Recommendations
56. It is recommended that the Committee
- 1. Note that there is a growing problem around the world related to the manufacture, distribution and sale of counterfeits and that New Zealand is experiencing a similar steady growth in the sale of counterfeits;
- 2. Note that greater volumes of counterfeits being offered for sale can lead to an entrenchment in society of the acceptance and consumption of counterfeits, which is likely to lead to health and safety risks and a wider negative economic impact;
- 3. Note that the Trade Marks Act 2002 and Copyright Act 1994 provide criminal offences against the manufacture, importation and sale of counterfeited goods and pirated works, but there is infrequent and ad hoc prosecution of these offences by any government agency;
- 4. Note that on 28 August 2006 Cabinet agreed in principle for the Ministry of Economic Development's National Enforcement Unit to be responsible for the enforcement of the criminal offences under the Trade Marks Act 2002 and Copyright Act 1995 against the manufacture, importation and sale of counterfeits, subject to consultation and establishing the feasibility of such a role for the NEU, and directed officials to report back to Cabinet's Economic Development Committee by 30 November 2006 [CAB Min (06) 32/12 refers];
- 5. Agree to amend to the Trade Marks Act 2002 and the Copyright Act 1994 to provide the Chief Executive of the Ministry of Economic Development or his or her delegate with the investigative and prosecution powers enable the NEU to:
- 5.1 share information and co-ordinate with other government agencies, such as New Zealand Customs Service and New Zealand Police, to identify offenders;
- 5.2 apply for, be granted and execute search warrants to search for and seize evidence for prosecutions; and
- 5.3 undertake searches of any place (other than a private residence) without a warrant in limited circumstances set out in paragraph 37 of this paper, where obtaining a warrant would be impractical in the circumstances (for example because a transient person is found selling counterfeits at a market or from the back of a vehicle); and
- 5.4 seize property, during a search conducted without a warrant, where the enforcement officer has reasonable grounds to believe that it breaches, or is beings used or is evidence of a breach of the criminal offences of the Trade Marks Act or Copyright and to use such property as evidence in a criminal prosecution;
- 6. Invite the Associate Minister of Commerce to issue instructions to the Chief Parliamentary Counsel to give effect to the amendments recommended to the Trade Marks Act 2002 and the Copyright Act 1994;
- 7. Note that agreement to the proposals in this paper for legislative change to the Trade Marks and Copyright Acts does not require the government to fund enforcement activity, but in order to implement the enforcement strategy outlined in this paper, the National Enforcement Unit would need to employ extra investigators and cover investigation expenses;
- 8. Note that it is estimated that the total cost to the National Enforcement Unit for enforcement during year one will be $664,050, increasing to $840,263 in year two and to $964,465 in year three and outyears, and any proposal for funding will forwarded for consideration in the Budget 2007 where it will be considered alongside all other priorities;
- 9. Note that if funding is not received as part of Budget 2007, enforcement activity could be picked up beyond 2007/2008 subject to receiving funding in future budgets (or from internal savings);
- 10. Direct officials to investigate the option of third party funding as part of any budget initiatives; and
- 11. Note that this Cabinet paper is to be published on the Ministry of Economic Development website, subject to any necessary deletions justified in accordance with the Official Information Act 1982.
Back to Top