Cablegate: Piracy in the Congolese Music Industry: It Hurts

VZCZCXYZ0005
RR RUEHWEB

DE RUEHKI #0640/01 2190655
ZNR UUUUU ZZH
R 060655Z AUG 08
FM AMEMBASSY KINSHASA
TO RUEHC/SECSTATE WASHDC 8269
RUCPDOC/DEPT OF COMMERCE WASHDC

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.

© Scoop Media