out.

Merchandise piracy

With all said and done, if content owners can view music piracy as sampling, this would provide a wonderful opportunity to reach future audiences. As is the case with access to free radio, where advertising pays its way, if you let your music go and focus on other revenue activities, you could build a market that has a more diverse view of you as an artist. Merchandise counterfeiting, for example, is a type of trademark infringement where fashion apparel and items like T-shirts and coffee mugs bear an artist’s likeness or artwork and can be sold for a higher-than-normal price. This kind of counterfeiting is also widely spread and continues to be a problem. Yet diversifying into this fight means more money in your pocket, especially when you appeal to fans to buy the right stuff. This is the same when asking them to use licensed music services: you are basically creating a diehard community that you can tap into for crowdfunding and new revenue models. So, it may be a meditation-zen-type balance between ‘give a little’ and ‘get a little’ when it comes to music piracy and the enforcement of rights.

While the industry continuously makes strides to curb piracy, it is often a matter of having a conscience and not breaking the law and stealing music. If you truly support music, making a conscious effort to use services that benefit artists can have a far-reaching, long-term impact on the growth of the music industries.

Jonathan G. Shaw is the lecturer of the Music Business Studies course at the Wits School of Arts in Johannesburg, South Africa, as well as a recognised music producer, audio engineer, policy expert and educational presenter. Shaw is the author of the book ‘The South African Music Business’, now in its third edition, and a PhD (Music) candidate at Wits University.