After an opening plenary that restated the themes of the meeting, the second day of the Global Congress Combating Counterfeiting and Piracy broke into panels, one of which was “Financing effective enforcement – innovative approaches.” It was chaired by Trevor Little, Managing Editor of the World Trademark Review. He said that the current economic climate, all governments are facing limited resources, and this can affect the resources available for IP Enforcement. Therefore, we need to find savings where we can, and find good ways to maximize our efficiency.
Mr. Vinko Fodich, Unidad de Control y Sanción, División de Seguridad Pública del Ministerio del Interior, Chile was the first speaker. He described two initiatives in Chile:
- An official, permanent Public-Private committee has been set up within the government. It involves officials from many agencies (tax, police, customs, attorney general, health and safety regulators), as well as the national Chamber of Commerce. They start the year with identification of specific problems related to counterfeiting, illegal trade, thefts, and intellectual property crime. The Public-Private committee operates with total transparency, and it is required by law to have an open interchange every month. The meetings are financed by the Chamber of Commerce, but the public authorities lead on agenda setting.
- Chile also has an IP Crime Investigation Brigade, which was set up in 2008 and exclusively fights counterfeits and piracy. It is the only unit of its kind in South America. This is important because IP crime is socially tolerated – which is a big problem in Chile. There are no complaints from the citizens against this type of crime. But when the unit came about, civil society has felt more involved, and things are slowly changing.
Tatiana Gerasimova, First Deputy Chief of Russia’s Investigative Committee of the Ministry of Internal Affairs spoke next. Her office is the main investigative unit that investigates counterfeiting and piracy crimes in the nation. Russia recently modified IP legislation, and added new provisions to the criminal code – provisions that increase the penalties for IP crimes. Art. 146 of the criminal code now has sentences of up to 6 years in prison. Another new article in the criminal code allows us to seize property, and not just from the infringers – we can seize assets of people who are connected to the criminals. Last year we investigated over 6000 crimes connected to IP. More than 3000 people were involved in the crimes, and the damages were estimated to be $33 million dollars. We confiscated $50 million dollars worth of criminal proceeds. However, there are problems we often face in our investigations. It can be hard to find infringing producers. We lack good investigative methods for internet crimes, and we’re trying to work with internet providers. We need improved legislation that addresses the challenges posed by internet technologies.
Andrea Sharrin, Deputy Chief of the US Department of Justice’s Computer Crime & Intellectual Property Section said that in today’s difficult global economy, we all are facing limited resources. But criminals don’t have the same restraints. They don’t deal with annual budgets, safety codes, taxes, etc, so they are not as impacted by the economy. In fact, studies have shown that in difficult times, IP crime actually increases. So in bad economic times, our anticounterfeiting activities need to increase. To maximize resources, enforcement strategies need to be efficient and effective. Law enforcement needs to be very well trained. Criminals exploit new technology and new methods of packaging and distribution, so we need the same level of technology. We need to be smart about choosing our targets. One person at the top of the food chain will have a bigger effect than many small fish. We need to work together in capacity building exercises to reduce safe havens around the world. We need to increase and leverage our work with the private sector.
The US Department of Justice works internationally on policymaking and training. We are constantly evaluating new technology and building expertise. We also have state of the art cybercrime lab with people who research the ways in which counterfeiters and pirates operate to figure out the best way to fight them .We train our prosecutors and prosecutors in other countries. We have a listserv where networked people fighting the same problems can exchange information.
The US government works with others. We take advantage of industry initiatives such as the Coalition for Safety in Pharmacies. We have IP law enforcement coordinators placed overseas in Asia and Europe, and they participate in a network with Asian leaders. We have programs where we train people who train people in Asia. Our IP Enforcement Coordinator brings a lot of attention to the issues. She works with both trade policy and domestic policy, and brings more attention to the issue – which can lead to more resources.
John Newton, INTERPOL’s Programme Manager for its IP Rights Programme said that despite the bad economic climate, we can still focus resources on enforcement. We need to consolidate what we do well and concentrate on doing it better. In Interpol we try to maximize our resources, and we do get good results. This is reflected by our funding sources – only 10% of our overall budget comes from private sources, but for IP crimes the figure is 50%.
To do effective policework against networks of counterfeiters, we need to have a clear strategy. At Interpol we want to raise awareness of the link between counterfeiting and organized crime, and we want to increase training. When entering partnerships, it is important to choose the right partner. We also want to make good use of the IINTERPOL brand by executing winnable actions, highlighting successful actions, and being able to show the costs and benefits of our work.
Michael Blakeney, Director of the Australian Global Studies Research Center talked about confiscation. He disagreed with all of the previous speakers’ assertion that resources are scarce, arguing instead that there are immense resources available through the confiscation of assets from counterfeiters. He mentioned ACTA Article 25 as a justification.
There are generally three types of confiscation legislation
- Laws that track proceeds back to specific crimes
- “Criminal lifestyle” legislation, which is found in the UK. If someone has a “criminal lifestyle” from which he or she has benefitted, then that person can be ordered to disgorge his or her property.
- “Unexplained wealth” legislation, which is found in Australia. In this type of law, a person can be made to explain that his or her wealth is legitimate. The person’s financial assets are audited. If they cannot prove that they obtained their wealth honestly, they can be forced to give it up.
In 2006, the US confiscated $1.2 billion of property, and a lot of it went to law enforcement . Last year, 73.8 million rand in South Africa was confiscated and distributed to law enforcement. Legislation like this was originally devised in a drug trafficking context. So what do right holders get out of all of this… this is something we still need to figure out.
Jacques Franquet, Director of the trade group l’Institut international contre la contrefaçon des medicaments focused on public outreach. WCO has rapidly scaled up activities and INTERPOL recently voted IP crimes to be a priority. Initiatives to fight counterfeits medicines are already proliferating. The major stumbling block is the non-awareness of the public, so we need outreach. Healthcare professionals need training to carry out the campaign. Franquet’s institute compiles as much documentation as possible and Posts it on the internet. They run trainings for healthcare professionals. We do a lot of work with public private partnerships – and this is one area where innovative solutions can be found, regardless of the funding outlook.
A member of the audience asked the panel if there is there a conflict of interest having private enterprises funding public enforcement work. Would it raise questions about impartiality of enforcement? The three panelists who work for law enforcement John Newton (Interpol), Andrea Sharrin (US Department of Justice), and Vinko Fodich (Chile’s Interior Ministry) all said they preferred to work with trade associations than individual companies.
