Since 1988, World Anti-Counterfeiting and Piracy Day has been celebrated on 8 June every year to raise awareness of the damage these crimes cause to commerce, health and safety, discouraging research, development and innovation, as well as the creativity of the human intellect in general.
The offence of counterfeiting ranges from the false attribution of the identity of a natural or legal person, the mere use of the trademark, to the manufacture and distribution of adulterated products, not authorised by the rights holder. While the term piracy, of a similar meaning, is used to refer to the appropriation, reproduction and distribution of artistic, scientific and literary works protected by copyright, in the same way, without the authorisation of the copyright holder.
It is surprising to learn that there is evidence of counterfeit goods dating back to 200 BC of wine amphorae sealing stoppers that bore false marks of commercial origin in order to illegitimately claim the reputation achieved by their real owner. [1] Today, 2000 years later, with the very advance of industry and the opening of borders with globalisation, the mechanisms of counterfeiting worldwide have become more sophisticated, and the digital economy has provided the space to facilitate the large-scale distribution of counterfeit goods and pirated works, making it more difficult to trace the infringement back to the infringer.
Regarding our country, the Dominican Republic is on the Non-Priority Watch List for the United States, according to Special Report No. 301 issued earlier this year by the Office of the United States Trade Representative (USTR), which is relevant because it is our most important trading partner. We have been included among the top 5 countries for pharmaceutical counterfeiting, and among the top 15 countries for online piracy and lack of effective enforcement. This report positively highlights the enforcement of customs laws and the control of counterfeit health goods. However, it cites “lack of political will to address long-standing Intellectual Property problems, in particular against signal piracy, including the continued de-prioritisation of Intellectual Property prosecutions and investigations. “2 ] In addition, the most recent cases of adulterated alcohol marketing and its deadly consequences could exacerbate our position in the report, which in itself prompts us to take substantial action during 2021.
The total eradication of counterfeiting may be a pipe dream, but it certainly requires a short, medium and long-term plan involving all actors involved, which could considerably minimise its effects. In the short term, we would suggest prioritising the awareness of the consumer himself, who is often caught as a victim, and in many other cases can act as an enabler with full knowledge and interest in the counterfeit product. That the consumer knows first-hand the implications of his or her purchase, whether intentional or not, for the normal exploitation of intellectual productions in commerce, whose authors and owners see their moral right to recognition of their creation, as well as their economic rights for their work, effort and investment in time and resources, being benefited illegally by the work of others. That it is theft like stealing any material or tangible property. Worse still, their health and physical integrity are threatened by these practices.
In the same way, the specialised authorities should be made aware that the consequences of the crimes being prosecuted should not be minimised, not only with regard to the private rights of a few, as may be seen, but also to collective rights, which also concern them as citizens and consumers, of healthy competition, health and even peace, with counterfeiting, piracy, smuggling and all crimes against intellectual property being considered as preceding or determining offences, i.e. “generating goods or assets susceptible to money laundering” and therefore also supporting the financing of terrorism.
In a medium- and long-term plan, this could include the acquisition of state-of-the-art technology that allows for easier identification of the offender, collaboration with international authorities, strengthening of processes and institutionalisation for border enforcement and stopping clandestine trade, transformation of the health system towards sanitary surveillance instead of prior sanitary registration, among others.
By Magdalena Almonte
Partner and executive director. Head of the Intellectual Property and New Technologies Division.
[1] The Paris Counterfeit Museum – The Back of the Plot. WIPO Magazine, February 2009, [Online] Available at: https://www.wipo.int/wipo_magazine/es/2009/01/article_0009.html
[2] Office of the United States Trade Representative, 2021 Special 301 Report, p. 68 Accessed 3 June 2021. [Online] Available at: https://ustr.gov/sites/default/files/files/reports/2021/2021%20Special%20301%20Report%20(final).pdf
