[A2k] TWN IP Info: Conference on ICT intellectual property enforcement raises concerns

K.M. Gopakumar kumargopakm at gmail.com
Wed Nov 12 08:47:05 PST 2014


*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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