Organized Crime and Organized Conflation for the Nation

In a glossy report entitled "Out of the Shadows" that ranges far and wide from drugs to tobacco smuggling to motorcycle gangs to human trafficking and to - you guessed it - intellectual property, the Ontario Association of Chiefs of Police has joined the bandwagon of conflating IP "crime" with all manner of organized evil. Our police chiefs copied (or was it fair dealing?) a good chunk of their material on IP from the Canadain Anti- Counterfeiting Coaltion ("CACN") FAQ, where it says:

How can I ensure that the product I’m buying is not counterfeit?

Some indicators to watch for include the price being much lower than average, spelling mistakes on the product or packaging, products that are normally sold in packages being sold individually, shoddy appearance of the product or package, or products (particularly electrical products) that have no name brand. In addition, if you buy products from a reputable retailer, there’s less chance they will be counterfeit.

I can't be bothered to do the side by side, since the police chiefs have made their presentation non cut-and-pastable. (Too bad for access to knowledge). It's at page 21 of their report.

And for a little melodrama - and the evident source of the police chief's wording, see this touching poster from the CACN of an adorable young child whose life is threatened by such things as a price being "much lower than average."

One GOOD thing about the police version of things is that they only say that counterfeiting is costing the Canadian economy a billion a year - a far cry from Ambassador Wilkins outrageous pronouncement of up to $30 billion.

The police chiefs are clearly concerned with organized crime. And rightly so.

But the risk of conflating "patent, trademark [sic] and copyright infringements" with all of the rest of the litanies of organized evil belies not only an organized IP lobby but some real dangers for public policy.

Could the legitimate, time honoured and competitive practice of parallel importation (which by definition involves perfectly legitimate and authentic goods) get mixed up in policy makers' minds with the counterfeiting issue? Parallel imports are often sold at a price "much lower than average", simply because they enter the country other than via the "exclusive" Canadian distributor, having been legitimately bought abroad at a more favourable wholesale price than the Canadian exclusive distributor is able or willing to offer. This very issue just happens to be pending before the Supreme Court of Canada.

Anway, it seems as if this campaign will never end. Talk about "organized"!

And a Parliamentary Committee has already credulously bought into this, hook, line and sinker, as Michael Geist has duly documented.

BTW, here's a fact. And I'm not inciting, counseling, or encouraging anything here. Counterfeit "Rolex" watches for $10.00 and lots of other counterfeit brand name goods at really cheap prices are still flagrantly available in New York City - much more flagrantly, I daresay, than in Toronto or Montreal, for example, in Canada. This is more than ironic because the source of virtually all of the organized pressure on Canada is the US Government and its own lobby of organized multinationals.

In any event, don't just take my word on the issue of over-criminalizing IP infringement. Two of the leading thinkers and scholars of our time or any time in IP - namely, Sir Hugh Laddie and Bill Patry - have recently weighted in. See Bill's recent blog here.


HK