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Background
Software enables the entire networked
economy to work. Stimulated by strong demand for Internet-based
software and productivity solutions, sales across all segments of
the industry from application solutions to development tools to
system infrastructure software have reached double-digit growth
levels.
Customs and international trade issues
The customs valuation of imported
computer software is regarded as a contentious topic by many
Customs authorities around the world. In general, the customs
regulations provide that certain software (or 'intellectual
property') carried by media such as floppy disk, tape or CD
can be imported duty free. Duty is paid only on the value of
the carrier medium which in many, but not all, cases has a nil
duty rate thus eradicating customs duty completely. However,
advances in modern technology have given rise to anomalies in
the customs valuation of computer software, and liability for
duty can differ according to the type of carrier media and the
way in which the software is shipped. The main issues which
are attracting the attention of Customs are:
- software pre-loaded on hard disks
- software on CD-ROMs and DVDs
- business software containing some sound or vision
- games and entertainment software on computer disks, cartridges, DVDs and CD-ROMs
- pre-loaded 'view only' software for promoting new packages
- functional software
- multi-user software
- communications software.
International Copyright Protection: The industry faces a constant
battle against counterfeiters and pirates who plague the software
market. Software vendors must decide how they can adequately protect
their intellectual property in a foreign country by using the provisions
of the Berne Convention, the Universal Copyright Convention; the
Buenos Aires Convention; and the WTO TRIPS Agreement.
Solutions to help you succeed
We can assist clients in easing the transition
from domestic to international licensor
by identifying some of the customs challenges
the licensor will face in entering a
foreign market.
Customs treatment of imported
software: We can establish the appropriate and
most cost effective customs valuation
treatment for imported software - imported
on a carrier media; and/or supplied electronically
over the web.
International Copyright Protection: Under
TRIPS trademark owners of rights, under
certain circumstances, can ask Customs
to intervene when suspect goods are under
customs control. The goods can be held
for a limited time while the owners of
the intellectual property right or trade
mark can take the question to the national
courts under national law to seek redress.
We can assist clients by advising on
the process to be followed; and completing
and lodging applications to intercept
counterfeit and pirated products. Furthermore,
using consistency and probability controls
we can help Customs to perform their
checks (on your behalf) in a more efficient
manner, thereby improving the chances
of a seizure. Because TRIPS has a global
foundation, we can provide a joined-up
global approach in both the exporting
and importing countries.
Please note that we always welcome the
opportunity to work with intellectual
property lawyers.
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