BERLIN SCHOOL OF ECONOMICS Its 2006 study, ‘Explaining Counterfeit Purchases: A Review and Preview”,161 involved an initial focus group based survey and a second survey using
in-depth interviews. The two groups had a convenience sample of social sciences students, between the ages of 20 and 40, from a German university. The study examined consumer motivation and was not relevant for our purposes. Also, in common with many academic studies, its survey base was too small to be representative and to enable any meaningful conclusions, not least about methodology.
COUNTER PROJECT This 2010 report by Penz & Hofmann was part of the 2010 FP7 funded ‘COUNTER’ project, carried out by a consortium of EU universities, including Vienna’s University of Economics and Business Administration and others from the UK, Sweden, Italy and Slovenia. This part of the project involved a desktop review of anti-counterfeiting initiatives aimed at answering why counterfeiting rates differ “over countries”. Its list of 677 initiatives and organisations included 481 national, 48 European and 148 international entities. The entities listed included 211 general associations, 20 film associations, 69 music associations, 44 collecting societies (all what we describe as trade bodies), 60 individual companies, 58 companies protecting IPR (including law firms), 67 consumer protection bodies and 62 government bodies.162 The most significant outcome from the WU D29 report163 was highlighting
the different levels of counterfeiting and piracy found in Eastern (high levels) and Western (low levels) European countries. However, it concedes that it only interviewed 55 people from 46 of the 677 identified entities, which made it impossible for us to consider this to be robust research.
159 http://www.wipo.int/export/sites/www/dcea/en/meetings/2012/lithuania/WIPO_Subregional_Conference_on_ the_Enforcement_of_IPR/files/Consumer_Attitudes.pdf
160 www.wipo.int/export/sites/www/enforcement/en/global_congress/docs/christopher_stewart.ppt
161 http://www.amsreview.org/articles/eisend12-2006.pdf
162 Penz E. & Hofmann E. (2010) Counter: Counterfeiting and Piracy Research - Deliverable 28: Review of Anti- Counterfeiting Initiatives and Organisations in Europe, pp.14-15
163 Penz E. & Hofmann E. (2010) Counter: Counterfeiting and Piracy Research - Deliverable D29: Report on Current Best Practice and Recommendations.
SCHNEIDER & VRINS Their chapter on ‘The magnitude and the economic and social consequences of counterfeiting and piracy’ was published in their 2012 book on IPR enforcement,164 and is an extensive review that includes a careful delineation of ‘counterfeiting’
and ‘piracy’. They note that the two terms apply not only to flagrant infringements, but include infringements of intellectual property rights in the broad sense of the term, pointing also to the evident dichotomy between infringements of industrial property rights (‘counterfeiting’) and those of literary or artistic property (‘piracy’). The authors highlight other additions to the vocabulary of IPR infringements such as “parallel imported (‘grey’) goods, factory over-runs and look-alikes (parasitic copies).”
The authors refer to the difficulties of the scale of the counterfeiting and piracy problem, as well as in measuring it, and note the challenges of calculating the size of a problem involving clandestine activities165 as well as the global nature of the problem.166 Other difficulties include
the information available from Customs about the enforcement of intellectual property rights.167
On the question of Customs seizures, they argue one of the main advantages of such annual reports is their transparency and neutrality, because they are provided by Customs and not by rightsholders. However, as rightsholders correctly pointed out, Customs cannot check everything, meaning only a tiny percentage of all the goods crossing the EU’s external borders are subject to physical Customs checks, and that the statistics can therefore only show the ‘tip of the iceberg’. They also note that Customs seizure figures do not take account of counterfeit goods manufactured and distributed within the EU. Their argument for continuing to use these figures is that they “reveal trends, thus constituting a valuable source of information for right- holders and public authorities alike.”168
WALL AND LARGE The 2010 article ‘Jailhouse Frocks’169 debated the public interest in
“policing counterfeit luxury fashion goods.”170 Although the study was criticised by the ACG and
brand owners,171 it is a useful collection of data sources to estimate the scales of counterfeiting.
It cites Blackney (2009),172 which estimated 20% of European clothing and shoes were
counterfeit, the IACC (2005),173 for the estimate of counterfeit goods constituting 5-7% of world
trade, and the OECD 2008 report, where the value of counterfeit and pirated good was
164 ‘Enforcement of Intellectual Property Rights through Border Measures’, Second Edition Oxford University Press. 165 ibid p.7
166 ibid p 10 167 ibid p.11 168 ibid
169 Wall, D.S. and Large, J. (2010) ‘Jailhouse Frocks: Locating the public interest in policing counterfeit luxury fashion goods’, British Journal of Criminology, 50(6) Working Paper.
170 ibid p.1
171 Letter from ACG and AIM to The Sunday Telegraph 31 August 2010 in response to Telegraph’s August 29 2010 article ‘It’s Ok to buy fake’, which quoted extensively from Wall and Large’s study.
172 Blakeney, M. (2009) ‘International Proposals for the Criminal Enforcement of Intellectual Property Rights: International Concern with Counterfeiting and Piracy’, Queen Mary School of Law Legal Studies Research Paper No. 29/2009, http://ssrn.com/abstract=1476964
173 IACC (2005) The negative consequences of international intellectual property theft: economic harm, threats to the public health and safety, and links to organized crime and terrorist organisations, International Anti Counterfeiting Coalition http://counterfeiting.unicri.it/docs/International%20AntiCounterfeiting%20Coalition.White%20Paper. pdf
from the Rogers Review (2007) , which assessed the 2006 criminal gain from IP crime as £1.3 billion, with almost 75% flowing to organised crime. Wall and Large’s report indicated, irrespective of different estimates and methodologies, that trade in counterfeiting was rising inexorably each year, almost certainly the result of digital networked technologies and improvements in industrial capacity enabling counterfeit goods to be traded globally, with globalisation broadening the potential market for such wares.176 Of value to our review was the sense that understanding the
trend may be as important as understanding the scale of the infringement.