London, 8 March
1999 - In the global fight against counterfeiting
and piracy, law enforcement agencies must first win the battle of public perception.
Despite warning notices, and the
public burning of small mountains of fake Rolex watches and other counterfeit
products, indulging in the purchase of a few pirate products is still not viewed
as a social evil. Normally law-abiding citizens see nothing wrong in acquiring
fake designer trainers or sun-glasses while on holiday in Thailand, or in settling
down to watch a pirate copy of a recently-released blockbuster. They certainly
do not feel the need to exert pressure on their governments to invest resources
in combating the crime.
While other forms of illegal trading,
such as drug dealing, are viewed with great public concern, few people are aware
either of the multiplicity of different activities involved in counterfeiting,
or of the damage they cause.
Indeed some people express a sneaking
admiration for the skills and sheer nerve of those counterfeiters who have been
able to replicate valuable antique furniture, or who have successfully duped
the art world into paying vast sums for fake paintings by old masters. For others
it is the "Robin Hood" factor that appeals – stealing from the
rich to help the poor. Proponents of this argument say it is morally wrong for
software companies to charge such large sums for their software and pirates
are merely redressing the balance.
To some members of the public who
feel designer products are vastly over-priced, counterfeits are simply "a
rip off of a rip off". Other individuals, especially from emerging economies
believe the infringement of intellectual property does not constitute wrongdoing,
since it is the common property of mankind. They maintain that laws should facilitate
access to it as a development tool rather than place restrictions on its use.
These views are sadly given some
credence by the failure of most governments to highlight the negative effects
of counterfeiting - the damage done to companies, their products and reputation,
the loss of jobs and tax revenue, quite apart from the value and economic importance
of intellectual property. Instead light sentences from the courts, and sometimes
failure to prosecute at all, send the wrong signals into the public arena.
Added to this is a European Community
regulation which permits the import or export of counterfeit goods and pirated
goods which are non-commercial in nature up to a limited amount. Although the
rationale behind the exemption was to make border enforcement measures practicable,
it conveys the wrong message to consumers, indicating that a bit of counterfeiting
and piracy is acceptable and providing a loophole through which counterfeits
can legitimately pass.
So what can be done to alter public
perception of counterfeiting and piracy? What is clear is that while most governments
will continue to co-operate with industry in passing laws and in providing the
necessary enforcement machinery, public awareness programs are likely to be
left up to individual industries, many of whom are suffering significant losses
from piracy, and to anti-counterfeiting associations.
As we move into the next millennium
public perception of the nature of counterfeiting is likely to be affected by
a number of factors
which may in turn bring more pressure to bear on law enforcement
agencies and governments to address the problem.
Firstly, there is the issue of
health and safety. Even consumers who are prepared to purchase fake designer
clothing and pirated software are horrified by the prospect of fake aircraft
parts and pharmaceuticals. Secondly, organized criminals, scenting huge profits
with minimal risk, are moving ever-deeper into the world of counterfeiting.
As public awareness of these issues grow, the image of counterfeiting as a harmless
activity will be challenged.
But even if public awareness of
the risks of counterfeiting increases, companies will not be able to rely on
the actions of governments and the law to protect them. Already in the United
States it has been suggested that companies who fail to exercise due diligence
in protecting their products and customers from the risk of counterfeiting may
be laying themselves open to law suits.
Recent research suggests that if
a counterfeit product, particularly one with health and safety implications,
injures a consumer, he or she may be able to win large monetary damages from
the company that produces and markets the legitimate product if that company
knew that counterfeiters were making bogus copies of its products and failed
to take reasonable steps to stop them.
Such steps could involve the company
in policing the counterfeit market to ensure copies of its products are not
on sale, as well as the use of authentication technologies. Certain companies
have already chosen to take a more proactive stance in tackling the problem
by promoting public awareness of their anti-counterfeiting policy.
Counterfeiting
Intelligence Bureau