UK to get even tougher with IP crime

Yesterday, the UK Government released a number of proposals to modernise the UK’s intellectual property laws. One of the reports is dedicated to outlining The UK IP Crime Strategy. The rational for the strategy is clear: counterfeiting and piracy are of concern both as a barrier to growth and because of the wider ills to which they have been linked, which include dangerous goods, online fraud and serious organised crime.

The report recognized that “The key technology for IP infringement is the internet. Its increasing importance as a medium for infringing copyright and selling fakes raises concerns across all parties. The web is a global marketplace for those wishing to engage in IP crime, just as it is for legitimate traders, and it is often hard for consumers to tell the two apart. It has triggered notable changes in how goods are transported and sold to consumers and presents new challenges for enforcement officers as traders can sell to UK based consumers from across the globe.”

The UK Government expressed its commitment to tackling both piracy (criminal infringement of copyright) and counterfeiting (willful infringement of trade marks). The objectives are to: reinforce the attractiveness of the UK as a place to do business by protecting legitimate marketplaces and providing a strong platform for business growth; make the UK unattractive to criminals seeking to engage in IP crime; and protect consumers from the considerable harms posed by dangerous and untested fakes and by wider criminality. To do this the UK aims to prevent and deter criminality; disrupt trade in fake and pirated goods, online and offline, at various stages of the supply chain; and reduce incentives for IP crime, for example by confiscating criminals’ assets.

One of the significant focuses of the report was on the use of technology to make counterfeits harder to make and easier to detect. The report suggested that technological protection systems could be used to make it harder to copy products and easier to spot fakes.

There may be scope for greater progress. Technology is constantly evolving – with new and more cost effective track and trace technologies, the capacity to check the legitimacy of alcohol using a mobile SIM card or to offer an online service which lets consumers check the legitimacy of retailers. Opportunities may emerge to improve the systems used by rights holders, retailers and to involve consumers more in their use.

Another significant focus involved obtaining improved cooperation from intermediaries such as domain name registries and providers of online services such as marketplaces/ trading platforms, advertising and card payment facilities. Their potential role was described as follows:

Other businesses such as market operators, shipping and courier companies and those who support the infrastructure of the world wide web (like Nominet) and deliver e-services like auction sites and online storage facilities are relevant to IP crime issues. We must make new efforts to bring these parties into effective dialogue…

Improved coordination, including bringing new partners such as Nominet and payment services firms into dialogue on tackling IP crime and better collaborative working on investigations and intelligence flows, both in the UK and internationally. This includes building awareness among partners about which other bodies are involved in tackling IP crime and what is being done…

Providers of online services such as marketplaces/ trading platforms, advertising and card payment facilities have a role in tackling IP crime by reducing the ability of criminals to profit from their crimes…

The report noted that the UK Metropolitan Police’s e-crime Unit are already working with “Nominet and others to remove infringing sites at the domain name level, while the City of London Police have been engaged with rights holders and card payment companies to disrupt sites run by criminals.”

The UK Intellectual Property Office (IPO) is planning to develop an action plan for tackling counterfeiting and criminal piracy online to identify the key threats and bring new industry and enforcement partners into mainstream dialogue with government partners. “This will include work on websites that are predominantly used for digital piracy, sales via auction sites and pop up websites of pirate and counterfeit goods, and the challenges posed by the increased use of small parcels bought online from overseas to import infringing goods.”

The UK’s approaches to combating IP crime are worthy of study here in Canada. According to a recent report published by the RCMP IP crime is a serious problem in Canada. According to the report, the total retail value of seizures reported by the RCMP alone, from 2005 to 2008, was estimated at more than $63.6 million, highlighting that IP crime is a profitable line of business.

Canada has some civil causes of action that can be used against counterfeiters as the recent case Louis Vuitton Malletier S.A. v. Singga Enterprises (Canada) Inc., 2011 FC 776 demonstrates. But, the cases under existing laws are expensive to bring, take a long time to get to court and the awarded damages are frequently uncollectable.

Canadian copyright and trade-mark laws have been criticized by domestic stakeholders and majors trading partners for failing to address IP crime. Among the major criticisms is our failure to upgrade our border controls to world standards. This has been noted by a Parliamentary Standing Committee on Public Safety and National Security, a Parliamentary Standing Committee on Industry, Science and Technology, the Ontario Chamber of Commerce, the Canadian Chamber of Commerce, the U.S. Trade Representative, the U.S. Congressional Anti-Piracy Caucus, the European Union, and the Canadian Anti-Counterfeiting Network (CACN).

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