Inadequate Enforcement of Intellectual Property Crime

NAWA NAWAINTELLECTUAL property is a generic name referring to a number of different rights. The most common intellectual property rights are patents, trademarks, designs, copyright and related rights.

Intellectual property crime (IPC) affects everyone, as it occurs across all industries and nations.

Due to high profits gained through the infringing activities, other crimes are fuelled by intellectual property crime, making it a transnational phenomenon.

IP crimes are mainly trademark counterfeiting and copyright piracy. They have devastating effects, ranging from moderate to life-threatening. Any commodity can be a counterfeit. The entire world populace can be victims of IPC. Therefore, IPC should not be considered victimless crime.

Thus, a shift to addressing and combating IPC is required. IPC promotes illicit trade, and the government loses revenue through unregistered businesses who are supposed to pay tax. IPC undermines innovation and creativity, and infringers use the rights of the legitimate owners/holders through free-riding and deception/theft, for commercial purposes.

During 2013, Interpol-led operations across Africa, America, Europe and Asia smashed organised crime networks that were involved in industrial-scale counterfeiting and illicit trade. More than 6 000 people were arrested following a series of such operations. About 24 million fake goods worth nearly US$133 million (nearly N$2 billion) were seized during the operation codenamed ‘Black Poseidon II’ (Europe), ‘Etosha’ (Africa-Namibia), ‘Hurricane’ (Asia) and ‘Pacific’ (Americas).

Counterfeit foodstuffs, beverages, automotive spares, etc, were seized during the operations, and none was produced with quality control.

In Namibia, ‘Operation Etosha’ resulted in the seizure of 200 000 counterfeit items worth more than US$4 million (about N$60 million). An investigation into suspected money laundering was initiated following the seizure of more than US$300 000 in cash, additional to an investigation into a case of corruption and bribery.

In 2014, ‘Operation Wipe out’ (Namibia) was carried out in similar fashion following ‘Operation Etosha’, led by Interpol for the second time, and conducted in collaboration with Namibian law-enforcement agencies, traders and intellectual property rights holders/agents.

The results from this operation indicated an increase in IPCs. Notably, since 2014, there was no operation of such magnitude that was conducted. The counterfeits and pirates which were seized during these operations were all destroyed by burying and crushing with bulldozers through customs enforcement.

This method of enforcement has not much deterrent effect as opposed to criminal enforcement, where convicted persons could be fined and/or imprisoned.

No criminal case/s in relation to IPC were registered, investigated and/or prosecuted from all these operations.

On a regular basis, vendors are visible on city and town street corners, especially at car wash businesses, service stations and open markets/trade fairs selling pirate music/movie CD/DVDs at between N$10 and N$40, whereas it is common knowledge that an original CD would cost between N$100 and N$150.

There are other cases of counterfeit, such as the one where N$20 million worth of fake alcohol was destroyed by customs officials at Walvis Bay during 2017, and the one involving a container of medicine which was confiscated by the Anti-Corruption Commission due to alleged poor quality.

To address the IPCs, operations should be conducted targeting pirates and counterfeits on a regular basis. Infringements should be redressed through criminal enforcement. The ‘Kalahari Desert’ anti-crime operation can take the lead in response to the IPC scourge in Namibia in order to promote creativity, innovation and legal business.

The other suggestion is that law-enforcement agents could enrol for online courses offered free of charge to all law-enforcement officials, including prosecutors, on combating and investigating IP crimes offered by the International Intellectual Property Investigators College (IIPIC).

There is also a need to have an established IPC investigation unit within the Namibian Police. Other countries like Zambia, Tanzania and Kenya could serve as models in this regard.

Equally, there is a need for the provision of training to prosecutors as well as magistrates on IP crimes, and the subsequent establishment of an IPC court.

There is relatively low awareness regarding IP matters in Namibia in general and within the law-enforcement fraternity in particular.

IP is an important tool for economic growth, evident from developed parts of the world. Human mind creations require protection. We have revised the Industrial Property Act No 1 of 2012, which came into force on 1 August 2018. There is, therefore, a need for enhanced collaborative criminal law-enforcement interventions on IP crimes.

• Nawa Nawa is a lecturer at the Namibia University of Science and Technology (Nust) in the criminal justice policing section. He is lecturing about crime investigations, and writes on his own accord.

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