Consumers and counterfeits

49 Jeremy MalcolmTough IP laws, such as those that the United States is seeking to introduce through the Trans-Pacific Partnership (TPP), are often justified as necessary to fight counterfeiting and piracy. On the face of it, this seems like a fair call. Consumers should be entitled to assume that the products they purchase are authorised, original versions. As such, consumers are often the victims of counterfeiting just as much as the owners of the original trademarked products are. Consumers have a right to safety (and often rely on trusted brands to guarantee this), and a right to information (ie. not to be misled about the origin of a product), and counterfeiting often infringes these rights.

In this light, counterfeits are often be harmful for consumers – but that doesn't mean that they are always harmful. There are some so-called counterfeit goods that may infringe copyright or patent rights, but do not infringe trademarks, and therefore do not attempt to mislead anyone about their origin, nor are they necessarily any less safe. A good example is digital products. Whilst I don't condone piracy, the trading of music and video files online often offers the consumer exactly the same experience as the original product, without misleading the consumer that it is the original product that they are getting. So whilst copyright or patent infringement may be unlawful and (often but not always) ethically wrong, it generally does not harm consumers.

To emphasise the deadly potential of counterfeits, anti-counterfeiting lobbyists give nightmarish examples such as fake cosmetics that burn your skin, and fake brake pads made of grass. But this is misleading, for two reasons. Firstly, these examples comprise a negligible proportion of anti-piracy and anti-counterfeiting campaigns on the ground, because the cosmetic and automotive industries are not the sources of funding for these campaigns. The main sources of funding are the pharmaceutical and entertainment lobbies. It is no coincidence, then, that anti-counterfeiting laws tend to single out and focus on those industries – targeting optical disc duplication plants, and camcording in movie theatres, rather than cosmetics or brake pad factories.

Second, the talk of dangerous goods intentionally blurs the distinction between low quality products and counterfeit products. If the main reason to oppose counterfeits is to promote consumer health and safety, why not take a more direct and more comprehensive approach that targets substandard or tainted products that criminally threaten consumer safety, whether those products carry authentic brands or not? If, on the other hand, the main reason to oppose counterfeits is to stop consumers from being misled about the origin of products by the falsification of labels, how does this count against online file sharing or roadside DVD sales, that are obviously not authentic?

This doesn't mean that there aren't legitimate grounds to fight against counterfeiting and piracy. But anti-counterfeiting campaigns shouldn't be cloaked as consumer protection measures, when what they really come down to are protecting industry's copyright and patent rights, and the monopoly profits that they draw from those rights. In cases where consumers are neither being misled nor being sold substandard merchandise, piracy is not really a consumer problem. This doesn't mean that it is not a problem at all, but merely that it's industry's problem – if anyone's.

Continue reading in "Is digital piracy harmful to consumers?" at Digital News Asia.

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