[governance] ITU work on counterfeit producs

[Suresh Ramasubramanian]

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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