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Hard evidence

Hard evidence

With the "computer market" scene continuing to flourish, consumer watchdog NSW Fair Trading has warned that traders who attend these dealer gatherings are subject to the same rules, regulations and penalties as any retailer.

As reported last week in ARN, the gathering of small dealers into marketplaces such as malls, clubs and car parks is raising concerns over the impact they are having on local retail businesses. Not all markets are bad and many of the dealers that use them are legitimate traders who are simply taking their wares to where the buyers are.

A spokesperson for NSW Fair Trading told ARN that while it could not directly tell whether any of the complaints currently under investigation were related to computer markets, it was keen to pursue any tip-offs about malpractices.

"There are no special laws pertaining to goods sold through markets," the Fair Trading spokesperson said. "All traders are regulated by the Fair Trading Act and are subject to the same laws and penalties. Our response to every complaint is assessed individually."

While NSW Fair Trading is state-based and a consumer watchdog rather than an industry one, the spokesperson said the misrepresentation clauses are similar in fair trading legislation across the country. It was also declared that there is a role for channel companies in aiding investigators. The spokesperson said investigators are aided greatly by solid facts and figures about who is doing what and where.

"The department would recommend anybody who feels they have an issue or are somehow affected by a deal should contact Fair Trading immediately," the spokesperson said. "There is no doubt that tangible evidence of infringements that have taken place helps to speed up investigations."

However, a leading industry association has weighed into the debate, saying that Federal Police are aware of the problems - such as software piracy, debundling and tax evasion in a cash environment - but are lacking the resources to pursue it.

Jim McNamara, head of the Business Software Association of Australia, said computer markets are part of a vast array of software fraud that impacts on legitimate software distribution channels.

McNamara believes that only the Federal Police can tackle the problem. "The police are very interested in piracy but they lack resources," he said. "All it takes is one policeman to walk through the markets every week.

"We did some trials in Victoria and you should see how quickly the pirated gear is whisked away when they see a blue uniform."

A reseller who asked to remain anonymous mused that traders have a similar reaction when Australian Taxation Office representatives walk through one of the markets in his area. "Several traders don't even turn up the following week," he said.

While software piracy and

copyright infringement are definitely Federal matters, Steve Simpson, a spokesperson for the Australian Federal Police, said misrepresentations such as re-marking, selling second-hand goods as new, or selling faulty goods are outside its jurisdiction. "Commercial fraud is not a Federal matter," he said.

Simpson also said illegal activity at so-called computer markets is "not high on the list of priorities" for the AFP. "We have no resources to pursue that," he said.

However, McNamara insisted the police should be doing more and called on retailers that are affected by piracy and other fraud to unite and be heard. "The issue is that it's a criminal offence to sell pirated software, so it's a matter for the police," he said. "We don't have the arms and legs to tackle this alone.

"We can't go in and lay criminal charges. Police have a greater power. They are very interested in piracy; but they lack resources as well.

"If retailers support us, we'll support them," he said. "We know resellers are losing about $200 million a year through piracy. It's not just the multinational software companies losing money here, it's local companies as well. That's a message the Federal Government quite frankly hasn't got."

McNamara said the BSAA has been lobbying communications minister Richard Alston and Attorney-General Darryl Williams to have more resources committed to the Federal Police to tackle the issue.


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