Information Landmine

"The Americans keep telling us how successful their system is. Then they remind us not to stray too far from our hotel at night." - An un-named EU trade representative quoted during international trade talks in Denver, Colorado, 1997.

Saturday, August 22, 2009

More IP stupidity

The BBC provides another textbook case of bad IP journalism as thinly-veiled advocacy for bad IP policy. France and Italy have decided to start fining or locking people up when they buy counterfeit goods. The article starts strong with a good misuse of the term "copyright" in the context of brands:

Holidaymakers could be fined thousands of pounds - or even jailed - for buying fake designer goods when abroad, copyright lawyers are warning.

It's pretty clear that they're talking about trademarks here. Which makes the whole business of fining consumers seem completely ridiculous, as the industry spokes-tard inadvertently illustrates:

Intellectual property lawyer Simon Tracey said anyone tempted to bring back items such as fake designer sunglasses, a football top or handbag from their holidays should beware.

He said lots of people have already been fined thousands of euros for owning a fake, and France seemed "a little bit harsher" than Italy.

But he said it was hard to persuade people that owning a fake was "a bad thing".

"The problem is, it is an intellectual theft, so therefore it's much harder to explain to people that it is wrong, but in reality - as a matter of social responsibility - it is just as bad as stealing.

"We all tend to debate the fake bag, we tend not to think about the products that can cause serious harm or kill like fake pharmaceuticals," he added.

Simon's too stupid know it, but he's actually on to something. Let's think about the fake pharmaceuticals because, as he rightly points out, that is the most worrying case. Some guy buys a fake drug that damn near kills him, and Simon wants to lock him up for a bit? We're clearly dealing with a razor-sharp legal mind.

There's a more general point here: the ostensible justification for trademarks is that they give you some indication of where the product came from, so that people can form a reliable opinion about the quality of what they're buying. As with our fake pharmaceuticals, the harm from counterfeiting comes when counterfeiters make consumers think they're buying something they're not.

If you think you're buying the genuine thing, then you're as much a victim as the brand owner. If you know you're buying a fake, then there's no deception and thus no harm done. There's no convincing justification for ever prosecuting the buyer, unless they're planning to sell the stuff on, in which case they should be targeted for the sale, rather than the purchase.

Of course, that's not necessarily what EU trademark law and customs law says. My point is that the law has strayed far beyond its original premises. The patter that you'll here whenever someone tries to explain why we have trademarks in the first place is that they function as a way of keeping consumers informed, allowing them to be more certain about their choices. By ensuring that certain marks get associated with certain products, you know when you buy something marked "Coke" that it comes from a particular big American conglomerate, rather than Fizzy Pop Poisoner's Co, in the same way that if you buy something marked "Fair Trade", you know that certain standards have been kept to.

Trademarks, at least, in the fairy-tale that brand-owners like to tell when they're asking for more restrictive laws, are a form of consumer protection. When you've got to the stage where you're using those laws to prosecute consumers, you're in a very strange place indeed.

Finally, bonus points for the inclusion of the expected "we should fight organised crime by making more stuff illegal" line:

These are not cheeky chappies making an honest living on a Sunday morning, these are hardened criminals.
You'd really think a lobbying campaign that's meant to be all about inventiveness and originality would have come up with some new standard lines by now, wouldn't you?


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