[governance] ITU work on counterfeit producs

[Suresh Ramasubramanian]

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 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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