Michael D. Moberly October 9, 2009
There’s an analogy to be drawn to the passage of the IPREA (Intellectual Property Rights Enforcemet Act in 2008 and the Immigration Reform and Control Act of 1986 (also known as Simpson-Mazzoli). In the latter, federal legislators believed that to be effective, immigration law should contain provisions to discourage domestic ‘demand’ for undocumented workers, i.e., (a.) make it illegal for U.S. employers to knowingly hire or recruit undocumented workers, and (b.) require U.S. employers to attest to their employees’ immigration status.
It’s reasonable to suggest then that the IPREA should have included comparable provisions, not so much directed to diminishing ‘demand’ for infringed counterfeit-pirated products as that is far beyond the control/influence of legitimate businesses. Rather, inserting provisions that would have placed more responsibility on U.S. business management teams to secure quality training and engage in best practices to effectively safeguard their IP, know how, and intangibles, as requisites to engaging in business transactions in which those assets are in play – part of a deal. As advocated here, such training and best practices would reach well beyond conventional IP protections, i.e., patents, trademarks, copyrights. The objectives of such provisions (training) would be clear; that is, to increase the probability company’s would be able to effectively protect (sustain indeterminate) control, use, ownership, and value over their hard earned and valuable intellectual property, intangible assets, and proprietary know how!
After all, the ultimate managerial – enterprise wide weapon (defense) to mitigate and/or prevent the costly adverse affects of infringement, misappropriation, and product couterfeiting and piracy is education and training that measurably elevates awareness, alertness, and accountability of the developers, owners, and holders of their assets.
It also seems there is a large business – economic reality that the IPREA either overlooked or did not convincingly convey. That is, 65+% of of most company’s value, sources of revenue, sustainability, and foundations for future growth and wealth creation lie in – are directly related to the production and utilization of IP and intangible assets. This means that now, for most business deals and transactions, a company’s IP, intangibles, know how, competitive advantages, etc., will be in play in one form or another.
Any presumption that the IPREA will produce a greater sense of deterrence among the growing global cadre of sophisticated and organized infringers and product counterfeiters and pirates is shortsighted, or worse, merely ‘window dressing’ and conveys little, if any, genuine appreciation for the concept of deterrence. While the passage of the IPREA and the supporting (largely political) rhetoric deservedly raised the ‘hue and cry’, it falls short of fully conveying how IP infringement and product counterfeiting have become culturally, politically, and economically embedded in – integral to many county’s GDP. Any presumption these realities will favorably change merely as a consequence of IPREA is optimistic at best. So, training and education remain the key for those company’s that wish to experience unchallenged profitability and lay foundations for sustainability and future wealth creation.