Diseño de productos y servicios

Research that implicates an ability to mass produce counterfeit goods or consumer willingness to buy them as causal factors are insufficient fully explain the extent of the current counterfeit problem. It is only on examining the body of work that describes how the juncture of these factors is exploited by Organised Crime Groups (OCGs) that it becomes apparent how, and why, there has been a rapid growth in this crime problem. The link between OCGs and counterfeit goods is well established and is a common theme within a broad cross-section of writing associated with the subject (see, for example Lowe, 2006; FTI Consulting, 2013; International Institute of Research Against Counterfeit Medicines, 2013). Indeed it has been suggested that the growth in counterfeiting as a worldwide crime problem has been driven more by the activities of OCG counterfeiters than any other factor (Stumpf et al., 2011). However, the extent to which this link has been properly explored is open to question, particularly given that

6 _{Organised crime is variously defined but for the purposes of the study the definition used by} the UK National Crime Agency is utilised. Organised crime is therefore defined as serious crime planned, coordinated and conducted by people working together on a continuing basis. Their motivation is often, but not always, financial gain. Organised criminals working together for a particular criminal activity or activities are called an organised crime group (OCGs).

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some have described the whole genre of organised crime as still being poorly represented in the literature (Hall, 2013).

This implied weakness may have some foundation. Whilst there have been numerous popular texts on the classic crime gang and the gangster (see for example Thompson, 2005) there has been much less written about the evolution of those Mafia style gangs which by and large only exerted local influence into OCGs that are run like sophisticated and modern multi-national businesses (Cabinet Office Strategy Unit, 2009; Varese, 2013). That said the available literature is still enlightening. For example Hetzer (2002), when describing such groups, suggested that organised crime is more akin to a shadow economy and that this may be an extreme example of capitalist accumulation. Indeed this focus on capital accumulation rather than local influence and status is increasingly reflected in national strategic assessments of OCG activity

(National Crime Agency, 2014).

Considering the overall tenor of the literature it seems that part of the problem with addressing the activities of OCGs, both academically and practically, has been this very problem; an increasingly blurred line between organised crime and legitimate business and the increasing propensity for them to be one and both at the same time (Spink, 2011; Levi, 2014). Nonetheless by taking a cross-discipline approach to the question of why counterfeiting should be such an important element of the illicit business portfolio of many OCGs it was possible to isolate two noteworthy factors. Firstly there is a firm link back to the extent of consumer complicity previously

considered in this review. A willingness to step outside of established supply channels readily exposes consumers to the activities of OCGs and creates a market place where fake products can be sold at high profit (Catizone, 2006). Secondly an unwillingness on the part of governments or local enforcement agencies in what might be described as ‘victim countries’ to actively engage with matters of intellectual property means that

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counterfeiting represents a low risk activity to OCGs (see for example Williams & Godson, 2002; Phillips, 2007; Staake et al., 2009; Fink et al., 2010; Coyne & Bell, 2011; The Anti-Counterfeiting Group, 2013).

The high profit, low risk nature of counterfeiting as a crime opportunity is an often quoted maxim that regularly occurs in academic studies and business reports as well as media coverage of the problem (FTI Consulting, 2013). The profit element of the equation is largely self-evident; these groups are trading high volume and often high value goods, this to the extent that some have suggested that this activity is now as profitable to them as illegal drug trafficking (see for example FTI Consulting, 2013). At the same time the risk of being caught let alone prosecuted is perceived as being very low, largely the consequence of there being demonstrably poor rates of incidence reporting to the police or other enforcement agencies (Tilley & Hopkins, 2008). As a result counterfeiting is seen by OCGs as a soft crime (National Crime Agency, 2014), that is to say one where they can exploit the unregulated gaps in enforcement with relative impunity. As Coyne & Bell (2011) describe they can respond quickly and avoid unnecessary risk. It would seem then that OCGs have recognised that humdrum crime is safer (The Economist, 2014).

This lack of enforcement agency engagement with the counterfeiting problem must be seen in the context of wide recognition that the illegal revenue from this trade supports secondary OCG activities (United Nations Office on Drugs and Crime, 2015). Often these are crimes which rank much higher in enforcement priorities and which in total are estimated to generate $870 billion a year (United Nations Office on Drugs and Crime, 2015). It has been suggested, for example, that the proceeds of counterfeiting activity have been used to fund the importation of illegal drugs, the trafficking of people into modern day slavery (Fink et al., 2010), and to support terrorist activity (Lowe, 2006; Heinonen et al., 2012). Whilst the validity of this last association has been

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questioned by some (see for example Harris, 2005; Phillips, 2007) seen in the context of a global upsurge in terrorist activity (Ellis, 2015) such a link cannot be dismissed. It remains a possibility, however, that a failure to give a higher priority to counterfeiting is not the result of enforcement agency ignorance of the problem7 _{. Rather there is a lack} of public concern. It has been suggested that it is generally not recognised that the revenue generated by counterfeit products is used to fund other types of potentially even more harmful organised crime (Bullock et al., 2009, p.1) .

It has already been noted that, as a general observation, organised crime is poorly represented in criminological writing8 _{(Hall, 2013). This weakness is particularly} evident with regard to describing how OCGs operate at a practical level. Whilst it is recognised that they have a global influence, and indeed given the opportunities presented by easy travel and rapid communication systems their activities may be considered to be more dependent upon opportunity than upon location (Levi, 2008), no study in the public domain has been identified which comprehensively describes the modus operandi of an OCG that is active in the counterfeit market. That said it is possible to glean a number of key characteristics of their structure, operational practices, and prevalence from recurring themes within the available literature, primarily from government or agency sponsored reports and analysis.

Organised crime groups are, by definition, organised (Cabinet Office Strategy Unit, 2009; Pottenger, 2013; Secretariat of the Directorate General Human Rights and Rule of Law, 2013). However, any suggestion that this is implies a static organisational

7 _{To accuse policy makers and national policing bodies of being entirely disengaged with the} counterfeiting problem would be unfair. Whilst it has not attracted widespread coverage or comment this review recognises the establishment of The Intellectual Property Office within City of London Police, which is the National Lead Force for fraud (Department for Business,

Innovation & Skills, 2013).

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structure is refuted (Levi, 2014). Typically such groups are rather dynamic, often relying on relatively loose associations (United Nations Office on Drugs and Crime, 2010; Coyne & Bell, 2011; United Nations Office on Drugs and Crime, 2013) and that they can repeatedly reform to take advantage of specific opportunities wherever, and whenever, they might arise (Levi, 2008; Cabinet Office Strategy Unit, 2009; Spink, 2011, Braun & Maurin, 2013). Moreover this flexibility allows them to be involved in the counterfeiting process from manufacturing, through distribution and ultimately sale of the product (FTI Consulting, 2013). Such groups are seemingly numerous. The 2013 Europol Serious and Organised Crime Threat Assessment expressed concern about the growth of OCG activity within Europe, making specific reference to the scale of counterfeiting activity (Europol, 2013). Recognising yet again the attractiveness of counterfeiting to OCGs, because it is seen as a low risk and high profit activity, the analyses estimates that at the time of the report there were 3,600 such groups active in the European Union. Turning to consider UK analyses of the same issues the National Strategic Assessment of Serious and Organised Crime concurs with the European analyses in that it also suggests that the problem is growing (National Crime Agency, 2014). In terms of their impact it has been separately estimated that the total cost to the UK economy of OCG counterfeiting activity is somewhere between £20 and £40 billion a year (HM Government, 2010).

This review has previously described a widespread unwillingness at the state level to intervene in matters of intellectual property right enforcement. However, arguably this unwillingness is paradoxical given the demonstrable link between

organised criminality and the trade in counterfeit goods. A failure to adequately engage with the national counterfeiting problem is seemingly at odds with a clear intent on the part of the UK Government to address the problem of OCGs (HM Government, 2011a) made manifest in the establishment of the National Crime Agency, which has been

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tasked with addressing organised criminality in the UK as a priority (HM Government, 2011b). Some have described the establishment of this Agency as a tacit admission of a failure on the part of the Government to thus far come to terms with the OCG

problem and that fighting organised crime has generally taken second lace to tackling the threat from international terrorism (Royal United Services Institute). Nonetheless it seems that, by a somewhat circuitous route, the UK Government has now put in place the means by which it may address the demands of the Organisation for Economic Co- operation and Development, cited at the head of this overview, for sustained action to tackle the counterfeiting problem (OECD, 2008, p.13).

2.3.4 The economic, environmental, and human costs of the trade in counterfeit