From tripta at sarai.net Wed Jan 1 16:39:25 2003 From: tripta at sarai.net (tripta) Date: Wed, 1 Jan 2003 16:39:25 +0530 Subject: [Commons-Law] Fwd: DMCA: Dow What It Wants to Do - THING Message-ID: <200301011639.25100.tripta@sarai.net> DMCA at work. cheers tripta ---------- Forwarded Message ---------- Subject: DMCA: Dow What It Wants to Do - THING Date: Tue, 31 Dec 2002 07:50:01 -0500 From: "ricardo dominguez" To: DMCA: Dow What It Wants to Do By Michelle Delio 02:00 AM Dec. 31, 2002 PT http://www.wired.com/news/politics/0,1283,57011,00.html Digital Millennium Copyright Act charges may force an independent Internet service provider and its controversial clients offline next month. The Thing has provided Internet connectivity, technical support and Web design services to New York City artists and political activists for over a decade. But at the beginning of December, Wolfgang Staehle, owner and director of The Thing, was notified by his service provider, Verio, that The Thing's Internet connection would be severed on Feb. 28, 2003. Staehle said Verio is pulling the plug on The Thing due to charges that one of its clients violated the DMCA by posting a parody website mocking Dow Chemical company. Posted on Dec. 3, the parody site quickly came to the attention of Dow's lawyers, who contacted (PDF) Verio. Verio responded by shutting down The Thing's entire network, an action that affected hundreds of The Thing's clients, until the parody site was removed on Dec. 4. Shortly afterward, Staehle says Verio's lawyers informed him that his service would be permanently suspended at the end of next month. "I still can't believe it," Staehle said. "I love this city and this country, but I am terrified at the direction we seem to be headed in." Verio representatives were not immediately available for comment. The Thing's troubles began when a press release, purportedly from Dow Chemical, was e-mailed to hundreds of people. The release quoted Dow's then-president, Michael Parker, as saying the company was unconcerned about the lethal gas leak at a Union Carbide plant (now owned by Dow) in Bhopal, India, in 1984, that killed thousands. A link was provided to the "dow-chemical.com" website. The company's official website address is dow.com. Dow-chemical.com was registered by a group of online activists known as the Yes Men, who specialize in creating parody websites. The Yes Men's parody was put online by RTMark.com, an arts activism group that gets its Internet service from The Thing. Within hours of the site going live, Dow's law firm asked Verio to remove the site. "But this happened after normal business hours, and when Verio couldn't contact someone here who had authority to pull the site, they totally cut off our service," Staehle said. "One of my users said it's as if an offensive poster mocking a company was put up on a building, and when the company's lawyers couldn't reach the building owner immediately, they got a bulldozer and knocked down the whole neighborhood," Staehle added. Verio shut down part of The Thing in 1999, when eToys petitioned a California court to stop an online arts group from using the group's own long-owned URL, etoy.com. In response, the Electronic Disturbance Theater, a Thing client, hit the toy retailer's website with a denial-of-service attack, overwhelming its servers and periodically forcing it offline. Verio blocked access to part of The Thing's network until protestors agreed to call off the attack. But in January, Verio refused to shut down a website containing DVD-copying software after receiving a request to do so from the Motion Picture Association of America. So Staehle is hoping that Verio might have a change of heart and says he's yet to receive written notification of his contract severance. But he has also been discussing the possibility of contracting The Thing's Internet service from several European ISPs. "There are, thankfully, no DMCA-type regulations in Europe yet," Staehle said. Meanwhile, the parody Dow website has resurfaced on several European websites. Staehle didn't have to decide whether to keep the site up, as James Parker, son of Dow ex-CEO Michael Parker, has officially claimed ownership of Dow-chemical.com. Evidently the Yes Men thought it "would be really funny" if they registered the Dow-Chemical.com under James Parker's name. "We even put down James Parker's real home address! Very funny, right? Yes! Funny!" the Yes Men said in a statement. "But on Dec. 4, James Parker himself, with the help of a team of Dow lawyers, sent a Xerox of his driver's license and a letter by FedEx to Gandi.net, saying, basically, "This domain belongs to me. See, that's my home address, too. Give it to me!" According to rules established by the Internet Corporation for Assigned Names and Numbers -- an organization responsible for, among other chores, Internet address disputes -- Parker was correct and Gandi.net had no legal choice but to hand over dow-chemical.com to James Parker. # distributed via : no commercial use without permission # is a moderated mailing list for net criticism, # collaborative text filtering and cultural politics of the nets # more info: majordomo at bbs.thing.net and "info nettime-l" in the msg body # archive: http://www.nettime.org contact: nettime at bbs.thing.net ------------------------------------------------------- -- "Unless you have access to a loudspeaker, you are now silenced. " From jeebesh at sarai.net Thu Jan 2 13:52:04 2003 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Thu, 2 Jan 2003 13:52:04 +0530 Subject: [Commons-Law] Fwd: Intellectual Property Regimes and Indigenous Sovereignty Message-ID: <200301021352.04851.jeebesh@sarai.net> Ruchika will soon post a write-up on the workshop on IPL. Enclosed is a posting by Pit Schultz on IP Regimes. It covers areas that we discussed in the workshop. best Jeebesh ---------- Forwarded Message ---------- Subject: Re: Intellectual Property Regimes and Indigenous Sovereignty Date: Thu, 28 Mar 2002 04:23:09 +0100 From: Pit Schultz To: nettime-l at bbs.thing.net first i do not think that the impulse which seems to make people reply to this thread is really bad. anyone heard the romantic story of Milagro Beanfield War? welcome to the world of biopower what is wrong about wanting to resist exploitation or solidarize with people who try to make a buck out of 'indigenous property' which is anyhow only possible in a postcolonial economical setup. so let's blame the natives for running casinos, nuclear waste depots, and trying to make money with their music and medicine, and educate them to read more slashdot.org ? it's interesting how easily a certain culture of white boy hacker ethics can blend into a narrow minded "free software" fundamentalism. even if local knowledge about a regional biodiversity should become part of global wisdom, the missionaries of the "linux reformation" neglect the ethnocentricity of their culture. instead, the underlying text of richard stallmann just suggests avoiding the privatization of bioproperty, but his precise rethoric is rather carefully aimed at a freedom from biotech monopolies inspired by the anti-monsanto campaigns. stallmann never goes so far as to become a communist to scrutinize the concept of intellectual property based on authorship. nor is he becoming a development helper teaching the workers how to install their own DNA screening devices and herbal extraction labs. he focuses on the values of the 'enlightment' and it's traditionaly westernized audience: the GNU licence allows more choices from within a juristic context of a ruling regime of intellectual property. as such his project is reformistic and not revolutionary, which isn't meant as a judgement here. it is only a question of how far this possible freedom reaches when it is brought to people who have to make different choices than software developers. from a anthropological, so called cultivated, western position, it is easy to speak negativly about the state when (economic) power is already organized on the level of the networked states, international trade agreements, wipo, nafta you name it. intellectual property relations nevertheless are transfered to be granted on a supranational level and from there are imposed on the 'wrongdoer states' soon to be included into an 'axis of evil'. as an end user, it is not clear how to take influence on the decisions of the WIPO other than through the civil disobience of neglecting copyright law on a massive scale. on the other hand, the western focus on the few remaining areas where "original" knowledge remains, the oral history is being digitized, patented and privatized; also reflecting our own feelings of cultural loss. and again one risks to operate with representations of remote struggles instead of getting involved with the local ones, which might look futile. only on the basis of intellectual property can a globalized knowledge economy function which exports its labour intensive sectors and keeps the logistical keys of control in central hands to generate maximum revenue. when it comes down to natural resources like gas, oil or to the field of agraric production the rules of property seem to be set by the market economy. for third nature, the so called knowledge economy, the old scientific culture of humboldt's discoveries in the jungle is transfered to a private technoscientific property regime. once privatization takes place the business still might fail, and property including social costs falls back into public hands. it tends to be the weakest component of a system who has to bear the burden of a networked failure protection. In the end, knowhow about the nature of this beast is valued higher than knowhow about herbal remedies. as it was earlier reintroduced by Ken Wark, the question of property is an important one when questions arise regarding who's "owning nature". what already seems to be decided on the level of energy resources reenters the debate as a crisis of knowledge. the debate of global warming is a test case of the planetary scientific and political system, the enron scandal, the unclear involvements of the bush government into energy politics, the role the oil factor plays on the geopolitical chessboard including afghanistan, brings back into the equation the industrial modes of production. the burst of the dot.com bubble has possibly further implications by cutting a line of escape into cyberspace. a knowledge economy doesn't exist in a cybernetic clean room, disconnected from the conditions of energy and matter and most of all social relations. the discourse of law, as the last instance of rationality seems to break down under its own complexity like the software crisis of the 70ies when expectations were too high. # distributed via : no commercial use without permission # is a moderated mailing list for net criticism, # collaborative text filtering and cultural politics of the nets # more info: majordomo at bbs.thing.net and "info nettime-l" in the msg body # archive: http://www.nettime.org contact: nettime at bbs.thing.net ------------------------------------------------------- ------------------------------------------------------- From jeebesh at sarai.net Thu Jan 2 14:59:20 2003 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Thu, 2 Jan 2003 14:59:20 +0530 Subject: [Commons-Law] Report IPL Workshop - Day 1 Message-ID: <200301021459.20391.jeebesh@sarai.net> Workshop Report - The Daily Life Of Intellectual Property Law - at Sarai/CSDS, December 20th and 21st 2002. by - Ruchika Negi, researcher, Sarai/CSDS ----------- Day 1: Friday, 20th of December : ---------- Sarai/CSDS (www.sarai.net) in collaboration with Alternative Law Forum (Bangalore) held a workshop on " The Daily life of Intellectual Property Law". Participants included students, practitioners, thinkers, researchers from diverse backgrounds and cities. The focus of the workshop remained pivoted around the politics of Intellectual Property, its emergence as a central feature of the contemporary and its interaction with issues posed by new technology. The presence of an enthusiastic law student community was extremely significant and a necessity, marked by the need to shape and carve a substantial discourse on IPL issues, for concrete formulation of a dialogue around the practise and theory of these issues, for present and future purposes. ------- Schedule and Summary: 1. Introduction - Jeebesh Bagchi, Sarai/CSDS 2. Ravi Sundaram, Sarai/CSDS, Introduction to the Public and Practices in the History of the Present(PPHP) research work within the grey economy. 3. Prof. NS Gopalkrishnan, CUSAT, Criminalization of IP law 4. Lawrence Liang, ALF Emergence of IPR in daily life and language 5. Shamnad Basheer, Anatomy of a copyright raid 6. Anup and Naditha - Summary of MHRD report on copyright piracy in India 7. Neha Mahyavanshi - The vendors manual on IPR 8. Sudhir and Lawrence - IPR cases and materials Database The Code - a film by Hannu Puttonen on free software movement A terrible beauty is born - a reading/ performance by Arjun Raina ---------- The morning session started at 10am, with Jeebesh, from Sarai, providing a small introduction about the history and work of Sarai. Sarai, formed in 2000 was concieved as a space for collaborative interdisciplinary practises and research on urban culture, new and old media practise, and to create a creative context for emergence of practise and scholarship. Jeebesh emphasized the fact that the present workshop was not a seminar, and the idea was to encourage debates and discussions arising from the questions posed by different speakers. The first to share his views on the increasingly complicated polemics of IP was Ravi Sundaram. Ravi, is a fellow of Center for study of Developing Societies, and one of the initiators of Sarai. His work looks at the coming together of new non legal or 'pirate' electronic culture and urban space in the context of the contemporary. He is involved with the project `People and Practices in the History of the Present (PPHP)` at Sarai. Ravi brought to forefront, two significant changes marking the present. One the increasing expansion of the media and the State sponsored liberalisation policies, and simultaneously, the growth of a media consuming public. He spoke of the growth of Doordarshan, in the 1980s, particularly boosted by the hosting of the Asiads in the country, a grand event which added to the T.V viewerships tremendously, thus escalating T.V consumptions. Then one witnessed the entry of computers, intimating yet another era of public/private consumption and production. Thus we saw the emergence of, on one hand, the State and its evolving policies around changing media trends of consumption/production/ distribution, and on the other hand two important media technologies appearing - the Audio and Video cassette industries. Along with this, the public access to these medias was marked by the appearance of `Informal Networks`, which in their stead, added to the emergence of a `Gray Economy` around the `Gray Markets` of public production and consumption. 1990s witnessed globalisation, and thus an increase in the consuming Publics. Ravi emphasised that thus the regulatory functions of the State became more highlighted, pronounced, and yet posed challenges, almost inconcievable to handle. Means of production became increasingly disjuncted from the reproduction of the produced, thus carving out huge inequalities, simultaneously, creating unequal Publics. The informal production gave rise to an informal economy around flexible markets, whose territories were difficult to regulate for the state mechanisms. The corporate sectors , therefore, saw this as threatening shift of balance, thus pressurizing policy level changes to become more stringent regarding production and circulation among the publics. The Publics on the other hand remained largely a consuming entity, not necessarily understanding the nuances of legality and non- legality of their bargains. Thus, Ravi stressed, the relation between Old Media and New media, Legality and Nonlegality, the Media and the City, became prominent for discourse and analysis. It was this transformation of media and the Publics that the PPHP project remains interested in examing. The young researchers of PPHP team then shared their works with all present. Rakesh, spoke of, and presented a graphic map of Palika Baazar, a market situated in Connaught Place, in Delhi, notorious for its pirated goods, particularly electronic medias. He spoke about the large wholesale supply and flow of pirated cassettes/DVDs/CDs etc. in the market and this made it a constant, vulnerable target for police raidings. And yet despite of its susceptibility to the legal mechanisms, the place managed to function, profitably, nonchalant to its precariousness, and widely recognised as the attraction of Delhi. Bhagvati, who has been extensively mapping Madhipur area of West Delhi, a working class neighbouhood, shared his field experience and research material of the audio cassette piracy that is thriving there, profitably. He emphasised how the shops are themselves production (reproduction) centers of the tapes they sell and the systematic way in which sale and purchase deals are woven around it. Lokesh, researching on the cable networks in an urban socio economic topography, pointed out the illegality, piracy, prevalant in this sphere, which the government remained hapless to tackle with. The industry, she corroborated, today stands at a wooping sum of 500 crore rupees, and thus the state's increasing anxiety for `control` seems understandable. She spoke of how the initial hub of this industry was the Lajpat Rai Market of Delhi, but soon other companies traversed into this limited terrain, for profit, and one witnessed the coming of Broadcasters- such as City/ In/Win etal. Monoply set, private operators dwinddled. Pirated film culture set in. Lokesh pointed out the immposibility to slam `piracy` on cable t.v operating networks, because often the operators telecasted pirated materials through dispersed sources, thus making it exceedingly difficult to locate the `source of leekage` or infringement. Ravi summed up all the interesting presentations and disscussions around the issues, by posing that the consuming publics did not seem to have a `normative problem` with the `illegal` media domain. What is the public legitimacy to this ever increasing, mammoth regime? After setting the pace of a rather thought provoking process, we moved on to our second speaker of the day, Prof. N.S Gopalakrishnan (CUSAT). He focussed on the Criminalisation of IPR, what it meant, implied, the structure and the politics of the debate. His talk revolved around Capital Formation, what it meant and for who, the Model of Development and IP Protection, in its and outside of, its context, how was criminal law and IP issues linked and what were the challenges in the face of the “Creative Commons”. Once again issues of global liberalisation, opening up of domestic economies were raised and the global trade being largely dominated by developed countries an important point to consider. Prof. NSG, drew our attention to the fact that till 1960Â’s global scenario remained a field led by a few, but post 60s saw the emergence of other myriad smaller players in the market, positing problems in the global hierarchy. The Asian Tigers, Tiawenese, Koreans, Indians (in the pharmacutical market, entered in a big way) the Chinese, all were seen as potential threats to the existing imbalance of the `big boys`. But then the large scale global penetration by the smaller market entities was not just an outcome of new technologies shaping up, redifining access, but also a certain level of sophistication that was implicit in the newer technologies.Thus the importance of IP protection became significant with regards to International Trade, the World Trade Organisation and Trade Related Intellectual Property Rights. Thus what was noted was the regulation of economy and industrial growth of less developed countries and also the control over grey market, the use of private property jurisprudence and protection of property using criminal laws. Prof. Gopalakrishnan, then went on to explain and discuss the Model Of Development and its relation to NSG drew out a map which tries to chart out the various processes that interact to form a model of IP protection that emerges and what this IP seems to actually protect. The core argument that was made was that IP is clearly intended to protect capital investments made in R&D, in manufacture and in marketing. Who is then Investing?. IP is then focussed on issues of Development, Industrial, Social, Technological, which sum up a paradigm for Quality of Life. Questions empahsised again were, Who will invest for all this?, What is the guarantee that a private investor investing in generation of IP will not have someone take away his investment from him?. Thus the logical conclusion was that he “needs” Protection. Important here was the distinction Prof. Gopalakrishnan drew at the Creator and the Investor. While the language of IP speaks the language of protecting the rights of the creator it very often has little to do with the creator since the creator assigns his rights to the investor. What markets are being explored for wealth/profit?, thus “market” isÂ’nt merely “domestic” but also implies accumulation of global markets. Thus arises concerns promoting private investment, protection through/ of private property, capital accumulation, subsequent domination by corporations, benefits for nations having global traders, eco/industrial growth through private investment, control of informal sector. What was also significant to not was that the language employed by IP was different from that of IP “rights”, the latter following the arguments of rights and assertions. Prof. went on to discuss the philosophical basis of IP. The most common argument that is raised is the Lockean argument of labour and conversion theory. However, very interestingly, he pointed out, how the protection is based on the notion of “possession” and not “ownership”, where the “possessor” is who the state marks out, and not the “owner”. Whose IP do we then pirate in the open market? The tension that NSG raised is this: Are we willing to work within a paradigm of property jurisprudence and innovate within such a paradigm, for instance the way that the open source movement does or do we need to look for an alternative paradigm of development itself? What could be an alternative to Capital Formation?, How does one insure that property of the Creative Commons will not get converted into private property?, How does one think of an alternative legal framework revolving around the existing IPR? Through IP laws, the Development Model, did not work as a public benefit/incentive model. The disscussion that followed oscillated between concerns regarding patent, reverse engineering and policy making. Third speaker, Lawrence Liang, of Alternative Law Forum, addressed `Emergence of IPR in daily life and language`. He started with posing the question raised numerous times earlier in the day, What is about IP that is so strange? Most people do not have a normative problem with disobeying IP laws?`. The argument made was that similar to the moment in the 18th century when the emergence of new lands laws changes every aspect of daily life and brings a wider number of previously unrelated acts under the rubric of criminalization, a similar movement takes place in the context of the digital era, where because everyone engages in the copy and paste culture the very basis of IP laws stands threatened. The global move is then not so much on enforcement as it is on: - The idea of re-educating publics about IP. - The notion of criminality centered around it. He attempted then to analyze some of these trends by looking closely at the way IP has emerged in the language of the ordinary and daily through the route of education. Using examples from WIPO and other IP initiatives meant at making IP a part of daily life. He then posed the question following from Jessica LitmanÂ’s question- Why doesnÂ’t IP work?, Liman argues that it does not work because ordinary people believe that laws make sense and the IP laws as practiced just do not make sense to them This accounts for the gap between legal enforcement and everyday cultural experiences. The NII report as also reflected in the MHRD report in India clearly stresses for a movement away from enforcement to trying to enforce a change in the ‘heartsÂ’ of ordinary people in their understanding and response to IPR, and this is the domain that is sought to be normativised through the program of reeducation. The fourth speaker, Shamnaad Basheer, a practising lawyer, interestingly spoke of Raids, an experiential sharing from the other side of the fence, a lawyerÂ’s perscpective. He mentioned how a raid order issued has to be specifically spelled and defined within its precincts of doÂ’s and dontÂ’s and a lawyer had to srtictly adhere to the written word or could be held guilty of transgressing the law himself. But he also added that the raided party, often was so overwhelmed with fear and anxiety of the moment that they remained ignorant of the raiding partyÂ’s legal parameters and limitations of functionality, thus adding to their own disadvantage even more. Shamnad also shared how ‘raidingÂ’ was really an attempt to send a ‘waveÂ’ through the grey markets, a scare, a “we are watching.. beware” signal, and more often than not thrived on this particular efficacy of it. Otherwise it proved difficult to be “succesfull” always, either because given the nature of such networks, news of precautionary measures travelled fast and people became “careful”, or often the police party accompaning the raiding party are themselves an accomplice in leaking information. Interestingly, Shamnaad mentioned, that fully aware of such police ‘slipsÂ’, the law had taken cognisanse of it and could pass an order in which the identity of the party to be raided could be concealed from the accomanying police authorities, if need be, till the end. Another interesting case was that of the JONDU order, being passed in U.S courts, during Bruce SpringsteenÂ’s concert held live, where the Star felt that by selling products bearing his face flashed on them and not giving him any share of the profit sales met, the hawkers were infringing on his property, hence he sought legal protection. Thus a blanket order was issued against anyone caught infringing, the raided remained an unknown, an unestablished, in this case. Another point of reasonable interest was the SAP software coming into the market, where from the onset such strict infringement laws were promulgated to protect leekages, that due to lack of an easy access, and aquaintability, under such guarded regime, the software failed to strike a relationship with the consumers, remaining secluded due to excessive insulatory policies and hence failed.Thus, Shamnaad concluded, Microsoft played smart by allowing minimum piracy and leekages to gain foothold in the market and then pulling up its reins once the “public” had been safely procurred. In the post lunch session law students, Anup and Naditha looked at the MHRD, Govt. of India report on copyright piracy in India. The report, they pointed out, looked at enumeratively at the issue of IP and was not an empirical analysis, making its credibility suspect and limited. Naditha spoke of the music industry piracy, how the industry remained small, thus limited production could not match up with the increasing demand. Gap between supply and a scaling demand, he held, led to large scale music piracy being prevelant. The report had summed up some causes for leekages and piracy occurences which seemed vague and superficial, such as overpopulation, unemloyement etc, lacking detailed studies and analysis. Neha Mahyavanshi, a second year student at the National Law School, Bangalore, spoke about the copyright manual for vendors that she is in a process of developing, which encompasses general understanding of copyright policies- areas covered under it, registration act, effects and processes.The manual (distributed among the participants) is an attempt to simplify the meaning of copyright and to make vendors aware of their rights. The work on this is still in progress and is being looked at with inputs from various collabrative efforts. Next, Sudhir and Lawrence, quickly spoke of the ongoing work they are involved in, centered around IPR cases and the mateial that they are in the course of evolving, a CD with compiled detailed information, which could serve as a public database for any future research and works of IP. A screening of the film, CODE directed by Hannu Puttonen, which looks at the freesoftware movement, the growing communities around it and their point of views. The evening ended with a reading of the paly,`A terrible Beuty is Born`, written by Arjun Raina, a known theatre personality, at the Sarai cafe space. Arjun has been a voice expert trainer at call centers for about 4 years now and his play reading mainly explored the lives of the people involved and affected by the demands put on them by these services. The -voice- and the split it demanded in the personality of the professional, in terms of an acquired accented tone that bellowed through the speaker to recipient overseas, and the real `person` concealed behind this masquearding voice, remained an intriguing, symbiotic binary through out the theme of the script. The evening ended with a huge public applause and dialogue around Arjun`s reading. ------------------------------- - end part 1 From jeebesh at sarai.net Thu Jan 2 14:59:33 2003 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Thu, 2 Jan 2003 14:59:33 +0530 Subject: [Commons-Law] Report IPL Workshop - Day 2 Message-ID: <200301021459.33466.jeebesh@sarai.net> Workshop Report - The Daily Life Of Intellectual Property Law - at Sarai/CSDS, December 20th and 21st 2002. by Ruchika Negi, researcher, Sarai/CSDS ----------- Day 2: Saturday, 21th of December : ----------- Schedule and Summary: 1. A summary of day one - Sudhir Krishnaswamy 2. Ravi Vasudevan, Sarai/CSDS, IPL and rethinking of cultural studies 3.Sudhir Krishnaswamy, ALF, The constitutional dimensions of the public domain 4. Arun Mehta, Moderator, India GII list - Software Patents: An illustration of the absurdity of IPR in the Information Age 5. Tripta Chandola, Sarai, Open Source Licensing - some comments 6. Jeebesh Bagchi, Sarai from `free software` to OPUS (www.opuscommons.net) 7. Nitin Sawhney, MIT - ThinkCycle: Cooperative Innovation in the Commons 8. OpenRegistry by Sunil Abraham, Mahiti ------------ The second consecutive day of the IP law workshop, began with Sudhir Krishnaswamy, summing up the previous days discussions. Ravi Vasudevan, fellow, CSDS and a co-initiator of Sarai, writes and teaches fim theory and history, was the first speaker of the day, speaking on `IPL and rethinking of Cultural Studies`. He provided a critique of the logic of IP rights, examining it to see whether it draws heavily from the framework of `cultural studies`. Is their an inherent contradiction prevalant here? Ravi spoke of the `spectator` of the cultural engagements and his realtion to IP. He emphasised the role of the cultural usage and practise in studying of IP. With regards to IP, central debates were that of Authorship, Originality,Idea versus Expression dialectics of an argument. Ravi pointed out , how the author is displaced through a critique in IP, from a cultural perspective to look at the other frameworks of collaboration/ authorship etc. Cultural studies looks at the entire hierarchy of cultural practises and tries to mark out how/why of this hierarchy, thus in some senses loosening/over-riding them. Hence, here the `spectator` assumes a position of importance through this process of `unpacking`. A spectatorship is able to give, attach, create multiple meanings to things one views. Ravi pointed out the furore the South Indian star, Rajnikant has created, emphasising his exclusive rights over his `Public Image`, looking at anyone copying his style as an infringer of his IP. This attempt by the actor to secure his public image actually saw IPR fuctioning in a repressive manner, in this case curtailing other practises or meanings that a spectator could derive out of it. Another point to which Ravi drew our attention to was the constant usage of the term `end user`, to connote the cultural consumer/user.This, he stressed sounded like an enumerative category, a statistical identity of the user as if , symbolic of a long preeceding chain of production,distribution,circulation, where the `cultural user` was the last on the other end. But in the volatile era of shifting IP, rights, producer, distributer, a putative consumer status, one had also witnessed an interceding figure, the Pirate. Could then, the Pirate also be seen as another `end user`, in some ways as someone who reframes, recycles the object and reconstitutes the market? Thus, he posited, then a Cultural subject, in relation to IP, could also be a Pirate. Ravi, then once again drew light on the Rajnikant debate centered around `his` rights to `his` IP. How does the extended public image, the created I, the possession, become in the understanding of the person's involved, the possessor, of his or her rightful IP? Under what claims? Leading to what sort of implications? The ruling force at play is the `desire` propelled by the need to control access to the images of his copies. Thus, in a sense the actor exhibits a refusal of his image to participate in its access to the consumer, whereas ironically, without this consumer access in the first place, the image would not have the meaning that it has.Then Ravi went on to speak of the controversy around Shashilal Nair's latest film, Ek Choti Si Love Story, where Manisha Koirala, the actress involved, put forth her claims over her public image being tarnished and exploited because of indecent, vulgar projections/publicity of her body in the film, outside her wishes. Here again there were three things at play - the dignity of the `body` of the star, the dispalcement of that `body` by a copy (another person`s visuals were used), and thus a violation of the image of the actress . Here again the debate revolved around `desire` and control of access, desire somewhere tainted by anxiety over protection of a `public image`. He showed us an excerpt from Sant Tukaram, where the saint Tukaram spoke to Shivaji, about every one's predestined social positions and responsibilities, and how thus the roles are marked for all to follow. And then there was a sudden enemy attack, a sudden movement, cinematically and visually, where a thousand copies of the saint and Shivaji were released from the mute icons of Vitthal, making it impossible for a harrassed enemy to distinguish between the `orignal` and the `mirror` or copy images of the protogonists. Ravi used this cinematic clipping as a metaphor to demark the significance of an image and its copies in the context of IP being discussed in a cultural framework. Sudhir Krishnaswamy, from ALF, spoke about `The constitutional dimensions of the public domain`. He began by outlining the reasons why constitutional arguments have come to be used in US in the 1990s. The use of constitutional arguments was designed to overcome interest group capture of Congress which continued to enact wider and stronger IP protection. Further the presence of a IP clause in the US constitution offers hope that arguments of principle will trump policy arguments raised by IP advocates. Contrastingly IP debates in India are not concerned with the form of knowledge regulation but whether such protection serves the `national interest`. This is evidenced by the recent debates on how traditional knowledge should be protected. He then moved on to outline the arguments raised in the Eldred v Ashcroft case. There are two types of arguments that may be raised to define IP policy in the US. The scope and content of the IP clause in the constitution and its conflict with the free speech and expression clause. Neither of these two arguments are applicable with the same strength in the context of the Indian constitution. Moreover they are unlikely to be raised because they may take away from the causes sought to be promoted by most IP advocates in India today. He then used the traditional knowledge debate to illustrate why the public domain has been an under represented interested. By mapping out the various advocates and positions of the debate he argued that as public domain arguments do not align with the national interest arguments they are unlikely to be given the same scope and play as in the US. Tripta, Sarai, spoke on Open Source Licensing - sharing her reflections and comments. It attempted to evaluate how the open source discourse has entered into other discourses (socio-economic-political-cultural and legal) making it important to rework around the language and definitions within these. It began with a brief introduction on the history of computing; how the source code was always kept open in the public domain and what differences in the software development and the culture around it were brought in by copyrighting the software. It then did a brief analysis of the licenses: GNU/GPL, Aristic license and the BSD license commenting on the variations within them in regards to how and in what manner these have deviated from the original ideas of freedom and openess as put forward by Richard Stallman and incorporated within the GNUGPL. The language of the open source license was compared to that of the others to show the level of intimidation and obfuscation they project. Somewhere what was of importance was how the user negotiates between the dimensions of his works and what the licenses he weighed them against, had to offer. Arun Mehta, Moderator, India GII list, next spoke on `Software Patents: An illustration of the absurdity of IPR in the Information Age`. He emphasised that an invention cannot be termed as one's alone, because it can be modified or replicated. He looked at how information earlier travelled in a solid form, namely through books, letters etc, then the radio and T.V were like the `rivers of information` and the internet was the `rain` itself. Speaking about the problems with regards to patents in Free Software, he argued that they had a dubious, suspect, legal basis, were really too slow/outmoded in their functionality and relevance (before one could acquire a patent, someone had or could already rework it) didnot prove profitable as they made the product too closed and insulated. Also, unlike the common view, Arun stated, that actually patenting does not protect the `small` guys and benefits the big bosses alone, who often put it as prestige label of aqquisition. He felt that the concept of IP didnot work well for goods that could be easily duplicated and whose supply was not limited. Citing the controversy of Napster, being slammed down as illegitimate he pointed out how newer refined ones had shaped up like Kazaa etal. No alternative legal instruments can protect intellectual output -if all we have is a hammer, every problem looks like a nail. Thus though a `solid` medea could be controlled easily, a `fluid` media could not. Arun drove an analogy with the Civil Disobedience Movement of Gandhi, forseeing ideas as the salt of Information, and thus a need for there to be a symbolic Civil Disobedience in the electronic media , like the PGP, the Napster, Kazaa, cracking of DVD encryption. He quoted John Gilmore- `The internet treats censorship as a fault and routes around it`. He felt that within India we should support such a Civil Disobedience movement in the `fluid` media as is not only cut costs, but was also consistent with our traditional stand on IP, and could gather huge support. Next, Jeebesh, spoke of OPUS (Open Platform for Unlimited Signification - www.opuscommons.net) an open database for structure for shared content, where the user is looked upon as a knowledge creator, a creative participant, a user/producer. There is no end user in opus like within the imagination of free software. In OPUS, the audio/visual/sound/text would constantly be seen in a `circle of production`. Every material would be up for modification, circulation, without actually taking away the anatomy of the original material. Thus there would be no notion of a `diminished copy`, in the digital context. What would be the relationship between these interpretations of interpretations, between these modifications? The concept used was `rescension`, symbolic of cultural, ecclesiastical inflections. Thus one could have in OPUS, the sourse and the rescension. The need was for a database, but there were still some challenges to face. What if a third party copyrighted material appears? How would one look at the administering the material without sounding autocratic? How does one work within the regulation regime and yet not remain defensive about the project? He ended by inviting thoughts, views, solutions around these challenges. Nitin Sawhney, MIT-Media Lab spoke on `ThinkCycle: Cooperative Innovation in the Commons`. He introduced the project, within a larger framework of his concerns and issues related to it, largely speaking on rethinking, distributed collaboration and IP, for substantial Design Innovation. He stressed apon the Universal Human Rights, in relation to IP, stating that economic growth didnot always imply developement of the people. He mentioned some texts that had inspired him to think of `universal human rights` issues. E.F Schumacher`s `Small is Beautiful` and Victor Papenek`s Design for the Real World. Thus he asserted that it was unethical to keep socially valuable ideas protected. He pointed out the three important trends in the 1990s • distributed computing/ online communities • global dialouge on digital divide • bold new movemnets such as IP in the Public Domain. He then discussed and ushered us through the website of Think Cycle, explaining its architechture, design, functionality. It is a space where topics for discussion and developement are thrown open to collaboratively work on. The site has a `“think space` marked out for shared, open discussions around issues thrown open, and also has an online digital library for reference and research. A lot of projects are currently online, evolving strategies and debates of growing relevance. The aim of the collaborative community is to make all theor works fall into Open Registry section as opposed to closed, proprietorial spheres. Last speaker of the day was Sunil Abraham, from Mahiti, Bangalore, who made a demo of the Open Registry forum explaining the processes through which it works. Lastly, Sarai and ALF, co-ordinators of the workshop thanked all the participants and presenters for a stimulating two days of discourse and debates.The students met with the co-ordinators after the presentstions to discuss on future workplans around the IP related issues. ------------------------------------------------------- - end part 2 From anasuya_s at yahoo.com Thu Jan 9 06:02:28 2003 From: anasuya_s at yahoo.com (Anasuya) Date: Thu, 9 Jan 2003 06:02:28 +0530 Subject: [Commons-Law] Fw: [Fwd: News through Sunday, December 29, 2002] Message-ID: <003601c2b776$999073c0$1cab58ca@hathway> some of you may be interested in this link below. thank you too for the summary of the workshop, which i found most interesting. do you think those of us who weren't there can have a read of arjun raina's play? for a bangalorean, the call centre looms large - and the slicing between sandhya and sandy is particularly sticky! anasuya > --------------------------------------------------------------------- > > > Sunday, December 29, 2002: > > Lewis Clayton looks at the Biggest Intellectual Propterty Cases of 2002. Worth paying attention to! > > http://news.gilbert.org/clickthru/redir/4608/16887/rms > > From tripta at sarai.net Thu Jan 16 19:34:13 2003 From: tripta at sarai.net (tripta) Date: Thu, 16 Jan 2003 19:34:13 +0530 Subject: [Commons-Law] illegal art: freedom of expression Message-ID: <200301161934.14089.tripta@sarai.net> This article published in New york times discusses "Illegal Art: Freedom of Expression in the Corporate Age," an exhibition dedicated to works built in part from other copyrighted works, without permission. I haven't been able to get the link to the website for the exhbition but as the article states, it raises pertinent issues and intersections between copyright and creativity as also the range of `copyright' with it's extended restrictions and regulations entering into our day-to-day acts and activities making copyright more than the realm in which only lawyers squabble! cheers tripta ______________________________________________________________________ http://www.nytimes.com/2003/01/07/arts/design/07SAMP.html An Exhibition That Borrows Brazenly By CHRIS NELSON It sounds like a plan for drawing hordes of screaming lawyers to your door: create compilation CD's with sampled music from the likes of the Beatles, James Brown and Johnny Cash, not to mention the voice of Dan Rather; include as many songs as possible that have already sparked legal battles; do it all without getting permission from the copyright owners; and distribute the CD's at a nationally touring art exhibition. Oh yeah, and give the music away online for the millions of people around the globe who can't make it to the show. So far this operation has not sparked even a lawyer's angry voice mail, said Carrie McLaren, curator of the exhibition, "Illegal Art: Freedom of Expression in the Corporate Age," where the potentially inflammatory CD is available free, and of its Web site, illegal-art.org. "They know it'd be like a minefield," said Ms. McLaren, who contends that the music, visual art and video pieces in the installation are protected by the "fair use" provision in copyright law that allows for parody and commentary. The exhibition, she says, takes the potentially illegal and makes it untouchable. Maybe she should talk with Paul McCartney. Sir Paul's spokesman, Paul Freundlich, is examining the apparently unauthorized use of the Beatles' song "Tomorrow Never Knows" on the "Illegal Art" track "Psycho of Greed" by the rap group Public Enemy. Both Public Enemy and Ms. McLaren are violating the law by distributing copyrighted work without permission, Mr. Freundlich said. "The people that are actually doing this exhibit are just as guilty as anybody else who's pirating anybody's artwork," he said. If true, Ms. McLaren argues, that proves her point: American copyright laws are overly restrictive and outdated. "Illegal Art," which had its debut at CBGB's 313 Gallery in New York in November, moves to Chicago later this month. The show's video section includes Brian Boyce's "State of the Union," which juxtaposes images borrowed from C-Span and the children's show "Teletubbies" to depict President Bush as an evil sun god destroying bunnies to make way for oil wells. Todd Haynes's "Superstar" dramatizes Karen Carpenter's anorexia using Barbie dolls. The visual section, meanwhile, includes Ray Beldner's re-creations of famous paintings made using United States currency and Wally Wood's notorious drawing of a Disney character orgy. All of the pieces either have run afoul of copyright owners in the past or could be expected to in the future. Jane C. Ginsburg, professor of literary and artistic property law at Columbia Law School, disagrees with the view that copyright laws have become more restrictive for artists. "The irony is that most of the stuff that I see on the Web site wouldn't be considered illegal," she said. But Edward Samuels, a New York Law School professor and author of "The Illustrated Story of Copyright," estimates that half the exhibition is in violation. Giving away entire songs on a CD and online - including the Verve's hit "Bittersweet Symphony" and Corporal Blossom's "White Christmas," which interweaves versions of that song by Elvis Presley, Louis Armstrong, Frank Sinatra and others - is a clear infringement, Mr. Samuels said. The songs in the exhibition are controversial precisely because copyright owners have claimed that other artists are stealing their work by sampling it, Ms. McLaren said. "In order to really understand the song you need to hear the whole thing," she said. Though copyright law can make for arcane discussion, popular culture has brimmed with the subject of late. Before the current term ends in June, the United States Supreme Court will rule on the constitutionality of the Sonny Bono Copyright Term Extension Act of 1998. That law stretched copyright ownership by 20 years - to 95 years after the author's life for work created before 1978 - allowing, for instance, the Walt Disney Company to maintain control of characters from the 1920's like Mickey Mouse.\ Last year Margaret Mitchell's estate settled its claim against the Houghton Mifflin Company that Alice Randall's novel, "The Wind Done Gone," violated the estate's rights to characters, plot and more from "Gone With the Wind." And one of the most talked-about singles of 2002 was Freelance Hellraiser's underground hit, "A Stroke of Genieus," which stitched together songs by Christina Aguilera and the Strokes without permission from either. Ms. Ginsburg and Mr. Samuels agree that copyright owners are more likely today than in the past to sue artists who appropriate their work. "The question becomes not whether you can win the suit but whether you can survive the suit," Mr. Samuels said. Legal worries convinced Diana Thorneycroft that she should pull several drawings from a recent exhibition in Winnipeg, Manitoba. Canadian law does not consider parody fair use. The pieces, now on display as "Foul Play" in "Illegal Art," depict dolls of familiar characters like Mickey Mouse and Bart Simpson being bound or "killed" by hanging or gunshot. "I think my drawings are clearly dealing with parody," Ms. Thorneycroft said. "But you know - I mean, murdering Mickey Mouse, the people who work for Disney may not agree with that." John Spelich, a Disney spokesman, said the company was looking into the exhibition. A representative from News Corporation, which owns "The Simpsons," did not return calls. The leader of Public Enemy, Chuck D, neither acknowledges nor denies that his group sampled the Beatles on "Psycho of Greed," allowing only that parts of his song and "Tomorrow Never Knows" sound strikingly similar. Liner notes for the "Illegal Art" CD say the sounds were sampled. The rapper has long fought restrictions on sampling. "Where does it stop?" he asked. "Does a lawn mower company copyright its sound? Does a Macintosh copyright its sound when you hit the keyboard? I don't think you can copyright sound. You can copyright compositions. But nobody invents a sound." Mark Hosler's music group, Negativland, contributed to "Illegal Art" the song "U2," which was the focus of a 1991 lawsuit by Island Records, for which the band U2 recorded. Negativland also submitted a video created surreptitiously with a Disney animator, Tim Maloney, that features Ariel from "The Little Mermaid" spewing crass legal threats. The issues that pervade the exhibition are more imperative than they might seem, Mr. Hosler said. "The bigger aspect of this can be literally life and death if you talk about how intellectual property laws could allow a drug company to control the price of an AIDS drug," he said. Meanwhile Ms. McLaren is still waiting to hear from lawyers intent on challenging her show or its pieces. Lawyers could well be a boon to the project, Ms. Ginsburg said. "The threat of litigation certainly could have a chilling effect," she said. "On the other hand, the threat of litigation is very good P.R." -- `The moroccans with the carpets seem like saints but they're salesman' From sudhir75 at hotmail.com Fri Jan 17 10:23:53 2003 From: sudhir75 at hotmail.com (sudhir krishnaswamy) Date: Fri, 17 Jan 2003 04:53:53 +0000 Subject: [Commons-Law] CTEA judgment Message-ID: Dear all The US Supreme Court has ruled in favour of the government and upheld the validity of the CTEA. With this decision the first open law brief and high profile case testing the constitutional arguments for the public domain have met with failure. We can now expect a hectic phase of lobbying for copyright term extension in other countries including India!! Sudhir http://news.com.com/2100-1023-980792.html Supreme Court nixes copyright challenge By Declan McCullagh Staff Writer, CNET News.com January 15, 2003, 11:51 AM PT WASHINGTON--The U.S. Supreme Court on Wednesday said Congress had the power to extend the duration of copyrights, a decision that dealt a grave blow to a growing movement against more expansive legal protections of artistic works.In a strongly worded ruling, the court said by a 7-2 majority that the legislature had great leeway in allowing repeated delays to when copyrighted works would enter the public domain. The ruling means that Walt Disney's first Mickey Mouse cartoons, poems by Robert Frost and other works created in the 1920s fall under a retroactive copyright extension of 20 years. "Congress acted within its authority and did not transgress constitutional limitations," Justice Ruth Bader Ginsburg wrote for the majority. "We are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be," Ginsburg said. In a narrow sense, the outcome of this challenge to the Copyright Term Extension Act (CTEA) determines when some works will become part of the public domain. However, Stanford University law professor Larry Lessigand his allies were hoping when they launched the challenge not merely to overturn this law but to build momentum for an all-out legal assault on other recent copyright expansions. Another target is the Digital Millennium Copyright Act (DMCA), also enacted in 1998, which broadly says that copy-protection devices should not be bypassed. Last week, Rep. Rick Boucher, D-Va., and three other legislators reintroduceda bill to defang the "anti-circumvention" sections of the DMCA. "I think perhaps in the immediate future we may be disappointed," said Nathan Mitchler, a representative of advocacy group Public Knowledge. "But in the long run it makes these things more important. Those attempts to rescind the DMCA become more important since the CTEA won't be cut back at all." Eben Moglen, a Columbia University law professor who filed an amicus briefsiding with Lessig on behalf of the Free Software Foundation, said one benefit of the decision is that it will radicalize programmers and free-software activists. At the same time, Moglen said, it will embolden the entertainment industry and eventually prompt them to "ask for too much" from Congress. "The very same arguments the Supreme Court rejected today, it would accept in 2014, if there were no precedents against it," Moglen said. "Everyone who's a member of the literate community would see at that time what Justice Breyer saw today (in his dissent)." Moglen and the dozens of others who supportedthe challenge by filing amicus briefs found staunch allies in the pair of justices who dissented. In a 22-page dissent that chronicled the development of intellectual property law since the 1790 act, Justice John Paul Stevens said that by declining to review the copyright extension, the court has ceded to Congress "its principal responsibility in this area of the law." Justice Stephen Breyerwas more blunt. His analysis, which focused on the economic impact, relied on research performed for Congress that concluded that CTEA will cost American consumers "several billion" dollars in additional royalty payments to copyright holders. "The economic effect of this 20-year extension--the longest blanket extension since the Nation's founding--is to make the copyright term not limited, but virtually perpetual," Breyer wrote. "Its primary legal effect is to grant the extended term not to authors, but to their heirs, estates or corporate successors." Jack Valenti, the president of the Motion Picture Association of America (MPAA), said in a statement: "We are pleased that the Court has reaffirmed the absolute authority of Congress to set copyright terms. We have always maintained and the law has long recognized that copyright, whose aim it is to provide incentive for the creation and preservation of creative works, is in the public interest." Not unexpected Wednesday's ruling was not unexpected. First, a federal district court and the federal appeals court in Washington, D.C., both ruled that CTEA was constitutional.Then, during oral argumentsin October 2000, the justices reserved their most pointed questions for Stanford University's Lessig. At issue in this case is how far Congress may go under the Constitution, which says the government has the power to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Lessig argued that repeated extensions were unconstitutional because they ran afoul of the Constitution's "limited times" requirement and also conflicted with the First Amendment's guarantees of freedom of speech. But just moments into Lessig's opening remarks, Justice Sandra Day O'Connor interrupted and noted Congress had repeatedly extended the duration on copyrights, with no intervention before by the Supreme Court. What, O'Connor asked, is different about this case? "You're right," Lessig replied. "The 1976 act would be unconstitutional." But he said that because ditching that long-established law would be so disruptive to America's economy, it should remain intact. Over the last 40 years, bowing to pressure from movie studios and record labels, Congress has lengthened copyright durations 11 times. CTEA extends copyrights 70 years after the death of the artist and, for those copyrights held by corporations, a total of 95 years in duration. Lessig brought the lawsuit on behalf of 11 plaintiffs, including Eric Eldred, who runs the free Internet library called Eldritch Press. Eldred started the Web site in 1995 and uses it to distribute American literature such as the works of Nathaniel Hawthorne, Oliver Wendell Holmes Sr., and Henry James. In the lawsuit, Eldred said the CTEA made it unlawful to post works from 1923 that would have otherwise begun to fall into the public domain. Those included "New Hampshire" by Robert Frost, "Horses and Men" by Sherwood Anderson and "Racundra's First Cruise" by Arthur Ransome. _________________________________________________________________ MSN 8 helps eliminate e-mail viruses. Get 2 months FREE* http://join.msn.com/?page=features/virus From rahul.matthan at trilegal.com Fri Jan 17 10:46:03 2003 From: rahul.matthan at trilegal.com (Rahul Matthan) Date: Fri, 17 Jan 2003 10:46:03 +0530 Subject: [Commons-Law] CTEA judgment References: Message-ID: <003d01c2bde7$90491980$4101a8c0@rahul> For those who have been following the Eldred v. Ashcroft case, Lessig's blog makes interesting reading in the aftermath of the judgment. http://cyberlaw.stanford.edu/lessig/blog/ Also his home page carries an interesting round up of the Eldred coverage on the web. http://cyberlaw.stanford.edu/lessig/ Rahul Matthan Partner Trilegal Tel : +91-80-353-6319 +91-80-353-7032 Fax : +91-80-363-3694 CONFIDENTIALITY NOTE The contents of this message may be legally privileged and confidential, for the use of the intended recipient(s) only. It should not be read, copied and used by anyone other than the intended recipient. If you have received this message in error, please immediately notify us at the above co-ordinates, preserve its confidentiality and delete it from your system. Thank you. ----- Original Message ----- From: "sudhir krishnaswamy" To: Sent: Friday, January 17, 2003 10:23 AM Subject: [Commons-Law] CTEA judgment Dear all The US Supreme Court has ruled in favour of the government and upheld the validity of the CTEA. With this decision the first open law brief and high profile case testing the constitutional arguments for the public domain have met with failure. We can now expect a hectic phase of lobbying for copyright term extension in other countries including India!! Sudhir http://news.com.com/2100-1023-980792.html Supreme Court nixes copyright challenge By Declan McCullagh Staff Writer, CNET News.com January 15, 2003, 11:51 AM PT WASHINGTON--The U.S. Supreme Court on Wednesday said Congress had the power to extend the duration of copyrights, a decision that dealt a grave blow to a growing movement against more expansive legal protections of artistic works.In a strongly worded ruling, the court said by a 7-2 majority that the legislature had great leeway in allowing repeated delays to when copyrighted works would enter the public domain. The ruling means that Walt Disney's first Mickey Mouse cartoons, poems by Robert Frost and other works created in the 1920s fall under a retroactive copyright extension of 20 years. "Congress acted within its authority and did not transgress constitutional limitations," Justice Ruth Bader Ginsburg wrote for the majority. "We are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be," Ginsburg said. In a narrow sense, the outcome of this challenge to the Copyright Term Extension Act (CTEA) determines when some works will become part of the public domain. However, Stanford University law professor Larry Lessigand his allies were hoping when they launched the challenge not merely to overturn this law but to build momentum for an all-out legal assault on other recent copyright expansions. Another target is the Digital Millennium Copyright Act (DMCA), also enacted in 1998, which broadly says that copy-protection devices should not be bypassed. Last week, Rep. Rick Boucher, D-Va., and three other legislators reintroduceda bill to defang the "anti-circumvention" sections of the DMCA. "I think perhaps in the immediate future we may be disappointed," said Nathan Mitchler, a representative of advocacy group Public Knowledge. "But in the long run it makes these things more important. Those attempts to rescind the DMCA become more important since the CTEA won't be cut back at all." Eben Moglen, a Columbia University law professor who filed an amicus briefsiding with Lessig on behalf of the Free Software Foundation, said one benefit of the decision is that it will radicalize programmers and free-software activists. At the same time, Moglen said, it will embolden the entertainment industry and eventually prompt them to "ask for too much" from Congress. "The very same arguments the Supreme Court rejected today, it would accept in 2014, if there were no precedents against it," Moglen said. "Everyone who's a member of the literate community would see at that time what Justice Breyer saw today (in his dissent)." Moglen and the dozens of others who supportedthe challenge by filing amicus briefs found staunch allies in the pair of justices who dissented. In a 22-page dissent that chronicled the development of intellectual property law since the 1790 act, Justice John Paul Stevens said that by declining to review the copyright extension, the court has ceded to Congress "its principal responsibility in this area of the law." Justice Stephen Breyerwas more blunt. His analysis, which focused on the economic impact, relied on research performed for Congress that concluded that CTEA will cost American consumers "several billion" dollars in additional royalty payments to copyright holders. "The economic effect of this 20-year extension--the longest blanket extension since the Nation's founding--is to make the copyright term not limited, but virtually perpetual," Breyer wrote. "Its primary legal effect is to grant the extended term not to authors, but to their heirs, estates or corporate successors." Jack Valenti, the president of the Motion Picture Association of America (MPAA), said in a statement: "We are pleased that the Court has reaffirmed the absolute authority of Congress to set copyright terms. We have always maintained and the law has long recognized that copyright, whose aim it is to provide incentive for the creation and preservation of creative works, is in the public interest." Not unexpected Wednesday's ruling was not unexpected. First, a federal district court and the federal appeals court in Washington, D.C., both ruled that CTEA was constitutional.Then, during oral argumentsin October 2000, the justices reserved their most pointed questions for Stanford University's Lessig. At issue in this case is how far Congress may go under the Constitution, which says the government has the power to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Lessig argued that repeated extensions were unconstitutional because they ran afoul of the Constitution's "limited times" requirement and also conflicted with the First Amendment's guarantees of freedom of speech. But just moments into Lessig's opening remarks, Justice Sandra Day O'Connor interrupted and noted Congress had repeatedly extended the duration on copyrights, with no intervention before by the Supreme Court. What, O'Connor asked, is different about this case? "You're right," Lessig replied. "The 1976 act would be unconstitutional." But he said that because ditching that long-established law would be so disruptive to America's economy, it should remain intact. Over the last 40 years, bowing to pressure from movie studios and record labels, Congress has lengthened copyright durations 11 times. CTEA extends copyrights 70 years after the death of the artist and, for those copyrights held by corporations, a total of 95 years in duration. Lessig brought the lawsuit on behalf of 11 plaintiffs, including Eric Eldred, who runs the free Internet library called Eldritch Press. Eldred started the Web site in 1995 and uses it to distribute American literature such as the works of Nathaniel Hawthorne, Oliver Wendell Holmes Sr., and Henry James. In the lawsuit, Eldred said the CTEA made it unlawful to post works from 1923 that would have otherwise begun to fall into the public domain. Those included "New Hampshire" by Robert Frost, "Horses and Men" by Sherwood Anderson and "Racundra's First Cruise" by Arthur Ransome. _________________________________________________________________ MSN 8 helps eliminate e-mail viruses. Get 2 months FREE* http://join.msn.com/?page=features/virus _______________________________________________ commons-law mailing list commons-law at mail.sarai.net http://mail.sarai.net/cgi-bin/mailman/listinfo/commons-law From lawrenceliang at vsnl.net Fri Jan 17 15:14:58 2003 From: lawrenceliang at vsnl.net (lawrenceliang at vsnl.net) Date: Fri, 17 Jan 2003 15:14:58 +0530 (IST) Subject: [Commons-Law] CTEA Judgement Message-ID: <20030117094458.40FB91149FD@webmail.vsnl.com> An embedded and charset-unspecified text was scrubbed... Name: not available Url: http://mail.sarai.net/pipermail/commons-law/attachments/20030117/bc8e1145/attachment.pl From joy at sarai.net Sun Jan 19 08:17:04 2003 From: joy at sarai.net (joy at sarai.net) Date: Sun, 19 Jan 2003 02:47:04 -0000 Subject: [Commons-Law] Notes on IPL Workshop Message-ID: <200301190247.h0J2l4W4015864@mail.sarai.net> I have few questions that came to my mind during IPL workshop but couldn�t articulate due to hectic schedule. First, What I can understand from the discussion during the workshop that book publishers and cassette companies make lots of money through the huge mismatch of selling amount and royalty paid to the authors and the artists. Using Internet authors and artists can directly contact the end user and can get rid of the publishers and cassette companies. But question still remains will it reduce the cost? Or then heavy charge will be justified by believing that actual creator is getting the money? What I need to understand is that in this market system, presence or absence of book publishers, cassette companies and even software companies does really make any difference or not? Does that imply free access? All though Professor NSG raised the question of public authorship and it takes me to my next question, though not directly related. In the usage of Internet anonymity plays a crucial role. But if we follow the GPL model, the licensing is based on authorship, which in fact NSG himself was pointing out. My concern is, in that case no anonymous work can be protected from being controlled by others under copyright act. Or if the work is needed to be protected it has to be authored. Or is it possible to create any license to protect anonymous work? Third, this is not a query, but just a note. It is not just publishers� and cassette companies� lust for super profit which shoots up the cost of creative commodities, but also different taxes added at different level of business operation adds up to the total costing of product. Any many balance sheets shows that profit is much lesser that the taxes and dividends paid by the company. In such situation I am not sure that people who are harassed by authorities due to their practice of piracy will actually like the concept of regularization of piracy or open access, as they might fall under tax regime or they roll into another piracy cycle of escaping taxes. Who knows in such case they might end up supporting copyright regime without doing any legalized business like the example of videocassette seller Lawrence was giving during the workshop. To support my argument, other day I was reading in a newspaper that Government is thinking of reducing the tax on music CDs in next budget to combat piracy. Best Joy From prashant20 at konzoo.com Sun Jan 19 13:39:33 2003 From: prashant20 at konzoo.com (Prashant Iyengar) Date: Sun, 19 Jan 2003 00:09:33 -0800 Subject: [Commons-Law] Arundhati Roy's "The Greater Common Good" Message-ID: Okay.. I'm certain this is the wrong forum, but I just found Arundhati Roy's article on the net... free. Url = http://www.narmada.org/gcg/gcg.html Regards, Prashant. Ps.. Lawrence.. I'm still working on the paper. PPs.. Happy New Year to all the ppl on this list whom I know.. PPs.. Someday, I will write and release ALL my stuff for free.. Service provided by MaGlobe Prepaid Worldwide Internet Access (visit www.MaGlobe.com) From Boris.Rotenberg at IUE.it Tue Jan 21 02:17:18 2003 From: Boris.Rotenberg at IUE.it (Rotenberg, Boris) Date: Mon, 20 Jan 2003 21:47:18 +0100 Subject: [Commons-Law] IJCLP Message-ID: The Editors of the IJCLP (www.ijclp.org) are happy to present to you the current, January 2003, issue. We are delighted to have articles by: - Douglas Galbi, Senior Economist at the FCC (Communications Policy, Media Development and Convergence); - Viktor Mayer-Schoenberger, Kennedy School of Government, Harvard (Emergency Communications: The Quest for Interoperability in the United States and Europe); - Martyn Taylor (Mallesons Stephen Jaques) (Reforming China's Telecommunications Laws Lessons from the Australian Experience?); - Michael Rosenthal (Freshfields Bruckhaus Deringer) (Open Access from the EU Perspective); - Markus Fallenboeck (Evolaris) (On the Technical Protection of Copyright: The Digital Millennium Copyright Act, the European Community Copyright Directive and Their Anticircumvention Provisions); - Rafael Cohen-Almagor, University of Haifa (Privacy - Two Episodes: Princess Diana's Death and Les Editions Vice-Versa Inc. v. Aubry); and - Philipp Lust, Vienna University (Mobile Interconnection). In addition we are happy to present a case comment by Anna Herold, European University Insitute, Florence; and two conference papers, one by Gianluca Esposito (Council of Europe) and the other by Isabelle Rorive, Free University of Brussels. The issue also includes a comment by Andreas Grünwald and Christoph Wagner (Hogan and Hartson Raue) and a conference report by Simone Bonetti, University of Milan From lawrenceliang at vsnl.net Tue Jan 21 12:44:52 2003 From: lawrenceliang at vsnl.net (lawrenceliang at vsnl.net) Date: Tue, 21 Jan 2003 12:44:52 +0530 (IST) Subject: [Commons-Law] Responses to Joy's Queries Message-ID: <20030121071452.489A1114999@webmail.vsnl.com> An embedded and charset-unspecified text was scrubbed... Name: not available Url: http://mail.sarai.net/pipermail/commons-law/attachments/20030121/a328335b/attachment.pl From sunil at mahiti.org Tue Jan 21 19:49:57 2003 From: sunil at mahiti.org (Sunil Abraham) Date: 21 Jan 2003 19:49:57 +0530 Subject: [Commons-Law] The crow and the owl In-Reply-To: <200301181719.07199.pramodleo@yahoo.co.uk> References: <200301181719.07199.pramodleo@yahoo.co.uk> Message-ID: <1043158797.11990.1278.camel@sunil> Dear All, From sunil at mahiti.org Sat Jan 25 03:08:22 2003 From: sunil at mahiti.org (Sunil Abraham) Date: 25 Jan 2003 03:08:22 +0530 Subject: [Commons-Law] Re: [TML-List] Reading list/interesting links] Message-ID: <1043444303.974.152.camel@sunil> Dear Lawrence, > This raises very scary questions about the consequences of using tactical media to parody corporate sites - now they won't go to > your ISP to get your site removed, but to the backbone provider!! This takes the situation to a whole new level.What is to be > done? Is satire illegal under the DMCA now? What is the status on satire under DMCA? This is from the Tactical Media List. Post response to both lists please. Thanks, Sunil -----Forwarded Message----- From: Steve Crozier To: tml-list at mail.sarai.net Subject: Re: [TML-List] Reading list/interesting links Date: 24 Jan 2003 11:58:29 +0000 hi all 24/01/2003 15:50:52, Sunil Abraham wrote: >http://theyesmen.org/ >The Yes Men are a genderless, loose-knit association of some three >hundred impostors worldwide. Their feeling today can be summed up in one >simple phrase: Enterprise Excitement. the Yesmen are masters of their art for sure!The thing i really like about them is they combine the big issues like critiques of WTO/neoliberalism, but they also challenge perceptions of how we are in our cities and public spaces, and the role of creativity and play in everyday life: http://www.theyesmen.org/urban/ >http://www.reamweaver.com/ >Reamweaver has everything you need to instantly "funhouse-mirror" >anyone's website, copying the real-time "look and feel" but letting you >change any words, images, etc. that you choose. There are some pertinent issues surrounding this piece of software at the moment , as i'm sure many on this list are aware of: "On December 3, activists used a server housed by Thing.net to post a parody Dow press release on the eighteenth anniversary of the disaster in which 20,000 people died as a result of an accident at a Union Carbide plant in Bhopal, India." "Dow was not amused, and sent a Digital Millennium Copyright Act (DMCA) complaint to Verio, which immediately cut Thing.net off the internet for fifteen hours. A few days later, Verio announced that Thing.net had 60 days to move to another provider before being shut down permanently, unilaterally terminating Thing.net's 7-year-old contract." This raises very scary questions about the consequences of using tactical media to parody corporate sites - now they won't go to your ISP to get your site removed, but to the backbone provider!! This takes the situation to a whole new level.What is to be done? Is satire illegal under the DMCA now? steve ------------------------------------------------------------------------------------------- www.stuffit.org - culture jam sandwiches for active consumption _______________________________________________ tml-list mailing list tml-list at mail.sarai.net http://mail.sarai.net/mailman/listinfo/tml-list -- Sunil Abraham, CEO MAHITI Infotech Pvt. Ltd. 'Reducing the cost and complexity of ICTs' 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 4150580. Mobile: 98441 01150 sunil at mahiti.org http://www.mahiti.org From sudhir75 at hotmail.com Sat Jan 25 23:04:12 2003 From: sudhir75 at hotmail.com (sudhir krishnaswamy) Date: Sat, 25 Jan 2003 17:34:12 +0000 Subject: [Commons-Law] Fwd: Last Call for Abstracts: Proposals for September Conference at the OII Message-ID: >From: "Oxford Internet Institute" >Reply-To: "Oxford Internet Institute" >To: >Subject: Last Call for Abstracts: Proposals for September Conference at the > OII >Date: Thu, 23 Jan 2003 17:22:21 -0000 > >Dear Colleagues > >As you may know, the OII is hosting an academic conference for Information >Communication and Society (iCS) >http://www.tandf.co.uk/journals/titles/1369118x.html, a refereed journal >focused on the social aspects of information and communication >technologies. >The conference will be held in the heart of Oxford, at the OII and Balliol >College, on 17th-20th September 2003. > >Proposals for papers should be submitted as abstracts of no more than 500 >words, and should include details of the proposer's name, position, >affiliation, and contact details. Please submit proposals electronically to >b.d.loader at tees.ac.uk in RTF, Word or PDF format by 31 January 2003. > >More details about this 'Call for Papers' and other OII events can be found >on >our events page http://www.oii.ox.ac.uk/events.shtml > >Regards, > >Bill Dutton, Director of the Oxford Internet Institute > > 1.To remove your name from the oii-news mailing list, please send an >email >to: > majordomo at maillist.ox.ac.uk > >with the following message in the body text: > > unsubscribe oii-news > >No subject line is necessary; it will be ignored by the system. > >2. To change your address in the mailing list you should first unsubscribe >as at 1. above and then re-subscribe by sending an email from your new >address to: > > majordomo at maillist.ox.ac.uk > >with the following message in the body text: > > subscribe oii-news > >Again no subject line is necessary. > >Any comments or enquiries about the OII can still be sent to >enquiries at oii.ox.ac.uk. >Yours, >Kunika Kono >Information Officer _________________________________________________________________ The new MSN 8: smart spam protection and 2 months FREE* http://join.msn.com/?page=features/junkmail From anasuya_s at yahoo.com Sun Jan 26 11:40:24 2003 From: anasuya_s at yahoo.com (Anasuya) Date: Sun, 26 Jan 2003 11:40:24 +0530 Subject: [Commons-Law] ODI and Intellectual Property Message-ID: <003901c2c501$a0095300$1cab58ca@hathway> For those who are in England and might be interested, but also as an indication of the kinds of issues the ODI is discussing at the moment. anasuya *** Intellectual Property in Developing Countries: Rights or Wrongs? You are invited to a series of lunchtime discussion meetings to be held on Wednesdays 5th, 12th and 19th February at ODI, from 1.00 to 2.15pm. A full programme with booking form (in Word 97 Format) is attached and listed below. . Since accommodation will be limited, if you wish to attend please reply by emailing, faxing or posting the attached reply slip or by emailing meetings at odi.org.uk with the dates of the meeting(s) you plan to attend. The report of the Commission on Intellectual Property Rights, published in September last year, has aroused a considerable amount of controversy. The Commission contended that the global imposition of intellectual property rights (IPRs) through the TRIPS agreement may not be beneficial for most developing countries, and may not help in the reduction of poverty. It recommended that developing countries should make the most of the existing flexibilities in TRIPS in order to limit the potential costs that IPR regimes may cause. Accordingly it suggested that developed countries and international institutions (such as WIPO or the WTO) should modify their policies to avoid imposing new IP obligations on developing countries, and provide technical assistance tailored to the needs of particular countries - "higher IP standards should not be pressed on them without a serious and objective assessment of their development impact." In this series we look at the general philosophy underlying the Commission report, and then the specific application of it in the fields of agriculture and health. Wednesday 5th February, 1.00pm Intellectual Property in Developing Countries: Rights or Wrongs? Julian Morris, Director, International Policy Network Daniel Alexander, IPR barrister (ex-IPR Commission); Chair Simon Maxwell, ODI Wednesday, 12th February, 1.00pm Do patents help stimulate research on medicines developing countries need? Are they a barrier to accessing medicines? Christopher Garrison, Legal Advisor, Médecins Sans Frontières David Rosenberg, Corporate Intellectual Property, GSK Chair: Charles Clift, Department for International Development Wednesday, 19th February, 1.00pm Can IPRs help promote agriculture and food security in developing countries? Dwijen Rangnekar, Senior Research Fellow, University College, London Tim Roberts, Intellectual Property Consultant. Regards Diana Evans Meetings and Media Officer Overseas Development Institute 111 Westminster Bridge Road, London, SE1 7JD. Fax: 020 7922 0399 Email: meetings at odi.org.uk -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20030126/d8f8311e/attachment.html From lawrenceliang at vsnl.net Sun Jan 26 14:48:49 2003 From: lawrenceliang at vsnl.net (lawrenceliang at vsnl.net) Date: Sun, 26 Jan 2003 14:48:49 +0530 (IST) Subject: [Commons-Law] Useful IP news site Message-ID: <20030126091849.BD1AD114941@webmail.vsnl.com> An embedded and charset-unspecified text was scrubbed... Name: not available Url: http://mail.sarai.net/pipermail/commons-law/attachments/20030126/57cdd7fd/attachment.pl From lawrenceliang at vsnl.net Sun Jan 26 14:50:35 2003 From: lawrenceliang at vsnl.net (lawrenceliang at vsnl.net) Date: Sun, 26 Jan 2003 14:50:35 +0530 (IST) Subject: [Commons-Law] China´s Pledge To Protect Olympic IP Rights Message-ID: <20030126092035.E857F114948@webmail.vsnl.com> An embedded and charset-unspecified text was scrubbed... Name: not available Url: http://mail.sarai.net/pipermail/commons-law/attachments/20030126/84806800/attachment.pl From lawrenceliang at vsnl.net Sun Jan 26 14:57:27 2003 From: lawrenceliang at vsnl.net (lawrenceliang at vsnl.net) Date: Sun, 26 Jan 2003 14:57:27 +0530 (IST) Subject: [Commons-Law] Who says patents are boring Message-ID: <20030126092727.91BF6114941@webmail.vsnl.com> An embedded and charset-unspecified text was scrubbed... Name: not available Url: http://mail.sarai.net/pipermail/commons-law/attachments/20030126/ffe51097/attachment.pl From jeebesh at sarai.net Sun Jan 26 18:42:35 2003 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Sun, 26 Jan 2003 18:42:35 +0530 Subject: [Commons-Law] ODI and Intellectual Property In-Reply-To: <003901c2c501$a0095300$1cab58ca@hathway> References: <003901c2c501$a0095300$1cab58ca@hathway> Message-ID: <200301261842.35690.jeebesh@sarai.net> Hi Anasuya, The talks look very intriguing. Would it be possible to get reports of the talk in the list. And for others....enclosed is the url and the executive summary and the overview of the - " Integrating Intellectual Property Rights and Development Policy Report of the Commission on Intellectual Property Rights" http://www.iprcommission.org/graphic/documents/final_report.htm Can anybody do a comparative study of this document and the HRD report on piracy.? best Jeebesh ---------------------------------- http://www.iprcommission.org/papers/text/final_report/execsumword1.htm EXECUTIVE SUMMARY This Executive Summary is drawn from the Commission?s full report, ?Integrating Intellectual Property Rights and Development Policy?. This document provides the main elements of the analysis and recommendations from each chapter of the full report. It does not cover all the issues, nor is it intended to substitute for reading of the main report where the context, evidence and arguments are considered in detail. OVERVIEW The Millennium Development Goals recognise the importance of reducing poverty and hunger, improving health and education, and ensuring environmental sustainability. Accordingly, the international community has committed itself to reducing the proportion of people in poverty by half by 2015. In 1999, an estimated 1.2 billion people survived on less than one dollar a day, and nearly 2.8 billion people lived on less than two dollars a day. About 90 percent of these people were in South or East Asia or sub-Saharan Africa. HIV/AIDS, tuberculosis, and malaria claim millions of lives in these countries every year. For more than 120 million children of primary school age, education is out of reach. Developing countries are far from homogeneous, a fact which is self-evident but often forgotten. Not only do their scientific and technical capacities vary, but also their social and economic structures, and their inequalities of income and wealth. The determinants of poverty, and therefore the appropriate policies to address it, will vary accordingly between countries. The same applies to policies on IPRs. Policies required in countries with a relatively advanced technological capability where most poor people happen to live, for instance India or China, may well differ from those in other countries with a weak capability, such as many countries in sub-Saharan Africa. The impact of IP policies on poor people will also vary according to socio-economic circumstances. What works in India, will not necessarily work in Brazil or Botswana. Some argue strongly, particularly in business and government in developed countries, that IPRs help stimulate economic growth and reduce poverty. They say there is no reason why what works so well for developed countries could not do the same in developing countries. Others, particularly from developing countries and NGOs, argue the opposite equally vehemently. IP rights can do little to stimulate invention in developing countries, because the prerequisite human and technical capacity may be absent. Moreover, they increase the costs of essential medicines and agricultural inputs, hitting poor people and farmers particularly hard. During the last 20 years or so, the level, scope, territorial extent, and role of IP protection have expanded at an unprecedented pace. Genetic materials have become widely patented. IP rights have been modified or created to cover new technologies, particularly biotechnology and information technology. Technologies produced in the public sector are routinely patented. The World Trade Organisation (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) has extended minimum standards for IP protection globally. There are continuing discussions in WIPO aimed at further harmonisation of the patent system, which may supersede TRIPS. Moreover, bilateral or regional trade and investment agreements between developed and developing countries often include mutual commitments to implement IP regimes that go beyond TRIPS minimum standards. Thus there is sustained pressure on developing countries to increase the levels of IP protection in their own regimes, based on standards in developed countries. The functioning of IPR systems raises genuine concerns, even in developed countries. The submission of patent applications has increased tremendously in recent years ? as has the perception that many patents of ?low quality? and broad scope are being issued. Companies may incur considerable costs, in time and money, determining how ? or whether - to conduct research without infringing upon other companies? patent rights, or defending their own patent rights against other companies. This raises questions as to whether the substantial costs involved in patent litigation are a necessary price to pay for the incentives offered by the patent system, or whether ways can be found to reduce them. How does this proliferation of patents affect competition and research? The concerns about the impact of IP in developed countries are important for developing countries as well. Developing countries can learn from the experience of developed countries in devising their own systems. In addition, the IP system in developed countries has had direct impacts on developing countries. Restrictions on access to materials and data on the Internet can affect everyone. IP rules and regulations may be hampering research on important diseases or new crops that affect developing countries but that is actually carried out in developed countries. Developing countries may not be sharing appropriately in the benefits from commercialisation of their knowledge or genetic resources when they are patented in developed countries. The Commission?s fundamental task was to consider whether the rules and institutions of IP protection as they have evolved to date can contribute to development and the reduction of poverty in developing countries. We believe that IP protection of some kind is appropriate at some stage for developing countries. The system provides incentives to invent and develop new technologies that may benefit society. But incentives work differently, depending on the supply response they evoke. They impose costs on consumers and other users of protected technologies. The balance of costs and benefits will vary according to how the rights are applied and according to the economic and social circumstances of the country where they are being applied. Standards of IP protection that may be suitable for developed countries may produce more costs than benefits when applied in developing countries, which rely in large part on knowledge generated elsewhere to satisfy their basic needs and foster development. Although most developing countries do not have a strong technological base, they do have genetic resources and traditional knowledge that are of value to them and to the world at large. This gives rise to a further key question. Can the ?modern? IP system help to protect these resources of knowledge and ensure that the benefits of their use are equitably shared? At the other end of the scale, the Internet offers enormous opportunities for access to scientific and research information needed by developing countries, whose access to traditional media may be limited by lack of resources. But forms of encryption and IP rules may, paradoxically, make this material less accessible than it is now with printed material. It also needs to be considered what sort of rights IP protection confers. The conferring of IP rights is an instrument of public policy, which should be designed so that the benefit to society (for instance through the invention of a new drug or technology) outweighs the cost to society (for instance, the higher cost of a drug and the costs of administering the IP system). But the IP right is a private one, so the financial benefits and costs fall on different groups within society. The IP right is best viewed as one of the means by which nations and societies can help to promote the fulfilment of human economic and social rights. In particular, there are no circumstances in which the most fundamental human rights should be subordinated to the requirements of IP protection. IP rights are granted by states for limited times (at least in the case of patents and copyrights) whereas human rights are inalienable and universal. For the most part IP rights are nowadays generally treated as economic and commercial rights, as is the case in TRIPS, and are more often held by companies rather than individual inventors. But describing them as ?rights? should not be allowed to conceal the very real dilemmas raised by their application in developing countries, where the extra costs they impose may be at the expense of the necessities of life for poor people. We believe policy makers need to consider the available evidence, imperfect as it may be, before further extending IP rights. Too often, the interests of the ?producer? dominate in the evolution of IP policy, and those of the ultimate consumer are either not heard or heeded. In IPR discussions between developed and developing countries, a similar imbalance exists. Developing countries negotiate from a position of relative weakness. The difficulty is that they are ?second comers? in a world that has been shaped by the ?first comers.? The question is how they can mould their IP systems to suit their own economic, social, and technological conditions, as developed countries did in the past. Intellectual property systems may, if we are not careful, introduce distortions that are detrimental to the interests of developing countries. Developed countries should pay more attention to reconciling their commercial self-interest with the need to reduce poverty in developing countries, which is in everyone?s interest. Higher IP standards should not be pressed on developing countries without a serious and objective assessment of their impact on development and poor people. We need to ensure that the global IP system evolves so that the needs of developing countries are incorporated and, most importantly, so that it contributes to the reduction of poverty in developing countries by stimulating innovation and technology transfer relevant to them, while also making available the products of technology at the most competitive prices possible. We hope that our endeavour will contribute to an agenda for making the global IPR system, and the institutions in that system, work better for poor people and developing countries. From sudhir75 at hotmail.com Mon Jan 27 12:26:20 2003 From: sudhir75 at hotmail.com (sudhir krishnaswamy) Date: Mon, 27 Jan 2003 06:56:20 +0000 Subject: [Commons-Law] ODI and Intellectual Property Message-ID: hi jeebesh a review of the conventional arguments made about IP and development is long overdue. linked below is interesting link to an article by one of the co-authors of the IPR commission report - Nagesh Kumar at RIS, New Delhi http://www.epw.org.in/showArticles.php?root=2003&leaf=01&filename=5391&filetype=pdf _________________________________________________________________ Add photos to your messages with MSN 8. Get 2 months FREE*. http://join.msn.com/?page=features/featuredemail From rahul.matthan at trilegal.com Mon Jan 27 13:33:20 2003 From: rahul.matthan at trilegal.com (Rahul Matthan) Date: Mon, 27 Jan 2003 13:33:20 +0530 Subject: [Commons-Law] Hunting Down Kazaa References: Message-ID: <007501c2c5da$91ad6ec0$4101a8c0@rahul> Interesting news article from Wired about how hard it is going to be to shut down the Kazaa file sharing service. http://www.wired.com/wired/archive/11.02/kazaa.html Rahul Matthan Partner Trilegal Tel : +91-80-353-6319 +91-80-353-7032 Fax : +91-80-363-3694 CONFIDENTIALITY NOTE The contents of this message may be legally privileged and confidential, for the use of the intended recipient(s) only. It should not be read, copied and used by anyone other than the intended recipient. If you have received this message in error, please immediately notify us at the above co-ordinates, preserve its confidentiality and delete it from your system. Thank you. ----- Original Message ----- From: "sudhir krishnaswamy" To: Sent: Monday, January 27, 2003 12:26 PM Subject: Re: [Commons-Law] ODI and Intellectual Property hi jeebesh a review of the conventional arguments made about IP and development is long overdue. linked below is interesting link to an article by one of the co-authors of the IPR commission report - Nagesh Kumar at RIS, New Delhi http://www.epw.org.in/showArticles.php?root=2003&leaf=01&filename=5391&filet ype=pdf _________________________________________________________________ Add photos to your messages with MSN 8. Get 2 months FREE*. http://join.msn.com/?page=features/featuredemail _______________________________________________ commons-law mailing list commons-law at mail.sarai.net http://mail.sarai.net/cgi-bin/mailman/listinfo/commons-law From sudhir75 at hotmail.com Mon Jan 27 15:26:52 2003 From: sudhir75 at hotmail.com (Sudhir Krishnaswamy) Date: Mon, 27 Jan 2003 09:56:52 -0000 Subject: [Commons-Law] Hunting Down Kazaa References: <007501c2c5da$91ad6ec0$4101a8c0@rahul> Message-ID: It's interesting that this news report only outlines the shoot and scoot policy that Kazaa's promoters have adopted. A good part of the news coverage on the Napster issue by contrast focussed on the legitimacy of copyright laws as they stood. I guess that type of argument has faded away to some extent now. Sudhir ----- Original Message ----- From: "Rahul Matthan" To: Sent: Monday, January 27, 2003 8:03 AM Subject: [Commons-Law] Hunting Down Kazaa > Interesting news article from Wired about how hard it is going to be to shut > down the Kazaa file sharing service. > > http://www.wired.com/wired/archive/11.02/kazaa.html > > Rahul Matthan > Partner > Trilegal > > Tel : +91-80-353-6319 > +91-80-353-7032 > Fax : +91-80-363-3694 > > CONFIDENTIALITY NOTE > > The contents of this message may be legally privileged and confidential, for > the use of the intended recipient(s) only. It should not be read, copied and > used by anyone other than the intended recipient. If you have received this > message in error, please immediately notify us at the above co-ordinates, > preserve its confidentiality and delete it from your system. Thank you. > > ----- Original Message ----- > From: "sudhir krishnaswamy" > To: > Sent: Monday, January 27, 2003 12:26 PM > Subject: Re: [Commons-Law] ODI and Intellectual Property > > > hi jeebesh > > a review of the conventional arguments made about IP and development is long > overdue. linked below is interesting link to an article by one of the > co-authors of the IPR commission report - Nagesh Kumar at RIS, New Delhi > > http://www.epw.org.in/showArticles.php?root=2003&leaf=01&filename=5391&filet > ype=pdf > > > > _________________________________________________________________ > Add photos to your messages with MSN 8. Get 2 months FREE*. > http://join.msn.com/?page=features/featuredemail > > _______________________________________________ > commons-law mailing list > commons-law at mail.sarai.net > http://mail.sarai.net/cgi-bin/mailman/listinfo/commons-law > > > _______________________________________________ > commons-law mailing list > commons-law at mail.sarai.net > http://mail.sarai.net/cgi-bin/mailman/listinfo/commons-law > From sunil at mahiti.org Wed Jan 29 13:13:33 2003 From: sunil at mahiti.org (Sunil Abraham) Date: Wed, 29 Jan 2003 07:43:33 +0000 Subject: [Commons-Law] Hunting Down Kazaa Message-ID: <1043826213.3e3786257c893@imeme.net> An interesting rant from Kuro5hin.org - note the bit about 'IP Address Obfuscation - Sunil http://www.kuro5hin.org/story/2003/1/28/31758/7402 ------------------------------------------------------------------------------ ------------------------------------------------------------------------------ The Rule of Unintended Consequences (Internet) By circletimessquare Tue Jan 28th, 2003 at 04:17:00 PM EST ------------------------------------------------------------------------------ I am reading Wired and Slashdot, and there is currently a heavy load of FUD about music companies via the RIAA suing P2P users and Kazaa. I suddenly feel the need to rant. Perhaps it's guilt for stealing from Bertelsmann. Not really. It's about the rule of unintended consequences. I am not going to feed you the "information wants to be free" technoanarchist/ maoist party line. I am not going to give you the "I don't see what I am doing wrong!" see-no-evil, hear-no-evil, speak-no-evil cop out. But I am going to say this: step back. Look at the bigger picture. Look at history. Look at how it operates. Look how technology redefines a landscape- the economic one, the social one, and even the moral one. Look how unintended consequences rule the day. The Gun. Point and click killing for anyone. Nuclear Fission. Insane amounts of energy from a pound of matter and a hundred thousand year half life headache. Cloning? Technology meets history and no one knows for sure what shakes out. It is not like the original ubergeeks sat around a U Berkeley lab setting up DARPANet in the 1960s and said "Hey! Let's invent an infinitely superior music distribution model that no one can make money off of!" But that is exactly what they did. The gears of historical forces no one can control are turning. A spigot is being opened up on a root human desire that dates to the time when we sat around a campfire and beat a drum all night long. Copyright and Intellectual Property laws will not control and channel this root human desire. The spigot of the Internet opening up on the root human desire for music will blow these brittle laws into a million pieces and redefine the laws, not visa versa. What is illegal and vaguely amoral today, will become as routine and guiltless as going to an ATM tomorrow. Remember the world before ATMs? Didn't think so. So someday soon will people speak of the age of driving to a store and browsing and standing in line to buy a CD from a weak selection for $20 for one song you might want. Remember standing in line for a teller before the banks closed at 3 PM so you could get $100 out of checking? I ran across someone called "Bic Runga" the other day in a glimpse of a magazine. She's a Chinese/ Maori lounge singer from Malaysia. I live in New York, and it's midnight. OK, let's give it a listen. I downloaded a good segment of her career from Kazaa by 2 AM. How can you improve upon that listener experience? You can't. Look at the value I received for the effort exerted. I can browse the entire canon of popular music on my whim as if I were a god of contemporary pop music history, conjuring the most arcane stuff out of thin air in an instant. Look at the beating heart of the human desire for music. Look at the slight moral qualm of dissing an evil multinational corporation. Push comes to shove. If Kazaa gets body slammed by the RIAA, another file sharing app will pop up, most certainly. And just like Kazaa was harder to kill than Napster, because it was decentralized, the next P2P app will be even harder to kill, because it will obfuscate IP addresses too. It's an arms race no music company can win. And why? Because they are not fighting evil amoral artist-ripping-off music pirates. They are fighting the very information distribution model of the Internet itself and a root human desire for music suddenly exposed by it. Remember? The DARPANet thingy that was invented to stay alive and resist being shut down even during a nuclear holocaust? Remember? The first time you heard a song and it drove you crazy to dance/ to cry/ to mosh? Explosive mixture here. Music companies are doomed. Music companies are an economic distribution model. Supply and demand. The Internet is an information distribution model. Infinite supply, infinite demand. There is no economic model in it, so there is no money in it. Not all discoveries mean good things for everyone. Just ask the Aztecs or Incans. Ask them about morality. Where is it written in the Bible or the Constitution that someone, somewhere, has to make money off music? Where is it written? Why should I care if some big stupid music company goes belly up? I think that before the vinyl recording, people enjoyed music and made music just fine. Artists will make music whether they are promised a penny or a billion. The passion for music, to create it, does not depend upon how much money you will make. Just because the next up-and-coming artist won't become the next multidecimillioniare JayZ or P Diddy doesn't mean they won't try to make music. The desire to create music is a craven desire just as strong as the greed for the all mighty buck. And no one said that somebody standing between the artist and me, the listener, needs to turn a buck. Radio or MTV or an Internet portal or a magazine will tell me who I might want to listen to, and these media channels will make money promoting concerts and selling ads. Artists will still get known, word of mouth will still spread. You don't need a music distribution company for that. You can't kill the Internet. You can kill a company. Music companies pumping millions into legal actions is just the death throes of a dying dinosaur. Good riddance. They can scream all they want. They can't fight historical obsolescence. "Video killed the Radio Star," 1980. "The Internet killed Tommy Motola," 2000. Scream Copyright, scream Intellectual Property. Who cares? None of that beats a worldwide, millions-strong force of music hungry pimply teenagers with no money to burn and an Internet connection. Death to music. Long live music. ------------------------------------------------------------------------------ ------------------------------------------------------------------------------ -- Sunil Abraham, CEO MAHITI Infotech Pvt. Ltd. 'Reducing the cost and complexity of ICTs' 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 4150580. Mobile: 98441 01150 sunil at mahiti.org http://www.mahiti.org From lawrenceliang at vsnl.net Wed Jan 29 19:04:27 2003 From: lawrenceliang at vsnl.net (lawrenceliang at vsnl.net) Date: Wed, 29 Jan 2003 19:04:27 +0530 (IST) Subject: [Commons-Law] Tribute to the Rajnikant debate Message-ID: <20030129133427.DA80C1149EE@webmail.vsnl.com> An embedded and charset-unspecified text was scrubbed... Name: not available Url: http://mail.sarai.net/pipermail/commons-law/attachments/20030129/7a270e77/attachment.pl From lawrenceliang at vsnl.net Wed Jan 29 20:00:24 2003 From: lawrenceliang at vsnl.net (lawrenceliang at vsnl.net) Date: Wed, 29 Jan 2003 20:00:24 +0530 (IST) Subject: [Commons-Law] Bimbo Barbie case Message-ID: <20030129143024.BFCF3114981@webmail.vsnl.com> An embedded and charset-unspecified text was scrubbed... Name: not available Url: http://mail.sarai.net/pipermail/commons-law/attachments/20030129/67d1b3c5/attachment.pl From jeebesh at sarai.net Wed Jan 29 21:41:42 2003 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Wed, 29 Jan 2003 21:41:42 +0530 Subject: [Commons-Law] silenttheft.com Message-ID: <200301292141.42043.jeebesh@sarai.net> good stuff the next posting will be the reading list provided by this site. cheers jeebesh ------- silent theft private plunder of our common wealth http://www.silenttheft.com/intro.htm It was a close call, but the West Publishing Company almost won its claim to own the law. Yes, until 1998, the law of the land as set forth in Brown v. Board of Education, Roe v. Wade, and tens of thousands of other federal cases actually belonged to a privately held company based in Eagan, Minnesota. Technically, of course, all of the opinions rendered by the U.S. Supreme Court and lower federal courts belong to the public domain and can be republished by anyone. But as a practical matter, West enjoyed a lucrative monopoly control over the nation's legal rulings because it claimed a copyright on the pagination of the cases. The only acceptable way for attorneys to cite cases in legal proceedings has been to use West's proprietary page numbers, which effectively prevented any potential competitor from arising to offer its own, cheaper version of federal court rulings. This meant that West Publishing had a pretty sweet deal: access to a huge, well-heeled market, an endless supply of new product financed by taxpayers, the ability to charge premium prices, and an impregnable wall against competition - in perpetuity!1 For the American people who finance the federal judiciary and must be governed by its rulings, the situation might be charitably described as a travesty.2 A century ago, when there was no centralized or comprehensive method for the courts to compile their rulings, West performed a valuable function in organizing access to the law and offering minor editorial enhancements. But even before the arrival of the World Wide Web in the 1990s, a number of critics argued that West's de facto monopoly ought to be replaced with a uniform citation system that would allow legal opinions to be more broadly disseminated. After all, if access to our society's body of law is not available to all, and the official rulings of our judicial system can be exploited as a cash cow, what then of the moral authority of the law? It was Franz Kafka, prophet of the legal labyrinth, who admonished that "the Law...should be accessible to every man and at all times."3 Yet the struggle to wrest public control of the law from the grip of West Publishing (1998 revenues, $1.3 billion) proved how difficult it is to protect a commons in our market-dominated society, even when the issue is as utterly central as the rule of law. Over the decades the U.S. court system had settled into a cozy partnership with West Publishing. Federal judges and their clerks enjoyed unlimited access to West's online compilations. They enjoyed the company's help in assuring the accuracy of final opinions, and the lavish gifts and trips to exotic locales that West sponsored for federal judges, including at least seven Supreme Court justices. Politicians from Al Gore to Newt Gingrich to key congressional committee chairmen also enjoyed warm relationships with West Publishing, thanks to generous campaign contributions. Such favors were only too helpful in West's attempts to sneak through stealth amendments to defend its hammerlock on access to the law. In effect, West was claiming private ownership of the commons, the collectively owned resources that are fundamental to a democratic commonwealth. Few of these facts might have received much visibility to the wider world but for the activism of James Love, director of the Ralph Nader-founded Taxpayer Assets Project. In 1993, he began to debunk West's arguments, expose its ethically dubious lobbying, and mobilize law librarians, bar associations, legal publishers and the press to take their own initiatives.4 After years of legal and public relations skirmishes in 1998, a small New York CD publisher, HyperLaw, successfully challenged in a federal lawsuit West Publishing's copyright control over court opinions.5 In coming years, many companies will publish federal cases in various formats, including on the Web for free. But under pressure from West and Lexis, an online vendor of legal cases licensed by West, the U.S. federal courts have refused to adopt a public domain, technology-neutral citation system.6 What is the Commons? West Publishing v. The People may be a parable for our times. It is but one of dozens of cases that pose the question, Who shall control the commons? In ways that are variously egregious, subtle, clever and obscure, business interests are gaining ownership and control over dozens of valuable resources that the American people collectively own. The American commons include tangible assets such as public forests and minerals, intangible wealth such as copyrights and patents, critical infrastructure such as the Internet and government research, and cultural resources such as the broadcast airwaves and public spaces. We, as citizens, own these commons. They include resources that we have paid for as taxpayers, and resources that we have inherited from previous generations. They are not just an inventory of marketable assets, but social institutions and cultural traditions that define us as Americans and enliven us as human beings. Public education. Community institutions. Democratic values. Wildlife and national forests. Public spaces in cities and communications media. Astonishingly, Americans are losing the right to control dozens of such commons that they own. While business and technology tend to be the forces animating this silent theft, as we shall see, our government is complicit in not adequately protecting the commons on our behalf. When it is not being seduced by what has been called the legalized bribery of campaign contributions, politicians may gamely try to defend our common assets, and occasionally succeed. But even well-meaning government leaders are often overwhelmed by the pace of technological change and the complications of consensus-building and due process. The public, for its part, is often clueless and thus politically moot in many battles over the commons. (Throughout, I will use the collective noun "commons" instead of the more archaic term "common.") This trend raises serious questions about the future of our American commonwealth. In an age of market triumphalism and economistic thinking, does the notion of "commonwealth" - that we are a people with shared values and control over collectively owned assets - have any practical meaning? Or have we lost sight of our heritage as a commonwealth and lost control of our assets, and perhaps our democratic traditions, as private interests have quietly seized the American commons? Business, let it be said, is no more a villain than a lion whose metabolism needs gazelles. Companies are in the business of maximizing competitive performance in the market, and use of the commons simply represents an available resource, and frequently a path of least resistance. That is why fortifying the commons is not equivalent to bashing the market, which clearly generates many important benefits for our society. It should be stressed that protecting the commons is about maintaining a balance, not bashing business. It is self-evident that we need markets. It is far less clear -- particularly to businesses operating within markets -- that we also need commons. A society in which every transaction must be mediated by the market, in which everything is privately owned and strictly controlled, will come to resemble a medieval society -- a world of balkanized fiefdoms in which every minor satrap demands tribute for the right to cross his land or ford his streams. The flow of commerce and ideas -- and the sustainability of innovation and democratic culture - will be seriously impeded. Furthermore, such a market-dominated society is not likely to cultivate the sense of trust and shared commitments that any functioning society must have. So the issue is not market versus commons. The issue is how to set equitable and appropriate boundaries between the two realms - semi-permeable membranes --so that the market and the commons can each retain its integrity while invigorating the other. That equilibrium is now out of balance as businesses try to exploit all available resources, including those that everyone owns and uses in common. Of course, the creative tension between business interests and our democratic polity is nothing new.7 It may be one of the central organizing principles of our political culture. Clashes between the two have shaped the very framing of the Constitution, numerous Progressive era campaigns, the labor movement, and many New Deal and Great Society initiatives. But today we live in a troubling new stage of this struggle that differs in scope and ferocity from previous ones. The market's role in American society has exploded. It now penetrates into nooks and crannies of daily life that could not have been imagined in an earlier generation. Video ads at gas pumps, marketing disguised as education in the public schools, and Broadway theaters named after airlines. Companies now obtain patents on genetic structures of life and on mathematical algorithms, and universities urge their students to consider themselves "the President of Me, Inc." The floodgates of commercialization of the culture really opened up in the 1980s as powerful new electronic technologies - computers, cable television, the VCR, new telecommunications systems, and others - began to take root. Businesses began to penetrate more deeply into nature, knit together new global markets, and colonize our consciousness and public culture. As the government agencies that set socially acceptable boundaries for market activity were slowly sabotaged by budget cuts and curbs on their authority, a wide array of commons in American life became open game for market exploitation: public lands, government R&D, information resources, and ethical norms for safety, health and environmental protection. Still, the privatization of the commons has crept up slowly and quietly, in fits and starts. It has not been an identifiable juggernaut with a single battlefront or defining moment. It has had scores of manifestations, some prominent, most of them obscure. Which helps explain the wicked insight of the nursery rhyme. Why do we "hang the man and flog the woman/That steal the goose from off the common,/But let the greater villain lose/That steals the common from the goose"? Because, I fear, we no longer see the commons, and thus no longer understand its meaning. Stealing the Commons from the Goose The nursery rhyme comes from the period of the English enclosure movement, which flourished at various points from the fifteenth to nineteenth centuries. In order to exploit emerging markets and aggrandize their power, the feudal aristocracy prevailed upon Parliament to allow the ruthless seizure of millions of acres of commonly used forests, meadows and game. As economic historians such as Karl Polanyi have shown, enclosure helped lead to the creation of modern industrial markets while inflicting devastating social, environmental and human costs on once-stable rural communities. With similar dynamics today, many business sectors are finding it irresistible to enclose common resources that were once commonly shared. If the mineral resources on federal lands can be mined for $5 an acre under an archaic 1872 law, a lucrative windfall that the mining industry can preserve through well-deployed campaign contributions, why not? If commonly used agricultural seedlines can be genetically re-engineered to be sterile, rendering them artificially scarce and thus suitable for market control, why not? If new software technologies can lock up information that was once readily available to all, and if information vendors can convince Congress to allow compilations of facts to be owned through copyright law, why not? It is no wonder that businesses find exploitation of the commons so easy and attractive. Most common resources are largely unrecognized by the American people as common resources. Not surprisingly, they have few legal protections or institutional defenders. Such enclosures of the commons are aided by a Washington officialdom increasingly captive to business and indifferent to ordinary citizens; a journalism profession that has grown soft now that it competes with entertainment and marketing; and the dominion of market culture over our civic identities. We have become a nation of eager consumers -- and disengaged citizens -- and so are ill-equipped even to perceive how our common resources are being abused. The abuse goes unnoticed as well because the theft of the commons is generally seen in glimpses, not in panorama, when it is visible at all. We may occasionally see a former wetlands paved over with a new subdivision, or acres of tree stumps on federal lands that timber companies leased for a pittance. If we listen closely through the cacophony of the media, we may hear about the breakthrough cancer drugs that our tax dollars helped developed, the rights to which pharmaceutical companies acquired for a song and for which they now charge exorbitant prices. It is not easy to connect the dots among these complicated, seemingly unrelated events and recognize the larger pattern of enclosure. The truth is, we are living in the midst of a massive business-led enclosure movement that hides itself in plain sight. Government R&D laid the groundwork for some of the most significant innovations in computing - the original Internet architecture and protocols, e-mail, the Mosaic software that gave rise to the Netscape browser, among others -- but these investments have essentially been privatized and recast as the singular product of entrepreneurial vision. Our government has given commercial broadcasters large portions of the public's electromagnetic spectrum worth tens of billions of dollars, in return for token gestures of public service. The public domain in intellectual property - the information and creative expression that everyone must draw upon to make anything new -- is rapidly being carved up by proprietary interests through radical extensions of copyright and patent law. Some invasions of the commons, while quite egregious, are sanctioned because we no longer can muster a spirited commitment to the public sector. Hence the widespread acquiescence to Channel One, a pseudo-educational TV news program whose advertisements are forced upon millions of children in public schools every morning. Hence the naming of beloved sports stadia after corporate sponsors who have few valid claims to our civic respect beyond the payment of sponsorship fees. Sports itself, while always a business endeavor, has been radically transformed as companies such as Nike successfully market themselves as sources of transcendent meaning. What makes this moment so different from many earlier ones in our history is the gross imbalance between the market and our democratic polity. The market and its values assert dominion over all, and in so doing, erode the sinews of community, undermine open scientific inquiry, weaken democratic culture, and sap the long-term vitality of the economy. If we are to arrest this trend, I believe we must begin to develop a new language of the commons. We must recover an ethos of commonwealth in the face of a market ethic that knows few bounds. This not only means reasserting democratic control over the "common wealth" - the vast array of publicly owned resources and traditions of social cooperation that constitute a vast reservoir of wealth. It means recognizing the intrinsic importance of the commons as a sovereign realm whose integrity and subtle fecundity must be respected. Honoring the common is not a matter of moral exhortation. It is a practical necessity. This book aspires to explain why. The Effects of Market Enclosure The increasing pace of market exploitation of the commons is troubling for five reasons. First, enclosure needlessly siphons hundreds of billions of dollars away from the public purse every year that could be used for countless varieties of social investment, environmental protection, and other public initiatives. The public's assets and revenue streams are privatized, with only fractional benefits accruing to the public in return. Second, enclosure tends to foster market concentration, reduce competition and raise consumer prices. The power to enclose generally belongs to the largest companies, which have the market clout and political influence to acquire public resources on favorable terms. These gains are often leveraged by industry leaders, in turn, to extend their market dominance even further. Large ranchers are the heaviest users of federal grazing lands, for example. Biotechnology firms use proprietary seeds to dominate the market for a given crop. Pharmaceutical companies use federally sponsored drug research to gain control over specific drug treatment markets. Third, enclosure threatens the environment by favoring short-term exploitation over long-term stewardship. The family result is greater pollution of the earth, the air, and the water. Leading companies find it strategically useful to displace health and safety risks onto the public, or shift them to future generations. The flagrant abuses of public lands by timber, mining and agribusiness companies are prime examples. Fourth, enclosure can also impose new limits on citizen rights and public accountability, as private decisionmaking supplants the open procedures of our democratic polity. Consider the privatization of Internet governance, through the creation of ICANN, the Internet Corporation for Assigned Names and Numbers. Instead of a democratic process of open standards, openly arrived at through public participation, a quasi-private replica of democratic governance was invented to manage domain names in the interest of commercial users. Large companies have also learned that they can freeze out democratic and market accountability by using sophisticated proprietary technologies. Microsoft's Windows operating system and Monsanto's bioengineered foods are two cases where companies have used exceedingly complicated technologies to confound democratic oversight and effectively prevent consumer choice. And, fifth, enclosure frequently imposes market values in realms that should be free from commodification. The character of community values, family life, public institutions and democratic processes should not be blindly dictated by the market. Yet that is the effect when public schools sell their captive audience of youngsters to junk food vendors; the Smithsonian Institution lets corporate donors determine the content of its museum exhibits; and cost-benefit equations are used to dictate acceptable levels of contaminants in food. The problem, too often, is that economic gains tend to be measurable and culturally esteemed (Gross National Product, rising quarterly profits), while the larger societal impacts are fuzzy and diffuse (community dislocations, ecological stress, public health risks). There are no simple yardsticks, no "bottom lines," for evaluating the pernicious effects of market enclosures. This naturally makes it easy to ignore them or dissociate them from market activity.8 Reclaiming the Commons Developing a discourse of the commons - the burden of this book - is especially important at a time when Americans are beginning to believe that we have little in common and can accomplish little when we work together. Talking about the commonwealth reminds Americans of the things we share: the forests and minerals that we all own, the miraculous technologies that we all have helped finance; and the values - belief in equal opportunity, say, and due process of law - that we share. A reckoning of what belongs to the American people is a first step to recovering control of common assets and using them either to generate new revenues for public purposes or to protect them from market exploitation. At a time when the public purse is raided for all manner of "corporate welfare," an analysis based on the "common wealth" offers some powerful ways to leverage assets that we the American people already own.9 Talking about the American commons has important strategic value too. It helps reassert public control over public resources without necessarily triggering the familiar dichotomy of the free market ("good") versus regulation ("bad"). Too often, attacks on regulatory shortcomings have been used to justify a return to the era when business wasn't regulated at all. Talking about the commons can help the American public identify both its distinct interests as well as policy options that include, but go beyond, traditional regulation. As we will see in Chapter 13, the commons can be preserved through stakeholder regimes that give citizens equity ownership, government auctions of the right to use common assets, new extensions of legal principles such as public trust doctrine (environmental law) and the public domain (copyright law), and Internet vehicles that enable collaboration. Finally, the idea of the commons helps us identify and describe the common values that lie beyond the marketplace. We can begin to develop a more textured appreciation for the importance of civic commitment, democratic norms, social equity, cultural and aesthetic concerns, and ecological needs. They need no longer be patronized as anecdotal and subjective, misconstrued through bizarre economic theories that purport to monetize human pleasure ("hedonics") or human choice ("contingent value"). The idea of the commons helps us restore to the center stage a whole range of social and ecological phenomena that market economics regards as sideshows - "externalities" - to the marquee events of the marketplace, economic exchange. A language of the commons also serves to restore humanistic, democratic concerns to their proper place in public policymaking. It insists that citizenship trumps ownership, that the democratic tradition be given an equal or superior footing vis-a-vis the economic categories of the market. This is not just a moral argument, but also an intensely pragmatic one. Any sort of creative endeavor - which is to say, progress - requires an open "white space" in which experimentation and new construction can take place. There must be the freedom to try new things. There must be an unregimented work space in which to imagine, tinker and execute new ideas. When all the white space is claimed and tightly controlled through commercial regimes that impose quantitative indices and quarterly profit goals, and that insist upon propertization and control of all activity, creativity is bureaucratized into narrow paths. There simply is no room for the visionary ideas, the accidental discoveries, the serendipitous encounters, the embryonic notions that might germinate into real breakthroughs, if only they had the space to grow. An argument for the commons, then, is an argument for more "white space." * * * The story of the myriad commons in our midst - and their relentless enclosure - traverses a wide terrain of subject matter. We will start by examining some basic ideas that will recur throughout - the notion of the commons as a counterpoint to the market, the workings of the gift economy and the dynamics of market enclosure (Part I). These concepts offer a fresh, insightful way of understanding the market's role in a range of disparate arenas: the exploitation of nature, the abuse of federal lands, the privatization of the Internet, the over-marketization of knowledge and creative expression, the corporatization of academic research, the giveaway of the public airwaves, and the commercialization of public spaces and institutions (Part II). An inevitable question, after traversing this gauntlet of disturbing enclosures, is whether anything useful can be done. What larger conclusions about the commons might we make, and how might the commons be reclaimed? How might we invent the commons we need for the 21st Century? Perhaps the preeminent lessons is that a commons need not result in a "tragedy." Through the right structures, a commons can use social and democratic means to manage a resource effectively. Indeed, certain commons, particularly in the Internet milieu, can even produce a cornucopia of shared wealth. The robust, innovative character of many commons stems from a key strength - the diversity and social equity of participants in a commons. Also, when "ownership" of resources in a commons is not alienated, but controlled by a stable, defined community, environmental sustainability and democratic accountability are more easily achieved. What, then, can be done to preserve and fortify the commons? The answer varies, of course, from one resource domain to another, and one community of interest to another. But here are some of the more useful initiatives (explored in Part III) that could be taken: * New policy structures must be invented to assure a fair economic return on public assets and the protection of gift economies. * More effective regimes must be devised to oversee and manage the private use of government lands and natural resources. * New sorts of stakeholder trusts should be created to give ordinary citizens an equity interest in public assets, as the Alaska Permanent Trust does for that state's oil revenues. * Congress should work to stop the enclosure of the Internet commons and public knowledge by fortifying the public domain and fair use rights. It should also refuse to grant sweeping new intellectual property rights to book publishers, film studios, the recording industry and software makers. * Our government should insist upon some meaningful forms of public access to the airwaves, which have been surrendered wholesale to commercial broadcasters for virtually nothing. * The fruits of federally sponsored research must be recovered for the American people, and not forfeited for fire-sale prices, and the independence and integrity of academic inquiry must be assured. * The over-commercialization of public spaces, community institutions, childhood experience and culture should be stoutly resisted through public policy and social protest. Our government is supposed to act as a steward for the public's economic, civic and environmental interests. It is revealing that our government has not even compiled a comprehensive inventory of common assets - the prerequisite for any accounting of lost revenues, lasting harm to the assets, and damage to gift economies. Business critics often cry that environmental regulations amount to unconstitutional "takings" of their private property. But as a commons analysis makes clear, the actual "takings" are often committed by the victors of our Darwinian market, and the victims are the unorganized public: the commoners. This book, then, is a first, rough draft of that much larger project, the reclamation of the common wealth - and the reinvigoration of the commonwealth. Notes 1 By a rough estimate made by the Consumer Project on Technology based on a compulsory license that West granted to the U.S. Justice Department, the cost of renting access to a single year of federal court cases - some 15,000 cases - comes to $40,500 for a single user. "This is a high price to pay to simply avoid [public domain] numbering opinions and paragraphs," writes James Love. See http://cptech.org/legalinfo/cost.html. 2 The most comprehensive history of the struggle to break West Publishing's monopoly and institute a regime of universal citation for federal cases is an essay by Jol Silversmith, "Universal Citation: The Fullest Possible Dissemination of Judgments," originally published in the now-defunct Internet Legal Practice Newsletter in May 1997, now available online at http://www.thirdamendment.com/citation.html. Another overview, from the perspective of 1994, is Gary Wolf, "Who Owns the Law," Wired, May 1994, p. 198. 3 Franz Kafka, The Trial (translated by Willa and Edwin Muir, 1988), cited in Silversmith, ibid. 4 See, e.g., Reuter, "Justices, Judges Took Favors from Publisher with Pending Cases," Washington Post, March 6, 1995.; John J. Odlund, "Debate Rages Over Who Owns the Law," The Minneapolis Star Tribune, March 5-6, 1995, reprinted in the Congressional Record, July 28, 1995 (Senate), pp. S10847-10855; and Thomas Scheffey, "Feds and West Publishing: Too Close for Comfort?" Connecticut Law Tribune, March 1997; and Doug Obey and Albert Eisele, "West: A Study in Special Interest Lobbying," The Hill, February 22, 1995, p. 1. 5 HyperLaw Inc. v. West Publishing. See David Cay Johnston, "West Publishing Loses a Decision on Copyright," New York Times, May 21, 1997, p. D1. 6 The courts in Great Britain, however, have adopted a public-domain, technology-neutral citation system based upon paragraph numbering. See "Neutral Citation of Judgments System is Introduced, The Times (London), January 16, 2001. 7 The constitutional dimensions of this theme are discussed by Jennifer Nedelsky in Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy (Chicago: University of Chicago Press, 1990). 8 See, e.g., Clifford Cobb, Ted Halstead and Jonathan Rowe, "If the GDP is Up, Why is America Down?" The Atlantic, October 1995, pp. 2-15. See also Herman E. Daly and John B. Cobb, Jr., For the Common Good: Redirecting the Economy Toward Community, the Environment and a Sustainable Future (Boston: Beacon Press, 1989), pp. 62-84. 9 The focus here is on tangible assets and property rights that belong to the American people, as opposed to government subsidies to business, which represent another form of corporate welfare. An excellent comprehensive overview of varieties of corporate welfare can be found in Ralph Nader's testimony before the Committee on the Budget, U.S. House of Representatives, June 30, 1999. Back to Top Routledge, Powell's, Booksense, Barnes & Noble, Amazon comments | © 2002 From jeebesh at sarai.net Wed Jan 29 21:43:03 2003 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Wed, 29 Jan 2003 21:43:03 +0530 Subject: [Commons-Law] the reading list - silenttheft.com Message-ID: <200301292143.03458.jeebesh@sarai.net> reading list http://www.silenttheft.com/learnmore.htm ---------------------------------------------------- The Commons Buck, Susan J., The Global Commons: An Introduction (Island Press, 1998). Cahn, Edgard and Jonathan Rowe, Time Dollars (Rodale Press, 1992). Ecologist, The [magazine], Whose Common Future? Reclaiming the Commons (New Society Publishers, 1993). Hyde, Lewis, The Gift: Imagination and the Erotic Life of Property (Vintage Books, 1979). McCay, Bonnie J. and James M. Acheson, eds., The Question of the Commons (University of Arizona Press, 1986). Ostrom, Elinor, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge University Press, 1990). Stevenson, Glenn, Common Property Economics (Cambridge University Press, 1991). Yes! magazine, Summer 2001 issue. Property Rights & Commodification Alexander, Gregory, Commodity and Propriety: Competing Visions of property in American Legal Thought (University of Chicago Press, 1997). Fried, Barbara, The Progressive Assault of Laissez Faire: Robert Hale and the First Law and Economics Movement (Harvard University Press, 1998). Hirsch, Fred, Social Limits to Growth (Excel, 1999). Kuttner, Robert, Everything for Sale: The Virtues and Limits of Markets (Knopf, 1997). Polanyi, Karl, The Great Transformation: The Political and Economic Origins of Our Times (Beacon Press, 1944, 1957). Radin, Margaret Jane, Contested Commodities (Harvard University Press, 1996). Rose, Carol, Property and Persuasion: Essays on the History, Theory and Rhetoric of Ownership (Westview Press, 1994). Out-of-print but worth the search. Steinberg, Theodore, Slide Mountain or the Folly of Owning Nature (University of California Press, 1995). NATURAL RESOURCES ON PUBLIC LANDS Not many Americans realize that they collectively own one-third of the nation's surface area and millions of acres of public lands richly endowed with minerals, oil, forests, grasslands and other natural resources. The government's stewardship of these resources, however, represents one of the great scandals of the 20th Century. Through antiquated laws, poor enforcement, slipshod administration and environmental indifference, industry users of the public's natural resources have sought cheap and unrestricted access. Books Barlow, Maude, Blue Gold: The Global Water Crisis and the Commodification of the World's Water [report], (International Forum on Globalization, 1999). Barnes, Peter, Who Owns the Sky? Our Common Assets the Future of Capitalism (Island Press, 2001). Baskin, Yvonne, The Work of Nature: How the Diversity of Life Sustains Use (Island Press, 1997). Behan, Richard, Plundered Promise: Capitalism, Politics and the Fate of the Federal Lands (Washington, D.C.: Island Press, 2001). Echeverria, John, and Raymond Booth Eby, Let the People Judge: Wise Use and the Private Property Rights Movement (Island Press, 1995). Hawken, Paul, The Ecology of Commerce: A Declaration of Sustainability (HarperBusiness, 1993). Hirt, Paul W., A Conspiracy of Optimism: Management of the National Forests Since World War Two (University of Nebraska Press, 1994). Lovins, Amory, Natural Capitalism Mayer, Carl J. and George A. Riley, Public Domain, Private Dominion: A History of Public Mineral Policy in America (Sierra Club Books, 1985). Power, Thomas Michael, Lost Landscapes and Failed Economies: The Search for a Value of Place (Island Press, 1996). Steen, Harold K., The U.S. Forest Service: A History (University of Washington Press, 1976). Leading Thinkers Joseph Sax: his law review articles on public trust doctrine were seminal. Carol Rose, Yale Law School: property law and its history, public trust doctrine John Echeverria, Environmental Policy Project: opposition to Takings Movement. Amory Lovins, Rocky Mountain Institute: sustainable market practices, "natural capitalism" THE INTERNET AND THE AIRWAVES Taxpayers supported the research and protocols that eventually resulted in the Internet, and the public is the owner of the electromagnetic spectrum that makes possible broadcasting, wireless communication and other markets. Historically, however, business interests have prevailed upon Congress to give them free or discounted ownership or use of these public assets. Furthermore, the public's interests in non-commercial uses of these assets - for civic dialogue, community needs, arts and culture, education, public health - have generally been thwarted. Books Abbate, Janet, Inventing the Internet (MIT Press, 2000). Lessig, Lawrence, Code and Other Laws of Cyberspace (Basic Books, 1999). McChesney, Robert W., Rich Media, Poor Democracy: Communication Politics in Dubious Times (University of Illinois Press, 1999). Newman, Nathan, Net Loss: Government, Technology and the Political Economy of Community in the Age of the Internet Leading Experts Lawrence Lessig, Stanford Law School: Internet architecture, transparent technology, intellectual property in digital information Yochai Benkler, NYU Law: information commons in spectrum, free speech in digital arenas James Boyle, Duke Law: information commons, intellectual property Pamela Samuelson, UC Berkeley, Boalt Hall; intellectual property and the Internet Jessica Litman, Wayne State University Law School, author of Digital Copyright. David Lange, Duke Law School: copyright and the public domain, fair use J.H. Reichman, Duke Law School: international law and intellectual property; science and the public domain THE INFORMATION COMMONS The information commons is the civic and cultural space in which we share information, creativity and ideas. Radical changes in technology, intellectual property law, market structures and social practice are shrinking the information commons, however. At risk: creative expression, free speech, academic research and technological innovation. Books & Publications Boyle, James, Shamans, Software and Spleens: Law and the Construction of the Information Society (Harvard University Press, 1996). Brown, John Seely and Paul Duguid, The Social Life of Information (Harvard Business School Press, 2000). Coombe, Rosemary J., The Cultural Life of Intellectual Properties: Authorship, Appropriation and the Law (Duke University Press, 1998). Litman, Jessica, Digital Copyright (Prometheus Press, 2001). National Research Council, The Digital Dilemma: Intellectual Property in the Information Age (National Academy Press, 2000). Patterson, L. Ray and Stanley W. Lindberg, The Nature of Copyright: A Law of Users' Rights (University of Georgia Press, 1991). Shulman, Seth, Owning the Future (Houghton Mifflin, 1999). Vaidhyanathan, Siva, ©opyrights and ©opywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York: New York University Press, 2001). The Free Online Scholarship Newsletter FEDERAL RESEARCH AND INFORMATION RESOURCES Until the late 1970s, federally sponsored R&D was considered a public resource that should be liberally shared with the public and other researchers. Since 1980, after a concerted campaign by business, the U.S. Government now forfeits billions of dollars in revenues by allowing companies and universities to own research and patents financed by taxpayers. Not only does the public fail to get a fair return on its investments, companies are often free to charge exorbitant prices for their drugs, software and other products. Meanwhile, mountains of valuable government reports, databases, congressional documents and other information resources are inaccessible to the public or ridiculously expensive. Leading Experts Gary Bass, OMB Watch James P. Love, Consumer Project on Technology Gary Ruskin, Congressional Accountability Project PUBLIC SPACES AND THE CULTURAL COMMONS Not so long ago it was customary for there to be commercial-free zones in daily life. No more. Market exploitation of public spaces, civic institutions and shared cultural traditions has reached grotesque new extremes. Captive audiences in elevators, airport lounges and bathrooms are new targets for advertisers, and millions of school children are force-fed commercial messages during school hours. Other revered non-commercial institutions such as public broadcasting, journalism, the Olympics and more have been transformed into crass marketing platforms. Groups Adbusters Commercial Alert Jeremy Rifkin, Foundation on Economic Trends Center for Commercial-Free Public Education Project for Public Spaces Books Adbusters magazine (Vancouver, Canada). Frank, Robert, One Market Under God: Extreme Capitalism, Market Populism and the End of Economic Democracy (Doubleday, 2000). Klein, Naomi, No Logo: Taking Aim at the Brand Bullies (Picador, 1999). Lane, Robert, The Loss of Happiness in Market Democracies (Yale University Press, 2000). Lasn, Kalle, Culture Jam: The Uncooling of America (William Morrow & Co., 1999). Project for Public Spaces, How to Turn a Place Around: A Handbook for Creating Successful Public Spaces (2000). Rifkin, Jeremy, The Age of Access: The New Culture of Hypercapitalism Where All of Life is a Paid-for Experience (Jeremy P. Tarcher/Putnam, 2000). Savan, Leslie, The Sponsored Life: Ads, TV and American Culture (Temple University Press, 1994). INITIATIVES TO RECLAIM THE COMMONS While market enclosures are plentiful, a movement to reclaim the American commons is launching a variety of creative new initiatives. The efforts span a broad spectrum of stopping the giveaway of taxpayer-owned resources, creating stakeholder trusts that pay dividends to all citizens, and capturing capital gains from public infrastructure. There are also efforts to develop new legal vehicles to help various commons retain the surplus value that they generate. Other visionaries are creating new institutional vehicles for shared community ownership and cooperatives, new local commons regimes for managing finite natural resources, and new Internet vehicles for sharing and collaboration. Stakeholder Trusts Sky Trust Alaska Permanent Trust Digital Opportunity Trust Online Collaborations Public Library of Science iBiblio Free Software Foundation Open Source Software Linux M.I.T's OpenCourseWare Los Alamos National Research Laboratory Archive Budapest Open Access Initiative Vehicles for Common Ownership Coop America The ESOP Association Land Trust Alliance Time Dollars Books DiBona, Chris, Sam Ockman & Mark Stone, Open Sources: Voices from the Open Source Revolution (O'Reilley & Associates, 1999). Donahue, Brian, Reclaiming the Commons: Community Farms and Forests in a New England Town (Yale University Press, 1999). Gates, Jeff, The Ownership Solution: Toward a Shared Capitalism for the Twenty-First Century (Perseus Books, 1999). Hock, Dee, Birth of the Chaordic Age (Berrett-Koehler Publishers, 1999). Kim, Amy Jo, Community Building on the Web: Secret Strategies for Successful Online Communities (Peachpit Press, 2000). Yes! Magazine, Summer 2001 issue on the commons From jeebesh at sarai.net Wed Jan 29 21:50:45 2003 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Wed, 29 Jan 2003 21:50:45 +0530 Subject: [Commons-Law] Intellectual Property and the University system Message-ID: <200301292150.45733.jeebesh@sarai.net> http://www.uea.ac.uk/~j013/wipout/essays/0315atalla.htm Intellectual Property and the University system Mark Atalla Intellectual property and the University system are a comutualism of sorts, with academia providing a bulk of the resources (research labs, sabbaticals, etc.) for discovery, and hence patents. This comutualism, however, is undergoing a corpratisation that will must likely be as bad for academia as it will be good for the omnipotent bottom line that drives the global corporate economy. As a response to how intellectual property laws effects daily life, two things should be looked at. The first is the expanding role of corporations in dictating advances in science, through employing, and paying quite comfortably, the best scientists to conduct research for profit. The second is the effects this will have on the quality of universities in the future and academia as a whole. Without the drive of intellectual property law in encouraging the privitiasation of knowledge, corporations would be happy to leave research to academia, and simply have their scientists work in an environment of open discourse and discussion of ideas and thoughts. By means of simple economics, capitalism, regardless of your opinions on it, fosters competition and rewards work with wealth, fairly or unfairly. The corporation offers the scientist an alternative to the university, with all of the benefits that the private sector can provide. Hence, the brain drain which is being discussed in regards to Canada losing its top researchers to the U.S. should also be seen as the ability of U.S. capitalism and the corporate sphere simply being able to afford this intelligence. Once you have the resources, you can dictate what to do with them, and hence dictate where advances in society are made, to the benefit of your P/E ratio and the worsening of the world. The second idea that must be looked at is the way universities and their role in society will be effected by the brain drain from the university to the corporate lab. Universities have come into existence to educate the youth of a society, and provide for the betterment of that society. A noble laureate once described that discoveries, although they are made more by luck than one setting out on the goal of discovery, are more likely to occur in an environment of people who have gone through the discovery process before. His point, working with the right people makes all the difference in the improvement of one self academically, as well as the advancement of science. With more and more scientists leaving the university to enter the corporation, as well as the sale of universities and their facilities (simply look at the supporters of any new building at a major university campus, and usually a corporation that has a vested interest in the subject will be one of the top 5 donors) to corporations, the ramifications of this sale on education the youth of a society cannot be overlooked. On where intellectual property enters into this, and how it effects my daily life, will become more and more obvious as time allows for more and more patents, and the effect this will have on universities become elucidated in the youth of the next generation. In the 20th century, war provided a number of the advancements in science that then disseminated into the research of university professors and dictated their studies. In 2002, genomics and the control of gene expressions is a bulk of the research in Botany, Biology, and Zoology. In lectures, professors describe the effects of inhibiting the transcription of a certain protein, which will allow tomatoes to produce more sucrose, and hence be sweeter to the consumer. The implications and direction of research in genomics is largely due to the fact that someone can patent, privatise, and profit off of science. This privatisation is harmful to the extent that it stymies both the dissemination of knowledge and slows down discovery. If intellectual property encouraged open discussion rather than competition and secrecy, the only limit would be the limit of our imaginations. The effects of intellectual property will become more pronounced as corporations choose the direction of science, and society bears the cost of this decision. -- ------------ Do I contradict myself? Very well then, I contradict myself. (I am large, I contain multitudes.) - Walt Whitman From jeebesh at sarai.net Wed Jan 29 22:05:09 2003 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Wed, 29 Jan 2003 22:05:09 +0530 Subject: [Commons-Law] Thinking biotechnology and IP Message-ID: <200301292205.09420.jeebesh@sarai.net> IP within biotechnology will be one of the most complicated as innovation like copyleft etc may not create such voluntary and radical interest when we are talking of open public access to `live code`. Will our present thinking about nature, its modification in laboratories and new transgenic forms be able to withstand the complex nature of this industry, its material basis in high corporatist laboratories and complicity in new forms of power and exclusion. Here, i am posting a text that outlines the danger of appropiation by `patent` lobby of molecular knowledge. best Jeebesh --------------------------------- http://mondediplo.com/2002/12/15genome Heritage of humanity The 2002 Nobel Prize in physiology or medicine was presented this month to John Sulston, Sydney Brenner and H Robert Horvitz for discoveries about the genetic regulation of organ development and programmed cell death. John Sulston is also a principal player in another remarkable scientific endeavour, the human genome project. The entire sequence of the genome will be made public next year, despite many obstructions because of greed over lucrative genetic patents. by JOHN SULSTON * ALTHOUGH the genome is the starting point for human life, we should view it as a source of possibility rather than as a constraint. Many fear that individuals' genetic information will be used against them, and these concerns should be taken seriously. Insurers are pushing for the right to use genetic test results in deciding whether or not to issue policies. If permitted by law, insurers and employers could make genetic testing a prerequisite for issuing policies or offering jobs. We should oppose such discrimination. And since people continue to suffer from cancer, heart disease, senile dementia and other diseases, newspaper headlines such as "Miraculous gene code could eradicate all disease" will only lead to disappointment. Still, our recently acquired genetic knowledge is enormously valuable to the twin fields of biology and medical research. That is why it is so important to complete a definitive version of the preliminary human genome sequence - the draft version's release was celebrated worldwide on 26 June 2000 - and to give researchers access to the data without delay. The sequence will be completed sometime next year and should become a permanent scientific archive and reference tool. The genome will undoubtedly have a huge impact on people's choice of diet and lifestyle. In Western societies this will be a major marketing opportunity: I fear that people will begin choosing restaurants according to their genotype. In all likelihood we will develop new drug treatments for hard-to-treat diseases over the next decade. For example, Mike Stratton's cancer team at the Sanger Centre is currently screening tumours to see how they differ genetically from normal tissues. In many cases it is still easier to kill a cell than to cure it. Genome information may help drugs find targets on cancer cells and destroy cells selectively, leading to fewer side-effects and better remission rates. Genome sequencing is a major step forward for our knowledge of the human body at the molecular level. Yet we are only in the early stages. We still do not know what most of the genes look like, nor do we know when or where they are expressed as proteins. The genome by itself does not provide answers to any of these questions. Nevertheless, the information is available to everyone as a resource tool. The next step is to track down all the genes, determining their significance, their location and how their control signals work. In November 1995 Stratton's team at the United Kingdom-based Institute of Cancer Research (ICR) found a mutation in one of their breast-cancer gene "families", apparently connected with the BRCA2 gene. The region containing that gene had just been sequenced at the Sanger Institute, and within two weeks the ICR team had not only confirmed the discovery but found five more mutations. Stratton moved fast to publish the findings in the international weekly scientific journal Nature, keeping them secret from his colleagues until the last minute. But despite his efforts, some information reached Utah-based Myriad Genetics Inc in the United States, which then located the gene. Myriad's chief scientific officer, Mark Skolnick, then filed a patent application - on the day before the ICR paper was published. With the threat of commercialisation looming, the ICR moved to patent the mutations it had discovered. At the same time, Myriad used its own patent applications to claim rights to the BRCA2 gene as well as to the entire BRCA1 gene, which Myriad's scientists were the first to clone. Myriad set up a commercial diagnostic laboratory, and once its patents were granted, the company threatened legal action against any other United States laboratory using either gene for breast cancer screening. This meant that Myriad had the only lab that could perform such screening, at a cost of nearly $2,500 per patient. The company also had the right to grant licences to other labs to carry out simpler procedures at a cost of $200 per test. One of Myriad's tests focused on a mutation discovered by the ICR affecting the BRCA2 gene, commonly found among Ashkenazi Jews from central and eastern Europe. "The Ashkenazi A mutation was the framework for our original paper," says Professor Stratton. "Myriad is claiming a fee for a mutation that we discovered." As an Ashkenazi Jew, Stratton found this especially galling. By claiming proprietary rights to the diagnostic tests for the two BRCA genes and charging for the tests, Myriad is adding to total health-care costs. Even worse, once scientists really understand how the BRCA1 and 2 mutations cause tumours to grow, they might be able to devise new therapies. But because of its patents, Myriad has exclusive marketing rights. Throughout the formidable task of sequencing the human genome, we were faced with the question of research-related proprietary rights. Although the full impact of Myriad's aggressive approach was unclear in 1995, it was clear where a focus on commercial profit and patents would lead. What was needed was a commitment from the international sequencing community to make all genome information publicly available and not to parcel it out via individual deals between companies and researchers. How to manage the data? We decided to hold an international meeting to hammer out a strategy deciding who would do what, and how to manage the data. The UK selected Bermuda, close to the US, as the site of the meeting. This was our introduction to the world of international politics. The meeting was extremely constructive, since it was the first opportunity for researchers to compare notes freely. We were forced to work together because nobody at that time could complete the sequencing alone. Everyone arrived with pieces of paper stating their intentions to sequence a particular region of the genome, and during the meeting we resolved the overlapping claims. At that time there was no mechanism for loading preliminary data into public databases, which were set up for finished data only. Even in raw form, the human genome sequence data obtained from our machines might prove useful to other researchers seeking to localise genes or to check hypotheses. As we had done with the nematode (1), we made all of our data available electronically from our own sites at the Sanger Institute, so that people could download information and do with it as they saw fit (2). We merely asked them to recognise that the data was preliminary and to acknowledge us as the source in any publications. The principle of data availability had to be endorsed at the Bermuda meeting or else mutual trust would have been impossible. At first I thought it unlikely that everyone would come to an agreement. Several of those present, including Craig Venter of the Institute for Genomic Research (TIGR) (3), already had links to commercial organisations and might oppose the idea of giving everything away to the public, with nothing in return. But as I stood at the white board, scribbling away, erasing and rewriting, we eventually came up with a statement. The Wellcome Trust - a medical research charity and the Sanger Institute's main financial backer - still has a photo of that handwritten statement with its three bullet points: Automatic release of sequence assemblies larger than 1 kb (preferably within 24 hours). Immediate publication of finished annotated sequences. Aim to make the entire sequence freely available in the public domain for both research and development in order to maximise benefits to society. While Bob Waterston of St Louis's Washington University and I were drafting the statement together with our colleagues, another colleague, Michael Morgan, was meeting with representatives from the funding agencies to secure support for our initiative. What I had written on the board, with minor modifications, became known as the Bermuda principles, and these have since served as the benchmark for publicly funded large-scale sequencing projects. The principles of accessibility and on-the-spot release mean that anyone in the international biological community can use the data and ultimately turn them into new inventions that are eligible for patents. But when the raw sequence is released publicly, it will be unpatentable. It promised well that so many people came to share a vision of the genome sequence as the heritage of humanity, as stated in Article 1 of the universal declaration on the human genome and human rights, which emerged from Unesco's general conference in 1997. The 20th century saw a split between the sciences and the humanities. Many no longer perceive science as a manifestation of culture. One reason is that science has become increasingly equated with technology; in many quarters technological development represents science's sole purpose. Scientists are encouraged to capitalise on their discoveries commercially, regardless of the social consequences. A discovery, not an invention The genome sequence is a discovery, not an invention. Like a mountain or a river, the genome is a natural phenomenon that existed, if not before us, then at least before we became aware of it. I believe that the Earth is part of the common good; it is better off not owned by anyone, even though we may fence off small parts of it. But if an area proves important because it is especially scenic or is home to some rare species, then it should be protected in the public interest. To be sure, there will always be arguments concerning the balance between private and public lands and how they should be used. The human genome is an extreme example. We all carry our personal copies of the genome, and each portion of it is unique. You cannot say that you own a gene because you would then own one of my genes as well. And you cannot say that we can share our individual genes because we need every single one of our genes. A patent may not grant literal ownership of a gene but it does specifically bestow the right to prevent others from using that gene for commercial purposes. Placing legal or proprietary restrictions on genes should be confined strictly to current applications or to inventive steps. Someone else may choose to work on another application and may thus need to have access to the same gene. Inventing human genes is impossible. So every discovery relating to genes - their sequence, functions and everything else - should be placed in the pre-competitive arena. After all, one goal of the patent process is to stimulate competition. The most valuable gene-related applications are often far removed from the first easy steps. So this is a matter of science, not just a matter of principle. In March 2000 Maryland-based Human Genome Sciences Inc (HGSI), a company set up alongside TIGR in 1992, announced that it had been granted a patent on the CCR5 gene, which encodes a receptor on the surface of cells. When HGSI initially applied for its patent it did not know how this receptor functioned. While the patent was pending, a group of publicly funded researchers at the US National Institutes of Health (NIH) discovered that some people with CCR5 gene defects were resistant to infection with the AIDS virus (HIV). CCR5 appeared to be one of the gateways the virus uses to invade cells. As soon as they found out about the NIH discovery, HGSI confirmed the role of CCR5 through experiments and obtained the patent. HGSI asserted its proprietary rights to use the CCR5 gene for any purpose and then sold licences to several pharmaceutical companies to develop drugs and vaccines. But who took the inventive step? Was it the company that made a lucky match with the right gene? Or was it the researchers who determined that HIV-resistant individuals had a defective gene? William Haseltine, HGSI's chief executive officer, argues that patents stimulate progress in medical research, and that the CCR5 patent may well lead to a new drug or vaccine for HIV. But a survey of researchers at US university labs found that many of them have been deterred from working on particular gene targets, fearing that they might have to pay hefty licence fees (or royalties) to companies or risk lawsuits (4). The patent question The US recently clarified its guidelines on granting gene patents to provide a somewhat tighter definition of utility - use must now be "substantial, specific and credible". But the guidelines still allow sequences to be patented since they can be used as probes to detect genes responsible for various diseases. The European patent directive, approved by the European parliament in 1998, states that a sequence or partial sequence of a gene is only eligible for a "composition of matter" patent when it can be replicated outside the human body (in vitro), for example copied in bacteria, as we do for human genome sequencing. This argument has always seemed absurd to me. The essence of a gene is the information it provides - the sequence. Copying it into another format makes no difference. It is like taking a hardback book written by someone else, publishing it in paperback and then claiming authorship because the binding is different. The number of applications for gene patents on humans and other organisms has now passed the half-million mark, and several thousand such patents have been granted. Nevertheless, the issue of gene patents remains complex and confused. The US Patent and Trademark Office (USPTO) still maintains that a gene discovery is patentable. Until the recent changes, the USPTO granted patents even for partial gene fragments whose only claimed utility was as gene probes. The European Patent Office remained unconvinced about gene patents until the European Union issued its 1998 biotechnology patent directive, which explicitly permitted the patenting of gene sequences. Several EU member states, including France, are opposed to the EU directive, while other EU members, such as the UK, maintain a more neo-liberal line on patenting so that their biotechnology industries remain competitive with those in the US. I realised long ago that trying to reach an equitable solution using moral or even legal arguments was doomed to failure. The best way to prevent the sequence being carved up by private interests was to place it within the public domain so that, in patent office jargon, as much as possible became "prior art" and thus unpatentable by others. The international sequencing consortium, while working on the human genome project, succeeded in doing just that with respect to the raw sequence data. Now we are raising the bar by placing as much information as possible about the annotated gene sequence and gene function in the public domain. Some have proposed drawing a patent line between life and non-life. While agreeing with the concerns, and with the urgent need for a value other than a commercial one to be placed on living things, I think there is no case for this particular line. Because the chasm that previously existed between the biological and the chemical is closing, such a distinction will not be sustainable. We should not be patenting whole life forms, such as transgenic mice or cotton plants - and not just because they are living organisms. A sounder reason is this: we did not invent these organisms, only the specific modification that made the mice susceptible to cancer or the cotton resistant to pests. The future of biology is strongly tied to that of bioinformatics, a field of research that collects all sorts of biological data, tries to make sense of living organisms in their entirety and then makes predictions. If this data is freely accessible, bioinformatics will allow experimental biologists to complement the work of other researchers and to connect with them. If we wish to move forward with this fascinating endeavour, which will undoubtedly translate into medical advances, the basic data must be freely available for everyone to interpret, change and share, as in the open-source software movement. The situation is too complex for a piecemeal approach, with limited amounts of data released at a time and with a single entity holding the access keys. The saga of the human genome project proves that publicly financed science is extremely effective because it is so intensely competitive. The project's success also refutes the widespread notion that only private industry is capable of carrying out large-scale research. * Biological researcher and founding director of the Sanger Institute, based in Cambridge (UK). This article was adapted from John Sulston and Georgina Ferry's The Common Thread: A Story of Science, Politics, Ethics, and the Human Genome (Bantam Press, London, 2002) (1) Editor's note: By means of a microscope and cell-by-cell analysis, the author patiently observed the nematode Caenorhabditis elegans, measuring only one mm in length, throughout the various stages of its development. This was the first animal to be sequenced in its entirety. (2) http://www.sanger.ac.uk/HGP/ (3) Editor's note: Craig Venter founded The Institute for Genomic Research (TIGR). He went on to launch Celera Genomics, whose stated goals were to decipher the entire human genome sequence and to patent the results. As a result of intense political pressure, the human genome project and Celera Genomics jointly announced on 26 June 2000 that they had completed a draft version of the sequence. (4) Anna Schissel, Jon Merz and Mildred Cho, "Survey confirms fears about licensing of genetic tests", Nature, vol 402, 1999, p~118. Original text in English -- ------------ Do I contradict myself? Very well then, I contradict myself. (I am large, I contain multitudes.) - Walt Whitman ___________________________________ An Internal Sarai List internal at mail.sarai.net http://mail.sarai.net/mailman/listinfo/internal ------------------------------------------------------- -- ------------ Do I contradict myself? Very well then, I contradict myself. (I am large, I contain multitudes.) - Walt Whitman From shamnadbasheer at yahoo.co.in Thu Jan 30 00:54:08 2003 From: shamnadbasheer at yahoo.co.in (=?iso-8859-1?q?Shamnad=20Basheer?=) Date: Wed, 29 Jan 2003 19:24:08 +0000 (GMT) Subject: [Commons-Law] Thinking biotechnology and IP In-Reply-To: <200301292205.09420.jeebesh@sarai.net> Message-ID: <20030129192408.3542.qmail@web8007.mail.in.yahoo.com> you're right jeebesh-ip within biotech is definitely one of the most complicated areas.. even while some were busy patenting gene fragments, others (and a large number of them) were fighting to keep these in the public domain-by publising sequence information as and when it became available. perhaps one of the first industries to try and keep basic research in the puiblic domain-primarly owing to a fear that upstream patents on mere gene sequences would block further downstream inventions of medically important drugs. the debate has in part now moved over to a sector popularly labelled "bio-informatics"-where genome information is now analysed using complicated software (something that has generated considerable interest in India-because of the "IT" bit)-theres a huge ongoing movement that is trying to get this software under the "open source" framework-i guess we'll have to wait and see how they fare.. i guess from the indian viewpoint though, one of our pressing concerns is the fact that we have perhaps the most varied gene pool-something that could potentially turn up a number of interesting gene-based drugs. unless we have effective systems in place for ensuring that access to our gene pool is at some level regulated, we may in the near future face a huge onslaught of research that not only procures our pool in an unethical manner (such as by not complying with "informed consent" norms), but also commercialises it without sharing the benefits. shamnad Jeebesh Bagchi wrote:IP within biotechnology will be one of the most complicated as innovation like copyleft etc may not create such voluntary and radical interest when we are talking of open public access to `live code`. Will our present thinking about nature, its modification in laboratories and new transgenic forms be able to withstand the complex nature of this industry, its material basis in high corporatist laboratories and complicity in new forms of power and exclusion. Here, i am posting a text that outlines the danger of appropiation by `patent` lobby of molecular knowledge. best Jeebesh --------------------------------- http://mondediplo.com/2002/12/15genome Heritage of humanity The 2002 Nobel Prize in physiology or medicine was presented this month to John Sulston, Sydney Brenner and H Robert Horvitz for discoveries about the genetic regulation of organ development and programmed cell death. John Sulston is also a principal player in another remarkable scientific endeavour, the human genome project. The entire sequence of the genome will be made public next year, despite many obstructions because of greed over lucrative genetic patents. by JOHN SULSTON * ALTHOUGH the genome is the starting point for human life, we should view it as a source of possibility rather than as a constraint. Many fear that individuals' genetic information will be used against them, and these concerns should be taken seriously. Insurers are pushing for the right to use genetic test results in deciding whether or not to issue policies. If permitted by law, insurers and employers could make genetic testing a prerequisite for issuing policies or offering jobs. We should oppose such discrimination. And since people continue to suffer from cancer, heart disease, senile dementia and other diseases, newspaper headlines such as "Miraculous gene code could eradicate all disease" will only lead to disappointment. Still, our recently acquired genetic knowledge is enormously valuable to the twin fields of biology and medical research. That is why it is so important to complete a definitive version of the preliminary human genome sequence - the draft version's release was celebrated worldwide on 26 June 2000 - and to give researchers access to the data without delay. The sequence will be completed sometime next year and should become a permanent scientific archive and reference tool. The genome will undoubtedly have a huge impact on people's choice of diet and lifestyle. In Western societies this will be a major marketing opportunity: I fear that people will begin choosing restaurants according to their genotype. In all likelihood we will develop new drug treatments for hard-to-treat diseases over the next decade. For example, Mike Stratton's cancer team at the Sanger Centre is currently screening tumours to see how they differ genetically from normal tissues. In many cases it is still easier to kill a cell than to cure it. Genome information may help drugs find targets on cancer cells and destroy cells selectively, leading to fewer side-effects and better remission rates. Genome sequencing is a major step forward for our knowledge of the human body at the molecular level. Yet we are only in the early stages. We still do not know what most of the genes look like, nor do we know when or where they are expressed as proteins. The genome by itself does not provide answers to any of these questions. Nevertheless, the information is available to everyone as a resource tool. The next step is to track down all the genes, determining their significance, their location and how their control signals work. In November 1995 Stratton's team at the United Kingdom-based Institute of Cancer Research (ICR) found a mutation in one of their breast-cancer gene "families", apparently connected with the BRCA2 gene. The region containing that gene had just been sequenced at the Sanger Institute, and within two weeks the ICR team had not only confirmed the discovery but found five more mutations. Stratton moved fast to publish the findings in the international weekly scientific journal Nature, keeping them secret from his colleagues until the last minute. But despite his efforts, some information reached Utah-based Myriad Genetics Inc in the United States, which then located the gene. Myriad's chief scientific officer, Mark Skolnick, then filed a patent application - on the day before the ICR paper was published. With the threat of commercialisation looming, the ICR moved to patent the mutations it had discovered. At the same time, Myriad used its own patent applications to claim rights to the BRCA2 gene as well as to the entire BRCA1 gene, which Myriad's scientists were the first to clone. Myriad set up a commercial diagnostic laboratory, and once its patents were granted, the company threatened legal action against any other United States laboratory using either gene for breast cancer screening. This meant that Myriad had the only lab that could perform such screening, at a cost of nearly $2,500 per patient. The company also had the right to grant licences to other labs to carry out simpler procedures at a cost of $200 per test. One of Myriad's tests focused on a mutation discovered by the ICR affecting the BRCA2 gene, commonly found among Ashkenazi Jews from central and eastern Europe. "The Ashkenazi A mutation was the framework for our original paper," says Professor Stratton. "Myriad is claiming a fee for a mutation that we discovered." As an Ashkenazi Jew, Stratton found this especially galling. By claiming proprietary rights to the diagnostic tests for the two BRCA genes and charging for the tests, Myriad is adding to total health-care costs. Even worse, once scientists really understand how the BRCA1 and 2 mutations cause tumours to grow, they might be able to devise new therapies. But because of its patents, Myriad has exclusive marketing rights. Throughout the formidable task of sequencing the human genome, we were faced with the question of research-related proprietary rights. Although the full impact of Myriad's aggressive approach was unclear in 1995, it was clear where a focus on commercial profit and patents would lead. What was needed was a commitment from the international sequencing community to make all genome information publicly available and not to parcel it out via individual deals between companies and researchers. How to manage the data? We decided to hold an international meeting to hammer out a strategy deciding who would do what, and how to manage the data. The UK selected Bermuda, close to the US, as the site of the meeting. This was our introduction to the world of international politics. The meeting was extremely constructive, since it was the first opportunity for researchers to compare notes freely. We were forced to work together because nobody at that time could complete the sequencing alone. Everyone arrived with pieces of paper stating their intentions to sequence a particular region of the genome, and during the meeting we resolved the overlapping claims. At that time there was no mechanism for loading preliminary data into public databases, which were set up for finished data only. Even in raw form, the human genome sequence data obtained from our machines might prove useful to other researchers seeking to localise genes or to check hypotheses. As we had done with the nematode (1), we made all of our data available electronically from our own sites at the Sanger Institute, so that people could download information and do with it as they saw fit (2). We merely asked them to recognise that the data was preliminary and to acknowledge us as the source in any publications. The principle of data availability had to be endorsed at the Bermuda meeting or else mutual trust would have been impossible. At first I thought it unlikely that everyone would come to an agreement. Several of those present, including Craig Venter of the Institute for Genomic Research (TIGR) (3), already had links to commercial organisations and might oppose the idea of giving everything away to the public, with nothing in return. But as I stood at the white board, scribbling away, erasing and rewriting, we eventually came up with a statement. The Wellcome Trust - a medical research charity and the Sanger Institute's main financial backer - still has a photo of that handwritten statement with its three bullet points: Automatic release of sequence assemblies larger than 1 kb (preferably within 24 hours). Immediate publication of finished annotated sequences. Aim to make the entire sequence freely available in the public domain for both research and development in order to maximise benefits to society. While Bob Waterston of St Louis's Washington University and I were drafting the statement together with our colleagues, another colleague, Michael Morgan, was meeting with representatives from the funding agencies to secure support for our initiative. What I had written on the board, with minor modifications, became known as the Bermuda principles, and these have since served as the benchmark for publicly funded large-scale sequencing projects. The principles of accessibility and on-the-spot release mean that anyone in the international biological community can use the data and ultimately turn them into new inventions that are eligible for patents. But when the raw sequence is released publicly, it will be unpatentable. It promised well that so many people came to share a vision of the genome sequence as the heritage of humanity, as stated in Article 1 of the universal declaration on the human genome and human rights, which emerged from Unesco's general conference in 1997. The 20th century saw a split between the sciences and the humanities. Many no longer perceive science as a manifestation of culture. One reason is that science has become increasingly equated with technology; in many quarters technological development represents science's sole purpose. Scientists are encouraged to capitalise on their discoveries commercially, regardless of the social consequences. A discovery, not an invention The genome sequence is a discovery, not an invention. Like a mountain or a river, the genome is a natural phenomenon that existed, if not before us, then at least before we became aware of it. I believe that the Earth is part of the common good; it is better off not owned by anyone, even though we may fence off small parts of it. But if an area proves important because it is especially scenic or is home to some rare species, then it should be protected in the public interest. To be sure, there will always be arguments concerning the balance between private and public lands and how they should be used. The human genome is an extreme example. We all carry our personal copies of the genome, and each portion of it is unique. You cannot say that you own a gene because you would then own one of my genes as well. And you cannot say that we can share our individual genes because we need every single one of our genes. A patent may not grant literal ownership of a gene but it does specifically bestow the right to prevent others from using that gene for commercial purposes. Placing legal or proprietary restrictions on genes should be confined strictly to current applications or to inventive steps. Someone else may choose to work on another application and may thus need to have access to the same gene. Inventing human genes is impossible. So every discovery relating to genes - their sequence, functions and everything else - should be placed in the pre-competitive arena. After all, one goal of the patent process is to stimulate competition. The most valuable gene-related applications are often far removed from the first easy steps. So this is a matter of science, not just a matter of principle. In March 2000 Maryland-based Human Genome Sciences Inc (HGSI), a company set up alongside TIGR in 1992, announced that it had been granted a patent on the CCR5 gene, which encodes a receptor on the surface of cells. When HGSI initially applied for its patent it did not know how this receptor functioned. While the patent was pending, a group of publicly funded researchers at the US National Institutes of Health (NIH) discovered that some people with CCR5 gene defects were resistant to infection with the AIDS virus (HIV). CCR5 appeared to be one of the gateways the virus uses to invade cells. As soon as they found out about the NIH discovery, HGSI confirmed the role of CCR5 through experiments and obtained the patent. HGSI asserted its proprietary rights to use the CCR5 gene for any purpose and then sold licences to several pharmaceutical companies to develop drugs and vaccines. But who took the inventive step? Was it the company that made a lucky match with the right gene? Or was it the researchers who determined that HIV-resistant individuals had a defective gene? William Haseltine, HGSI's chief executive officer, argues that patents stimulate progress in medical research, and that the CCR5 patent may well lead to a new drug or vaccine for HIV. But a survey of researchers at US university labs found that many of them have been deterred from working on particular gene targets, fearing that they might have to pay hefty licence fees (or royalties) to companies or risk lawsuits (4). The patent question The US recently clarified its guidelines on granting gene patents to provide a somewhat tighter definition of utility - use must now be "substantial, specific and credible". But the guidelines still allow sequences to be patented since they can be used as probes to detect genes responsible for various diseases. The European patent directive, approved by the European parliament in 1998, states that a sequence or partial sequence of a gene is only eligible for a "composition of matter" patent when it can be replicated outside the human body (in vitro), for example copied in bacteria, as we do for human genome sequencing. This argument has always seemed absurd to me. The essence of a gene is the information it provides - the sequence. Copying it into another format makes no difference. It is like taking a hardback book written by someone else, publishing it in paperback and then claiming authorship because the binding is different. The number of applications for gene patents on humans and other organisms has now passed the half-million mark, and several thousand such patents have been granted. Nevertheless, the issue of gene patents remains complex and confused. The US Patent and Trademark Office (USPTO) still maintains that a gene discovery is patentable. Until the recent changes, the USPTO granted patents even for partial gene fragments whose only claimed utility was as gene probes. The European Patent Office remained unconvinced about gene patents until the European Union issued its 1998 biotechnology patent directive, which explicitly permitted the patenting of gene sequences. Several EU member states, including France, are opposed to the EU directive, while other EU members, such as the UK, maintain a more neo-liberal line on patenting so that their biotechnology industries remain competitive with those in the US. I realised long ago that trying to reach an equitable solution using moral or even legal arguments was doomed to failure. The best way to prevent the sequence being carved up by private interests was to place it within the public domain so that, in patent office jargon, as much as possible became "prior art" and thus unpatentable by others. The international sequencing consortium, while working on the human genome project, succeeded in doing just that with respect to the raw sequence data. Now we are raising the bar by placing as much information as possible about the annotated gene sequence and gene function in the public domain. Some have proposed drawing a patent line between life and non-life. While agreeing with the concerns, and with the urgent need for a value other than a commercial one to be placed on living things, I think there is no case for this particular line. Because the chasm that previously existed between the biological and the chemical is closing, such a distinction will not be sustainable. We should not be patenting whole life forms, such as transgenic mice or cotton plants - and not just because they are living organisms. A sounder reason is this: we did not invent these organisms, only the specific modification that made the mice susceptible to cancer or the cotton resistant to pests. The future of biology is strongly tied to that of bioinformatics, a field of research that collects all sorts of biological data, tries to make sense of living organisms in their entirety and then makes predictions. If this data is freely accessible, bioinformatics will allow experimental biologists to complement the work of other researchers and to connect with them. If we wish to move forward with this fascinating endeavour, which will undoubtedly translate into medical advances, the basic data must be freely available for everyone to interpret, change and share, as in the open-source software movement. The situation is too complex for a piecemeal approach, with limited amounts of data released at a time and with a single entity holding the access keys. The saga of the human genome project proves that publicly financed science is extremely effective because it is so intensely competitive. The project's success also refutes the widespread notion that only private industry is capable of carrying out large-scale research. * Biological researcher and founding director of the Sanger Institute, based in Cambridge (UK). This article was adapted from John Sulston and Georgina Ferry's The Common Thread: A Story of Science, Politics, Ethics, and the Human Genome (Bantam Press, London, 2002) (1) Editor's note: By means of a microscope and cell-by-cell analysis, the author patiently observed the nematode Caenorhabditis elegans, measuring only one mm in length, throughout the various stages of its development. This was the first animal to be sequenced in its entirety. (2) http://www.sanger.ac.uk/HGP/ (3) Editor's note: Craig Venter founded The Institute for Genomic Research (TIGR). He went on to launch Celera Genomics, whose stated goals were to decipher the entire human genome sequence and to patent the results. As a result of intense political pressure, the human genome project and Celera Genomics jointly announced on 26 June 2000 that they had completed a draft version of the sequence. (4) Anna Schissel, Jon Merz and Mildred Cho, "Survey confirms fears about licensing of genetic tests", Nature, vol 402, 1999, p~118. Original text in English -- ------------ Do I contradict myself? Very well then, I contradict myself. (I am large, I contain multitudes.) - Walt Whitman ___________________________________ An Internal Sarai List internal at mail.sarai.net http://mail.sarai.net/mailman/listinfo/internal ------------------------------------------------------- -- ------------ Do I contradict myself? Very well then, I contradict myself. (I am large, I contain multitudes.) - Walt Whitman _______________________________________________ commons-law mailing list commons-law at mail.sarai.net http://mail.sarai.net/cgi-bin/mailman/listinfo/commons-law Catch all the cricket action. Download Yahoo! Score tracker -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20030129/1f25701f/attachment.html From vineeth at ibioinformatics.org Thu Jan 30 09:40:31 2003 From: vineeth at ibioinformatics.org (Vineeth S) Date: Thu, 30 Jan 2003 04:10:31 +0000 Subject: [Commons-Law] Thinking biotechnology and IP Message-ID: <200301300410.AA97124460@ibioinformatics.org> an effort in this direction(to keep the information in the public domain) has been initiated in as a joint venture between pandeylabs, jhmi, baltimore (http://pandeylab.bs.jhmi.edu) and the institute of bioinformatics(not IBAB) (http://www.ibioinformatics.org). the idea is to create a comprehensive protein information database to be kept in the public domain ... simply put, the data is available free, on request, to nonprofit organisations/ventures/individuals for research/education purposes. but a license fee has to be paid for the commercial use of the data the code that went into making the database (which uses zope and python extensively in a first of its kind application to genomic data) is made available under LGPL (the Lesser General Public License). this code can now be viewed at http://pandeylab.bs.jhmi.edu/cvs regards vineeth ---------- Original Message ---------------------------------- From: Shamnad Basheer Date: Wed, 29 Jan 2003 19:24:08 +0000 (GMT) > >you're right jeebesh-ip within biotech is definitely one of the most complicated areas.. >even while some were busy patenting gene fragments, others (and a large number of them) were fighting to keep these in the public domain-by publising sequence information as and when it became available. perhaps one of the first industries to try and keep basic research in the puiblic domain-primarly owing to a fear that upstream patents on mere gene sequences would block further downstream inventions of medically important drugs. the debate has in part now moved over to a sector popularly labelled "bio-informatics"-where genome information is now analysed using complicated software (something that has generated considerable interest in India-because of the "IT" bit)-theres a huge ongoing movement that is trying to get this software under the "open source" framework-i guess we'll have to wait and see how they fare.. >i guess from the indian viewpoint though, one of our pressing concerns is the fact that we have perhaps the most varied gene pool-something that could potentially turn up a number of interesting gene-based drugs. unless we have effective systems in place for ensuring that access to our gene pool is at some level regulated, we may in the near future face a huge onslaught of research that not only procures our pool in an unethical manner (such as by not complying with "informed consent" norms), but also commercialises it without sharing the benefits. >shamnad > > > Jeebesh Bagchi wrote:IP within biotechnology will be one of the most complicated as innovation like >copyleft etc may not create such voluntary and radical interest when we are >talking of open public access to `live code`. Will our present thinking about >nature, its modification in laboratories and new transgenic forms be able to >withstand the complex nature of this industry, its material basis in high >corporatist laboratories and complicity in new forms of power and exclusion. > >Here, i am posting a text that outlines the danger of appropiation by `patent` >lobby of molecular knowledge. > >best >Jeebesh >--------------------------------- >http://mondediplo.com/2002/12/15genome > >Heritage of humanity > >The 2002 Nobel Prize in physiology or medicine was presented this month to >John Sulston, Sydney Brenner and H Robert Horvitz for discoveries about the >genetic regulation of organ development and programmed cell death. John >Sulston is also a principal player in another remarkable scientific >endeavour, the human genome project. The entire sequence of the genome will >be made public next year, despite many obstructions because of greed over >lucrative genetic patents. > >by JOHN SULSTON * > > >ALTHOUGH the genome is the starting point for human life, we should view it >as a source of possibility rather than as a constraint. Many fear that >individuals' genetic information will be used against them, and these >concerns should be taken seriously. Insurers are pushing for the right to use >genetic test results in deciding whether or not to issue policies. If >permitted by law, insurers and employers could make genetic testing a >prerequisite for issuing policies or offering jobs. We should oppose such >discrimination. > > >And since people continue to suffer from cancer, heart disease, senile >dementia and other diseases, newspaper headlines such as "Miraculous gene >code could eradicate all disease" will only lead to disappointment. > > >Still, our recently acquired genetic knowledge is enormously valuable to the >twin fields of biology and medical research. That is why it is so important >to complete a definitive version of the preliminary human genome sequence - >the draft version's release was celebrated worldwide on 26 June 2000 - and to >give researchers access to the data without delay. The sequence will be >completed sometime next year and should become a permanent scientific archive >and reference tool. > > >The genome will undoubtedly have a huge impact on people's choice of diet and >lifestyle. In Western societies this will be a major marketing opportunity: I >fear that people will begin choosing restaurants according to their genotype. > > >In all likelihood we will develop new drug treatments for hard-to-treat >diseases over the next decade. For example, Mike Stratton's cancer team at >the Sanger Centre is currently screening tumours to see how they differ >genetically from normal tissues. In many cases it is still easier to kill a >cell than to cure it. Genome information may help drugs find targets on >cancer cells and destroy cells selectively, leading to fewer side-effects and >better remission rates. > > >Genome sequencing is a major step forward for our knowledge of the human body >at the molecular level. Yet we are only in the early stages. We still do not >know what most of the genes look like, nor do we know when or where they are >expressed as proteins. The genome by itself does not provide answers to any >of these questions. Nevertheless, the information is available to everyone as >a resource tool. The next step is to track down all the genes, determining >their significance, their location and how their control signals work. > > >In November 1995 Stratton's team at the United Kingdom-based Institute of >Cancer Research (ICR) found a mutation in one of their breast-cancer gene >"families", apparently connected with the BRCA2 gene. The region containing >that gene had just been sequenced at the Sanger Institute, and within two >weeks the ICR team had not only confirmed the discovery but found five more >mutations. Stratton moved fast to publish the findings in the international >weekly scientific journal Nature, keeping them secret from his colleagues >until the last minute. But despite his efforts, some information reached >Utah-based Myriad Genetics Inc in the United States, which then located the >gene. Myriad's chief scientific officer, Mark Skolnick, then filed a patent >application - on the day before the ICR paper was published. > > >With the threat of commercialisation looming, the ICR moved to patent the >mutations it had discovered. At the same time, Myriad used its own patent >applications to claim rights to the BRCA2 gene as well as to the entire BRCA1 >gene, which Myriad's scientists were the first to clone. Myriad set up a >commercial diagnostic laboratory, and once its patents were granted, the >company threatened legal action against any other United States laboratory >using either gene for breast cancer screening. This meant that Myriad had the >only lab that could perform such screening, at a cost of nearly $2,500 per >patient. The company also had the right to grant licences to other labs to >carry out simpler procedures at a cost of $200 per test. > > >One of Myriad's tests focused on a mutation discovered by the ICR affecting >the BRCA2 gene, commonly found among Ashkenazi Jews from central and eastern >Europe. "The Ashkenazi A mutation was the framework for our original paper," >says Professor Stratton. "Myriad is claiming a fee for a mutation that we >discovered." As an Ashkenazi Jew, Stratton found this especially galling. > > >By claiming proprietary rights to the diagnostic tests for the two BRCA genes >and charging for the tests, Myriad is adding to total health-care costs. Even >worse, once scientists really understand how the BRCA1 and 2 mutations cause >tumours to grow, they might be able to devise new therapies. But because of >its patents, Myriad has exclusive marketing rights. > > >Throughout the formidable task of sequencing the human genome, we were faced >with the question of research-related proprietary rights. Although the full >impact of Myriad's aggressive approach was unclear in 1995, it was clear >where a focus on commercial profit and patents would lead. What was needed >was a commitment from the international sequencing community to make all >genome information publicly available and not to parcel it out via individual >deals between companies and researchers. > > > >How to manage the data? > > >We decided to hold an international meeting to hammer out a strategy deciding >who would do what, and how to manage the data. The UK selected Bermuda, close >to the US, as the site of the meeting. This was our introduction to the world >of international politics. The meeting was extremely constructive, since it >was the first opportunity for researchers to compare notes freely. We were >forced to work together because nobody at that time could complete the >sequencing alone. Everyone arrived with pieces of paper stating their >intentions to sequence a particular region of the genome, and during the >meeting we resolved the overlapping claims. > > >At that time there was no mechanism for loading preliminary data into public >databases, which were set up for finished data only. Even in raw form, the >human genome sequence data obtained from our machines might prove useful to >other researchers seeking to localise genes or to check hypotheses. As we had >done with the nematode (1), we made all of our data available electronically >from our own sites at the Sanger Institute, so that people could download >information and do with it as they saw fit (2). We merely asked them to >recognise that the data was preliminary and to acknowledge us as the source >in any publications. > > >The principle of data availability had to be endorsed at the Bermuda meeting >or else mutual trust would have been impossible. At first I thought it >unlikely that everyone would come to an agreement. Several of those present, >including Craig Venter of the Institute for Genomic Research (TIGR) (3), >already had links to commercial organisations and might oppose the idea of >giving everything away to the public, with nothing in return. But as I stood >at the white board, scribbling away, erasing and rewriting, we eventually >came up with a statement. The Wellcome Trust - a medical research charity and >the Sanger Institute's main financial backer - still has a photo of that >handwritten statement with its three bullet points: > > >Automatic release of sequence assemblies larger than 1 kb (preferably within >24 hours). > > >Immediate publication of finished annotated sequences. > > >Aim to make the entire sequence freely available in the public domain for >both research and development in order to maximise benefits to society. > > >While Bob Waterston of St Louis's Washington University and I were drafting >the statement together with our colleagues, another colleague, Michael >Morgan, was meeting with representatives from the funding agencies to secure >support for our initiative. What I had written on the board, with minor >modifications, became known as the Bermuda principles, and these have since >served as the benchmark for publicly funded large-scale sequencing projects. > > >The principles of accessibility and on-the-spot release mean that anyone in >the international biological community can use the data and ultimately turn >them into new inventions that are eligible for patents. But when the raw >sequence is released publicly, it will be unpatentable. It promised well that >so many people came to share a vision of the genome sequence as the heritage >of humanity, as stated in Article 1 of the universal declaration on the human >genome and human rights, which emerged from Unesco's general conference in >1997. > > >The 20th century saw a split between the sciences and the humanities. Many no >longer perceive science as a manifestation of culture. One reason is that >science has become increasingly equated with technology; in many quarters >technological development represents science's sole purpose. Scientists are >encouraged to capitalise on their discoveries commercially, regardless of the >social consequences. > > > >A discovery, not an invention > > >The genome sequence is a discovery, not an invention. Like a mountain or a >river, the genome is a natural phenomenon that existed, if not before us, >then at least before we became aware of it. I believe that the Earth is part >of the common good; it is better off not owned by anyone, even though we may >fence off small parts of it. But if an area proves important because it is >especially scenic or is home to some rare species, then it should be >protected in the public interest. > > >To be sure, there will always be arguments concerning the balance between >private and public lands and how they should be used. The human genome is an >extreme example. We all carry our personal copies of the genome, and each >portion of it is unique. You cannot say that you own a gene because you would >then own one of my genes as well. And you cannot say that we can share our >individual genes because we need every single one of our genes. A patent may >not grant literal ownership of a gene but it does specifically bestow the >right to prevent others from using that gene for commercial purposes. > > >Placing legal or proprietary restrictions on genes should be confined >strictly to current applications or to inventive steps. Someone else may >choose to work on another application and may thus need to have access to >the same gene. Inventing human genes is impossible. So every discovery >relating to genes - their sequence, functions and everything else - should >be placed in the pre-competitive arena. After all, one goal of the patent >process is to stimulate competition. The most valuable gene-related >applications are often far removed from the first easy steps. So this is a >matter of science, not just a matter of principle. > > >In March 2000 Maryland-based Human Genome Sciences Inc (HGSI), a company set >up alongside TIGR in 1992, announced that it had been granted a patent on the >CCR5 gene, which encodes a receptor on the surface of cells. When HGSI >initially applied for its patent it did not know how this receptor >functioned. While the patent was pending, a group of publicly funded >researchers at the US National Institutes of Health (NIH) discovered that >some people with CCR5 gene defects were resistant to infection with the AIDS >virus (HIV). CCR5 appeared to be one of the gateways the virus uses to invade >cells. As soon as they found out about the NIH discovery, HGSI confirmed the >role of CCR5 through experiments and obtained the patent. HGSI asserted its >proprietary rights to use the CCR5 gene for any purpose and then sold >licences to several pharmaceutical companies to develop drugs and vaccines. > > >But who took the inventive step? Was it the company that made a lucky match >with the right gene? Or was it the researchers who determined that >HIV-resistant individuals had a defective gene? > > >William Haseltine, HGSI's chief executive officer, argues that patents >stimulate progress in medical research, and that the CCR5 patent may well >lead to a new drug or vaccine for HIV. But a survey of researchers at US >university labs found that many of them have been deterred from working on >particular gene targets, fearing that they might have to pay hefty licence >fees (or royalties) to companies or risk lawsuits (4). > > > >The patent question > > >The US recently clarified its guidelines on granting gene patents to provide >a somewhat tighter definition of utility - use must now be "substantial, >specific and credible". But the guidelines still allow sequences to be >patented since they can be used as probes to detect genes responsible for >various diseases. The European patent directive, approved by the European >parliament in 1998, states that a sequence or partial sequence of a gene is >only eligible for a "composition of matter" patent when it can be replicated >outside the human body (in vitro), for example copied in bacteria, as we do >for human genome sequencing. > > >This argument has always seemed absurd to me. The essence of a gene is the >information it provides - the sequence. Copying it into another format makes >no difference. It is like taking a hardback book written by someone else, >publishing it in paperback and then claiming authorship because the binding >is different. > > >The number of applications for gene patents on humans and other organisms has >now passed the half-million mark, and several thousand such patents have been >granted. Nevertheless, the issue of gene patents remains complex and >confused. The US Patent and Trademark Office (USPTO) still maintains that a >gene discovery is patentable. Until the recent changes, the USPTO granted >patents even for partial gene fragments whose only claimed utility was as >gene probes. The European Patent Office remained unconvinced about gene >patents until the European Union issued its 1998 biotechnology patent >directive, which explicitly permitted the patenting of gene sequences. >Several EU member states, including France, are opposed to the EU directive, >while other EU members, such as the UK, maintain a more neo-liberal line on >patenting so that their biotechnology industries remain competitive with >those in the US. > > >I realised long ago that trying to reach an equitable solution using moral or >even legal arguments was doomed to failure. The best way to prevent the >sequence being carved up by private interests was to place it within the >public domain so that, in patent office jargon, as much as possible became >"prior art" and thus unpatentable by others. The international sequencing >consortium, while working on the human genome project, succeeded in doing >just that with respect to the raw sequence data. Now we are raising the bar >by placing as much information as possible about the annotated gene sequence >and gene function in the public domain. > > >Some have proposed drawing a patent line between life and non-life. While >agreeing with the concerns, and with the urgent need for a value other than a >commercial one to be placed on living things, I think there is no case for >this particular line. Because the chasm that previously existed between the >biological and the chemical is closing, such a distinction will not be >sustainable. We should not be patenting whole life forms, such as transgenic >mice or cotton plants - and not just because they are living organisms. A >sounder reason is this: we did not invent these organisms, only the specific >modification that made the mice susceptible to cancer or the cotton resistant >to pests. > > >The future of biology is strongly tied to that of bioinformatics, a field of >research that collects all sorts of biological data, tries to make sense of >living organisms in their entirety and then makes predictions. If this data >is freely accessible, bioinformatics will allow experimental biologists to >complement the work of other researchers and to connect with them. If we wish >to move forward with this fascinating endeavour, which will undoubtedly >translate into medical advances, the basic data must be freely available for >everyone to interpret, change and share, as in the open-source software >movement. The situation is too complex for a piecemeal approach, with limited >amounts of data released at a time and with a single entity holding the >access keys. > > >The saga of the human genome project proves that publicly financed science is >extremely effective because it is so intensely competitive. The project's >success also refutes the widespread notion that only private industry is >capable of carrying out large-scale research. > > > >* Biological researcher and founding director of the Sanger Institute, based >in Cambridge (UK). This article was adapted from John Sulston and Georgina >Ferry's The Common Thread: A Story of Science, Politics, Ethics, and the >Human Genome (Bantam Press, London, 2002) > > >(1) Editor's note: By means of a microscope and cell-by-cell analysis, the >author patiently observed the nematode Caenorhabditis elegans, measuring only >one mm in length, throughout the various stages of its development. This was >the first animal to be sequenced in its entirety. > > >(2) http://www.sanger.ac.uk/HGP/ > > >(3) Editor's note: Craig Venter founded The Institute for Genomic Research >(TIGR). He went on to launch Celera Genomics, whose stated goals were to >decipher the entire human genome sequence and to patent the results. As a >result of intense political pressure, the human genome project and Celera >Genomics jointly announced on 26 June 2000 that they had completed a draft >version of the sequence. > > >(4) Anna Schissel, Jon Merz and Mildred Cho, "Survey confirms fears about >licensing of genetic tests", Nature, vol 402, 1999, p~118. > > > > >Original text in English >-- >------------ >Do I contradict myself? >Very well then, I contradict myself. >(I am large, I contain multitudes.) >- Walt Whitman >___________________________________ >An Internal Sarai List >internal at mail.sarai.net >http://mail.sarai.net/mailman/listinfo/internal > >------------------------------------------------------- > >-- >------------ >Do I contradict myself? >Very well then, I contradict myself. >(I am large, I contain multitudes.) >- Walt Whitman >_______________________________________________ >commons-law mailing list >commons-law at mail.sarai.net >http://mail.sarai.net/cgi-bin/mailman/listinfo/commons-law >Catch all the cricket action. Download Yahoo! Score tracker > From rahul.matthan at trilegal.com Thu Jan 30 11:10:55 2003 From: rahul.matthan at trilegal.com (Rahul Matthan) Date: Thu, 30 Jan 2003 11:10:55 +0530 Subject: [Commons-Law] silenttheft.com References: <200301292141.42043.jeebesh@sarai.net> Message-ID: <004801c2c822$2e0ad3e0$4101a8c0@rahul> There has been a lot of discussion about the commons in the US and western context. I am working on putting together the equivalent in the Indian context in connection with some research I am doing on IP models for India and would welcome any materials on parallels in the Indian context. Regards, Rahul Matthan ----- Original Message ----- From: "Jeebesh Bagchi" To: Sent: Wednesday, January 29, 2003 9:41 PM Subject: [Commons-Law] silenttheft.com good stuff the next posting will be the reading list provided by this site. cheers jeebesh ------- silent theft private plunder of our common wealth http://www.silenttheft.com/intro.htm It was a close call, but the West Publishing Company almost won its claim to own the law. Yes, until 1998, the law of the land as set forth in Brown v. Board of Education, Roe v. Wade, and tens of thousands of other federal cases actually belonged to a privately held company based in Eagan, Minnesota. Technically, of course, all of the opinions rendered by the U.S. Supreme Court and lower federal courts belong to the public domain and can be republished by anyone. But as a practical matter, West enjoyed a lucrative monopoly control over the nation's legal rulings because it claimed a copyright on the pagination of the cases. The only acceptable way for attorneys to cite cases in legal proceedings has been to use West's proprietary page numbers, which effectively prevented any potential competitor from arising to offer its own, cheaper version of federal court rulings. This meant that West Publishing had a pretty sweet deal: access to a huge, well-heeled market, an endless supply of new product financed by taxpayers, the ability to charge premium prices, and an impregnable wall against competition - in perpetuity!1 For the American people who finance the federal judiciary and must be governed by its rulings, the situation might be charitably described as a travesty.2 A century ago, when there was no centralized or comprehensive method for the courts to compile their rulings, West performed a valuable function in organizing access to the law and offering minor editorial enhancements. But even before the arrival of the World Wide Web in the 1990s, a number of critics argued that West's de facto monopoly ought to be replaced with a uniform citation system that would allow legal opinions to be more broadly disseminated. After all, if access to our society's body of law is not available to all, and the official rulings of our judicial system can be exploited as a cash cow, what then of the moral authority of the law? It was Franz Kafka, prophet of the legal labyrinth, who admonished that "the Law...should be accessible to every man and at all times."3 Yet the struggle to wrest public control of the law from the grip of West Publishing (1998 revenues, $1.3 billion) proved how difficult it is to protect a commons in our market-dominated society, even when the issue is as utterly central as the rule of law. Over the decades the U.S. court system had settled into a cozy partnership with West Publishing. Federal judges and their clerks enjoyed unlimited access to West's online compilations. They enjoyed the company's help in assuring the accuracy of final opinions, and the lavish gifts and trips to exotic locales that West sponsored for federal judges, including at least seven Supreme Court justices. Politicians from Al Gore to Newt Gingrich to key congressional committee chairmen also enjoyed warm relationships with West Publishing, thanks to generous campaign contributions. Such favors were only too helpful in West's attempts to sneak through stealth amendments to defend its hammerlock on access to the law. In effect, West was claiming private ownership of the commons, the collectively owned resources that are fundamental to a democratic commonwealth. Few of these facts might have received much visibility to the wider world but for the activism of James Love, director of the Ralph Nader-founded Taxpayer Assets Project. In 1993, he began to debunk West's arguments, expose its ethically dubious lobbying, and mobilize law librarians, bar associations, legal publishers and the press to take their own initiatives.4 After years of legal and public relations skirmishes in 1998, a small New York CD publisher, HyperLaw, successfully challenged in a federal lawsuit West Publishing's copyright control over court opinions.5 In coming years, many companies will publish federal cases in various formats, including on the Web for free. But under pressure from West and Lexis, an online vendor of legal cases licensed by West, the U.S. federal courts have refused to adopt a public domain, technology-neutral citation system.6 What is the Commons? West Publishing v. The People may be a parable for our times. It is but one of dozens of cases that pose the question, Who shall control the commons? In ways that are variously egregious, subtle, clever and obscure, business interests are gaining ownership and control over dozens of valuable resources that the American people collectively own. The American commons include tangible assets such as public forests and minerals, intangible wealth such as copyrights and patents, critical infrastructure such as the Internet and government research, and cultural resources such as the broadcast airwaves and public spaces. We, as citizens, own these commons. They include resources that we have paid for as taxpayers, and resources that we have inherited from previous generations. They are not just an inventory of marketable assets, but social institutions and cultural traditions that define us as Americans and enliven us as human beings. Public education. Community institutions. Democratic values. Wildlife and national forests. Public spaces in cities and communications media. Astonishingly, Americans are losing the right to control dozens of such commons that they own. While business and technology tend to be the forces animating this silent theft, as we shall see, our government is complicit in not adequately protecting the commons on our behalf. When it is not being seduced by what has been called the legalized bribery of campaign contributions, politicians may gamely try to defend our common assets, and occasionally succeed. But even well-meaning government leaders are often overwhelmed by the pace of technological change and the complications of consensus-building and due process. The public, for its part, is often clueless and thus politically moot in many battles over the commons. (Throughout, I will use the collective noun "commons" instead of the more archaic term "common.") This trend raises serious questions about the future of our American commonwealth. In an age of market triumphalism and economistic thinking, does the notion of "commonwealth" - that we are a people with shared values and control over collectively owned assets - have any practical meaning? Or have we lost sight of our heritage as a commonwealth and lost control of our assets, and perhaps our democratic traditions, as private interests have quietly seized the American commons? Business, let it be said, is no more a villain than a lion whose metabolism needs gazelles. Companies are in the business of maximizing competitive performance in the market, and use of the commons simply represents an available resource, and frequently a path of least resistance. That is why fortifying the commons is not equivalent to bashing the market, which clearly generates many important benefits for our society. It should be stressed that protecting the commons is about maintaining a balance, not bashing business. It is self-evident that we need markets. It is far less clear -- particularly to businesses operating within markets -- that we also need commons. A society in which every transaction must be mediated by the market, in which everything is privately owned and strictly controlled, will come to resemble a medieval society -- a world of balkanized fiefdoms in which every minor satrap demands tribute for the right to cross his land or ford his streams. The flow of commerce and ideas -- and the sustainability of innovation and democratic culture - will be seriously impeded. Furthermore, such a market-dominated society is not likely to cultivate the sense of trust and shared commitments that any functioning society must have. So the issue is not market versus commons. The issue is how to set equitable and appropriate boundaries between the two realms - semi-permeable membranes --so that the market and the commons can each retain its integrity while invigorating the other. That equilibrium is now out of balance as businesses try to exploit all available resources, including those that everyone owns and uses in common. Of course, the creative tension between business interests and our democratic polity is nothing new.7 It may be one of the central organizing principles of our political culture. Clashes between the two have shaped the very framing of the Constitution, numerous Progressive era campaigns, the labor movement, and many New Deal and Great Society initiatives. But today we live in a troubling new stage of this struggle that differs in scope and ferocity from previous ones. The market's role in American society has exploded. It now penetrates into nooks and crannies of daily life that could not have been imagined in an earlier generation. Video ads at gas pumps, marketing disguised as education in the public schools, and Broadway theaters named after airlines. Companies now obtain patents on genetic structures of life and on mathematical algorithms, and universities urge their students to consider themselves "the President of Me, Inc." The floodgates of commercialization of the culture really opened up in the 1980s as powerful new electronic technologies - computers, cable television, the VCR, new telecommunications systems, and others - began to take root. Businesses began to penetrate more deeply into nature, knit together new global markets, and colonize our consciousness and public culture. As the government agencies that set socially acceptable boundaries for market activity were slowly sabotaged by budget cuts and curbs on their authority, a wide array of commons in American life became open game for market exploitation: public lands, government R&D, information resources, and ethical norms for safety, health and environmental protection. Still, the privatization of the commons has crept up slowly and quietly, in fits and starts. It has not been an identifiable juggernaut with a single battlefront or defining moment. It has had scores of manifestations, some prominent, most of them obscure. Which helps explain the wicked insight of the nursery rhyme. Why do we "hang the man and flog the woman/That steal the goose from off the common,/But let the greater villain lose/That steals the common from the goose"? Because, I fear, we no longer see the commons, and thus no longer understand its meaning. Stealing the Commons from the Goose The nursery rhyme comes from the period of the English enclosure movement, which flourished at various points from the fifteenth to nineteenth centuries. In order to exploit emerging markets and aggrandize their power, the feudal aristocracy prevailed upon Parliament to allow the ruthless seizure of millions of acres of commonly used forests, meadows and game. As economic historians such as Karl Polanyi have shown, enclosure helped lead to the creation of modern industrial markets while inflicting devastating social, environmental and human costs on once-stable rural communities. With similar dynamics today, many business sectors are finding it irresistible to enclose common resources that were once commonly shared. If the mineral resources on federal lands can be mined for $5 an acre under an archaic 1872 law, a lucrative windfall that the mining industry can preserve through well-deployed campaign contributions, why not? If commonly used agricultural seedlines can be genetically re-engineered to be sterile, rendering them artificially scarce and thus suitable for market control, why not? If new software technologies can lock up information that was once readily available to all, and if information vendors can convince Congress to allow compilations of facts to be owned through copyright law, why not? It is no wonder that businesses find exploitation of the commons so easy and attractive. Most common resources are largely unrecognized by the American people as common resources. Not surprisingly, they have few legal protections or institutional defenders. Such enclosures of the commons are aided by a Washington officialdom increasingly captive to business and indifferent to ordinary citizens; a journalism profession that has grown soft now that it competes with entertainment and marketing; and the dominion of market culture over our civic identities. We have become a nation of eager consumers -- and disengaged citizens -- and so are ill-equipped even to perceive how our common resources are being abused. The abuse goes unnoticed as well because the theft of the commons is generally seen in glimpses, not in panorama, when it is visible at all. We may occasionally see a former wetlands paved over with a new subdivision, or acres of tree stumps on federal lands that timber companies leased for a pittance. If we listen closely through the cacophony of the media, we may hear about the breakthrough cancer drugs that our tax dollars helped developed, the rights to which pharmaceutical companies acquired for a song and for which they now charge exorbitant prices. It is not easy to connect the dots among these complicated, seemingly unrelated events and recognize the larger pattern of enclosure. The truth is, we are living in the midst of a massive business-led enclosure movement that hides itself in plain sight. Government R&D laid the groundwork for some of the most significant innovations in computing - the original Internet architecture and protocols, e-mail, the Mosaic software that gave rise to the Netscape browser, among others -- but these investments have essentially been privatized and recast as the singular product of entrepreneurial vision. Our government has given commercial broadcasters large portions of the public's electromagnetic spectrum worth tens of billions of dollars, in return for token gestures of public service. The public domain in intellectual property - the information and creative expression that everyone must draw upon to make anything new -- is rapidly being carved up by proprietary interests through radical extensions of copyright and patent law. Some invasions of the commons, while quite egregious, are sanctioned because we no longer can muster a spirited commitment to the public sector. Hence the widespread acquiescence to Channel One, a pseudo-educational TV news program whose advertisements are forced upon millions of children in public schools every morning. Hence the naming of beloved sports stadia after corporate sponsors who have few valid claims to our civic respect beyond the payment of sponsorship fees. Sports itself, while always a business endeavor, has been radically transformed as companies such as Nike successfully market themselves as sources of transcendent meaning. What makes this moment so different from many earlier ones in our history is the gross imbalance between the market and our democratic polity. The market and its values assert dominion over all, and in so doing, erode the sinews of community, undermine open scientific inquiry, weaken democratic culture, and sap the long-term vitality of the economy. If we are to arrest this trend, I believe we must begin to develop a new language of the commons. We must recover an ethos of commonwealth in the face of a market ethic that knows few bounds. This not only means reasserting democratic control over the "common wealth" - the vast array of publicly owned resources and traditions of social cooperation that constitute a vast reservoir of wealth. It means recognizing the intrinsic importance of the commons as a sovereign realm whose integrity and subtle fecundity must be respected. Honoring the common is not a matter of moral exhortation. It is a practical necessity. This book aspires to explain why. The Effects of Market Enclosure The increasing pace of market exploitation of the commons is troubling for five reasons. First, enclosure needlessly siphons hundreds of billions of dollars away from the public purse every year that could be used for countless varieties of social investment, environmental protection, and other public initiatives. The public's assets and revenue streams are privatized, with only fractional benefits accruing to the public in return. Second, enclosure tends to foster market concentration, reduce competition and raise consumer prices. The power to enclose generally belongs to the largest companies, which have the market clout and political influence to acquire public resources on favorable terms. These gains are often leveraged by industry leaders, in turn, to extend their market dominance even further. Large ranchers are the heaviest users of federal grazing lands, for example. Biotechnology firms use proprietary seeds to dominate the market for a given crop. Pharmaceutical companies use federally sponsored drug research to gain control over specific drug treatment markets. Third, enclosure threatens the environment by favoring short-term exploitation over long-term stewardship. The family result is greater pollution of the earth, the air, and the water. Leading companies find it strategically useful to displace health and safety risks onto the public, or shift them to future generations. The flagrant abuses of public lands by timber, mining and agribusiness companies are prime examples. Fourth, enclosure can also impose new limits on citizen rights and public accountability, as private decisionmaking supplants the open procedures of our democratic polity. Consider the privatization of Internet governance, through the creation of ICANN, the Internet Corporation for Assigned Names and Numbers. Instead of a democratic process of open standards, openly arrived at through public participation, a quasi-private replica of democratic governance was invented to manage domain names in the interest of commercial users. Large companies have also learned that they can freeze out democratic and market accountability by using sophisticated proprietary technologies. Microsoft's Windows operating system and Monsanto's bioengineered foods are two cases where companies have used exceedingly complicated technologies to confound democratic oversight and effectively prevent consumer choice. And, fifth, enclosure frequently imposes market values in realms that should be free from commodification. The character of community values, family life, public institutions and democratic processes should not be blindly dictated by the market. Yet that is the effect when public schools sell their captive audience of youngsters to junk food vendors; the Smithsonian Institution lets corporate donors determine the content of its museum exhibits; and cost-benefit equations are used to dictate acceptable levels of contaminants in food. The problem, too often, is that economic gains tend to be measurable and culturally esteemed (Gross National Product, rising quarterly profits), while the larger societal impacts are fuzzy and diffuse (community dislocations, ecological stress, public health risks). There are no simple yardsticks, no "bottom lines," for evaluating the pernicious effects of market enclosures. This naturally makes it easy to ignore them or dissociate them from market activity.8 Reclaiming the Commons Developing a discourse of the commons - the burden of this book - is especially important at a time when Americans are beginning to believe that we have little in common and can accomplish little when we work together. Talking about the commonwealth reminds Americans of the things we share: the forests and minerals that we all own, the miraculous technologies that we all have helped finance; and the values - belief in equal opportunity, say, and due process of law - that we share. A reckoning of what belongs to the American people is a first step to recovering control of common assets and using them either to generate new revenues for public purposes or to protect them from market exploitation. At a time when the public purse is raided for all manner of "corporate welfare," an analysis based on the "common wealth" offers some powerful ways to leverage assets that we the American people already own.9 Talking about the American commons has important strategic value too. It helps reassert public control over public resources without necessarily triggering the familiar dichotomy of the free market ("good") versus regulation ("bad"). Too often, attacks on regulatory shortcomings have been used to justify a return to the era when business wasn't regulated at all. Talking about the commons can help the American public identify both its distinct interests as well as policy options that include, but go beyond, traditional regulation. As we will see in Chapter 13, the commons can be preserved through stakeholder regimes that give citizens equity ownership, government auctions of the right to use common assets, new extensions of legal principles such as public trust doctrine (environmental law) and the public domain (copyright law), and Internet vehicles that enable collaboration. Finally, the idea of the commons helps us identify and describe the common values that lie beyond the marketplace. We can begin to develop a more textured appreciation for the importance of civic commitment, democratic norms, social equity, cultural and aesthetic concerns, and ecological needs. They need no longer be patronized as anecdotal and subjective, misconstrued through bizarre economic theories that purport to monetize human pleasure ("hedonics") or human choice ("contingent value"). The idea of the commons helps us restore to the center stage a whole range of social and ecological phenomena that market economics regards as sideshows - "externalities" - to the marquee events of the marketplace, economic exchange. A language of the commons also serves to restore humanistic, democratic concerns to their proper place in public policymaking. It insists that citizenship trumps ownership, that the democratic tradition be given an equal or superior footing vis-a-vis the economic categories of the market. This is not just a moral argument, but also an intensely pragmatic one. Any sort of creative endeavor - which is to say, progress - requires an open "white space" in which experimentation and new construction can take place. There must be the freedom to try new things. There must be an unregimented work space in which to imagine, tinker and execute new ideas. When all the white space is claimed and tightly controlled through commercial regimes that impose quantitative indices and quarterly profit goals, and that insist upon propertization and control of all activity, creativity is bureaucratized into narrow paths. There simply is no room for the visionary ideas, the accidental discoveries, the serendipitous encounters, the embryonic notions that might germinate into real breakthroughs, if only they had the space to grow. An argument for the commons, then, is an argument for more "white space." * * * The story of the myriad commons in our midst - and their relentless enclosure - traverses a wide terrain of subject matter. We will start by examining some basic ideas that will recur throughout - the notion of the commons as a counterpoint to the market, the workings of the gift economy and the dynamics of market enclosure (Part I). These concepts offer a fresh, insightful way of understanding the market's role in a range of disparate arenas: the exploitation of nature, the abuse of federal lands, the privatization of the Internet, the over-marketization of knowledge and creative expression, the corporatization of academic research, the giveaway of the public airwaves, and the commercialization of public spaces and institutions (Part II). An inevitable question, after traversing this gauntlet of disturbing enclosures, is whether anything useful can be done. What larger conclusions about the commons might we make, and how might the commons be reclaimed? How might we invent the commons we need for the 21st Century? Perhaps the preeminent lessons is that a commons need not result in a "tragedy." Through the right structures, a commons can use social and democratic means to manage a resource effectively. Indeed, certain commons, particularly in the Internet milieu, can even produce a cornucopia of shared wealth. The robust, innovative character of many commons stems from a key strength - the diversity and social equity of participants in a commons. Also, when "ownership" of resources in a commons is not alienated, but controlled by a stable, defined community, environmental sustainability and democratic accountability are more easily achieved. What, then, can be done to preserve and fortify the commons? The answer varies, of course, from one resource domain to another, and one community of interest to another. But here are some of the more useful initiatives (explored in Part III) that could be taken: * New policy structures must be invented to assure a fair economic return on public assets and the protection of gift economies. * More effective regimes must be devised to oversee and manage the private use of government lands and natural resources. * New sorts of stakeholder trusts should be created to give ordinary citizens an equity interest in public assets, as the Alaska Permanent Trust does for that state's oil revenues. * Congress should work to stop the enclosure of the Internet commons and public knowledge by fortifying the public domain and fair use rights. It should also refuse to grant sweeping new intellectual property rights to book publishers, film studios, the recording industry and software makers. * Our government should insist upon some meaningful forms of public access to the airwaves, which have been surrendered wholesale to commercial broadcasters for virtually nothing. * The fruits of federally sponsored research must be recovered for the American people, and not forfeited for fire-sale prices, and the independence and integrity of academic inquiry must be assured. * The over-commercialization of public spaces, community institutions, childhood experience and culture should be stoutly resisted through public policy and social protest. Our government is supposed to act as a steward for the public's economic, civic and environmental interests. It is revealing that our government has not even compiled a comprehensive inventory of common assets - the prerequisite for any accounting of lost revenues, lasting harm to the assets, and damage to gift economies. Business critics often cry that environmental regulations amount to unconstitutional "takings" of their private property. But as a commons analysis makes clear, the actual "takings" are often committed by the victors of our Darwinian market, and the victims are the unorganized public: the commoners. This book, then, is a first, rough draft of that much larger project, the reclamation of the common wealth - and the reinvigoration of the commonwealth. Notes 1 By a rough estimate made by the Consumer Project on Technology based on a compulsory license that West granted to the U.S. Justice Department, the cost of renting access to a single year of federal court cases - some 15,000 cases - comes to $40,500 for a single user. "This is a high price to pay to simply avoid [public domain] numbering opinions and paragraphs," writes James Love. See http://cptech.org/legalinfo/cost.html. 2 The most comprehensive history of the struggle to break West Publishing's monopoly and institute a regime of universal citation for federal cases is an essay by Jol Silversmith, "Universal Citation: The Fullest Possible Dissemination of Judgments," originally published in the now-defunct Internet Legal Practice Newsletter in May 1997, now available online at http://www.thirdamendment.com/citation.html. Another overview, from the perspective of 1994, is Gary Wolf, "Who Owns the Law," Wired, May 1994, p. 198. 3 Franz Kafka, The Trial (translated by Willa and Edwin Muir, 1988), cited in Silversmith, ibid. 4 See, e.g., Reuter, "Justices, Judges Took Favors from Publisher with Pending Cases," Washington Post, March 6, 1995.; John J. Odlund, "Debate Rages Over Who Owns the Law," The Minneapolis Star Tribune, March 5-6, 1995, reprinted in the Congressional Record, July 28, 1995 (Senate), pp. S10847-10855; and Thomas Scheffey, "Feds and West Publishing: Too Close for Comfort?" Connecticut Law Tribune, March 1997; and Doug Obey and Albert Eisele, "West: A Study in Special Interest Lobbying," The Hill, February 22, 1995, p. 1. 5 HyperLaw Inc. v. West Publishing. See David Cay Johnston, "West Publishing Loses a Decision on Copyright," New York Times, May 21, 1997, p. D1. 6 The courts in Great Britain, however, have adopted a public-domain, technology-neutral citation system based upon paragraph numbering. See "Neutral Citation of Judgments System is Introduced, The Times (London), January 16, 2001. 7 The constitutional dimensions of this theme are discussed by Jennifer Nedelsky in Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy (Chicago: University of Chicago Press, 1990). 8 See, e.g., Clifford Cobb, Ted Halstead and Jonathan Rowe, "If the GDP is Up, Why is America Down?" The Atlantic, October 1995, pp. 2-15. See also Herman E. Daly and John B. Cobb, Jr., For the Common Good: Redirecting the Economy Toward Community, the Environment and a Sustainable Future (Boston: Beacon Press, 1989), pp. 62-84. 9 The focus here is on tangible assets and property rights that belong to the American people, as opposed to government subsidies to business, which represent another form of corporate welfare. An excellent comprehensive overview of varieties of corporate welfare can be found in Ralph Nader's testimony before the Committee on the Budget, U.S. House of Representatives, June 30, 1999. Back to Top Routledge, Powell's, Booksense, Barnes & Noble, Amazon comments | © 2002 _______________________________________________ commons-law mailing list commons-law at mail.sarai.net http://mail.sarai.net/cgi-bin/mailman/listinfo/commons-law From jeebesh at sarai.net Thu Jan 30 13:27:10 2003 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Thu, 30 Jan 2003 13:27:10 +0530 Subject: [Commons-Law] http://open-content.net/ Message-ID: <200301301327.10934.jeebesh@sarai.net> Thanks Mary for locating this exciting network. Lets think of actively participating in these areas of distributed networks. best Jeebesh ---------------------------------- http://open-content.net/ The Open Content Network is a collaborative effort to help deliver large, freely-downloadable content using peer-to-peer technology. The network is essentially a huge "virtual web server" that links together thousands of computers for the purpose of helping out over-burdened web sites. Using various web browser plug-ins, users can download open source and public domain software, movies, and music at incredibly fast speeds from this global, distributed network. Using a new Peer-to-Peer technology, called the "Content-Addressable Web", indviduals will be able to help distribute free content by donating their spare bandwidth and disk space to the network. Note: Contrary to what some articles may say, the OCN is not a file sharing network like Kazaa. Rather, it is a controlled content delivery network for legitimate freely-distributable content. -- ------------ Do I contradict myself? Very well then, I contradict myself. (I am large, I contain multitudes.) - Walt Whitman From shamnadbasheer at yahoo.co.in Thu Jan 30 14:34:42 2003 From: shamnadbasheer at yahoo.co.in (=?iso-8859-1?q?Shamnad=20Basheer?=) Date: Thu, 30 Jan 2003 09:04:42 +0000 (GMT) Subject: [Commons-Law] Thinking biotechnology and IP In-Reply-To: <200301300410.AA97124460@ibioinformatics.org> Message-ID: <20030130090442.25934.qmail@web8005.mail.in.yahoo.com> sorry all. just realised that the replies contained the original message, owing to which i guess we are jamming bandwidth unnecessarily (as also the individual mailboxes). if anyone is replying to the biotech-IP theme, could you please delete the original threads in the message, save the one that you are specifically replying to. regards-shamnad Catch all the cricket action. Download Yahoo! Score tracker -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20030130/4360a8ff/attachment.html From tripta at sarai.net Fri Jan 31 18:59:49 2003 From: tripta at sarai.net (tripta) Date: Fri, 31 Jan 2003 18:59:49 +0530 Subject: [Commons-Law] raids Message-ID: <200301311859.50041.tripta@sarai.net> Following is the news article reporting the grip that microsoft is tightening around `piracy'. I have recently started visiting Nehru Place which is the hub of software piracy. On my first visit itself, i witnessed a raid (it was the second day and was mostly supervision). Along with the uniformed policemen there were people in plainscloth. Later I figured out that they were staff from Microsoft who were just looking for the pirated software that was in circulation. The agencies and the tactics that are being employed to track these are heading to-wards a panoptican situation, if there isn't one already! cheers tripta ________________________________________________________________ Microsoft on the prowl for unlicensed users in Kerala By Sanu George, Indo-Asian News Service Thiruvananthapuram, Jan 30 (IANS) In its drive against copyright infringement, Microsoft has sent undercover legal officials to catch computer resellers in Kerala using unlicensed versions of the software giant's programs. According to industry sources, four computer resellers have already been fined Rs.30,000 each for selling Microsoft products without licences and given a stern warning. "Two people posing as architects arrived at the office of a leading computer reseller and asked for the latest personal computer. After the machine was supplied with unlicensed software, the two architects revealed they were Microsoft officials and took action against the reseller," a reseller here told IANS, requesting anonymity. Sources said four resellers were sent notices and asked to meet the Microsoft attorney at a resort in suburban Thiruvananthapuram. "What we have been told is that they were all fined Rs.30,000 and let off with a warning," said a computer reseller. The Microsoft officials also visited a few computer institutes here and gathered information about the sellers who had supplied machines to them. All Kerala Computer Products and Dealers Association president John Kottara said while Microsoft was within its rights to act against unlicensed users, the industry was not sure how to respond to these undercover checks. "We have not yet decided how to handle this situation," Kottara said. J. Salim, who runs an IT institute here, told IANS: "In the long run, such raids might hamper the prospects of Microsoft." He added, "One way is to go in for Linux. This free operating system is becoming very popular." --Indo-Asian News Service -- `The moroccans with the carpets seem like saints but they're salesman' From shamnadbasheer at yahoo.co.in Thu Jan 30 14:29:10 2003 From: shamnadbasheer at yahoo.co.in (=?iso-8859-1?q?Shamnad=20Basheer?=) Date: Thu, 30 Jan 2003 08:59:10 +0000 (GMT) Subject: [Commons-Law] Thinking biotechnology and IP In-Reply-To: <200301300410.AA97124460@ibioinformatics.org> Message-ID: <20030130085910.79851.qmail@web8004.mail.in.yahoo.com> thanks vineeth for that excellent info, was wondering as to the level of "standard setting" that is happening in the bioinformatics field. have any major standards been worked out. remember reading sometime back (i think in a NY times article) that much akin to the "internet explorer", there would soon have to be a "genome explorer". regards-shamnad Vineeth S wrote:an effort in this direction(to keep the information in the public domain) has been initiated in as a joint venture between pandeylabs, jhmi, baltimore (http://pandeylab.bs.jhmi.edu) and the institute of bioinformatics(not IBAB) (http://www.ibioinformatics.org). the idea is to create a comprehensive protein information database to be kept in the public domain ... simply put, the data is available free, on request, to nonprofit organisations/ventures/individuals for research/education purposes. but a license fee has to be paid for the commercial use of the data the code that went into making the database (which uses zope and python extensively in a first of its kind application to genomic data) is made available under LGPL (the Lesser General Public License). this code can now be viewed at http://pandeylab.bs.jhmi.edu/cvs regards vineeth ---------- Original Message ---------------------------------- From: Shamnad Basheer Date: Wed, 29 Jan 2003 19:24:08 +0000 (GMT) > >you're right jeebesh-ip within biotech is definitely one of the most complicated areas.. >even while some were busy patenting gene fragments, others (and a large number of them) were fighting to keep these in the public domain-by publising sequence information as and when it became available. perhaps one of the first industries to try and keep basic research in the puiblic domain-primarly owing to a fear that upstream patents on mere gene sequences would block further downstream inventions of medically important drugs. the debate has in part now moved over to a sector popularly labelled "bio-informatics"-where genome information is now analysed using complicated software (something that has generated considerable interest in India-because of the "IT" bit)-theres a huge ongoing movement that is trying to get this software under the "open source" framework-i guess we'll have to wait and see how they fare.. >i guess from the indian viewpoint though, one of our pressing concerns is the fact that we have perhaps the most varied gene pool-something that could potentially turn up a number of interesting gene-based drugs. unless we have effective systems in place for ensuring that access to our gene pool is at some level regulated, we may in the near future face a huge onslaught of research that not only procures our pool in an unethical manner (such as by not complying with "informed consent" norms), but also commercialises it without sharing the benefits. >shamnad > > > Jeebesh Bagchi wrote:IP within biotechnology will be one of the most complicated as innovation like >copyleft etc may not create such voluntary and radical interest when we are >talking of open public access to `live code`. Will our present thinking about >nature, its modification in laboratories and new transgenic forms be able to >withstand the complex nature of this industry, its material basis in high >corporatist laboratories and complicity in new forms of power and exclusion. > >Here, i am posting a text that outlines the danger of appropiation by `patent` >lobby of molecular knowledge. > >best >Jeebesh >--------------------------------- >http://mondediplo.com/2002/12/15genome > >Heritage of humanity > >The 2002 Nobel Prize in physiology or medicine was presented this month to >John Sulston, Sydney Brenner and H Robert Horvitz for discoveries about the >genetic regulation of organ development and programmed cell death. John >Sulston is also a principal player in another remarkable scientific >endeavour, the human genome project. The entire sequence of the genome will >be made public next year, despite many obstructions because of greed over >lucrative genetic patents. > >by JOHN SULSTON * > > >ALTHOUGH the genome is the starting point for human life, we should view it >as a source of possibility rather than as a constraint. Many fear that >individuals' genetic information will be used against them, and these >concerns should be taken seriously. Insurers are pushing for the right to use >genetic test results in deciding whether or not to issue policies. If >permitted by law, insurers and employers could make genetic testing a >prerequisite for issuing policies or offering jobs. We should oppose such >discrimination. > > >And since people continue to suffer from cancer, heart disease, senile >dementia and other diseases, newspaper headlines such as "Miraculous gene >code could eradicate all disease" will only lead to disappointment. > > >Still, our recently acquired genetic knowledge is enormously valuable to the >twin fields of biology and medical research. That is why it is so important >to complete a definitive version of the preliminary human genome sequence - >the draft version's release was celebrated worldwide on 26 June 2000 - and to >give researchers access to the data without delay. The sequence will be >completed sometime next year and should become a permanent scientific archive >and reference tool. > > >The genome will undoubtedly have a huge impact on people's choice of diet and >lifestyle. In Western societies this will be a major marketing opportunity: I >fear that people will begin choosing restaurants according to their genotype. > > >In all likelihood we will develop new drug treatments for hard-to-treat >diseases over the next decade. For example, Mike Stratton's cancer team at >the Sanger Centre is currently screening tumours to see how they differ >genetically from normal tissues. In many cases it is still easier to kill a >cell than to cure it. Genome information may help drugs find targets on >cancer cells and destroy cells selectively, leading to fewer side-effects and >better remission rates. > > >Genome sequencing is a major step forward for our knowledge of the human body >at the molecular level. Yet we are only in the early stages. We still do not >know what most of the genes look like, nor do we know when or where they are >expressed as proteins. The genome by itself does not provide answers to any >of these questions. Nevertheless, the information is available to everyone as >a resource tool. The next step is to track down all the genes, determining >their significance, their location and how their control signals work. > > >In November 1995 Stratton's team at the United Kingdom-based Institute of >Cancer Research (ICR) found a mutation in one of their breast-cancer gene >"families", apparently connected with the BRCA2 gene. The region containing >that gene had just been sequenced at the Sanger Institute, and within two >weeks the ICR team had not only confirmed the discovery but found five more >mutations. Stratton moved fast to publish the findings in the international >weekly scientific journal Nature, keeping them secret from his colleagues >until the last minute. But despite his efforts, some information reached >Utah-based Myriad Genetics Inc in the United States, which then located the >gene. Myriad's chief scientific officer, Mark Skolnick, then filed a patent >application - on the day before the ICR paper was published. > > >With the threat of commercialisation looming, the ICR moved to patent the >mutations it had discovered. At the same time, Myriad used its own patent >applications to claim rights to the BRCA2 gene as well as to the entire BRCA1 >gene, which Myriad's scientists were the first to clone. Myriad set up a >commercial diagnostic laboratory, and once its patents were granted, the >company threatened legal action against any other United States laboratory >using either gene for breast cancer screening. This meant that Myriad had the >only lab that could perform such screening, at a cost of nearly $2,500 per >patient. The company also had the right to grant licences to other labs to >carry out simpler procedures at a cost of $200 per test. > > >One of Myriad's tests focused on a mutation discovered by the ICR affecting >the BRCA2 gene, commonly found among Ashkenazi Jews from central and eastern >Europe. "The Ashkenazi A mutation was the framework for our original paper," >says Professor Stratton. "Myriad is claiming a fee for a mutation that we >discovered." As an Ashkenazi Jew, Stratton found this especially galling. > > >By claiming proprietary rights to the diagnostic tests for the two BRCA genes >and charging for the tests, Myriad is adding to total health-care costs. Even >worse, once scientists really understand how the BRCA1 and 2 mutations cause >tumours to grow, they might be able to devise new therapies. But because of >its patents, Myriad has exclusive marketing rights. > > >Throughout the formidable task of sequencing the human genome, we were faced >with the question of research-related proprietary rights. Although the full >impact of Myriad's aggressive approach was unclear in 1995, it was clear >where a focus on commercial profit and patents would lead. What was needed >was a commitment from the international sequencing community to make all >genome information publicly available and not to parcel it out via individual >deals between companies and researchers. > > > >How to manage the data? > > >We decided to hold an international meeting to hammer out a strategy deciding >who would do what, and how to manage the data. The UK selected Bermuda, close >to the US, as the site of the meeting. This was our introduction to the world >of international politics. The meeting was extremely constructive, since it >was the first opportunity for researchers to compare notes freely. We were >forced to work together because nobody at that time could complete the >sequencing alone. Everyone arrived with pieces of paper stating their >intentions to sequence a particular region of the genome, and during the >meeting we resolved the overlapping claims. > > >At that time there was no mechanism for loading preliminary data into public >databases, which were set up for finished data only. Even in raw form, the >human genome sequence data obtained from our machines might prove useful to >other researchers seeking to localise genes or to check hypotheses. As we had >done with the nematode (1), we made all of our data available electronically >from our own sites at the Sanger Institute, so that people could download >information and do with it as they saw fit (2). We merely asked them to >recognise that the data was preliminary and to acknowledge us as the source >in any publications. > > >The principle of data availability had to be endorsed at the Bermuda meeting >or else mutual trust would have been impossible. At first I thought it >unlikely that everyone would come to an agreement. Several of those present, >including Craig Venter of the Institute for Genomic Research (TIGR) (3), >already had links to commercial organisations and might oppose the idea of >giving everything away to the public, with nothing in return. But as I stood >at the white board, scribbling away, erasing and rewriting, we eventually >came up with a statement. The Wellcome Trust - a medical research charity and >the Sanger Institute's main financial backer - still has a photo of that >handwritten statement with its three bullet points: > > >Automatic release of sequence assemblies larger than 1 kb (preferably within >24 hours). > > >Immediate publication of finished annotated sequences. > > >Aim to make the entire sequence freely available in the public domain for >both research and development in order to maximise benefits to society. > > >While Bob Waterston of St Louis's Washington University and I were drafting >the statement together with our colleagues, another colleague, Michael >Morgan, was meeting with representatives from the funding agencies to secure >support for our initiative. What I had written on the board, with minor >modifications, became known as the Bermuda principles, and these have since >served as the benchmark for publicly funded large-scale sequencing projects. > > >The principles of accessibility and on-the-spot release mean that anyone in >the international biological community can use the data and ultimately turn >them into new inventions that are eligible for patents. But when the raw >sequence is released publicly, it will be unpatentable. It promised well that >so many people came to share a vision of the genome sequence as the heritage >of humanity, as stated in Article 1 of the universal declaration on the human >genome and human rights, which emerged from Unesco's general conference in >1997. > > >The 20th century saw a split between the sciences and the humanities. Many no >longer perceive science as a manifestation of culture. One reason is that >science has become increasingly equated with technology; in many quarters >technological development represents science's sole purpose. Scientists are >encouraged to capitalise on their discoveries commercially, regardless of the >social consequences. > > > >A discovery, not an invention > > >The genome sequence is a discovery, not an invention. Like a mountain or a >river, the genome is a natural phenomenon that existed, if not before us, >then at least before we became aware of it. I believe that the Earth is part >of the common good; it is better off not owned by anyone, even though we may >fence off small parts of it. But if an area proves important because it is >especially scenic or is home to some rare species, then it should be >protected in the public interest. > > >To be sure, there will always be arguments concerning the balance between >private and public lands and how they should be used. The human genome is an >extreme example. We all carry our personal copies of the genome, and each >portion of it is unique. You cannot say that you own a gene because you would >then own one of my genes as well. And you cannot say that we can share our >individual genes because we need every single one of our genes. A patent may >not grant literal ownership of a gene but it does specifically bestow the >right to prevent others from using that gene for commercial purposes. > > >Placing legal or proprietary restrictions on genes should be confined >strictly to current applications or to inventive steps. Someone else may >choose to work on another application and may thus need to have access to >the same gene. Inventing human genes is impossible. So every discovery >relating to genes - their sequence, functions and everything else - should >be placed in the pre-competitive arena. After all, one goal of the patent >process is to stimulate competition. The most valuable gene-related >applications are often far removed from the first easy steps. So this is a >matter of science, not just a matter of principle. > > >In March 2000 Maryland-based Human Genome Sciences Inc (HGSI), a company set >up alongside TIGR in 1992, announced that it had been granted a patent on the >CCR5 gene, which encodes a receptor on the surface of cells. When HGSI >initially applied for its patent it did not know how this receptor >functioned. While the patent was pending, a group of publicly funded >researchers at the US National Institutes of Health (NIH) discovered that >some people with CCR5 gene defects were resistant to infection with the AIDS >virus (HIV). CCR5 appeared to be one of the gateways the virus uses to invade >cells. As soon as they found out about the NIH discovery, HGSI confirmed the >role of CCR5 through experiments and obtained the patent. HGSI asserted its >proprietary rights to use the CCR5 gene for any purpose and then sold >licences to several pharmaceutical companies to develop drugs and vaccines. > > >But who took the inventive step? Was it the company that made a lucky match >with the right gene? Or was it the researchers who determined that >HIV-resistant individuals had a defective gene? > > >William Haseltine, HGSI's chief executive officer, argues that patents >stimulate progress in medical research, and that the CCR5 patent may well >lead to a new drug or vaccine for HIV. But a survey of researchers at US >university labs found that many of them have been deterred from working on >particular gene targets, fearing that they might have to pay hefty licence >fees (or royalties) to companies or risk lawsuits (4). > > > >The patent question > > >The US recently clarified its guidelines on granting gene patents to provide >a somewhat tighter definition of utility - use must now be "substantial, >specific and credible". But the guidelines still allow sequences to be >patented since they can be used as probes to detect genes responsible for >various diseases. The European patent directive, approved by the European >parliament in 1998, states that a sequence or partial sequence of a gene is >only eligible for a "composition of matter" patent when it can be replicated >outside the human body (in vitro), for example copied in bacteria, as we do >for human genome sequencing. > > >This argument has always seemed absurd to me. The essence of a gene is the >information it provides - the sequence. Copying it into another format makes >no difference. It is like taking a hardback book written by someone else, >publishing it in paperback and then claiming authorship because the binding >is different. > > >The number of applications for gene patents on humans and other organisms has >now passed the half-million mark, and several thousand such patents have been >granted. Nevertheless, the issue of gene patents remains complex and >confused. The US Patent and Trademark Office (USPTO) still maintains that a >gene discovery is patentable. Until the recent changes, the USPTO granted >patents even for partial gene fragments whose only claimed utility was as >gene probes. The European Patent Office remained unconvinced about gene >patents until the European Union issued its 1998 biotechnology patent >directive, which explicitly permitted the patenting of gene sequences. >Several EU member states, including France, are opposed to the EU directive, >while other EU members, such as the UK, maintain a more neo-liberal line on >patenting so that their biotechnology industries remain competitive with >those in the US. > > >I realised long ago that trying to reach an equitable solution using moral or >even legal arguments was doomed to failure. The best way to prevent the >sequence being carved up by private interests was to place it within the >public domain so that, in patent office jargon, as much as possible became >"prior art" and thus unpatentable by others. The international sequencing >consortium, while working on the human genome project, succeeded in doing >just that with respect to the raw sequence data. Now we are raising the bar >by placing as much information as possible about the annotated gene sequence >and gene function in the public domain. > > >Some have proposed drawing a patent line between life and non-life. While >agreeing with the concerns, and with the urgent need for a value other than a >commercial one to be placed on living things, I think there is no case for >this particular line. Because the chasm that previously existed between the >biological and the chemical is closing, such a distinction will not be >sustainable. We should not be patenting whole life forms, such as transgenic >mice or cotton plants - and not just because they are living organisms. A >sounder reason is this: we did not invent these organisms, only the specific >modification that made the mice susceptible to cancer or the cotton resistant >to pests. > > >The future of biology is strongly tied to that of bioinformatics, a field of >research that collects all sorts of biological data, tries to make sense of >living organisms in their entirety and then makes predictions. If this data >is freely accessible, bioinformatics will allow experimental biologists to >complement the work of other researchers and to connect with them. If we wish >to move forward with this fascinating endeavour, which will undoubtedly >translate into medical advances, the basic data must be freely available for >everyone to interpret, change and share, as in the open-source software >movement. The situation is too complex for a piecemeal approach, with limited === message truncated === Catch all the cricket action. Download Yahoo! Score tracker -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20030130/19ce6f7d/attachment.html From pemb1895 at law.oxford.ac.uk Fri Jan 31 21:43:14 2003 From: pemb1895 at law.oxford.ac.uk (Sudhir Krishnaswamy) Date: Fri, 31 Jan 2003 16:13:14 -0000 Subject: [Commons-Law] Politics of Code Message-ID: <007601c2c943$a8613590$ad6901a3@Sudhir> hi all will spend next thurday at this conference and post a report on commons law soon after. if anyone wants to gather conference information follow the links below POLITICS OF CODE - SHAPING THE FUTURE OF THE NEXT INTERNET Conference at the University of Oxford, 6th February 2003 The Programme in Comparative Media Law and Policy at the Cnetre for Socio Legal Studie and the Oxford Internet Institute are convening a conference "Politics of Code - Shaping the Future of the Next Internet" to be held in Oxford on February 6th 2003. Speakers will include: Prof. Larry Lessig, Stanford University Diane Cabell, Harvard University Esther Dyson, founding chair of ICANN. To register and find more information please go to, www.codepolitics.info -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20030131/e4022eec/attachment.html