IP CRIME
“ IP CRIME WILL
REMAIN AS LONG AS THERE IS A MARKET FOR IT, OR UNTIL THE DETERRENCE EFFECT OF CRIMINAL PUNISHMENT IS GREAT ENOUGH TO DISCOURAGE OFFENDERS.”
confi scation of assets, not all of which are likely to be possible.”
Harley Lewin, partner at McCarther & English LLP in New York, agrees, further underlining the diffi culties facing law enforcement in this area. “T e really signifi cant development in the last fi ve to 10 years has been that the paradigm of anti- counterfeiting cases has shiſt ed dramatically,” he says.
“Several things at the same time dramatically altered the landscape of criminal activities: global trade meant the fl ow of product on a global basis accelerated—and then there was the Internet. T at permits criminals to do business together without knowing each other. You have groups that engage in specifi c activities and don’t engage in the rest. From the criminal standpoint, that means criminals operate without borders, while laws stop at the borders.”
But Lewin argues that things are changing. “I think there is a global consensus,” he says. “Most of the major governments have learned that this is a high cost to them, and to their people. T e [Anti-Counterfeiting Trade Agreement] ACTA eff ort has been an eff ort to specifi cally address this, and is trying to make more uniform enforcement worldwide.”
Ultimately though, IP crime will remain as long as there is a market for it, or until the
deterrence eff ect of criminal punishment is great enough to discourage off enders. And that’s a long way off .
Politics and culture
IP crime has at least three causes: the public demand for counterfeit (read cheap) products; a lack of will or resources to deal with counterfeiters; and the relatively high benefi t to risk ratio of the crime. But if you can deal with the demand side, then the others become moot.
Lewin says: “Public education needs to be increased, and companies need to bite that bullet and go public with these issues. You can’t arrest the problem to death. As long as there’s a market, there will be people who want to fi ll demand.”
T at’s true, but there are examples of public education drives that have been successful. “Nobody would have said the US government could have got most of its population off cigarettes in a decade, but they have,” Lewin says. “If you can do that, it is evidence that top-down leadership can resolve problems.”
Changing the culture may take time, but eff orts are underway and public perceptions are, slowly, shiſt ing.
In the political sphere, things may be more diffi cult. Taking China as an example, Vaughn Volpi says: “China isn’t going to do too much
24 World Intellectual Property Review March/April 2011
about this issue unless it benefi ts China. T e way you make that happen is by leveraging other trade incentives to persuade them to change.”
But as Lewin points out, counterfeiting employs something like 120 million people in China. “You’d put an awful lot of people on the street if you tackled it, and you’d have to spend a lot of political capital to do it,” he says. “Ultimately, it changes when governments have an interest in making it change, and when that interest overwhelms the others.”
T ere are examples of countries that used to have serious problems with counterfeiting and piracy, but have solved them. Taiwan, for example, is no longer a haven for this kind of activity. As Young explains, that’s because there are now a lot of inventor companies that want to enforce their rights. Now China is not Taiwan, but perhaps a similar thing might happen. As countries that host large counterfeiting industries continue to develop, eventually research-based intellectual property might become as important as it is in the US. And when that happens, the incentive will be there to crack down.
Until then, it doesn’t really matter what criminal laws various jurisdictions have in place. Counterfeiting and other IP crime happens on a global scale. Global consensus and co-ordination must be key to dealing with it.
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