[bestbits] [governance] ITU work on counterfeit producs

[Seth Johnson]

Working on distinguishing "IP enforcement" right now establishes the
distinction before the transition of identifiers functions is
implemented.  Avoids just baking things into infrastructure without
first confronting and addressing what that means, including at bottom
the simple point that "IP enforcement" is different from other things
people want to do.


On Wed, Nov 12, 2014 at 12:45 AM, Suresh Ramasubramanian
<suresh at hserus.net> wrote:
> I hate it when that does get brought in, or manufacturers conflate
> legitimately manufactured third party alternatives with bogus components.
> Working on security requires rather more consensus than the cat fight a
> typical ITU conclave or civil society mailing list seems to engender..
>
>
>
>
> On November 12, 2014 11:03:38 AM Seth Johnson <seth.p.johnson at gmail.com>
> wrote:
>
>> Oh, please.  Bringing in "IP enforcement" is assuring that's not
>> confused with any other application.  Which really needs to be
>> vitiated.
>>
>> On Wed, Nov 12, 2014 at 12:28 AM, Suresh Ramasubramanian
>> <suresh at hserus.net> wrote:
>> > 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.
>> >
>> > They have, prima facie, a legitimate interest in seeing that no bogus
>> > components turn up anywhere in their manufacturing chain.
>> >
>> > Safety and security in ict is a serious enough topic that bringing in IP
>> > enforcement only vitiates an essential debate and initiative.
>> >
>> > On November 12, 2014 10:38:26 AM parminder <parminder at itforchange.net>
>> > wrote:
>> >>
>> >> 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.
>> >>
>> >> 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.
>> >>
>> >> parminder
>> >>
>> >> -----
>> >>
>> >> Title : TWN IP Info: Conference on ICT intellectual property
>> >> enforcement
>> >> raises concerns
>> >> Date : 11 November 2014
>> >>
>> >> Contents:
>> >>
>> >> TWN Info Service on Intellectual Property Issues (Nov14/05)
>> >> 12 November 2014
>> >> Third World Network
>> >>
>> >>
>> >>
>> >> _________________________________________________________________________________________
>> >>
>> >> Conference on ICT intellectual property enforcement raises concerns
>> >>
>> >> 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.
>> >>
>> >> 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:
>> >> http://www.itu.int/en/ITU-T/C-I/Pages/WSHP_counterfeit.aspx)
>> >>
>> >> The conference has the following three objectives:
>> >>
>> >> (1)           Discuss the global scope and impact of counterfeiting and
>> >> substandard ICT products on various stakeholders;
>> >>
>> >> (2)            Highlight the common concerns, challenges, initiatives,
>> >> practices and opportunities of the various stakeholders in their fight
>> >> against counterfeiting and substandard ICT products;
>> >>
>> >> (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.
>> >>
>> >> The conference will have the following four sessions
>> >> (http://www.itu.int/en/ITU-T/C-I/Pages/Programme.aspx):
>> >>
>> >> Policy debate: Governments’ Perspectives on Combating Counterfeit and
>> >> Substandard ICT Products;
>> >> Intergovernmental Initiatives Against Counterfeit and Substandard ICT;
>> >> Technology Debate, ICT Industry Perspectives and
>> >> Anti-Counterfeit/Substandard Technologies and Systems (parts 1 & 2);
>> >> Development Opportunities and International Standards as Part of the
>> >> Global Strategy Against Counterfeit and Substandard ICT Products.
>> >>
>> >> 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).
>> >>
>> >> 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.
>> >>
>> >> (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.)
>> >>
>> >> 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.
>> >>
>> >> 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”.
>> >>
>> >> 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.
>> >>
>> >> (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.)
>> >>
>> >> 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”.
>> >>
>> >> 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.
>> >>
>> >> ITU joins the IP enforcement bandwagon
>> >>
>> >> 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.
>> >>
>> >> 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.
>> >>
>> >> 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”.
>> >>
>> >> 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.
>> >>
>> >> 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.
>> >>
>> >> 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.
>> >>
>> >> 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:
>> >>
>> >> (1) Prepare and document examples of best practices on limiting
>> >> counterfeit and copied devices, for distribution to ITU Member States
>> >> and
>> >> Sector Members;
>> >>
>> >> (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;
>> >>
>> >> (3) Study the impact of counterfeit telecommunication/ICT devices being
>> >> transported to developing countries;
>> >>
>> >> (4) Continue studying safe ways of disposing of the harmful e-waste
>> >> from
>> >> the counterfeit devices currently in circulation in the world.
>> >>
>> >> ITU’s 14th 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.
>> >>
>> >> 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”.
>> >>
>> >> 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”.
>> >>
>> >> (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.)
>> >>
>> >> The latest PPC resolution i.e. COM5/4 (Busan 2014) sets out a
>> >> full-fledged
>> >> work program on IP enforcement.
>> >>
>> >> The Busan Resolution recognises:
>> >>
>> >> a)             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;
>> >>
>> >> b)              that counterfeit telecommunication/ICT devices may
>> >> negatively impact on security and quality of service for users;
>> >>
>> >> c)              that counterfeit telecommunication/ICT devices often
>> >> contain illegal and unacceptable levels of hazardous substances,
>> >> threatening
>> >> consumers and the environment;
>> >>
>> >> d)              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;
>> >>
>> >> Further, the Busan Resolution states that it considers:
>> >>
>> >> a)             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;
>> >>
>> >> b)              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;
>> >>
>> >> The Resolution further instruct the Directors of the three ITU Bureaux
>> >> to:
>> >>
>> >> (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;
>> >>
>> >> (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.
>> >>
>> >> The Busan Resolution also invites Member States to:
>> >>
>> >> (1) Take all necessary measures to combat counterfeit
>> >> telecommunication/ICT devices;
>> >>
>> >> (2)  Cooperate and exchange expertise among themselves in this area;
>> >> and
>> >>
>> >> (3) Encourage participation in industry programmes combating
>> >> counterfeit
>> >> telecommunication/ICT devices.
>> >>
>> >> It also invites all the membership to:
>> >>
>> >> (1) Participate actively in ITU studies relating to combating
>> >> counterfeit
>> >> telecommunication/ICT devices by submitting contributions;
>> >>
>> >> (2) Take the necessary actions to prevent or detect the tampering of
>> >> unique telecommunication/ICT devices identifiers.
>> >>
>> >> 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.”
>> >>
>> >> Further, Resolution 79 invites Member States to:
>> >>
>> >> (1)  Take all necessary measures to combat counterfeit devices;
>> >>
>> >> (2)  Cooperate and exchange expertise among themselves in this area;
>> >>
>> >> (3)  Incorporate policies to combat counterfeit devices in their
>> >> national
>> >> telecommunication/ICT strategies.
>> >>
>> >> 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”.+
>> >
>> >
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