[governance] ITU work on counterfeit producs

[parminder]

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 14^th 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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