|
Express
Delivery Services and the Protection of Intellectual Property Rights
The goal of express delivery companies is to be regarded by
every government and every Customs administration in the world as compliant,
trustworthy carriers/traders. In each of the 220 plus countries and
independent customs territories in which express delivery companies operate, express
delivery companies have made extensive efforts to comply with national laws and
to assist Customs in conducting effective risk assessment and making seizures
of illegal items.
Actions undertaken by express delivery companies that assist
in IPR protection
- Transmit electronic information in advance of arrival of
shipments to enable Customs to perform risk assessment and target shipments for
further examination.
- Maintain comprehensive tracking and tracing systems to enable
packages identified by Customs as suspicious to be removed from operational
traffic flows and provided promptly to Customs officers for further
examination.
- Provide Customs officers at express delivery hubs with adequate
facilities and equipment to enable them to identify and examine suspect
shipments efficiently.
- Provide Customs administrations with available relevant information
that may legally be disclosed on shippers and consignees of shipments
identified as containing offending goods.
- Close accounts of customers publicly identified by Customs as
repeat offenders.
Practical limits to what express delivery companies
can do
- Express delivery companies are not originators of information
about shipments. While express delivery companies are willing to provide the
information they have for clearance purposes, there are clearly limits on the
quantity of information that can be obtained from customers. Attempting to
impose additional reporting burdens on customers via express delivery companies
will result either in a decline in data quality (as additional data
requirements become more esoteric and misunderstood) or a migration of
customers away from express delivery services to other transport modes such as
the post that are able to clear Customs with less information and in most
instances without advance transmission of that information.
- Express delivery companies have no expertise to identify
counterfeit or pirated goods. Even experienced Customs officers turn to
experts and laboratory testing to make judgments about whether or not goods are
genuine. Determinations about the status of goods in relation to intellectual
property laws cannot, and should not, be made by employees of any carrier; that
is the responsibility of Customs and its experts.
- Express delivery companies have no law enforcement authority and
must work with Customs to enforce intellectual property rights, not in private
alliances with rights holders, mainly because of national data protection laws
and commercial information confidentiality rules. Specifically, express
delivery companies will not at the request of other private parties refuse to
do business with a shipper or importer without instructions from Customs that
such a party is a repeat offender of Customs laws.
- There are still many countries where either through lack of
enabling national legislation or through failure on the part of the rights
holders to fulfill their legal obligations, Customs authorities and other
concerned stakeholders are unable to challenge the validity of shipments
suspected of containing IPR offending goods.
General Observations
The GEA and its members, who in recent years have themselves become
victims of IPR crime, recognized some time ago the need for close, meaningful
cooperation between express delivery companies and customs services to combat
more effectively IPR offences and customs fraud generally. This recognition
found formal expression at the international level in an MOU signed between the
GEA and the WCO in December 2000. Under this MOU, the two parties agreed to
maintain effective and systematic consultation, cooperation and exchanges of
information between each other and as far as possible, between their respective
members on all customs fraud matters.
While the WCO counterfeit seizures report for 2006 indicated a
number of cases involving express delivery services and postal services, only
3% of those cases related to shipments transported by GEA members. Further, the
total number of articles seized from the whole sector was only 0.003% of the overall
total number of articles seized. And these statistics need to be looked at in
the context of the fact that GEA members alone are moving some 30 million
shipments daily.
More recently, information received from USCBP on its IPR
seizures in 2007 reveals that seizures made from express consignments accounted
for less than 8% of the total value of all seizures. And while the number of
seizures from commercial vessels totaled only 734 (cf. 3,253 for express
consignments), those seizures resulted in a total value of nearly $120million,
representing over 61% of the total value of goods seized. These figures clearly
support our long-held view that law enforcement authorities need to focus on
quantities and values, rather than the number of seizures, when targeting
shipments for IPR offences, to make optimum use of scarce manpower resources.
|
