[governance] ITU work on counterfeit producs

[Suresh Ramasubramanian]

Fair point

--srs (iPad)

> On 12-Nov-2014, at 18:49, Seth Johnson <seth.p.johnson at gmail.com> wrote:
> 
> 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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