[governance] ITU work on counterfeit producs

[Seth Johnson]

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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