Kara van MalssenCopyright, Legal Issues, and PolicyFall 2005Professor Rina Elster PantalonyFILM PIRACY AND NATIONAL CINEMA: A TEMPESTOUS RELATIONSHIP?INTRODUCTION: IPR LAW, PIRACY AND CREATIVE OUTPUTOn April 17, 1975, the Khmer Rouge seized the Cambodian capital of Phnom Penh, and began the brutal regime that caused the death of nearly two million people in almost four years. During this period, literacy and culture were erased. Books, religion, money, private property, formal education, and freedom of movement disappeared. Emerging froma state of slavery, persecution and torture in 1979 when the regime fell from power, the Cambodian people desperately sought out forms of entertainment and freedom that had been denied to them. Movie theaters began to re-open and Cambodians flocked to the cinema, eager to catch a glimpse of any moving picture on the screen. The period was a reminder of the golden age of Cambodian cinema, which peaked in the mid-1960s. By the late 1980s Cambodian film and video production began again, in what seemed to be a cultural renaissance. In his 1992 Film Comment article on the new Cambodian cinema, John Eli Shapiro wrote, “The unstable politics in Cambodia pose little threat to this nascent industry because, in a country with a ruined infrastructure where nothing seems to work right, the business of film production is a singular success story, a source of national pride,”adding that. “Cambodia’s film and video output continues unabated.”1The re-birth of Cambodian cinema, however, was short lived. Shortly after Shapiro’s articlewas published, the movie houses began to close, and production essentially halted. Speculators ascribe this phenomenon to a few different problems. One of these was the lack of sophistication of the Cambodian films, as the actors and filmmakers often were without training in their art. The closing of cinemas is often attributed to the increase in inexpensive home entertainment systems that flooded the country in the early 1990s. The main obstacles keeping Cambodian cinema from competing with these markets, officials and filmmakers say, are a lack of resources, censorship, and insufficient copyright protection. Along with the home video systems came a flood of pirated movies from Hong Kong, Thailand, Singapore, and the United States, all of which had been banned under the communist Vietnamese-backed government in the 1980s. The popularity of these films andtheir sophistication, coupled with the piracy of Cambodian producer’s own films, shut downthe system. Television stations greatly contributed to the decline: instead of showing locally produced films, which would cost quite a bit, they would simply show inexpensivelyobtained pirated films.According to the Pin Sisovann, writing for The Cambodia Daily, “Many film companies died out because they could no longer control the distribution of their films and no longer make a profit.”2 Ly Bun Yim, one of the major Cambodian filmmakers from the 1960s, stated that, “Today, the survival of Cambodian cinema hinges on the enforcement of copyright and intellectual property laws.”3 When these quotes were published in 2002, Cambodia was still one year away from adopting a copyright law. In 2003, a law was established that allowed Cambodia to join the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO) Treaties. Coinciding with this moment, film production slowly started picking up again in Cambodia. However, it continues to struggle, as the old problems haven’t been solved. There is still no training for actors or filmmakers, storylines are banal, funding is limited and piracy continues to run rampant. Yet the simultaneous emergence of copyright and production is remarkable. Is it simply acoincidence, or has the law given Cambodian filmmakers a sense of security? Does the lack of IP law equal no creative output? On the other end of the spectrum, does a stringent IP law mean a high rate of creative production? Furthermore, do countries with copyright laws manage to protect creations from piracy? Does the protection supposedly guaranteed by copyright law actually give people the incentive to create?This question of extremes is difficult to assess. One complicating matter is that copyright laws differ between countries. Copyright, as defined by WIPO, is, “a legal term describing rights given to creators for their literary and artistic works.”4 Although certain standards must be in place for a country to join WTO and the WIPO Treaties, these may vary and are not always well enforced. Organizations such as the United States Trade Representative (USTR), assisted by the International Intellectual Property Alliance (IIPA), track levels of IPR infringement in other countries and impose trade sanctions if laws are not enforced. Governments conduct raids to instill fear into video and audio pirates and appear compliant with the treaties they have signed on to. Still, piracy continues unabated. In order to approach these questions, it may be productive to look at the level of piracy within other nations, the film industries of those countries, and how one affects the other. The relationship between film production, copyright, and piracy is a complicated one, and even more so in a country as poor as Cambodia. However, I hope that looking at the situation of other countries will shed some light on whether there is a tie between creative output, copyright enforcement, and piracy.SPECIAL 301In order to determine what countries are experiencing high levels of copyright infringement for motion pictures, a good starting place is the USTR’s “Special 301”Reports. This part of U.S. trade law requires the USTR to identify countries that fail to provide adequate protection for intellectual property rights, or deny fair and equal market access for U.S. persons who rely on IPR. Each year the USTR completes a report that identifies those countries that fail to comply with these standards by varying degrees. Those countries with the most disagreeable policies or practices, or whose acts, policies, or practices have the greatest adverse impact on U.S. rights holders or products are identified as “Priority Foreign Countries.” Any country placed on this list may be subjectto sanctions and accelerated investigations. The second tier of countries being monitored are placed on the “Priority Watch List,” meaning they