On Online Infringement and its Private Policing

When Brands, Trade Marks, Logos, Designs and Trade Dress or Get-up are stolen and used unlawfully. This is called Counterfeiting

When Copyrights – text, data, pictures, images, video, film, music, artwork, diagrams, and performances – are stolen and used unlawfully. This is called Piracy

Copyrights, Design rights, Trade Mark Registrations, Patents Granted and some other protections are called Intellectual Property Rights (IPRs) because they protect your Intellectual Property (IP) (the actual materials registered/protected)

Unlawful use of IP is termed Infringement of IPR. Infringers can be actioned against in civil or in criminal courts, according to the type of infringement carried out, and the jurisdiction(s) to which one refers.

Under Civil law you yourself must prosecute an alleged infringer. Under Criminal law the police authorities or other consumer/trading authorities prosecute.

Technology & Methodology –

Software applications are able to be built which are able to sift through the Internet and pick out unlawful offers of products. These applications are built to order and to the (non-technical) specification a client provides. Each application built is normally customised and dedicated to the work specification required. Using such applications is able to provide a fairly comprehensive Situation Assessment of the web outlining and itemising the levels of theft of a particular copyright or other intellectual property that is occurring at the moment of the scanning of the web.

On the basis of a Situation Assessment one is able to plan one’s next moves. These can range from a straightforward Takedown regimen right through to full and complete policing of a Brand portfolio.

In addition Search Engine Optimisation (SEO) of any Company, its Brands and the products they carry can be used so as to help against piracy and counterfeiting. SEO means recommendations for Branded products are able to be placed strategically on the Web so that buyers searching out a deal are introduced to their items before products that Brand competes with. In addition such placed recommendations are able to boost the popularity of your website by drawing more visitors to it.

Strategically notices can be situated on the web which help educate a potential customer-base about the hazards of buying cheap counterfeits/pirated items. People looking for unauthorised items get redirected to the Brand owner’s website – where they are offered the real deal along with some sound reasoning why the real deal is the best deal. (i.e. Guarantees; After-sales services, Quality Assurance and Testing of Goods and so forth).

Good quality commercial writers are best for this work, professionals who have experience in getting the right information to the right places, and so selling the products. Each review has to be unique and filled with densely-packed identifiers and pointers to the Brand, the Company site, and the products.

World Intellectual Property – A Brief

DMCA Takedown Services

The Digital Millennium Copyright Act under its strict interpretation legislates only for the United States geographical area. Thus its terms can be applied only to websites whose HQ or base; or when the website’s ISP, is situated in the US.

DMCA and Nations other than the USA:

In practice many nations have enacted ‘copycat’ legislation based on US DMCA law. This can mean in practice that US law has been lifted wholesale and applied with minor local adjustments in many smaller nations. There are a few important nations and economic blocs (ASEAN, the European Union (EU), and so on) which are of magnitude sufficient to underwrite their own customised legislation acting as their DMCA equivalents. Takedowns are possible in nearly every nation and so get a private policing company which offers a worldwide service

Global Organisation of Intellectual Property Rights Enforcement

Trade Marks

USA – uses its USPTO (United States Patents and Trademarks Office) which handles Protection and Enforcement

Europe – European Union has an organisation called OHIM Office for Harmonisation of the Internal Market – aka OAMI) which handles pan-European Protection and Enforcement. The EU also has an IP Enforcement Directive but this is not as strong a deterrent or protection as is US DMCA law.

There is a Madrid Protocol which allows for registration and protection of Trade Marks in the nations signatory to it. Madrid Protocol signatory nations are spread out across the globe

Copyright

USA – has the statute law DMCA to handle enforcement of online copyright theft. Copyright is registrable in the USA (whereas in UK it is automatic upon creation of a work) and the USA has a Copyright Office

There is a global protocol named The Berne Convention whose terms protect copyrights to most of the countries of the world (again signatory nations)

What DMCA can do when an Infringing website does not comply with Takedown Notice

A Right’s holder can seek for Takedown at the leading Search Engines (Google, Yahoo!, Bing and others). This effects a denial of access to your infringing materials by means of the route of a Google (or other Search Engine) Search

A Right’s holder can approach the ISP (Internet Service Provider) of the website that is hosting the infringing item(s). This ISP will consider that by hosting an infringer the website it provides its services to is in breach of their (ISP) terms and conditions

A Right’s holder can compose and deliver a Cease and Desist letter to the website admin concerned in the infringement. There can be a good level of success with such letters.

There are other more specialised online enforcement services out there also.

 

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Copyright Offences in the UK – A General Resume

UK Copyright

The data given below here comprises the general drift of UK law on Copyright Infringement and its accompanying offences and penalties as at around the time of posting this article. The text in red has been highlighted in red by Anomalist blog and does not show in this format in the actual statutory law published by UK government.

Nor do the footnotes added into the data here show in the actual UK law as officially published and they too have been added by Anomalist blog.

The aim of writing this article has been to offer a taster and so encourage readers of it to go to the official statute law itself which is on view at:

https://www.gov.uk/government/publications/intellectual-property-offences

Infringing Copies

The statutory definition of an “infringing copy” of a copyright work is contained in section 27(2) of the copyright, designs and patents act 1988. This provides that “an article is an infringing copy if its making constituted an infringement of the copyright in the work in question”.

Offences: Copyright, Designs and Patents Act 1988

Under section 107(1) a person commits an offence who, without the licence of the copy right owner –

(a) makes for sale or hire, or

(b) imports into the united kingdom otherwise that for his private and domestic use, or

(c) possesses in the course of a business with a view to committing any act infringing the copyright, or

(d) in the course of a business –

sells or lets for hire, or
(ii) offers or exposes for sale or hire, or
(ill) exhibits in public, or
(iv) distributes, or

(e) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,

An article which is, and which he knows or has reason to believe is, an infringing copy of a copyright work.

Under section 107(2) a person commits an offence who –

(a) makes an article specially designed or adapted for making copies of a particular copyright work, or

(b) has such an article in his possession,

knowing or having a reason to believe that it is to be used to make infringing copies for sale or hire or for use in the course of a business.

Under section 107(3) where copyright is infringed (otherwise than by reception of a broadcast or cable programme) –

(a) by the public performance of a literary, dramatic or musical work, or
(b) by the playing or showing in public of a sound recording or film,

Any person who caused the work to be so performed, played or shown is guilty of an offence if he knew or had reason to believe that copyright would be infringed.

Penalties: Copyright, Designs and Patents Act 1988

Section 107(4) provides that the offences under section 107(1)(a),(b),(d)(iv)and (e) are offences tryable either way

On conviction on indictment the maximum penalty is ten years imprisonment and/or an unlimited fine.

On summary conviction the maximum penalty is 6 months imprisonment and/or a £5,000 fine.

All of the remaining offences under section 107 are summary offences carrying a maximum penalty of 6 months imprisonment and/or a £5,000 fine.

DISCLAIMER: This article in no way aims to be professional legal advice. It is for general cursory consumption only and it is not being recommended or advised or offered here as a work one should or could or can in any way base a legal action upon nor any contemplation of a legal action. The writers of and those associated with having posted this article on public display wholly and absolutely disclaim all and any liability which does and which might arise to any other person or party who has not taken note of or else not heeded this disclaimer.

Intellectual Property Rights Enforcement and Statistical Measurement

In regard to seizures of counterfeit products, a typical reported story in the news media, even in the trade media of the items of product concerned, let’s say cigarettes and tobacco, might read something like as follows:

The Assistant Director, Criminal Investigation, HMRC, said:

“Disrupting criminal trade is at the heart of our strategy to clampdown on the illicit tobacco market, which costs the UK around £2 billion a year, and the sale of illicit alcohol which costs the UK around £1 billion per year.” (28 Jan 2015)
http://www.birminghammail.co.uk/news/midlands-news/customs-officers-seized-one-million-8533541

There is the old chestnut of an adage which assures us that there are : ‘lies; – damned lies – and statistics’; but do you ever wonder to yourself from whence originate assured assertions like these, usually alarming in their tenor, which emerge from the lockers of cargo within the minds of those who are termed by spokespersons as being ‘opinion formers’?

Now what I am able to tell you, and it is a veritable fact, is that figures like this item concerning the scale of counterfeit cigarettes smuggling in UK, are, for the most part, compiled and based upon ‘data’ taken from the streets of our major cities.

The UK cigarette manufacturing and marketing industry uses employees of its representative trade body to walk the streets of London, Birmingham, Glasgow, and to pick up cigarette packages which have been discarded by smokers in gutters. These packages are examined and segregated into a) counterfeit, b) duty not paid, and c) duty paid items, and it is from this kind of exercise that statistics like the HMRC guy bandied around arise.

Now this practice of the cigarette manufacturers is one of the better ones amongst those used in industry in general and on which are based statistical aggregations of magnitudes of counterfeiting and piracy. It has going for it one important thing – it is, albeit very broadly, empirically based and evidenced.

Of course one would never accept the calculation of one’s monthly salary based on such a schemata as this cigarette carton collecting entails, but as a very rough and ready ballpark it might just hold an iota of credibility for the tobacco industry? Although for the most part this guesstimate of theirs is on the cusp of acceptability for us simply because one asks oneself: what more is the industry able to do so as to guesstimate its losses? We soften and give them a few brownie points of empathy for their trying so earnestly.

Other industry sectors subject to counterfeiting and piracy almost always use evidence much less solid than the cigarette industry and quite frequently have zero empirical evidence on which to base their claims for scales of losses incurred. Local Government, National Governments and International Authorities all likewise, as often as they pronounce a figure or a percentage in the area of Intellectual Property fraud, are attempting ‘plucking geese out of the air’ – or might as well be.

This is why figures stated for the exact same scenario are very often in huge conflict with their colleagues’ and competitors’ figures in other countries or in other jurisdictions. It is likely, virtually certain, that if every EU nation was asked to give a figure estimate of say illicit ‘Brand X’ denim jeans imported into the EU in the course of a given year; there would be no satisfactory agreement between them. Their individual estimates would fluctuate wildly and merely act to muddy the waters still further rather than go anywhere towards solving the issue.

Why is this? Well, let’s keep it simple. Calculating a company’s money losses to counterfeiters is usually done by means of a concept called a ‘lost sale’. A lost sale in the abstract is the cost to a legitimate company of a consumer buying a counterfeit when the same consumer (had counterfeits not been available) would have had to have bought genuine. Hence the genuine manufacturer loses the price of one item of sale.

The problems begin when the abstract concept of the ‘lost sale’ begins to be applied to actual commercial day to day realities. Questions arise such as:

What is the genuine item’s price? In a free and open market such as the EU retailers are able to compete on prices and to undercut one another should they wish to; and they do. Furthermore identical genuine products are pitched at variant prices in different trading areas across the world. It is not uncommon that genuine items – say bankrupt stock – are offered heavily discounted to consumers. Discounts are also given for bulk buys and also to wholesalers. Many products have variant sets of accessories or bundles, and a like for like cost price is hard to ascertain.

Why use the genuine item’s price? A National Government statistician economically-speaking would be more interested in using the price the counterfeit item was being sold at perhaps?

There is a good argument broadly accepted in the music industry these days that, like mild inflation is desirable in an economy for it to thrive; so also a modicum of piracy and counterfeiting is conducive to greater genuine sales for the entertainment industries. The argument runs that people download free so as to ‘taste’ and if they like they will buy the genuine item thereafter.
In this last case it seems a ‘lost sale’ to the victim of piracy can represent in fact a plus money value sum!

But you will still hear the music companies and musicians beating up on the download and on the downloader, often sending out in the post to ‘culprits’ exorbitant compensation demands, and laying claim in the media to ruinous injuries. Companies on top of sales losses also lay claim to reputational and Brand status losses, and to damage to other intangibles. Music Collecting Societies likewise hit social clubs and old folks’ homes, church services and the gal who likes to listen to radio as she runs her market stall, criminalising them as nascent pirates and asking seriously wild fees for the privilege.

I grow so hot under the collar because there is a whole industry of half-baked statistical offerings which these rights holder guys promulgate and persist in. It is persisted in and promulgated precisely for this reason: to give a specious validity to their claims of grievous injury by the granny who plays The Beatles in her shop, or by the guy who likes to sing The Carpenters at the local karaoke.

One will note, this is a final flourish of mine, that always and without fail year on year, or at whatever period they are reckoned in, the statistical fictions bandied around increase in size and in monies lost to counterfeiters and pirates. They not only keep pace with inflation, they have an inflation bias of their very own. The industries themselves are in sole charge of, in control of, their own compilers of reports and reviews and of pseudo-statistical and other ‘calculations’. There is no balance.

The numbers are increased period on period because of two reasons, and two reasons only. One – to keep the pressures on legislators and the legal executive, which together with Parliamentary lobbying ensure, they believe, the best deals for the business environments of their industries.
And so they maintain a ‘siege mentality’ within all ‘right-thinking-people’ (excuse the pun)

Two – So as to put forward a sympathetic public face for stakeholders and rights owners, the songwriters and the musicians, the actors and the artists, the creatives, and so on; which helps to keep the public sweet towards them and so keep buying their saleables; since so much of the actual value due to them is ‘being lost’ to Intellectual Property theft. (Such incubated sympathy has generated a recent increase in copyright protection term in UK; now standing here at 90 years)

In the first book of The Republic, Thrasymachus attacks Socrates’ position that justice is an important good. He claims that ‘injustice, if it is on a large enough scale, is stronger, freer, and more masterly than justice’ . In the course of arguing for this conclusion, Thrasymachus makes three central claims about justice.

Justice is nothing but the advantage of the stronger
Justice is obedience to laws
Justice is nothing but the advantage of another

Thrasymachus

This is the way the big Intellectual Property rights’ holder guys see things, is it not?

 

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Doing Business

Traditionally the choices have been three.

  • The unregulated society: in which business acts after its own interests and meets with competition others who conflict with its interests
  • The regulated society: in which business is dominated so that necessarily choice of action is delimited and freedom to do business and competition are controlled.
  • The middle way of interventions: wherein a regulator (usually a Nation State Government) is intrusive into unregulated business, so as to ameliorate the harsher social consequences which arise out of an untrammelled free market

In practice, concerning Choice 1, (unregulated business): it has merely acted to shunt from pole position regulated controlled activity down the economic and social class ladder.

What I mean is that in societies where business is relatively unregulated employers have built up their large companies as closed-off organisations, within which employees to a greater or lesser extent are exposed to command and control.

Employers’ command and control is seldom much less oppressive inside their organisations than that carried on by Nation State Governments which choose as their model a regulated controlled economy

Freedom and choice and opportunity pertaining to unregulated business models are enjoyed chiefly by the persons who own and run businesses under this model

Necessarily it is argued, according to traditional thinking, these owners/operators are compelled to control and command their employees so that their companies are able to perform in the most effective efficient way against their competitors in the free marketplace.

Normally speaking there is inside any business organisation which is operating within an unregulated economy a hierarchy of control by which those high up enjoy lesser degrees of direct oppression and control whilst those low down bear greater degrees of these.

These degrees of direct oppression in the main correspond inversely to the extent that:

  • a) Any economic business or society is unregulated, and
  • b) Any business employee is presumed by his/her employer to hold a stake of some kind in the business. (This is why a senior manager will receive higher wages and obtain to a higher degree of status, often also having lower graded employees to control and direct. Such a higher grade employee will be presumed to have a greater stake in the organisation (and so also have more to lose from dismissal) than those whom he controls and directs.)

Logically then, inside this traditional model, the low graded employees are those most directly oppressed because they are those most controlled and directed, and are considered to hold least stake in the organisation.

(This critique of mine is not Marxist; it is in fact how business operators perceive the socio-economic reality, and their perception is justified by them, by their approving it as being a ‘natural order’ of things.  Such an conception has a utility to them not unlike the concept of Divine Right for kings in days before industrialisation)

Their argument is classically expressed as being in accord with ‘human nature’, and its leverage is normally brought in to play so as to justify hierarchical organisation based on privilege and dominion.

The simple psychology behind this ‘human nature’ argument proposes that men and women who carry no responsibilities will be those most likely to act irresponsibly. This inductive generalisation is based on premises that include preconceptions that:

  • Lowly graded employees need closer managing so as to function well
  • They will naturally evade their tasks otherwise
  • The general mass of them are not suited to taking on bigger roles
  • They have poor self-regulatory powers
  • They will do no more than they are made to do
  • They have little initiative and few and basic employable skills

These then are the employees seen as having least stake in a business, and they are considered to be those employees who are most liable to act irresponsibly.

The concept of ‘having or not having a stake’ in a venture is essential to the upholders of the ‘human nature’ argument. Having a stake, so the pitch runs, confers responsibility and energises ambition to improve oneself; which all engender that self-regulation and other ‘virtues’ prized by employers.

Having a stake then allows employees greater freedom; but only to opt for ambition, responsibility and self regulation, in favour of the employer.

Conversely, those employees of the least consequence in any business are thus those who will receive most control and direction.

(Normally-speaking and collaterally, lowly graded employees also obtain least wages. This is because their lowly status, without stake, is normally perceived to warrant lower levels of trust and to incur higher levels of risk for employers.  The class of lowly workers is also normally present in an organisation in far greater numbers than the number of higher-status employees who direct them

More later on how this factor of ‘greater numbers’ tends towards being another wage depressing factor)

On the other hand, an employer who is allowing privileged high-grade employees a modicum of stake in his company, intends them to accept his ‘gift’ as a stimulus that encourages them to act responsibly towards him and his company; and so nurture the interests of the business. The actual degree of anticipated loyalty/responsibility accepted and acted upon by an employee will be commensurate proportionately to the rank, status and reward that employer ‘gifts’ to employees.

These arguments so far are nothing more than standard thinking.

A sense of responsibility then, it is expected, can be awakened and reinforced in the minds of some select employees by reason of the bundle of rewards they obtain from the employer in exchange. Thus a deal is cut between higher-grade employees and the employer.

Employees of higher status normally obtain higher wages, but not only as a result of their acceptance of ‘the risks’ involved in, and ‘the burden’ of, their positions and responsibilities; indeed and  moreover, their very rewards (so it is understood) act to ‘tie them into’ their employment and business organisation. The arrangement has similarities with the methods used by early Victorian Industrialists who provided their workers with ‘Tommy Shops[i]’ and ‘tied-cottages[ii]’.

Thus arises a belief that an employee’s loyalty is conditional upon his persuasion to self-interest, and that this can be generated in him by the enlightened self-interest of his employer providing to him adequate inducements.  Although bearing upon the privileged employee also are those pressures arising out of forebodings and concerns at the thought of his losing such gifted indulgences.

And so even the favoured higher-grade employee remains straitened; controlled by his employer’s will and power. It is his sense of the risks involved in being dismissed which delineates for him the opportunity cost of him stepping out of line.

[i] A Tommy Shop was owned by the employer. The employer paid his employees wages in tokens which were accepted only at his Tommy Shops in exchange for foods and domestic goods.  An employee was thus tied-into buying at the Tommy Shop, which were not unknown to charge higher prices than free-marketplace shops.

[ii] A tied-cottage was a house owned by the employer; who was able to hire and fire at will. When an employee was fired he and his family lost also their tied-cottage and were thus destitute on the streets.

 

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