Shippers Becoming Anti-Counterfeiting Target; Europe Takes Other MeasuresPublished on 3 May 2013 @ 1:12 pm
By William New, Intellectual Property Watch
Istanbul – Counterfeiters are using legitimate supply chains, and shipping companies are unknowingly allowing it and need to take steps to crack down, rights holders’ representatives said at a recent anti-counterfeiting conference. Meanwhile, Europe is undertaking a study of the benefits of IP-intensive industries, and new customs and protection measures.
The 7th Global Congress on Combating Counterfeiting and Piracy took place from 23-25 April in Istanbul, Turkey, a major international crossroads. The congress is co-sponsored by the World Customs Organization, World Intellectual Property Organization and Interpol. Another IP-Watch story on the event is here (IPW, Enforcement, 25 April 2013).
Usually blame for counterfeiting goes to the manufacturing side, occasionally the demand side, but more focus should also go on what happens in between, D’Arcy Quinn, director of anti-counterfeiting at CropLife International in Belgium, said on a conference panel.
They’ll “never get” the counterfeiter, as organised crime is tough to get, he said. But the intermediary might be able to do more. He gave an example of a shipment of tons of counterfeit fertilizer shipped to Europe and seized. The brand owners were required to pay the storage and destruction costs, even though the shipping company got paid by the counterfeiter to make the shipment. When CropLife asked the shipper to contribute to the costs, they said no.
“You have no obligation to pay for the mess you created?” he asked of the shippers. Why not do a little due diligence on who the customers are?”
“Bankers need to know who their customers are,” Quinn added. “Shippers need to know too. Some of your own service providers are aiding and abetting counterfeiters.” His suggestion was that government service or audit departments should be asked to go check. Just asking who the shipper is would likely lead counterfeiters to move to the next shipper who doesn’t ask. And those shippers could become more serious targets of inspections by customs.
Quinn also urged companies and prosecutors to pursue cases vigorously, even if expensive. If they don’t challenge them in court and just walk away it will send a message they can get away with it, he said. This message was echoed elsewhere in the conference, such as by retired UK patent Judge Michael Fysh, who said that many do not fight because of cost or practicalities. “Often the bad men should be punished get off scot free” because no one wants to challenge them. He also offered the view that it is “difficult but not impossible” to establish cross-border rights, and said that the element of surprise can be more effective than long-running cases against infringers.
On the same panel as Quinn, Bilal Ahmad Khan, customs and transport programme manager at the Universal Postal Union (UPU), described initiatives underway against counterfeiting. The agency has organised pilot programmes looking for counterfeit products, and works to raise awareness, he said. An article to the UPU convention adopted in 2012 requires the adoption of security standards, including with electronic information. Challenges include capturing data at the origin, as it is often the “common man,” not corporations. He said they are looking at improvements to customs declarations, which will lead to recommendations on how to overcome transit issues.
Later, Norm Schenk of the United Parcel Service (UPS) gave the intermediaries’ view. He spoke for the Global Express Association, made up of the four biggest express shippers: UPS, FedEx, DHL and TNT. First, he said that the shippers also can be victims, as their logos are sometimes falsely displayed on websites to make them look legitimate.
On shipments, Schenk also said the shippers work on a good faith basis, and work collaboratively with customs and law enforcement. But, he said, “We can’t be the enforcement arm. That is not our expertise.” Intermediaries cannot be responsible for the contents of the shipments, he said, adding that there are limits on cooperation, as it must be legal, globally consistent and economically viable.
OHIM Study of IP-Intensive Industries in Europe
On a different panel, Paul Maier, director of the Office for Harmonization in the Internal Market (OHIM) Observatory, said the group is conducting a study for Europe similar to one on the United States carried out by the US Patent and Trademark Office (USPTO), showing the positive impact of IP-intensive industries. OHIM is the European office for trademarks and designs. It looks at how many people are employed in the IP-related industries, and how much value-added it provides. The US study came in for criticism by public interest advocates who saw shortcomings in the model, but the EU is not phased by that.
The first results are expected in June, and then they will look sector by sector at the sectors with most recourse to IP. The objective is to see if sectors that invest in IP have more economic benefit. Maier noted that Europe “suffered a major setback” with the defeat of the Anti-Counterfeiting Trade Agreement (ACTA) last year due to massive opposition. So now statistics are needed to counter the perception that IP is not important. “Even our own officials need reminding that IP is important for our countries,” he said, hinting at the results of the study.
For the study, researchers will interview 2,500 Europeans on their understanding of IP. They have already logged about 100 hours of interviews, he said. For the results, he said the European citizen believes protecting creators is very important, but they also think they should be able to download materials.
New EU Regulations on the Way
Also, Caroline Edery, head of the “protection of citizens and enforcement of IPR” unit of the European Commission Directorate-General for Taxation and Customs Union, spoke on trends in the European Union. She said sea transport remains the favourite method for shipping to the EU. Meetings were being held during the week on new EU regulations being developing, with the hope that the European Council and Parliament would eventually adopt them. The new regulations would widen the range of IPR infringements at the border so officials do not have to make decisions about whether the infringements are covered or not.
The new regulations also make it easier to destroy infringing goods, she said. The right holder can decide if they want to pursue a court case. The regulations also mean less administrative burden and lower costs. Smaller consignments, such as one to three items, will receive faster treatment, said Edery. The regulations also state clearly what right holders have to provide to customs, with constant updates. And there is an action plan for implementation of the new regulations. The Commission also is looking at sales on the internet, and is pursuing bilateral cooperation with China, she said. There are also developments on EU legislation on IP protection, but it remains to be seen if Parliament ratifies it, Edery said.
Separately, Daniel Hubert of the Digital Coding and Tracking Association in Switzerland, representing the tobacco industry, called for the establishment of a working group with a range of institutions such as the World Customs Organization, possibly health organisations, brand owners, standards organisations, and others to agree on what the issues, and look at standards for data transmission. “Without that we will not get to a proper endgame,” he said.
On another panel, Louise van Greunen, director of the WIPO Building Respect for IP Division, described some activities at WIPO. She noted the importance of balance in IP rights, and described work at the WIPO Advisory Committee on Enforcement (ACE), noting the mandate of the WIPO Development Agenda in ensuring a balance in the committee. WIPO members wanted to better understand the scope and impact of piracy, so they are looking at all social dimensions, including poverty, access to goods. The effort is aimed at understanding what would fuel counterfeiting and to understand alternative business models, she said. Another initiative with the UN Environment Programme is to look at how to dispose of counterfeit products in sustainable ways. The next ACE meeting will look at preventive measures and successful experiences, she said, as well as practices and alternative dispute resolution in the area of enforcement.
Prof. Keith Maskus, associate dean at the University of Colorado, reported on rough, preliminary evidence of the economic effects of protecting intellectual property rights. Though more research is needed, he said they did find a large net gain over time from IP protection, even though it tends to increase prices, gives monopoly power, and lowers access.
During the meeting there were reports from a number of national governments about their efforts on the ground. For instance, Mohd Roslan Bin Mahayudin, director of enforcement at the Malaysian Ministry of Domestic Trade, Cooperatives and Consumerism, described a government programme of IP awareness. This includes a fleet of vehicles with “IP Awareness” on the side that go to speak with small children about whether members of their families are downloading unauthorised copies of copyrighted work. They ask them how they would feel if someone copied their work, and then reward them with a gift at the end. He said information programmes such as this have help dramatically reduce the piracy rate over the past 15 years.
Later, Brian Monks, vice president for anti-counterfeiting operations at the US-based Underwriters Laboratories (UL), said counterfeiters “couldn’t care less” about safety standards, which is what UL does.
He said UL has interviewed children in a number of cities and found that while adults find little wrong with buying knock-offs (generally based on a notion that they cannot afford therefore they can settle for the cheaper version), children do feel something is wrong. UL has partnered with Disney Corporation to target 4 to 8 year-olds to talk about “honesty,” and the feeling they get that something is wrong when they buy “stolen” goods. “Hopefully kids will tell parents ‘that’s not right’” when they do it, he said. They are also doing a video for teenagers and might do one for adults.
Orhan Gencebay, a Turkish composer, lyricist and performer, said the “adventure in Turkish music” began in the 1960s, and felt so strongly about anti-counterfeiting efforts that this meeting was “almost holy, almost sacred” to him. The industry is “barely surviving” now due to copyright infringement, he said, and a number of creators are no longer producing because “they can’t get anything for their creations.” “This is injustice. This is stealing of labour,” he said.
[Update:] The United Nations Interregional Crime and Justice Research Institute (UNICRI) and ICC Business Action to Stop Counterfeiting and Piracy (BASCAP) released a report at the event “advocating the confiscation of the proceeds of crime as an effective tool which governments can implement against the infiltration of transnational organized crime into the illicit business of counterfeiting and piracy.”
The full report, entitled Confiscation of the Proceeds of Crime: a Modern Tool for Deterring Counterfeiting and Piracy and Executive Summary, can be downloaded here.
William New may be reached at firstname.lastname@example.org.
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