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<p style="margin: 0 0 1em 0; color: black;">I will just state that any
modern pharma plant uses heavily computerized machinery and robots in
several cases where the chemical components may be hazardous to human
health in their raw form, or where extreme levels of dust free environment
is required for manufacturing. </p>
<p style="margin: 0 0 1em 0; color: black;">They have, prima facie, a
legitimate interest in seeing that no bogus components turn up anywhere in
their manufacturing chain. </p>
<p style="margin: 0 0 1em 0; color: black;">Safety and security in ict is a
serious enough topic that bringing in IP enforcement only vitiates an
essential debate and initiative. <br>
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<p
style="color: black; font-size: 10pt; font-family: Arial, sans-serif; margin: 10pt 0;">On
November 12, 2014 10:38:26 AM parminder <parminder@itforchange.net>
wrote:</p>
<blockquote type="cite" class="gmail_quote"
style="margin: 0 0 0 0.75ex; border-left: 1px solid #808080; padding-left: 0.75ex;">
<font face="Verdana">Those who were following the ITU PP meeting
would have noticed the resolution about counterfeit products. Most
of us on the ground trained our guns on the possible inclusion of
the term 'unauthorised' which posed the danger to extreme
traceability of all communication. This term ' unauthorised' was
removed. <br>
<br>
Please see below an article by Gopa Kumar, of Third World Network,
a member of the Just Net Coalition, on how the 'counterfeit' part
is problematic enough. There is an ITU meeting on counterfeit
products in Geneva on 17th and 18th Nov, and it could be useful
for some civil society groups to come up with a statement
underlining the concerns raised in the below article.<br>
<br>
parminder<br>
<br>
-----<br>
</font><br>
<b>Title :</b> TWN IP Info: Conference on ICT intellectual property
enforcement raises concerns<br>
<b>Date :</b> 11 November 2014<br>
<br>
<b>Contents:</b> <br>
<p> TWN Info Service on Intellectual Property Issues (Nov14/05)<br>
12 November 2014<br>
Third World Network</p>
<p>
_________________________________________________________________________________________</p>
<p> <b>Conference on ICT intellectual property enforcement raises
concerns</b></p>
<p> Geneva, 12 November (K M Gopakumar) – An upcoming conference on
intellectual property (IP) enforcement organised by the
International Telecommunication Union (ITU) raises concerns on the
impact of IP protection and enforcement on development.</p>
<p> The ITU conference that will focus on information and
communications technology devices (ICT) is titled “Combating
Counterfeit and Substandard ICT devices” and will be held on 17-18
November 2014 in Geneva, Switzerland. (For details see: <a
href="http://www.itu.int/en/ITU-T/C-I/Pages/WSHP_counterfeit.aspx"
target="_blank">http://www.itu.int/en/ITU-T/C-I/Pages/WSHP_counterfeit.aspx</a>)</p>
<p> The conference has the following three objectives:</p>
<p style="margin-left:36.0pt"> (1) Discuss the global
scope and impact of counterfeiting and substandard ICT products on
various stakeholders;</p>
<p style="margin-left:36.0pt"> (2) Highlight the common
concerns, challenges, initiatives, practices and opportunities of
the various stakeholders in their fight against counterfeiting and
substandard ICT products;</p>
<p style="margin-left:36.0pt"> (3) Examine the possible
role of ICT standards development organizations (SDOs) and in
particular the ITU, as part of the global strategy and solution to
curtail counterfeiting and substandard ICT products as well as to
assist members in addressing their concerns regarding counterfeit
devices.</p>
<p> The conference will have the following four sessions (<a
href="http://www.itu.int/en/ITU-T/C-I/Pages/Programme.aspx"
target="_blank">http://www.itu.int/en/ITU-T/C-I/Pages/Programme.aspx</a>):</p>
<ul>
<li style="margin-left:36pt"> Policy debate: Governments’
Perspectives on Combating Counterfeit and Substandard ICT
Products; </li>
<li style="margin-left:36pt"> Intergovernmental Initiatives
Against Counterfeit and Substandard ICT;</li>
<li style="margin-left:36pt"> Technology Debate, ICT Industry
Perspectives and Anti-Counterfeit/Substandard Technologies and
Systems (parts 1 & 2); </li>
<li style="margin-left:36pt"> Development Opportunities and
International Standards as Part of the Global Strategy Against
Counterfeit and Substandard ICT Products.</li>
</ul>
<p> The list of speakers includes national regulators, ICT industry
associations (e.g. Mobile Manufacturers Forum, GSM Association,
International Federation of Pharmaceutical Manufacturers &
Associations), representatives of international organisations such
as the World Intellectual Property Organization (WIPO), World
Customs Organization (WCO), World Trade Organization (WTO),
Organization for Economic and Development Cooperation (OECD) and
the IP Directorate of the European Union, and ICT transnational
corporations (e.g. Cisco, Microsoft and Hewlett-Packard). </p>
<p> The curious case of participation is the International
Federation of Pharmaceutical Manufacturers & Associations
(IFPMA), the only participant that is not directly dealing with
any ICT devices. However, IFPMMA has long-standing experience in
advocating for IP tough enforcement by cleverly conflating IP
enforcement with the quality of medicines.</p>
<p> (Such conflation is designed to undermine generic medicines
competition with expensive patented or originator company's
medicines, by confusing the public and regulators into thinking
that “counterfeit” medicines that are about copying of trademark,
medicines that have questionable quality, and generic medicines
are the same.)</p>
<p> Interestingly the ICT industry is also pursuing the same
strategy to push for IP enforcement by citing the sceptre of
safety and security. The submission of the Mobile Manufacturers
Forum (MMF) to the conference states that the counterfeit problem
touches many aspects including health and safety, environment,
security quality of services, loss of tax revenue and unfair
competition.</p>
<p> However, the IP angle is clearly articulated by some of the
participants. For instance, MMF in its submission states: “… both
counterfeit and substandard mobile phones avoid the payment of
royalties to the rightful intellectual right holders”. It further
states that counterfeit mobile phones explicitly infringe the
trademark or design of an original or authentic product: “A
counterfeit mobile phone copies the trademark (brand) of an
original well recognised brand, copies the form factor of the
original product, and/or copies the packaging of the original
product”.</p>
<p> The MMF submission proposes increased enforcement, including
legal backing to block phones that do not possess a valid
International Mobile Equipment Identity (IMEI) number, which is
used by GSM operators to track a phone. IMEI is used mainly to
block a stolen phone. MMF proposes the same system to enforce IP.
Often, through parallel importation, mobile handsets are sold in
informal markets with altered IMEI. MMF wants legal amendment of
national laws to prohibit the alteration or changing of IMEI
numbers, and to make it a criminal offence to distribute mobile
phones with altered IMEI numbers.</p>
<p> (Parallel importation is the legal import by a third party of an
IP protected product when the IP holder has marketed that product
outside the importing country. In such a situation the IP holder’s
consent is not needed and no royalty payments are due to the IP
holder.)</p>
<p> The MMF submission also states: “Many counterfeit substandard
mobile phones are out of reach of the customs authorities because
they happened to be in transit through a particular country. This
creates a huge loophole for criminal organisations to distribute
throughout the world as customs officials are powerless to seize
obvious counterfeit products that are being shipped to a third
country”. </p>
<p> Therefore MMF signals that it wants customs authorities to have
the power to seize goods in transit, a measure that goes far
beyond the requirement under the Trade-related Intellectual
Property Rights (TRIPS) Agreement.</p>
<p> <b>ITU joins the IP enforcement bandwagon</b></p>
<p> ITU is the latest entrant in the IP enforcement game initiated
by developed countries and transnational corporation since around
2005. The IP enforcement initiatives have found a place in the
following multilateral organisations: WHO, WIPO, WTO, WCO,
International Postal Union, INTERPOL, UN Office on Drugs and
Crime. In most of these organisations IP enforcement initiatives
were pushed in the form of a public private partnership (PPP) to
achieve the goal of enforcing a private privilege (which a reward
for inventiveness and innovation is and not a “right”) using
public money. Developing countries have opposed and pushed back
such initiatives in the several multilateral organisations
including the WHO, WCO, UNODC and IPU.</p>
<p> The IP enforcement agenda within ITU has serious and
far-reaching implications on developing countries’ efforts to
achieve local manufacturing capabilities and it may affect the
interests of small and medium sized enterprises. Since the scope
of the ICT devices is so broad any IP enforcement initiative can
affect not only mobile handsets but also many areas of radio,
telecommunications and computer equipment. </p>
<p> Resolution 79 adopted at the ITU’s sixth World Telecommunication
Development Conference (WTDC-14) from 30 March to 14 April 2014 in
Dubai, United Arab Emirates defines counterfeit very broadly to
read: “Counterfeit telecommunication/ICT devices include
counterfeit and/or copied devices and equipment as well as
accessories and components”.</p>
<p> The general nature of recent IP enforcement initiatives is to
push for “TRIPS Plus” standards and to minimise the flexibilities
available in the TRIPS Agreement with regard to the protection and
enforcement of IP. These flexibilities are aimed at maintaining
the space for developing countries to innovate and develop
themselves. The suggestion to clamp down the “grey market” and to
use service providers to deny services for devices that are in the
grey market would compromise the parallel importation tool
available under the IP laws of many countries.</p>
<p> One of the dominant strategies of transnational corporate
interests is to incorporate IP enforcement strategies as part of
standards setting and to ensure that products which do not comply
with a country's applicable national conformity processes and
regulatory requirements or other applicable legal requirements,
should be considered unauthorized for sale and/or activation on
telecommunication networks of that country. Thus the upcoming
November Conference is an event that offers a glimmer into the
real action that is in ITU’s standard setting bodies.</p>
<p> The IP enforcement agenda in ITU is pushed through its various
standard setting bodies known as “study groups”. This would
ensure the global compliance with IP enforcement norms that
industry wants and that developed county governments project.
Study group 11, which sets the standards on protocols and test
specifications, has already undertaken the work program to develop
a technical report on counterfeited and substandard ICT equipment.</p>
<p> In addition, ITU Resolution 79 instructed study group 2 (that
deals with operational aspects of service provision and
telecommunications management), in collaboration with other
relevant ITU study groups, to: </p>
<p> (1) Prepare and document examples of best practices on limiting
counterfeit and copied devices, for distribution to ITU Member
States and Sector Members;</p>
<p> (2) Prepare guidelines, methodologies and publications to assist
Member States in identifying counterfeit devices and methods of
increasing public awareness to restrict trade in these devices, as
well as the best ways of limiting them;</p>
<p> (3) Study the impact of counterfeit telecommunication/ICT
devices being transported to developing countries;</p>
<p> (4) Continue studying safe ways of disposing of the harmful
e-waste from the counterfeit devices currently in circulation in
the world.</p>
<p> ITU’s 14<sup>th</sup> Plenipotentiary Conference (PPC) on 20
October to 7 November 2014 in Busan, Republic of Korea adopted a
resolution on “Combating counterfeit telecommunication/information
and communication technology devices”. This is the first
resolution exclusively focussing on counterfeit.</p>
<p> However, the capture of ITU for the IP enforcement agenda
started in 2010. The last PPC in 2010 held in Guadalajara,
Mexico adopted Resolution 177 on “Conformance and
interoperability”. This resolution invited the “Director of the
Telecommunication Development Bureau, in close collaboration with
the Director of the Telecommunication Standardization Bureau and
the Director of the Radio communication Bureau to assist Member
States in addressing their concerns with respect to counterfeit
equipment”.</p>
<p> Further the resolution invited Member States and Sector Members
“to bear in mind the legal and regulatory frameworks of other
countries concerning equipment that negatively affects the quality
of their telecommunication infrastructure, in particular
recognizing the concerns of developing countries with respect to
counterfeit equipment”.</p>
<p> (PPC takes place once in four years and is the top policy making
body of ITU. It specifically makes the decisions in the following
areas: sets the Union's general policies; adopts four-year
strategic and financial plans; and elects the senior management
team of the organization, the members of Council, and the members
of the Radio Regulations Board; sets the work program for the next
four years.)</p>
<p> The latest PPC resolution i.e. COM5/4 (Busan 2014) sets out a
full-fledged work program on IP enforcement.</p>
<p> The Busan Resolution recognises:</p>
<p> <i>a) </i>the growing problem related to the sale
and circulation of counterfeit devices in the market, as well as
the adverse consequences thereof for users, governments and the
private sector;</p>
<p> <i>b) </i> that counterfeit telecommunication/ICT
devices may negatively impact on security and quality of service
for users;</p>
<p> <i>c) </i>that counterfeit telecommunication/ICT
devices often contain illegal and unacceptable levels of hazardous
substances, threatening consumers and the environment;</p>
<p> <i>d) </i> that some countries have adopted
measures to raise awareness of this issue and deployed successful
solutions to deter the spread of counterfeit telecommunication/ICT
devices, and that developing countries may benefit from learning
from those experiences;</p>
<p> Further, the Busan Resolution states that it considers:</p>
<p> <i>a) </i>that, in general, telecommunication/ICT
devices that do not comply with a country's applicable national
conformity processes and regulatory requirements or other
applicable legal requirements, should be considered unauthorized
for sale and/or activation on telecommunication networks of that
country;</p>
<p> <i>b) </i> that ITU and other relevant
stakeholders have key roles to play in fostering coordination
between the parties concerned to study the impact of counterfeit
devices and the mechanism for limiting their use and to identify
ways of dealing with them internationally and regionally;</p>
<p> The Resolution further instruct the Directors of the three ITU
Bureaux to:</p>
<p> (1) Assist Member States in addressing their concerns with
respect to counterfeit telecommunication/ICT devices through
information sharing at regional or global level, including
conformity assessment systems;</p>
<p> (2) Assist all the membership, considering relevant ITU-T (ITU
Telecommunication Standardization Sector) recommendations, in
taking the necessary actions to prevent or detect the tampering
with and/or duplication of unique device identifiers, interacting
with other telecommunication standards-development organizations
related to these matters.</p>
<p> The Busan Resolution also invites Member States to:</p>
<p> (1) Take all necessary measures to combat counterfeit
telecommunication/ICT devices;</p>
<p> (2) Cooperate and exchange expertise among themselves in this
area; and</p>
<p> (3) Encourage participation in industry programmes combating
counterfeit telecommunication/ICT devices.</p>
<p> It also invites all the membership to:</p>
<p> (1) Participate actively in ITU studies relating to combating
counterfeit telecommunication/ICT devices by submitting
contributions;</p>
<p> (2) Take the necessary actions to prevent or detect the
tampering of unique telecommunication/ICT devices identifiers.</p>
<p> The earlier Resolution 79 from the March/April 2014 Dubai
conference invites Member States and Sector Members “to bear in
mind the legal and regulatory frameworks of other countries
concerning equipment that negatively affects the quality of their
telecommunication infrastructure and services, in particular
recognizing the concerns of developing countries with respect to
counterfeit equipment.”</p>
<p> Further, Resolution 79 invites Member States to:</p>
<p style="margin-left:36.0pt;margin-left:14.2pt"> (1) Take all
necessary measures to combat counterfeit devices;</p>
<p style="margin-left:36.0pt;margin-left:14.2pt"> (2) Cooperate and
exchange expertise among themselves in this area;</p>
<p style="margin-left:36.0pt;margin-left:14.2pt"> (3) Incorporate
policies to combat counterfeit devices in their national
telecommunication/ICT strategies.</p>
<p> It also invites telecommunication operators “to cooperate with
governments, administrations and telecommunication regulators in
combating counterfeit devices, restricting trade in these devices
and disposing of them safely, encourages Member States, Sector
Members and Academia to participate actively in ITU-D (ITU
Development Communication Sector) studies relating to combating
counterfeit devices by submitting contributions and in other
appropriate ways”.+</p>
</blockquote>
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