OECD Project on Counterfeiting and Piracy

An OECD three-phase project to examine counterfeiting and piracy confuses piracy with other infringements of "intellectual property" rights.

The first phase of the project will cover products (i.e., tangible items) that infringe trademarks, patents, copyrights or design rights. The second phase will cover digital piracy, while the third will address other forms of infringement of intellectual property. The project will be carried out during 2005-2007.

The project includes an industry questionnaire. The deadline has been extended.

OECD project information

A quote from the questionnaire:

Comment Ante Wessels

Piracy?

As the quote shows, in this questionnaire no distinction is made between counterfeiting and piracy on the one hand and other infringements of the mentioned rights.

There is no good definition of piracy, a possible definition could be: massive for-profit 1:1 copying, and thereby violating clearly protected rights. Without a clear definition major issues arise, for instance:

• Do we want other infringements than 1:1 copying to be seen as piracy?
• Do we want not-for-profit infringements to be seen as piracy?
• Infringements often occur during normal business conduct, is this piracy?
• Even companies which merely use properly licensed software can be seen as "pirates", since such use can infringe on software patents.
• It is impossible to write software without violating patents, is every software developer a "pirate"?

The questionnaire leaves room for companies to report other infringements than clear, massive, for-profit 1:1 infringements. The piracy problem may seem bigger than it is.

We witness a tendency to confuse piracy with other infringements. We see this in the IPRED 2 directive, this questionnaire, the G8 statement made after the St. Petersburg meeting.

This confusion creates a big threat potential, hampers the (desired) freedom to act in a market. The confusion may lead to overprotection of "intellectual property" rights, legal uncertainty, unwanted arrests and confiscations, and a less free cultural life.

Serious crimes call for serious measures - and serious definitions.

Infringement?

Not all alleged infringements are actual infringements. A civil trial is needed to establish whether an alleged infringement is indeed an infringement, for example with patents (prior art), trade marks (confusion) and copyright (independent recreations, parody, quotations).

The questionnaire leaves room to report alleged infringements. Again, the reported problem may be bigger than the actual problem.