Tuesday 29 October 2013

Darren Olivier

Counterfeit drugs illustrates need for tough enforcement

"Counterfeit drug syndicates are flooding the Zimbabwe market with consignments of fake anti-retroviral drugs (ARVs), expired medicines and sex enhancers, putting the lives of thousands of people at risk" the Zimbabwe Independent reveals through AllAfrica on 25 October. Some of these drugs are being supplied from South Africa.

The Economist - Poison Pills
The news is horrific but nothing unusual to this blog (see here for example) which regards counterfeiting as Africa's single largest IP problem. The Economist recently highlighted the global problem citing how difficult it is for "poor countries" to take advantage of technologies that help identify and track fake drugs (see article beneath pic alongside). 

Against that backdrop, Afro Leo was dismayed to read some of the comments over the weekend in the "Academics" submissions on RSA's draft IP policy regarding IP enforcement. 

"Special care should be taken to avoid customs/border enforcement of patents and civil trademark 
violations, especially with respect to medicines." (ed: patent enforcement is of course not part of our anti-counterfeit legislation but fake (and even generic drugs) frequently infringe registered trade marks which, as illustrated by article require effective customs enforcement)

"Improving IP enforcement through, for example, reducing the availability of certain enforcement mechanisms such as interdicts, which may actually benefit the general populace, (ed - certainly not when it comes to counterfeit drugs) whereas strengthening enforcement will almost always work to the advantage of rights holders, often at considerable cost to the public purse. (ed, we are all rights holders. The cost of enforcement can be expensive (often borne by the enforcer because damages are so difficult to prove or recover, and cost awards inadequate) but without it, the potential benefits of IP protection (fostering innovation, wealth and job creation etc) become useless. It may be interesting to note that the cost of enforcement in RSA is significantly cheaper than in other parts of the world)

"In our view, the issue of enforcement – while being important – is a subsequent issue to creating  topical and progressive IP regimes in our country." (ed - this cannot be. A topical and progressive IP regime is ineffective without proper enforcement - the two are at least equally important. The article illustrates this as much as a death caused by a motorist with fake brake pads.)

"once copyright enforcement begins in earnest, then, without well-developed mechanisms in place to secure non-infringing channels of access to knowledge, many learners will be in a precarious situation." (ed the reality is that copying is endemic to our society and copyright enforcement inadequate. One in every three businesses uses infringing or pirated software or is under licensed because they are using "learner" licenses, specifically available by software providers to facilitate access to knowledge. That said, this Leo is agreement that several non infringing channels/exceptions need to be made available eg the blind).

Darren Olivier

Darren Olivier

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