Piracy in the Congolese Music Industry: it hurts

UNCLAS KINSHASA 000640 SIPDIS E.O. 12958: N/A TAGS: ECON BBSR EIND EINT EINV CG SUBJECT: Piracy in the Congolese Music Industry: it hurts foreigners and locals alike ¶1. (U) Summary: The vibrant recording industry has long been an integral part of Congolese culture. Due to the rampant piracy of cassette tapes and CD's, however, that industry has ceased to exist. Congolese musicians and producers are generally apathetic to the problem, having found ways to offset, at least in part, their loss of copyright revenue. Laws are in place to protect intellectual property rights, but the penalties are light and seldom enforced. Although some positive signs are on the horizon, much needs to be done before there is full respect for IPR in the Democratic Republic of the Congo (DRC). End Summary. Brief Background of the Congolese Music Industry -------------- --- ¶2. (U) Music plays an integral role in Congolese culture, dating back to the beginning of the twentieth century. Since the colonial era, Kinshasa has acted as a center of musical innovation, hosting many of the great modern African musical movements. "Congo music," for example, a movement popular in the 1940's, is considered as revolutionary for African music as jazz was for American music. Moreover, the rumba, a Congolese music and dance movement that emerged during the late 1960s, has become popular worldwide. Most importantly, Congolese music has had considerable influence not only throughout Africa, but also throughout the Americas and Europe. History of Music Piracy in the DRC -------------- ¶3. (U) until the 1980's, the DRC had a flourishing recording industry. By the mid-90's, however, it had all but vanished. The disappearance of this long-established industry can be attributed to the advent of inexpensive recording technology and its widespread use to pirate local music, beginning with the introduction of cassettes in the early 1960's. Unlike vinyl record technology, cassette technology was much simpler. Music could be easily replicated in mass quantities as long as cheap blank tapes were available. By 1976, the word "pirate," referring to copyright offenders, had already entered the vocabulary of Congolese musicians and producers. Financial losses due to piracy took an increasing toll on musicians and producers and, by the mid-90's, most Congolese recording studios had gone out of business. ¶4. (U) The current dominance of pirated products in the DRC's music economy makes it almost impossible for a musician to earn a living by selling CD's through legitimate channels. Kinshasa, once a former Mecca for musical innovation and production, is now one of the easiest places in the world to pirate music without fear of reprisal. Despite this, artists and producers have found alternative ways to make money from their music, and Congolese music continues to be among the most popular, if not the most popular, in the continent. How Piracy Works in the DRC -------------- ¶5. (U) There are essentially two different levels of piracy in the DRC: mass pirating operations, and small-scale distributing. Mass-pirating operations can occur on a variety of scales. On the international level, highly sophisticated pirated music and goods are imported into the DRC from China and other parts of Asia, arriving here through various routes from Kenya, Tanzania and Nigeria. In similar fashion, Congolese CD's and tapes are exported, particularly to Nigeria, where technology and factories exist to reproduce these recordings in mass quantities. After mass reproduction, they are either exported to the DRC to be sold, or are sent out of Africa to global black markets. ¶6. (U) Domestic small-scale distribution is what poses the biggest problem for Congolese law enforcement because it is so rampant and very difficult to track. The most common small-scale distribution scheme involves a master tape or CD that is sold informally to an outside producer who in turn reproduces the tape and passes it on to retailers and distributors. Pirated cassettes or CD's produced by small-scale distributors are often poor copies of the original, and are sometimes labeled with a piece of masking tape and a marking pen. ¶7. (U) Some musicians and producers even participate in the piracy of their own music. Accepting the fact that piracy is unavoidable, artists often use pirating as a way of generating publicity for themselves, which can pay off in increased live concert ticket or merchandise sales, or even to help launch lucrative careers. ¶8. (U) Due to widespread poverty in the DRC, most Congolese actually prefer to buy pirated goods, simply because they are much cheaper than the originals and are of inferior but acceptable quality. CD's or tapes being sold legally for USD 20.00 are often sold for USD 1.00 - 2.00 on the informal market. How Musicians Have Dealt with Piracy -------------- ¶9. (U) With the absence of an established recording industry, live performances are what drive the Congolese music economy, since they are generally the primary means of income generation for artists. The amount a musical performance might earn for a concert is generally negotiated beforehand between promoters, venue owners and musicians. These range from USD 15,000 for internationally-renowned artists to perform in stadiums, to USD 500 for popular Congolese bands to perform in small venues and night-clubs, to anywhere from USD 200 and to USD 50 for emerging artists to perform at private functions. Many hotels, motels and restaurants have resident bands that perform on a regular basis. These arrangements are often based on verbal agreements and, on average, the house band's earnings, although more regular, tend to be below earnings generated by one-off concerts or performances. (Note: Even live-broadcasting events and performances are recorded illegally by pirates and are then distributed via informal operators. Sometimes even the promoters do this as a secondary source of income. End note.) ¶10. (U) Despite the predominance of the live performance industry, Congolese musicians continue to make records in the studio, partly to legitimize themselves as artists, but also because of a phenomenon called "libanga." Libanga, which literally means "stone" or "throwing a stone" in Lingala, the major local language in the Kinshasa area, is slang for "tossing money to someone." It is a form of social advertising, sponsorship and patronage that enables artists to make money from their records despite rampant piracy. Simply put, libanga is when a politician or rich businessman pays an artist to include the patron's name in a song. This practice dates to the 1980's and 90's, but now dominates the content of Congolese pop music, to the point where entire verses of songs are merely a list of people's names. ¶11. (U) The ability to pay for an artist to sing your name in a song is a huge status symbol in Congolese culture, and is something to which many young people aspire. Moreover, from a political standpoint, it is a way of getting a popular cultural figure to sing your praises. Understandably, these patrons do not object to the piracy of the music that they sponsor, knowing that it will be widely distributed and ultimately generate more publicity for themselves. Strangely, however, the musicians themselves seem unconcerned about the piracy, perhaps realizing that the patrons pay for libanga only because of this informal distribution network and any airplay a song gets. (Note: In addition to patrons' names, Congolese musicians are not above mentioning famous club deejays in their songs. End note.) Congolese Law and IPR -------------- ¶12. (U) In theory, intellectual property rights (IPR) are protected by the law in the DRC. But because of poorly-functioning administrative and judicial systems, this protection does not usually exist in practice. The country has signed many international IPR agreements with organizations such as the World Intellectual Property Organization (WIPO) and the Paris Convention for Protection of Intellectual Properties, which protects trademarks and patents. The DRC is also a member of the Berne Convention, which protects copyright, artistic works, and literary rights. The maximum protection that these conventions provide is 20 years for patents and 20 years, renewable, for trademarks, beginning from the date of registration. ¶13. (U) A 1986 law guarantees the protection of intellectual property rights. The law when enforced, however, prescribes only light penalties, the maximum penalty being the destruction of the pirated products seized and the machines used to make them, and a fine. Furthermore, the law does not give the court the power to seek out known pirates, but instead only the authority to prosecute them when a complaint is filed against them. This passive approach to combating piracy has enabled many serious offenders not only to escape justice, but also to continue to produce pirated copies in mass quantities. GDRC Policy and Initiatives -------------- ¶14. (U) SONECA (Societe Nationale des Editeurs, Compositeurs et Auteurs, in French, or National Society of Publishers, Composers and Authors, in English),the DRC's version of ASCAP, is the government agency responsible for ensuring the protection of artists' intellectual property rights, although it acts mainly as an administrative body. Since 2005, this agency has begun an anti-piracy campaign to inform consumers about whether the products they buy are pirated or not. Many genuine products, including CD's and tapes, are branded with a hologram to guarantee the product's bona fides to consumers. (Note: This policy has proved to be fairly ineffective against piracy, as most consumers do not seem to care whether what they buy is pirated or not. End note.) ¶15. (U) The GDRC recently participated in a regional training workshop in Pretoria organized by the U.S. Patent and Trade Office (USPTO) in partnership with the South African Development Community (SADC) and the World Intellectual Property Organization (WIPO). Three Congolese officials attended, representing the Office of Customs and Excise Tax, the Attorney General's office, and the Congolese National Police. Efforts have already begun by these three Congolese entities to cooperate on IPR issues, and the seminar was seen as an informative and productive experience. (Note: A similar conference/training seminar will be sponsored by WIPO in Kinshasa in the near future. End note.) ¶16. (U) The Minister of Justice has submitted a draft law to the government that seeks to rectify the flaws of the 1986 law. The proposed law would make it possible to pursue suspected pirates, rather than having to wait for complaints to be filed before acting. Moreover, the law calls for the dismantlement of SONECA, which has had a history of mis-management, and calls for the formation of a new commission called the "Collective Society." This entity would address intellectual property rights issues more directly, and will be specifically charged with meeting the needs of musicians. The law will be presented to parliament when the parliament reconvenes this fall. ¶17. (U) Comment: Although the GDRC seems to be taking positive strides toward fighting intellectual property rights infringements, piracy has dominated the music industry for 20 years and thus deeply ingrained into the music sector's culture. Like many other sectors of the GDRC economy, the Congolese music industry has found ways to cope, and even prosper, despite relative chaos. Thus, in order to truly address the lack of respect for IPR much more needs to be done across the board in order to protect not only Congolese interests but also the interests of all those who require IPR protection in the DRC, including foreign producers. End comment.