From aidslaw at bom5.vsnl.net.in Sat Dec 4 15:27:46 2004 From: aidslaw at bom5.vsnl.net.in (lawyers) Date: Sat, 4 Dec 2004 15:27:46 +0530 Subject: [Commons-Law] People's Convention & Protest March Against the Patent Bill, New Delhi Message-ID: <00e401c4d9e7$b4ba5680$0e00a8c0@lawyers> Affordable Medicine and Treatment Campaign Phone: 24321101/2, Email: aidslaw1 at lawyerscollective.org Contact person: Leena Menghaney, 9811365412 National Working Group on Patents Laws Phone: 26813311, Email: wgkeayla at del6.vsnl.net.in Research Foundation for Science, Technology & Ecology Phone: 26968077,26561868 Email: vshiva at vsnl.com People's Convention & Protest March Against the Patent Bill, New Delhi The Government of India has initiated the process to amend the Patents Act. A Third Patent Amendment Bill is expected to be tabled in the Parliament during the forthcoming winter session. The Bill in its present form seriously compromises the accessibility and availability of medicines, two important components of the right to health. As a signatory to the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the 'Doha Declaration' (November 2001) on the TRIPS Agreement and Public Health, the Government of India is obliged to implement the TRIPS Agreement in a manner, which is supportive to access to medicines for all. The Patent (Amendment) Bill undermines farmers' rights to affordable seeds and citizens' rights to affordable food and drugs, since plants, genetic material and drugs are now patentable subject matters. Public Interest Groups working on health, food security and farmers' rights are gravely concerned that India through the Patent (Amendment) Bill will trade away its right to safeguard public health and make independent policies and decisions regarding its food security. As the first step to hold the government accountable and to support a transparent process for the consideration of amendments to the Patents Act, public interest groups in Delhi are organising a People's Convention on the Patent (Amendment) Bill, 2004. Date : 7th December 2004 Time : 10.00 a.m. - 12.00 p.m. Venue : Speakers Hall, Constitution Club(followed by protest march to Parliament St) Speakers : 1. B. K. Keayla, National Working Group on Patent Laws 2. Vandana Shiva, Research Foundation for Science, Technology & Ecolog y 3. Anand Grover, Affordable Medicines & Treatment Campaign 4. K.K Abraham, Indian Network of People Living with HIV/AIDS 5. Dr. Amit Sen Gupta, People's Health Movement Partners in the Campaign: All India Drug Action Network, CISRS-JWP-ATN, Delhi Network of Positive People, Indian Network of People Living with HIV/AIDS, Jan Swasthya Abhiyan, Lawyers Collective HIV/AIDS Unit, Sharan, Swaasthya, Voluntary Health Association of India -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041204/82d2ecd0/attachment.html From kalisaroj at rediffmail.com Fri Dec 3 18:12:56 2004 From: kalisaroj at rediffmail.com (avinash jha) Date: 3 Dec 2004 12:42:56 -0000 Subject: [Commons-Law] Re: Owning 'work or owning 'information' Message-ID: <20041203124256.20988.qmail@webmail18.rediffmail.com>   Keith, Thanks for your response. More than outright demolition of what I proposed, I feared the silence it might be greeted with. But I disagree with your contention that it is futile to try imagining a different regime of intellectual property, since the problem is with the very notion of ‘intellectual property’, or even with the very notion of private property. It is true that we will never be able to fabricate a perfect legal regime for intellectual property, or property, or for anything at all. We should not even attempt. Just as the attempt to institute a perfect democracy may give birth to a tyranny, so the attempt to create the perfect law will only cause mayhem. But, this is certainly not a reason for abandoning all aspirations for a change of regime. Within any legal framework, there will always be outlaws, gangsters, pirates, and bandits, whose illegality will not prevent our moral economy to include them or embrace them. Different legal regimes, however, will create different kinds of outlaws. We can compare them and find one system of law-outlaw better than another one. Moreover, people want to get on with their ordinary lives. Rather than change their lives by becoming either law-abiding or outlaws in a given regime, they might want to change the regime. Or, prevent a change to a worse regime, as is the case right now in India, where many are working to stop the change from the product patent law to a process patent law. I find it difficult to imagine a society without any notion of ownership. I suspect that the notion of ownership will be smuggled in, in some form or other, in all such attempts at property-less society. And it may be as tyrannical as a perfect legal regime of private property. I think that the question is: what form of ownership or property, with what limits, on what bases? Of course, we cannot answer this in a vacuum. Various debates, battles, cases, arguments, movements are going on in different fields of music, academic publishing, etc. etc. There is enough research and information to show that the piracies, the so-called copy culture, are not only vital to economic survival of large number of people, at least in countries like India, but also a locus of creativity and enjoyment. With the stricter regime of intellectual property now in the process of implementation, they are forever under the threat of police raids and so on. There is nothing wrong with celebrating these piracies, and indulging in them, but we cannot be neutral to the question of intellectual property regime at this point in time. Should we argue for the abolition of all laws of intellectual ownership and banish this notion? This position is precariously balanced on a knife-edge, between the neutral and the most radical. Be that as it may. I will argue that some notion of intellectual ownership or ownership of cultural materials is essential to contemporary life. Illegal industries, piracies, remix industry, all work with some notion of intellectual ownership. If a new technique is developed, measures are taken to see to it that the competitors do not immediately copy it. And this is accepted as the norm. In the different context of academic production, research institutes and university systems will be unable to function without such a notion. Stealing of credits by the supervisors and senior researchers is rampant. A balanced notion of rightful intellectual ownership is needed for the activity of modern research. In yet another context, people working in corporations find their spare time thoughts being claimed by their employers. When you have such large numbers of people living on the basis of their intellectual and technical skills, you cannot just abolish the notion of intellectual property and authorship altogether. If there were no such notion in law, there would have to be such a notion in the common law. I know little about the common law tradition, but I guess that it must be something dynamic, keeping pace with life. And the written law will not be entirely divorced from the common law. In this situation, imagining and working out a coherent perspective on the question of ownership of intellectual creations and a possible legal regime for intellectual property might be of some value. The challenge is that the principle of free sharing of knowledge be not compromised and yet the credit is given where it is due. That vast areas of economic and cultural activities are not deemed illegal and yet a vital ingredient of their normal functioning is not removed. It is here that de-linking the notion of ownership from knowledge and information and linking it to work may help in negotiating the complexities of this issue, while at the same time opening possibilities of a different, more egalitarian future society. You have argued that the extension of the notion of property to intellectual arena and cultural products is unjustified. Yes, if the current notion of private property is just transposed to the intellectual arena. But what if our notion of property or ownership that embraces both areas also challenges the dominant notion of property itself? I think the interplay between work and ownership offers us precisely that. Let us also not forget the other dimension of ownership, the dimension of responsibility associated with ownership. This ‘play’ between work and ownership is not something I or anyone else could have invented. Who knows from what streams of lives, traditions, languages, meanings, ideologies, movements it has been shored up to the present. Of course it remains to be seen whether it indeed offers us the perspective we need. Whether I have been deceptively led to believe that it does so. But if it does, then it is worthwhile exploring. There is little possibility of a new regime to be instituted for intellectual property anytime soon. As you point out, Great Powers and their interests are involved. Even if China-Japan-India emerges as a power bloc, it is not going to change the situation by itself. As we have seen in some cases in the music industry in India, a company that thrived on piracy has become a supporter of stricter implementation of IP laws after it became successful. I believe that our confidence in our own knowledge of future, at a world scale and the like, is often misplaced. Who knew in 1985 that Soviet Union would disappear within the coming decade? No one can tell what the significance of subterranean philosophies, practices, forms developing and disappearing under the shadow of great powers is going to be. Moreover, at least in places like India, the question of intellectual property is still open. We need not assume the eventual capitualation of resistance to stricter forms of intellectual property regime. For now, we can perhaps contribute to the tradition of evolving common law and forms of conduct, and use a coherent perspective to argue against the incoherent ad hoc extensions of present property law to intellectual arena. All this is relevant only if the philosophical move that I suggested is sound, and not utopian. -avinash -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041203/293c70ca/attachment.html From keith at thememorybank.co.uk Sat Dec 4 17:44:35 2004 From: keith at thememorybank.co.uk (Keith Hart) Date: Sat, 04 Dec 2004 13:14:35 +0100 Subject: [Commons-Law] Re: Owning 'work or owning 'information' In-Reply-To: <20041203124256.20988.qmail@webmail18.rediffmail.com> References: <20041203124256.20988.qmail@webmail18.rediffmail.com> Message-ID: <41B1AA2B.2030400@thememorybank.co.uk> Avinash, Thank you for your reasonable response to my criticism. Of course I have a more complex position on intellectual property, as I am sure you do. Debates of this kind sometimes require us to stick to one point when we are actually capable of holding two different thoughts in our mind at once. I agree with you that some sort of property law is indispensable to society and that intellectuals can usefully dream up better schemes for social infrastructure than those we have. But the politics of legal process should also be invoked, especially when the law is manifestly unjust both in principle and practice. I find the general tone of discussion on this list excessively polite (or fearful which may amount to the same thing) and seized on your quite radical (but polite) intervention to say something unbalanced. You referred to the political context of proposed changes in IP law in India, as well as to the economic situation of many 'pirates'. The Indian government, along with Brazil and perhaps others, stand in the frontline of challenges to the international regime that I and many others find to be unjust. So it matters to us what Indian intellectuals on a list like this think and do. I made the analogy with Indians' fight for freedom from British rule because the present situation is akin to imperialism before the collapse of empire. How else can one understand an IP treaty that secures monopoly rents for western corporations on pain of excluding poorer countries from the US market, while another secures lawless US militarism on a bilateral basis? This system has been called 'information feudalism' for good reason. The rich and powerful barons of the recording industry, for example, threaten the unseen masses by using their bottomless wealth and unequal access to the law to terrorise selected victims, much as their medieval counterparts set wolfhounds on escaping serfs, all within the law of course. Extreme perhaps, but the current system of extraction from the poor to the rich few is the most powerful ansd successful ever devised and it operates on a planetary scale. At least acknowledge this, when you ask how you might benefit from a fairer IP framework. You mention the plight of junior academics in a corrupt university system that sees young scholars being ripped off by their powerful patrons. Again, the question is whether their interests would be better served by measures shoring up individual ownership of ideas or by reform of the institutions organizing the production of ideas. It is ironic that complaints about larceny of this kind should be commonplace at a time when individual and corporate ownership of ideas is both more pronounced and more coercively policed. The previous sytem was, as you know, based on voluntary acknowledgment and it worked for the most part. But this was at a time when the universities housed only a few people who mostly knew each other and regulated their own activities informally. I have written elsewhere about the coming demise of the university. Sorry to be such a spoilsport, but universities as we know them were an invention of national capitalism in the twentieth century and they are going down with the political system that made them. The curent panic there about plagiarism in an age of digital reproduction reflects the contradictions of commercial copying without the same unequal power of money at work. Notions of individual ownership, I agree, should be reformulated to meet the needs of a world society that will be hopefully more democratic as well as being driven by money and machines. This is not a counsel of perfection, but a critique of what passes for democracy these days. So we are not so far apart. We agree that new approaches to IP would be an improvement on what we have already. I was touched by your desire to publ aish a personal collection of writings dear to you and I would like society to make that possible. Failing the approval of society, however, I was suggesting that you can go ahead without much risk, since your project would be unlikely to disturb the rentseekers who control commercial publishing. All our actions are relative to our historical moment and mine may be less exposed than yours. Recall the situation around 1960 when the Korean government tacitly sanctioned the illegal reproduction of expensive American proprietary textbooks in its national drive towards better educational standards. This was contrary to the Berne Convention, which was made by and for the western powers at a time when the world's territory was 80% owned by Europeans. Of course, they were threatened with exclusion from the American market and they eventually came into the fold, but not before millions of Korean students had access to knowledge that would have otherwise been denied them. The point is that Asians do stand on the brink of making an effective challenge to the West. They do so on solid economic grounds. The emperor really does have no clothes. I fully understand the tactical priority of making a reasoned case on IP law to the Indian government at this time. I just hope that a list like this would occasionally be less reasonable. It is sad, but true that one can usually only occupy one position, for or against the status quo. Our world has about one billion white people protected by the current system of world society and one billion non-white people who think they have a stake in the same system; the other four billion know they don't. IP law has moved to the forefront of the debate about the character of world society because it is central to exploitation of the world by western corporations who wish to run the economy through a system of command and control. This illiberal regime is normally called, by Orwellian doublethink, neo-liberal and it is doomed to failure because it depends on unleashing social and technological forces that cannot be controlled by such means. Please don't imagine that such a failure will be calm and unresisting. Iraq is one of its manifestations. By all means the world's people deserve decent laws to live by, but we should first reciognize that we are in a war and we have to choose sides. Keith From iram at sarai.net Sun Dec 5 11:02:54 2004 From: iram at sarai.net (iram at sarai.net) Date: Sun, 5 Dec 2004 06:32:54 +0100 (CET) Subject: [Commons-Law] the Act of leisure In-Reply-To: <41B1AA2B.2030400@thememorybank.co.uk> References: <20041203124256.20988.qmail@webmail18.rediffmail.com> <41B1AA2B.2030400@thememorybank.co.uk> Message-ID: <1059.210.7.77.145.1102224774.squirrel@mail.sarai.net> Dear all, this is my first posting on the commons law list. Taha and I initiated a discussion on the sarai reader list on issues involving the performance of law in our everyday lived experience through the institutionalisation of the leisure act and the intertwining of leisure space and surveillance. We would like to engage in similar debates but with possibly a different group of people on this list, people who would bring in other perspectives and directionality to the discussion possibly legal viewpoints around the control of space through the nuisance and vagabond laws etc. Some of the issues that we would like to probe/ excavate/ explore/ understand, also include an experiential study of the New Friends Colony Community Centre and: - The nuances that govern the State and non state players in their behaviour in non formal spaces which do not seem to fall under the purview of either public or private space. - The control/ censorship of thought and action as a direct fallout of the use of quasi legal language by the State and its implications in codes of deemed public behaviour. - The ambivalent dictates in the name of public security and legality that form the basic subtext of restraining ordinary forms of leisure. - Does the State want the public to stay within the `private’ space of the home- safe and secure and to come out only to engage in some form of economic activity or other? And is leisure activity in public space possible without spending money? AN INCIDENT: On a cold, foggy evening, last winter, Taha and a couple of other friends, Bikas and Gaurav, all students from Mass communication Research Centre, Jamia were sitting at the fountain opposite Bon Bon pastry shop in New Friends Colony Community Centre. CC, as it is popularly called by Jamia students, lies in the shadow of Softel Surya hotel. It is surrounded by a number of posh south Delhi gated colonies, the Jamia University and its hostels, and a few other middle class colonies. The last bus stop for #400, is Okhla Village barely 2 kilometres from CC. So far, CC has been able to cater to all its distinctly diverse communities of patrons. So, if there is the stylish Ego Thai on one hand, there is also a more middle class New Delhi Food Corner, serving the best butter chicken in all of Delhi. The khaki uniform is not an unfamiliar sight in CC because of the presence of New Friends Colony thana within the complex of shops and restaurants. The people seemed to be used to a certain amount of police presence and control, especially around diwali, dusshehera, eid, new years eve, 26th January, and the 15th August. Despite illegal encroachments by shop owners, and a mushrooming community of street kids from the Okhla railway station flyover complex, the relationship between the police and public is what can be termed as normal- normal to our times. The wine and beer shops close at 10 pm but CC would remain open till 1 am on normal days. That evening, as these friends were sitting at the fountain and talking about what young people would normally talk about studies, career, politics, films,colleagues, etc that Taha noticed a man in khaki with what suspiciously looked like a 3 CCD camera, video recording what looked like themselves! On questioning, the man proudly identified himself as Pandu[name changed], a constable with the NFC thana. They told him that they were media students in MCRC, Jamia and were working with Zee news, star news and CNBC! On hearing this, Pandu revealed that he was friends with an ex- student who worked as a reporter with Aaj Tak news channel. He pointedly asked them to sit in either Barista or Mc Donalds, if they wanted to be out that late and instead of loitring around. According to Pandu a training in digital camera and basic non linear editing software had been given to at least one constable in all police stations of Delhi. Instructions had been given to record the janta from 7.30 pm till 9:00 pm everyday. Pandu proudly showed these guys the footage shot so far. A couple of men having beer in a car, zoom in to the number plate of the car, some close up shots of women and mid shots of themselves. In fact, because Taha’s face was covered by a shawl, he had changed the camera angles to get a better shot. It was amply clear was that Pandu was a not a very good camera person! Pandu disclosed, with an air of self importance, that because an alleged terrorist arrested from some part of Delhi, had apparently had dinner at Ego Thai, orders were issued to video graph the area, map people, and generate profiles of regulars and new comers. In retrospect, the enormity of the situation did strike these people but final projects were on and you don’t take pangas with the police if you are a law abiding student from jamia Millia Islamia. Hence, though the matter was much discussed/ debated, but just that. This summer Taha ran into Pandu again. At CC. He promptly shot Taha for a a few minutes, smiled, waved a hi and went on his way like a friendly neighbourhood constable. Possibly his camera work had improved but one can only guess, for this time he did not show the footage to Taha. College was finally over. Taha and his friends have left the hostel. Bikas wrote a short story about the incident but I guess lost it in shifting accomodation. He works with CNBC. Gaurav is a free lance photographer and Taha is a researcher on information society. Community Centre is as welcoming as before. They are now building a mall cum multiplex cinema hall on top of Mc Donalds. CC just might change. We invite readers and writers on the list to share personal experiences/ discuss opinions/ raise questions on the institutionlistion of leisure and the surveillance/ control of leisure/public space in Delhi and elsewhere. How law determines the way we behave and how does one perform in the face of this bareness of act? looking forwards to responses, cheers, iram and taha From lawrence at altlawforum.org Mon Dec 6 18:12:52 2004 From: lawrence at altlawforum.org (Lawrence Liang) Date: Mon, 06 Dec 2004 18:12:52 +0530 Subject: [Commons-Law] EU strategy to enforce Intellectual Property Rights in third countries In-Reply-To: <41B44F44.5080001@cptech.org> Message-ID: Very interesting read..... Lawrence -------- Original Message -------- Subject: EU strategy to enforce Intellectual Property Rights in third countries Date: Mon, 06 Dec 2004 07:21:35 -0500 From: James Love To: Random-bits This is the EU enforcement strategy for IP in "third countries." The Basics....... 1. Identifying the priority countries: EU action will focus on the most problematic countries in terms of IPR violations. These countries will be identified according to a regular survey to be conducted by the Commission among all stakeholders and should be the basis for renewing the list of priority countries for the subsequent period. 2. IPR mechanisms in multilateral (incl. TRIPs), bi-regional and bilateral agreements: This would include: raising enforcement concerns in the framework of these agreements more systematically; consulting trading partners with the aim of launching an initiative in the WTO TRIPs Council, sounding the alarm on the growing dimension of the problem, identifying the causes and proposing solutions; strengthening IPR enforcement clauses in bilateral agreements.. 3. Political dialogue: Making clear to trading partners that an effective protection of IP, at least at the level set in TRIPs, is essential; launching joint initiatives focusing on IPR enforcement with countries sharing or affected by similar concerns; providing training and implementing networking mechanisms for officials in EU Delegations in third countries facing enforcement problems. 4. Incentives-Technical Co-operation: Ensuring that technical assistance provided to third countries focuses on IPR enforcement, especially in priority countries; exchanging ideas and information with other key providers of technical co-operation, like the World Intellectual Property Organisation (WIPO), the US or Japan , with the aim of avoiding duplication of efforts and sharing of best-practices. 5. Dispute settlement / Sanctions: Recalling the possibility that right-holders have to make use of the Trade Barriers Regulation in cases of evidence of violations of TRIPs or of bilateral agreements; making ex officio use of the dispute settlement mechanisms included in multilateral and/or bilateral agreements in case of non-compliance with the required standards of IP protection. 6. Creation of public-private partnerships: Supporting-participating in local IP networks established in relevant third countries; using mechanisms already put in place by Commission services (IPR Help Desk and Innovation Relay Centres) to exchange information with right-holders and associations; building on the co-operation with companies and associations that are very active in the fight against piracy/counterfeiting. 7. Awareness raising / Drawing on our own experience: Promote the inclusion in technical co-operation programmes and in public-private partnership initiatives of information destined to raise public awareness about the impact of counterfeiting (loss of foreign investment and technology transfer, risks to health, link with organised crime, etc.) and raise the awareness of Community right-holders doing business in problematic countries about the risks incurred; make available to the public and to the authorities of concerned third countries a “Guidebook on Enforcement of Intellectual Property Rights”. 8. Institutional co-operation: Improving the exchange of information and the co-ordination between the services in charge of the different aspects of IPR enforcement; simplifying the identification and the access of external entities (right-holders, third country authorities, etc.) to the service responsible for the specific issue concerning them. ..... The complete document MEMO/04/255 Brussels, 10 November 2004 EU strategy to enforce Intellectual Property Rights in third countries - facts and figures What is the dimension of the problem? Between 1998 and 2002 the number of counterfeit or pirated articles intercepted at the EU's external frontiers increased by more than 800%. Figures published by the European Commission in November 2003 show that customs seized almost 85 million counterfeit or pirated articles at the EU's external border in 2002 and 50 million in the first half of 2003. This illicit trade is worth the equivalent of more than 2 billion euro on the legal Community market. These figures only tell us what is being caught at the Community borders. As is the case with other types of illegal traffic, seizures by the authorities represent only the tip of the iceberg and show us little about the dimension and value of the illicit goods that end up being sold in markets and streets worldwide. This is why it is extremely difficult to quantify the exact values involved in the global trade of fake goods. Some estimations point to figures representing between 3% and 9% of the total world trade, i.e., 120 to 370 billion euro a year. Studies carried out by the OECD in 1998 and by the International Chamber of Commerce in 1997, estimated then that counterfeits accounted for 5 to 7% of world trade and were responsible for the loss of 200,000 jobs in Europe. Which IP rights are violated and which sectors are most affected? One frequent misconception is that piracy and counterfeiting mainly affect some luxury, sports and clothing brands, music and software CDs/DVDs, and little else. The reality is that virtually every IP is being violated on a considerable scale and that the variety of fake products ranges from cereal boxes to plants and seeds, from aeroplane spare parts to sunglasses, from cigarettes to medications, from AA batteries to entire petrol stations. Big software producers are as likely to be harmed as small makers of a certain type of tea. The annual statistics published by the Commission’s customs services regarding the number and the nature of seized pirated and counterfeit goods originating from third countries provide detailed and reliable information about the dimension and the growth of the problem . Why focusing now on third countries? The WTO Agreement of intellectual Property Rights (TRIPs) establishes for the first time a single, comprehensive, multilateral set of rules covering all kinds of IPR. It contains also a detailed chapter setting minimum standards of IPR enforcement to be adopted by all members of the WTO. However, despite the fact that, by now, most of the WTO members have adopted legislation implementing such minimum standards , the levels of piracy and counterfeiting continue to increase every year. These activities have, in recent years, assumed industrial proportions, because they offer considerable profit prospects with often a limited risk for the perpetrators. Within the Community and at its external borders there have been a number of important initiatives in the last 10 years. In 1994 the EU adopted the Customs Regulation (Regulation (EC) No 3295/94), allowing border control of imports of fake goods. Later, in 1998, the Commission issued its Green Paper on Combating Counterfeiting and Piracy in the Single Market. As a result of responses to the Green Paper, the Commission presented an Action Plan, on 30 November 2000. This Action Plan has been translated into a Directive published last April, harmonising the enforcement of intellectual property rights within the Community, a Regulation improving the mechanisms for customs action against counterfeit or pirated goods set by the previous Customs Regulation, the extension of Europol’s powers to cover piracy and counterfeiting, etc. The situation is, however, different outside the borders of the Community. The internal instruments available to Community right-holders in the case of violations of their rights within the Community or in the case of imports of fake goods into the EU are not usable when these violations occur in third countries and the resulting goods are either consumed domestically or exported to other third countries. Although such violations occur outside, they directly affect Community right-holders. Hence the need for an Enforcement Strategy focussing on third countries. Why should developing countries concentrate their limited resources in areas like justice, police or customs on the fight against the sale of copies of goods and brands belonging to right-holders from rich and developed countries? The trade of fake goods is no longer limited to cheap copies of luxury brands and recordings of music and films consumed mostly by tourists looking for a bargain souvenir. Nowadays, almost every conceivable product is being illegally copied: from food to pharmaceuticals, from toys to car and plane parts, from toasters to mineral water. The risks to public health and consumer safety incurred by frequently unaware purchasers are obvious. Consumers in the poorest countries are particularly exposed to sales of these dangerous products. Another reason why every country, rich or poor, should be concerned has to do with the undeniable role played by organised crime networks in the spread of piracy and counterfeiting. Until this activity is no longer seen as a low risk / high profit type of crime, it will continue to spread and to put in the hands of criminal organisations entire sectors of the economy. It is therefore also a question of public order, security and good governance. Effective enforcement of IP rights is also essential to attract foreign investment, transfer of technology and know-how, as well as to protect the local right-holders in developing countries. It is also an indicator of international credibility and respect of the rule of law. Finally, in the mid-to-long term, it will encourage more domestic authors, inventors and investors and contribute to the development of these countries. Why does the Commission target the problem in third countries when pirated and counterfeited goods are so easily available within the EU? Generally speaking, the Community and its Member States are acknowledged for protecting and enforcing IPR according to very high standards. In practical terms, reports like the one published annually by the European Commission give a clear idea of the results achieved by each Member State in terms of seizures of fake goods at the borders. This has already led to an increase of more than 800% in the volume of such confiscations between 1998 and 2002 (from 10 million to more than 85 million articles). The recently approved Directive harmonising the enforcement of intellectual property rights within the Community will not only help to improve the situation, but it also constitutes an example to third countries of measures that proved effective in some Member States and that are now being extended to the entire Community. The challenge is now to ensure that enforcement takes place beyond the EU borders, in third countries. What is in the Enforcement Strategy? The Enforcement Strategy is a Communication of the Commission determining the priorities and optimising the use of resources in order to obtain the most effective results in terms of IPR enforcement in third countries. The actions in detail: 1. Identifying the priority countries: EU action will focus on the most problematic countries in terms of IPR violations. These countries will be identified according to a regular survey to be conducted by the Commission among all stakeholders and should be the basis for renewing the list of priority countries for the subsequent period. 2. IPR mechanisms in multilateral (incl. TRIPs), bi-regional and bilateral agreements: This would include: raising enforcement concerns in the framework of these agreements more systematically; consulting trading partners with the aim of launching an initiative in the WTO TRIPs Council, sounding the alarm on the growing dimension of the problem, identifying the causes and proposing solutions; strengthening IPR enforcement clauses in bilateral agreements.. 3. Political dialogue: Making clear to trading partners that an effective protection of IP, at least at the level set in TRIPs, is essential; launching joint initiatives focusing on IPR enforcement with countries sharing or affected by similar concerns; providing training and implementing networking mechanisms for officials in EU Delegations in third countries facing enforcement problems. 4. Incentives-Technical Co-operation: Ensuring that technical assistance provided to third countries focuses on IPR enforcement, especially in priority countries; exchanging ideas and information with other key providers of technical co-operation, like the World Intellectual Property Organisation (WIPO), the US or Japan , with the aim of avoiding duplication of efforts and sharing of best-practices. 5. Dispute settlement / Sanctions: Recalling the possibility that right-holders have to make use of the Trade Barriers Regulation in cases of evidence of violations of TRIPs or of bilateral agreements; making ex officio use of the dispute settlement mechanisms included in multilateral and/or bilateral agreements in case of non-compliance with the required standards of IP protection. 6. Creation of public-private partnerships: Supporting-participating in local IP networks established in relevant third countries; using mechanisms already put in place by Commission services (IPR Help Desk and Innovation Relay Centres) to exchange information with right-holders and associations; building on the co-operation with companies and associations that are very active in the fight against piracy/counterfeiting. 7. Awareness raising / Drawing on our own experience: Promote the inclusion in technical co-operation programmes and in public-private partnership initiatives of information destined to raise public awareness about the impact of counterfeiting (loss of foreign investment and technology transfer, risks to health, link with organised crime, etc.) and raise the awareness of Community right-holders doing business in problematic countries about the risks incurred; make available to the public and to the authorities of concerned third countries a “Guidebook on Enforcement of Intellectual Property Rights”. 8. Institutional co-operation: Improving the exchange of information and the co-ordination between the services in charge of the different aspects of IPR enforcement; simplifying the identification and the access of external entities (right-holders, third country authorities, etc.) to the service responsible for the specific issue concerning them. Is this an attempt to impose on poor countries additional TRIPs plus, one-size-fits-all mechanisms of IP enforcement? Is this an attempt by developed countries to gang up against developing countries? No and no. The strategy paper does not impose any additional, TRIPs plus obligations on any developing country. It is just focused on enforcement of existing rules. We are not trying to gang up with or to copy other countries that may share our concerns. We believe however that we can create synergies and rationalise our efforts in areas like technical assistance with partners that also believe in the use of such mechanisms to improve the situation. On the other hand, we don’t believe in pre-formatted solutions. It will be necessary to have a flexible approach that takes into account the different needs, the level of development, the membership or not of World Trade Organisation (WTO), and the main problems in terms of IPR (country of production, transit or consumption of fake goods) of the country with whom we are talking. We believe that any proposed solutions will only be effective if they are prioritised and indeed felt as important in the recipient country. Which are the most problematic countries? In July 2003, the European Commission issued the results of a survey on enforcement issues in the area of intellectual property rights , aimed at assessing in a detailed manner the situation in third countries. The countries considered then as most problematic according to the results of the survey were China, Thailand, Ukraine, Russia, Indonesia, Brazil, Turkey and South Korea. Respondents considered these as the main countries where production of pirated and counterfeit goods, both for domestic consumption and for export, reached worrying dimensions. Results of the survey in detail: - China: In the area of copyright, there is widespread piracy in all formats (CDs, VCDs, cassettes, DVDs). There are also extensive illegal digital downloads and distribution of films, music and software. Regarding trademarks, estimates that around 15 20% of all brand products sold in China are fakes, and that the portion has risen significantly in recent years. Information was received regarding fake clothes, footwear, leather goods, watches, toys, cigarettes, pharmaceutical products, car parts and entire cars, electronic devices, lighting products, small electrical appliances (hairdryers, irons, kettles), semiconductors, large industrial machines, lubricants and even entire petrol stations. In the area of patents, there are reports of infringements on pharmaceutical products, electrical domestic appliances, industrial machinery, etc. - Thailand: Copyright - generalised piracy of music, movie, business and game software in CD, DVD and VCD format. Trademarks - There is an important counterfeiting problem in this country, regarding well know brands of cloths manufacturers. - Ukraine: Copyright - Production and dissemination of audio-visual products, in particular CD’s and copying and dissemination of unlicensed software are most acute. About 95% of software in Ukrainian computers are estimated to be illegally installed. Trademarks - Clothes, alcohol, cigarettes, fertilizers, agrochemicals and increasingly foodstuffs. The violations in this area ranged from the illegal use of trademark or mixing it in a misleading way with a proper trademark, to the illegal use of a company name, to the divulging of commercial secrets. Patents - Pharmaceuticals. - Russia: There is a high level of music piracy (more than 60% of the market in 2002). The same situation is witnessed by other copyright related industries (e.g. video and film, software industries). Internet based piracy is also extensive. There is also a significant level of counterfeiting of pharmaceuticals, (accounting for around 12% of the Russian pharmaceutical market), counterfeits of drinks, food, and other fast moving consumer goods products etc. - Brasil: Copyright piracy: during 2001, the legitimate industry reported losses of over 300 million €, caused mainly by the growth of piracy. This figure represents 55% of the recorded music in Brazil. During the same period, the software industry lost around € 300 million which represents 58% of the computer software programs sold. Trademark counterfeiting, notably clothing, sport items, toys, perfumes, tobacco, etc. (€ 150 million in 2001). The legitimate clothing industry loses 1.5 million € per year due to counterfeiting. - Turkey: Copyright - Piracy (cassettes and CDs) is the main area of violation in the music industry. Piracy in Turkey is estimated between 50 and 75% of the market, with the higher figure reflecting piracy of international repertoire. Trademarks - Extensive and systematic counterfeiting of trademarks on clothes, footwear, leather goods, apparel, car parts and others.. - South Korea: Trademarks and designs - counterfeiting of high value luxury consumer goods, estimations that Korea was in 2002 the third producer of counterfeit goods in the world. Copyrights - Music piracy in all format, CDs, VCDs, cassettes and illegal digital downloads and distribution. Industrial design -There are also reports of counterfeiting of designs in sports equipment (mainly footwear) - Indonesia: Trade marks and industrial design: Extensive counterfeiting of apparel and of automotive products. But also copyright violations of music, films and software. -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love at cptech.org -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love at cptech.org _______________________________________________ Ip-health mailing list Ip-health at lists.essential.org http://lists.essential.org/mailman/listinfo/ip-health ------ End of Forwarded Message From lawrence at altlawforum.org Tue Dec 7 18:29:20 2004 From: lawrence at altlawforum.org (Lawrence Liang) Date: Tue, 07 Dec 2004 18:29:20 +0530 Subject: [Commons-Law] Bangalore AMTC Rally on Thursday! In-Reply-To: <41B5A45D.5070801@sangama.org> Message-ID: MEDICINES TO COST MORE FROM JANUARY 1st 2005!!! 3rd PATENT AMENDMENT BILL due to be passed in December 2004 OPPOSE THE PATENT BILL OR PAY MORE FOR MEDICINE What YOU can do- STEP 1: Sign the Letter to the Prime Minister and Other Ministers to stop the Bill being passed in its current form. STEP 2: Join the People¹s Protest Rally against the Patent Bill On: 9-12-2004 (4: 00 pm) Starting point: Banappa Park (Near St. Martha¹s Hospital) Ending Point: Town Hall (via Corporation) Affordable Medicines and Treatment Campaign Call: 25461920 (Deepak) Fax : 51239289, Email: amtc_india at yahoo.co.in, C/o AMTC Secretariat, Lawyers Collective HIV/AIDS Unit, First Floor, 4 A MAH Road, Off. Park Road, Tasker Town, Shivajinagar, Bangalore ­ 51 ------ End of Forwarded Message -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041207/dee903f4/attachment.html -------------- next part -------------- A non-text attachment was scrubbed... Name: not available Type: image/gif Size: 322 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20041207/dee903f4/attachment.gif From lawrence at altlawforum.org Tue Dec 7 18:36:10 2004 From: lawrence at altlawforum.org (Lawrence Liang) Date: Tue, 07 Dec 2004 18:36:10 +0530 Subject: [Commons-Law] Cultural production and Open Content licenses Message-ID: Hi all I was in a residency at the Piet Zwart Institute earlier this year, and have written two pieces, one is a longish article on Open Content Licenses and Cultural production, and the other is a small book / guide on open content licenses. (If any one wants a gratis copy of the booklet, do write to Piet Zwart). Both are now available online, and on a Creative Commmons non commercial sharealike license (for more on the license have a look at the guide :) so do feel free to use, create version, rescensions, and any feedback / criticism would be appreciated Lawrence https://pzwart.wdka.hro.nl/mdr/pubsfolder/liangessay https://pzwart.wdka.hro.nl/mdr/pubsfolder/opencontent/view From alforum at vsnl.net Tue Dec 7 18:28:06 2004 From: alforum at vsnl.net (Lawrence) Date: Tue, 07 Dec 2004 18:28:06 +0530 Subject: [Commons-Law] Bangalore AMTC Rally on Thursday! In-Reply-To: <41B5A45D.5070801@sangama.org> Message-ID: MEDICINES TO COST MORE FROM JANUARY 1st 2005!!! 3rd PATENT AMENDMENT BILL due to be passed in December 2004 OPPOSE THE PATENT BILL OR PAY MORE FOR MEDICINE What YOU can do- STEP 1: Sign the Letter to the Prime Minister and Other Ministers to stop the Bill being passed in its current form. STEP 2: Join the People¹s Protest Rally against the Patent Bill On: 9-12-2004 (4: 00 pm) Starting point: Banappa Park (Near St. Martha¹s Hospital) Ending Point: Town Hall (via Corporation) Affordable Medicines and Treatment Campaign Call: 25461920 (Deepak) Fax : 51239289, Email: amtc_india at yahoo.co.in, C/o AMTC Secretariat, Lawyers Collective HIV/AIDS Unit, First Floor, 4 A MAH Road, Off. Park Road, Tasker Town, Shivajinagar, Bangalore ­ 51 ------ End of Forwarded Message -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041207/be97bb61/attachment.html -------------- next part -------------- A non-text attachment was scrubbed... Name: image.gif Type: image/gif Size: 322 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20041207/be97bb61/attachment.gif From keith at thememorybank.co.uk Tue Dec 7 21:35:50 2004 From: keith at thememorybank.co.uk (Keith Hart) Date: Tue, 07 Dec 2004 17:05:50 +0100 Subject: [Commons-Law] Cultural production and Open Content licenses In-Reply-To: References: Message-ID: <41B5D4DE.5070101@thememorybank.co.uk> Lawrence, Congratulations on having produced this article which is certainly the most comprehensive and challenging contibution to this topic that I have encountered. I also find it easier to respond to your concluding sections in the context of the whole argument than when you circulated them separately on this list. I was particularly impressed with your use of th eexample of dance to deconstruct the limitations not only of copyright, but of open licences that are too closely tied to software practices. i was reminded of Marx's argument in the introduction to Grundrisse that distribution is secondary to the forms of production and use: you can't steal from a nation of bankers in th eway you can from a nation of shepherds. I will indicate briefly here some of the many ways I was stimulated by this piece, touching on reciprocity, authorship, community or 'public' and the American empire, ideas that your analysis links up both explicitly an dimplicitly. Mauss presents the gift and the contract as two instances of a human universal, 'reciprocity'. He asks how we make society where it did not exist before and concludes that we do so by giving in expectation of a return. Contract divests itself of much of the spiritual and social baggage of the gift by making the return instantaneous. Delay in returning the gift likewise generates the potential for domination and inequality. Modern market institutions combine element of this contrast. He wanted to show that we all know the 'grammar' (in your terms) of reciprocity in that paying for ourselves makes us more independent than if we accept a gift. But he also presented the gift as an earlier form from which contracts evolved. You link Locke's state of nature to the 'gift economies' of North America and the Pacific that provided him and Mauss with ethnographic examples. But the latter are all societies based on property, often in a highly individualised and competitive form. A case can be made for suggesting that reciprocity was an invention of agricultural societies and that hunter-gatherers were and are indifferent to the sort of exchange relations they imply. Domestication entailed carving out a sphere of protected animals and plants that marked out human settlements from the wild surrounding them. This gave rise to the division between culture and nature and to religious practices aimed at bridging the gap between them. Mauss cites the Roman term, do ut des, I give so that you will give, as the logic of sacrifice under these circumstances. But it may be that this unnecessarily restricts the models of society open to us. Instead of reciprocity, hunter-gatherers usually operate with the idea of sharing, a porcess that involves individuals, communities and their environments. The latter are often seen as banks making their resources available to human inhabitants in a collaborative way. This model would serve you quite well, I think. Although it would take too long to establish here, I fear that you may be throwing the baby out with the bathwater when you persist if referring to the 'romantic genius of the author' as an invented figure of capitalist aggression. I have long contemplated a riposte to Barthes death of the author called 'Death of the audience'. what is strilking about the publics invoked by early modern modern authorship is their singularity. If Scottish publishers threatened a few London monopolists 200 years ago, there is very little left in Britain today to disturb the introverted clique of press, TV, publishers and politicians that dominates the dissemination of information there. Yet you and I also experience writing for a public that is unknowable. How often have I tried to envisage the audience for what I write and failed? Not only that. When reading is unpredictably free, I have no way of anticiopating what sort of response, if any, I will get for what I write. So I have to look for the public, for society , in myself and write to reconcile the many fragments of social experience that bear on my topic in the hope that this will somehow act as a bridge to unknown readers. You rinvocation of Kaviraj and the narrative contract of early nationalism bears directly on this reflection, as does your notion of 'fuzzy communities'. I think all of us expereince community in this fuzzy way nowadays. I have found a small measure of comfort in the etymology of 'society'. When the Romans were still an undisciplined rabble known as Latins, they invented the word societas to describe an emergent form of association between them. It comes from the o-grade form of the root sekw- (sokw-yo) which means to follow, as in second, sequel and, more obscurely, sign. For them society was an agreement for a network to help each other out if any of them was attacked, in which event they would follow whoever was the initial target. leadership was seen as being inevitable, but also contingent. This contrasts starkly with the medieval French, societe, in which society is conceived of as fixed and bounded with a central point, the prototype of the modern nation-state. I agree completely with your critique of the US-centrism of Stallman, Lessig etc, but I would be less inclined to link this to 18th century liberalism (depite the manifest destiny, genocide etc of the era) than to the idea of the USA as a world entire unto itself. This is the very stuff of imperialism of course, the drive to impose American property laws on the rest of the world. But, just as the empire cannot contemplate what it is not, so too both copyright protagonists and FLOSS opponents are drawn together into a self-contained universe whose shared assumtions are greater than any differences. To my mind, it is obvious, as I have indicated elsewhere, that Asia poses an economic threat to US` dominance that must expose th ecultural fragility of this blinkered outlook. But I wonder, from your expereince, whether you think that Asian intellectuals are any less capitve to the cultural model of the nation-state. from my scattered observations it would seem that could be even more so restricted in their horizons. I would like to be proven wrong on this point. Keith From sunil at mahiti.org Wed Dec 8 06:09:45 2004 From: sunil at mahiti.org (Sunil Abraham) Date: Wed, 08 Dec 2004 00:39:45 +0000 Subject: [Commons-Law] Who Owns the Knowledge Economy? Political Organising Behind TRIPS Message-ID: <1102466385.674.95.camel@box> Who Owns the Knowledge Economy? Political Organising Behind TRIPS by Peter Drahos with John Braithwaite first published September 2004 http://www.thecornerhouse.org.uk/item.shtml?x=85821#index-01-00-00-00 http://www.thecornerhouse.org.uk/pdf/briefing/32trips.pdf Thanks, ಸುನೀಲ್ -- Sunil Abraham, sunil at mahiti.org http://www.mahiti.org 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 51150580. Mob: (60) 1-2205-3895 Currently on sabbatical with APDIP/UNDP Manager - International Open Source Network Wisma UN, Block C Komplex Pejabat Damansara. Jalan Dungun, Damansara Heights. 50490 Kuala Lumpur. P. O. Box 12544, 50782, Kuala Lumpur, Malaysia Tel: (60) 3-2091-5167, Fax: (60) 3-2095-2087 sunil at apdip.net http://www.iosn.net http://www.apdip.net "A world opened up by communications cannot remain closed up in a feudal vision of property" - Gilberto Gil, Minister of Culture, Brazil From vishwas123 at gmail.com Tue Dec 7 17:49:23 2004 From: vishwas123 at gmail.com (vishwas devaiah) Date: Tue, 7 Dec 2004 17:49:23 +0530 Subject: [Commons-Law] Fwd: STOP MEDICINE PRICES FROM RISING!!!!! In-Reply-To: <20041207111108.2263.qmail@webmail17.rediffmail.com> References: <20041207111108.2263.qmail@webmail17.rediffmail.com> Message-ID: <1a2579a20412070419457580fa@mail.gmail.com> STOP MEDICINE PRICES FROM RISING!!!!!! Join the People's Rally against the 3rd PATENT AMENDMENT BILL in Bangalore Date: 9/12/04 Time: 4.00 p.m. – 6.00 p.m. Starting point: Banappa Park (Near St. Martha's Hospital) Ending Point: Town Hall (via Corporation) PROTECT YOUR RIGHT TO HEALTH!!!!! ( See details below) Dear Friend, Warm greetings from the members of the AMTC- Affordable Medicines and Treatment Campaign!! We invite you to attend the rally being organized by AMTC on 9-12-04 to protest against the 3RD PATENT AMENDMENT BILL due to be passed by the Lok Sabha in December '04. The bill is likely to increase the prices of medicines in India, thereby affecting citizens' access to health, a fundamental component of the Right to Health. The worst to be affected will include patients suffering from life-threatening diseases like H.I.V/A.I.D.S and Cancer. The chief demand of the AMTC and hundreds of partners including health professionals, health organizations and other NGOs is that government must hold a public debate on the issues raised by the bill before it is passed. Please forward this email and the attachments given below to as many organizations and individuals as possible. Attachments include: 1.PATENT BILL ISSUES: A presentation to raise awareness and clarify issues raised by the Patent Bill 2.Letter to PM: Standard format of the letter being sent to the PM ( Join the Signature Campaign) stating the demands of the Affordable Medicines & Treatment Campaign 3.Letter to Partner Organizations: Gives details of how to participate in the campaign 4.AMTC Leaflet: Discusses the issues raised by the bill in greater depth Hoping for your full-fledged support, With warm regards, Members of AMTC -------------- next part -------------- A non-text attachment was scrubbed... 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Name: amtc_leaflet.doc Type: application/msword Size: 44032 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20041207/2b382fbe/attachment-0002.doc From anasuya_s at yahoo.com Wed Dec 8 11:07:31 2004 From: anasuya_s at yahoo.com (Anasuya Sengupta) Date: Wed, 08 Dec 2004 11:07:31 +0530 Subject: [Commons-Law] Support the Right to Information Message-ID: <41B6931B.1020204@yahoo.com> Dear friends, Please do try and support the National Campaign for People's Right to Information in any way you can. It impacts on all our future work on social justice issues, especially civil society campaigns for good governance. The call for contributions has gone out on behalf of the NCPRI from MKSS, Rajasthan, headed by Magsaysay award winner, Aruna Roy. apologies for any cross-posting. in solidarity, anasuya Date: Tue, 07 Dec 2004 04:03:19 -0000 From: "mazdoor kisan shakti sangathan" Subject: Appeal to support the Right to Information Movement in India Dear Friend, The National Campaign for People's Right to Information (NCPRI) organized the Second National Convention on the People's Right to Information, in Delhi, from October 8-10, 2004. We had nearly a thousand people from all parts of the country to participate in this convention. Apart from three plenary sessions, involving eminent personalities from people's movements, politics, academics, the judiciary, the press, and the arts, there were also over forty workshops on various aspects of the right to information. The purpose of the convention was to raise awareness about the right to information and its role in strengthening and deepening democracy, and in making the government and other public institutions more answerable to the people. It was also used to create an All-India network of activists, with the objective of strengthening the movement in India and for taking on specific responsibilities to that end. I cannot over-stress the importance of the Right To Information movement in really bringing transparency and accountability in governance. Presently the Right To Information Act has been in force in only nine States and a very weak Central Act has been passed some years back, but not implemented. We are trying to get the Act amended at the Centre. Presently the National Advisory Council- NAC- has recommended a very powerful set of amendments, which the Prime Minister has in principle accepted. However, there are powerful forces seeking to stop these. The NCPRI is making an effort to build support and ensure that an effective Act is passed. Apart from this a sustained movement will be required to sustain and spread this movement. I am making a plea to a few friends to support this movement. The support needed would be terms of advocacy and some money. We are hoping some friends would give money to defray the costs. It has been decided not take more than Rs. 20000 from anyone. If you are convinced about this cause, do send your cheque (for Indian Rupees) in favour of 'National Campaign for People's Right to Information.' No income-tax exemptions would be available. Receipts would certainly be sent. The cheques could be mailed to: NCPRI C 17A DDA Flats Munirka New Delhi 110 067 Thanking you and in solidarity, Aruna Roy and Nikhil Dey From paul at waag.org Tue Dec 7 17:35:10 2004 From: paul at waag.org (paul keller) Date: Tue, 7 Dec 2004 17:35:10 +0530 Subject: [Commons-Law] EU strategy to enforce Intellectual Property Rights in third countries In-Reply-To: References: Message-ID: <3E64C1B2-4848-11D9-B343-000D93C0E134@waag.org> dear all, very interesting indeed. i find it quite interesting that in each and all the 'ranging from ... to ... ' lists in articles, memos and studies of IPR issues one always finds 'aeroplane spare parts'. to me this looks like a blunt attempt to appeal to some deep rooted human fear invoking the idea of a plane crash due to the malfunction of an inferior pirated spare part. does anybody here on this list know of an actual case (or plane crash for that matter) involving pirated aeroplane spare parts. or is this just fear mongering pretty much in line with the frequently invoked connection between piracy and terrorism? best, paul On 6 Dec, 2004, at 18:12, Lawrence Liang wrote: > > Very interesting read..... > > Lawrence > > -------- Original Message -------- > Subject: EU strategy to enforce Intellectual Property Rights in third > countries > Date: Mon, 06 Dec 2004 07:21:35 -0500 > From: James Love > To: Random-bits > > This is the EU enforcement strategy for IP in "third countries." > > The Basics....... > > 1. Identifying the priority countries: EU action will focus on the most > problematic countries in terms of IPR violations. These countries will > be identified according to a regular survey to be conducted by the > Commission among all stakeholders and should be the basis for renewing > the list of priority countries for the subsequent period. > > 2. IPR mechanisms in multilateral (incl. TRIPs), bi-regional and > bilateral agreements: This would include: raising enforcement concerns > in the framework of these agreements more systematically; consulting > trading partners with the aim of launching an initiative in the WTO > TRIPs Council, sounding the alarm on the growing dimension of the > problem, identifying the causes and proposing solutions; strengthening > IPR enforcement clauses in bilateral agreements.. > > 3. Political dialogue: Making clear to trading partners that an > effective protection of IP, at least at the level set in TRIPs, is > essential; launching joint initiatives focusing on IPR enforcement with > countries sharing or affected by similar concerns; providing training > and implementing networking mechanisms for officials in EU Delegations > in third countries facing enforcement problems. > > 4. Incentives-Technical Co-operation: Ensuring that technical > assistance > provided to third countries focuses on IPR enforcement, especially in > priority countries; exchanging ideas and information with other key > providers of technical co-operation, like the World Intellectual > Property Organisation (WIPO), the US or Japan , with the aim of > avoiding > duplication of efforts and sharing of best-practices. > > 5. Dispute settlement / Sanctions: Recalling the possibility that > right-holders have to make use of the Trade Barriers Regulation in > cases > of evidence of violations of TRIPs or of bilateral agreements; making > ex > officio use of the dispute settlement mechanisms included in > multilateral and/or bilateral agreements in case of non-compliance with > the required standards of IP protection. > > 6. Creation of public-private partnerships: Supporting-participating in > local IP networks established in relevant third countries; using > mechanisms already put in place by Commission services (IPR Help Desk > and Innovation Relay Centres) to exchange information with > right-holders > and associations; building on the co-operation with companies and > associations that are very active in the fight against > piracy/counterfeiting. > > 7. Awareness raising / Drawing on our own experience: Promote the > inclusion in technical co-operation programmes and in public-private > partnership initiatives of information destined to raise public > awareness about the impact of counterfeiting (loss of foreign > investment > and technology transfer, risks to health, link with organised crime, > etc.) and raise the awareness of Community right-holders doing business > in problematic countries about the risks incurred; make available to > the > public and to the authorities of concerned third countries a “Guidebook > on Enforcement of Intellectual Property Rights”. > > 8. Institutional co-operation: Improving the exchange of information > and > the co-ordination between the services in charge of the different > aspects of IPR enforcement; simplifying the identification and the > access of external entities (right-holders, third country authorities, > etc.) to the service responsible for the specific issue concerning > them. > > > ..... The complete document > > > MEMO/04/255 > Brussels, 10 November 2004 > EU strategy to enforce Intellectual Property Rights in third countries > - > facts and figures > > What is the dimension of the problem? > > Between 1998 and 2002 the number of counterfeit or pirated articles > intercepted at the EU's external frontiers increased by more than 800%. > Figures published by the European Commission in November 2003 show > that > customs seized almost 85 million counterfeit or pirated articles at the > EU's external border in 2002 and 50 million in the first half of 2003. > This illicit trade is worth the equivalent of more than 2 billion euro > on the legal Community market. > > These figures only tell us what is being caught at the Community > borders. As is the case with other types of illegal traffic, seizures > by > the authorities represent only the tip of the iceberg and show us > little > about the dimension and value of the illicit goods that end up being > sold in markets and streets worldwide. > > This is why it is extremely difficult to quantify the exact values > involved in the global trade of fake goods. Some estimations point to > figures representing between 3% and 9% of the total world trade, i.e., > 120 to 370 billion euro a year. Studies carried out by the OECD in 1998 > and by the International Chamber of Commerce in 1997, estimated then > that counterfeits accounted for 5 to 7% of world trade and were > responsible for the loss of 200,000 jobs in Europe. > > Which IP rights are violated and which sectors are most affected? > One frequent misconception is that piracy and counterfeiting mainly > affect some luxury, sports and clothing brands, music and software > CDs/DVDs, and little else. The reality is that virtually every IP is > being violated on a considerable scale and that the variety of fake > products ranges from cereal boxes to plants and seeds, from aeroplane > spare parts to sunglasses, from cigarettes to medications, from AA > batteries to entire petrol stations. Big software producers are as > likely to be harmed as small makers of a certain type of tea. The > annual > statistics published by the Commission’s customs services regarding the > number and the nature of seized pirated and counterfeit goods > originating from third countries provide detailed and reliable > information about the dimension and the growth of the problem . > > Why focusing now on third countries? > The WTO Agreement of intellectual Property Rights (TRIPs) establishes > for the first time a single, comprehensive, multilateral set of rules > covering all kinds of IPR. It contains also a detailed chapter setting > minimum standards of IPR enforcement to be adopted by all members of > the > WTO. > > However, despite the fact that, by now, most of the WTO members have > adopted legislation implementing such minimum standards , the levels of > piracy and counterfeiting continue to increase every year. These > activities have, in recent years, assumed industrial proportions, > because they offer considerable profit prospects with often a limited > risk for the perpetrators. > > Within the Community and at its external borders there have been a > number of important initiatives in the last 10 years. In 1994 the EU > adopted the Customs Regulation (Regulation (EC) No 3295/94), allowing > border control of imports of fake goods. Later, in 1998, the Commission > issued its Green Paper on Combating Counterfeiting and Piracy in the > Single Market. As a result of responses to the Green Paper, the > Commission presented an Action Plan, on 30 November 2000. This Action > Plan has been translated into a Directive published last April, > harmonising the enforcement of intellectual property rights within the > Community, a Regulation improving the mechanisms for customs action > against counterfeit or pirated goods set by the previous Customs > Regulation, the extension of Europol’s powers to cover piracy and > counterfeiting, etc. > > The situation is, however, different outside the borders of the > Community. The internal instruments available to Community > right-holders > in the case of violations of their rights within the Community or in > the > case of imports of fake goods into the EU are not usable when these > violations occur in third countries and the resulting goods are either > consumed domestically or exported to other third countries. Although > such violations occur outside, they directly affect Community > right-holders. Hence the need for an Enforcement Strategy focussing on > third countries. > > Why should developing countries concentrate their limited resources in > areas like justice, police or customs on the fight against the sale of > copies of goods and brands belonging to right-holders from rich and > developed countries? > > The trade of fake goods is no longer limited to cheap copies of luxury > brands and recordings of music and films consumed mostly by tourists > looking for a bargain souvenir. Nowadays, almost every conceivable > product is being illegally copied: from food to pharmaceuticals, from > toys to car and plane parts, from toasters to mineral water. The risks > to public health and consumer safety incurred by frequently unaware > purchasers are obvious. Consumers in the poorest countries are > particularly exposed to sales of these dangerous products. > > Another reason why every country, rich or poor, should be concerned has > to do with the undeniable role played by organised crime networks in > the > spread of piracy and counterfeiting. Until this activity is no longer > seen as a low risk / high profit type of crime, it will continue to > spread and to put in the hands of criminal organisations entire sectors > of the economy. It is therefore also a question of public order, > security and good governance. > > Effective enforcement of IP rights is also essential to attract foreign > investment, transfer of technology and know-how, as well as to protect > the local right-holders in developing countries. > > It is also an indicator of international credibility and respect of the > rule of law. Finally, in the mid-to-long term, it will encourage more > domestic authors, inventors and investors and contribute to the > development of these countries. > > Why does the Commission target the problem in third countries when > pirated and counterfeited goods are so easily available within the EU? > Generally speaking, the Community and its Member States are > acknowledged > for protecting and enforcing IPR according to very high standards. In > practical terms, reports like the one published annually by the > European > Commission give a clear idea of the results achieved by each Member > State in terms of seizures of fake goods at the borders. This has > already led to an increase of more than 800% in the volume of such > confiscations between 1998 and 2002 (from 10 million to more than 85 > million articles). > > The recently approved Directive harmonising the enforcement of > intellectual property rights within the Community will not only help to > improve the situation, but it also constitutes an example to third > countries of measures that proved effective in some Member States and > that are now being extended to the entire Community. > The challenge is now to ensure that enforcement takes place beyond the > EU borders, in third countries. > > What is in the Enforcement Strategy? > > The Enforcement Strategy is a Communication of the Commission > determining the priorities and optimising the use of resources in order > to obtain the most effective results in terms of IPR enforcement in > third countries. > > The actions in detail: > > 1. Identifying the priority countries: EU action will focus on the most > problematic countries in terms of IPR violations. These countries will > be identified according to a regular survey to be conducted by the > Commission among all stakeholders and should be the basis for renewing > the list of priority countries for the subsequent period. > > 2. IPR mechanisms in multilateral (incl. TRIPs), bi-regional and > bilateral agreements: This would include: raising enforcement concerns > in the framework of these agreements more systematically; consulting > trading partners with the aim of launching an initiative in the WTO > TRIPs Council, sounding the alarm on the growing dimension of the > problem, identifying the causes and proposing solutions; strengthening > IPR enforcement clauses in bilateral agreements.. > > 3. Political dialogue: Making clear to trading partners that an > effective protection of IP, at least at the level set in TRIPs, is > essential; launching joint initiatives focusing on IPR enforcement with > countries sharing or affected by similar concerns; providing training > and implementing networking mechanisms for officials in EU Delegations > in third countries facing enforcement problems. > > 4. Incentives-Technical Co-operation: Ensuring that technical > assistance > provided to third countries focuses on IPR enforcement, especially in > priority countries; exchanging ideas and information with other key > providers of technical co-operation, like the World Intellectual > Property Organisation (WIPO), the US or Japan , with the aim of > avoiding > duplication of efforts and sharing of best-practices. > > 5. Dispute settlement / Sanctions: Recalling the possibility that > right-holders have to make use of the Trade Barriers Regulation in > cases > of evidence of violations of TRIPs or of bilateral agreements; making > ex > officio use of the dispute settlement mechanisms included in > multilateral and/or bilateral agreements in case of non-compliance with > the required standards of IP protection. > > 6. Creation of public-private partnerships: Supporting-participating in > local IP networks established in relevant third countries; using > mechanisms already put in place by Commission services (IPR Help Desk > and Innovation Relay Centres) to exchange information with > right-holders > and associations; building on the co-operation with companies and > associations that are very active in the fight against > piracy/counterfeiting. > > 7. Awareness raising / Drawing on our own experience: Promote the > inclusion in technical co-operation programmes and in public-private > partnership initiatives of information destined to raise public > awareness about the impact of counterfeiting (loss of foreign > investment > and technology transfer, risks to health, link with organised crime, > etc.) and raise the awareness of Community right-holders doing business > in problematic countries about the risks incurred; make available to > the > public and to the authorities of concerned third countries a “Guidebook > on Enforcement of Intellectual Property Rights”. > > 8. Institutional co-operation: Improving the exchange of information > and > the co-ordination between the services in charge of the different > aspects of IPR enforcement; simplifying the identification and the > access of external entities (right-holders, third country authorities, > etc.) to the service responsible for the specific issue concerning > them. > > Is this an attempt to impose on poor countries additional TRIPs plus, > one-size-fits-all mechanisms of IP enforcement? Is this an attempt by > developed countries to gang up against developing countries? > No and no. The strategy paper does not impose any additional, TRIPs > plus > obligations on any developing country. It is just focused on > enforcement > of existing rules. > > We are not trying to gang up with or to copy other countries that may > share our concerns. We believe however that we can create synergies and > rationalise our efforts in areas like technical assistance with > partners > that also believe in the use of such mechanisms to improve the > situation. > > On the other hand, we don’t believe in pre-formatted solutions. It will > be necessary to have a flexible approach that takes into account the > different needs, the level of development, the membership or not of > World Trade Organisation (WTO), and the main problems in terms of IPR > (country of production, transit or consumption of fake goods) of the > country with whom we are talking. We believe that any proposed > solutions > will only be effective if they are prioritised and indeed felt as > important in the recipient country. > > Which are the most problematic countries? > In July 2003, the European Commission issued the results of a survey on > enforcement issues in the area of intellectual property rights , aimed > at assessing in a detailed manner the situation in third countries. > The countries considered then as most problematic according to the > results of the survey were China, Thailand, Ukraine, Russia, Indonesia, > Brazil, Turkey and South Korea. Respondents considered these as the > main > countries where production of pirated and counterfeit goods, both for > domestic consumption and for export, reached worrying dimensions. > Results of the survey in detail: > > - China: In the area of copyright, there is widespread piracy in all > formats (CDs, VCDs, cassettes, DVDs). There are also extensive illegal > digital downloads and distribution of films, music and software. > Regarding trademarks, estimates that around 15 20% of all brand > products > sold in China are fakes, and that the portion has risen significantly > in > recent years. Information was received regarding fake clothes, > footwear, > leather goods, watches, toys, cigarettes, pharmaceutical products, car > parts and entire cars, electronic devices, lighting products, small > electrical appliances (hairdryers, irons, kettles), semiconductors, > large industrial machines, lubricants and even entire petrol stations. > In the area of patents, there are reports of infringements on > pharmaceutical products, electrical domestic appliances, industrial > machinery, etc. > > - Thailand: Copyright - generalised piracy of music, movie, business > and > game software in CD, DVD and VCD format. Trademarks - There is an > important counterfeiting problem in this country, regarding well know > brands of cloths manufacturers. > > - Ukraine: Copyright - Production and dissemination of audio-visual > products, in particular CD’s and copying and dissemination of > unlicensed > software are most acute. About 95% of software in Ukrainian computers > are estimated to be illegally installed. Trademarks - Clothes, alcohol, > cigarettes, fertilizers, agrochemicals and increasingly foodstuffs. The > violations in this area ranged from the illegal use of trademark or > mixing it in a misleading way with a proper trademark, to the illegal > use of a company name, to the divulging of commercial secrets. Patents > - > Pharmaceuticals. > > - Russia: There is a high level of music piracy (more than 60% of the > market in 2002). The same situation is witnessed by other copyright > related industries (e.g. video and film, software industries). Internet > based piracy is also extensive. There is also a significant level of > counterfeiting of pharmaceuticals, (accounting for around 12% of the > Russian pharmaceutical market), counterfeits of drinks, food, and other > fast moving consumer goods products etc. > > - Brasil: Copyright piracy: during 2001, the legitimate industry > reported losses of over 300 million €, caused mainly by the growth of > piracy. This figure represents 55% of the recorded music in Brazil. > During the same period, the software industry lost around € 300 million > which represents 58% of the computer software programs sold. Trademark > counterfeiting, notably clothing, sport items, toys, perfumes, tobacco, > etc. (€ 150 million in 2001). The legitimate clothing industry loses > 1.5 million € per year due to counterfeiting. > > - Turkey: Copyright - Piracy (cassettes and CDs) is the main area of > violation in the music industry. Piracy in Turkey is estimated between > 50 and 75% of the market, with the higher figure reflecting piracy of > international repertoire. Trademarks - Extensive and systematic > counterfeiting of trademarks on clothes, footwear, leather goods, > apparel, car parts and others.. > > - South Korea: Trademarks and designs - counterfeiting of high value > luxury consumer goods, estimations that Korea was in 2002 the third > producer of counterfeit goods in the world. Copyrights - Music piracy > in > all format, CDs, VCDs, cassettes and illegal digital downloads and > distribution. Industrial design -There are also reports of > counterfeiting of designs in sports equipment (mainly footwear) > > - Indonesia: Trade marks and industrial design: Extensive > counterfeiting > of apparel and of automotive products. But also copyright violations of > music, films and software. > > -- > James Love, Director, CPTech, http://www.cptech.org > > Consumer Project on Technology in Washington, DC > PO Box 19367, Washington, DC 20036, USA > Tel.: 1.202.387.8030, fax: 1.202.234.5176 > > Consumer Project on Technology in Geneva > 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland > Tel: +41 22 791 6727 > > Mobile +1.202.361.3040 > james.love at cptech.org > > > > > -- > James Love, Director, CPTech, http://www.cptech.org > > Consumer Project on Technology in Washington, DC > PO Box 19367, Washington, DC 20036, USA > Tel.: 1.202.387.8030, fax: 1.202.234.5176 > > Consumer Project on Technology in Geneva > 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland > Tel: +41 22 791 6727 > > Mobile +1.202.361.3040 > james.love at cptech.org > _______________________________________________ > Ip-health mailing list > Ip-health at lists.essential.org > http://lists.essential.org/mailman/listinfo/ip-health > > ------ End of Forwarded Message > > > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law From aidslaw at bom5.vsnl.net.in Wed Dec 8 14:25:41 2004 From: aidslaw at bom5.vsnl.net.in (lawyers) Date: Wed, 8 Dec 2004 14:25:41 +0530 Subject: [Commons-Law] Act Up-Paris Protest on Patent Bill 2004 Message-ID: <023601c4dd03$b24f5340$0e00a8c0@lawyers> Act Up-Paris Press release - Monday December 6 Global access to medicines is threatened The Indian government must postpone amending its patent law Today December 6 2004, French aids activist group Act Up-Paris demonstrated in front of the Indian consulate in Paris to protest against Indian Industry Minister Mr Kamal Nath, whose recent policies are threatening global access to generic medicines. Photographs are available on www.actupparis.org Minister Nath has announced a revision of the Indian Patents Act aiming at putting India in compliance with its WTO obligations. But Mr Nath, giving in to pressure from Washington and Western pharmaceutical companies, is proposing amendments which, if enacted, will block the manufacture and export of cheap generic drugs to AIDS-ridden countries in Africa and Asia . Starting January 1st, the WTO expects India to grant patent monopolies on medicines to international drug companies. But India plays a unique role in global access to medicines. According to WHO, India is the world's chief exporter of cheap generic drugs - primarily to poor nations in Africa and Asia that have no pharmaceutical capability of their own. Due to the WTO patent process, several generics have already had to be withdrawn from Indian pharmacies, such as the generic version of anti-cancer blockbuster Gleevec, which the patent owner is selling at 57 000 dollars. Early next year, the top-selling HIV drug Combivir is expected to undergo patent protection too, even though UN agencies estimates that up to 30% of African AIDS patients receiving treatment now are using one of the Indian generics of Combivir, such as Cipla's Duovir or Ranbaxy's Avocom. In this context, the survival of millions of indigent people with HIV rests on India's continued ability to make and export cheap generic versions of new, effective HIV treatments. In 2001, the WTO recognized developing countries's right to circumvent drug patents through a mechanism known as « compulsory licensing ». Yet Minister Nath intends to rig India's compulsory licensing system with unlimited injunctive relief appeals that the WTO doesn't mandate, and that the drug companies have used to stifle the issuance of any license. The activists from Affordable Medicines Treatment Campaign in India, as well as Health GAP in the US and Act Up in France, demand that Mr Nath implement a strictly enforceable deadline of one to three months for the review of a compulsory license request, as well as the withdrawal of injunctive relief in drug company's rights of appeal. Activists also stress that nothing is forcing India to amend its patent law in haste : most other developing countries have managed to exceed the deadlines set by WTO for complying with its patent norms. Tomorrow Tuesday December 7, Affordable Medicines Treatment Campaign organizes a march on Parliament in Delhi to request its amendments be passed. Pictures are on the web site http://www.actupparis.org/portfolio2.php?id_document=1510 -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041208/cfdd4b8b/attachment.html From aidslaw at bom5.vsnl.net.in Wed Dec 8 15:49:28 2004 From: aidslaw at bom5.vsnl.net.in (lawyers) Date: Wed, 8 Dec 2004 15:49:28 +0530 Subject: [Commons-Law] Protest against new Patents Bill in new Delhi Message-ID: <02a801c4dd0f$66b36fa0$0e00a8c0@lawyers> Protest against new Patents Bill The Hindu , By Our Staff Reporter NEW DELHI, DEC. 7. A people's meeting and protest march were held here today against the Patent Amendment Bill, expected to be tabled in Parliament by the Government during the ongoing winter session. The meeting was organised jointly by the Affordable Medicines and Treatment Campaign, the National Working Group on Patent Laws and the Research Foundation for Science, Technology and Ecology. According to experts, the Patents Bill in its present form seriously compromises on the "accessibility and availability of medicines,'' the two important components of the right to health. Public interest groups working on health issues claimed that they were concerned that India, through the Third Patent Amendment Bill, would trade away its rights to protect the public health of people who need access to low-cost and quality-generic medicines. They added that the introduction of a product patent regime would reduce accessibility to new drugs. Till now India provided for only process patents in the case of medicines. In the case of a process patent, protection is only for the process and method of manufacture and not for the product. Therefore a process patent does not prevent third parties from manufacturing the product through another process. But in the case of product patents, only the patent owner or the agent authorised by him through a licence can produce the patented medicine. Extended scope "The Bill proposes to extend the scope of patentability to new use of known medicines and to do away with pre-grant opposition procedure. What we are demanding is that the product patent should be given only to new chemical entities and not to new use and dosage forms. This will limit the number of patent-protected drugs. Also, pre-grant opposition is absolutely essential for blocking trivial patents as it gives an opportunity to interested parties, including civil society, to be heard before granting a monopoly,'' claimed Anand Grover of the Affordable Medicine and Treatment Campaign. Protesters also state that the Bill has not properly incorporated the August 30 decision of the TRIPS General Council which permits the grant of compulsory licences for export purpose to countries with no or insufficient manufacturing capacity in the pharmaceutical sector. More importantly, protesters claim, the people at large, as an affected party, have a right to be consulted and heard. Unfortunately, the Government views patents as a trade issue between Indian and foreign drug companies and not as a health issue concerning the public."Since the product patent regime will have serious and adverse ramifications for the public interest and security of the country, the Government should consult public interest groups and individuals on the ways and means to ensure accessibility and availability of medicines,'' claimed a protester. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041208/ac5a1218/attachment.html From prashant at nalsartech.org Fri Dec 10 10:31:51 2004 From: prashant at nalsartech.org (prashant at nalsartech.org) Date: Fri, 10 Dec 2004 10:31:51 +0530 Subject: [Commons-Law] Guatemalan Congress Repeals Law That Restricted Access to Medicines Message-ID: <1102654911.41b92dbf29856@www.nalsartech.org> Hi, I know this is far from home, but I still think it's important to keep a track of these trends. Regards, Prashant http://www.accessmed-msf.org/prod/publications.asp?scntid=261120041559437&contenttype=PARA& Guatemalan Congress Repeals Law That Restricted Access to Medicines 26 November, 2004 -------------------------------------------------------------------------------- MSF warns that this step forward could be reversed by similar provisions in the recently signed United States-Central American Free Trade Agreement (CAFTA) Geneva/Guatemala City, November 26, 2004: The Guatemalan Congress’s repeal of a law that severely restricts people’s access to affordable essential medicines is a positive step forward. The international humanitarian medical aid organization Médecins Sans Frontières (MSF) said today that the government of Guatemala should now take advantage of this decision to ensure treatment for greater numbers of Guatemalans living with HIV/AIDS and other infectious diseases. But MSF also warned that this step forward could be undermined and reversed by similar provisions included in the recently signed United States-Central American Free Trade Agreement (CAFTA). In 2003, the Guatemalan government modified its national intellectual property law with Decree 9-2003, which provided five years of “data exclusivity” on drugs registered for use in the country. This provision created an automatic five-year delay in the availability of generic medicines regardless of their patent status in a country. For the nearly 70,000 Guatemalans currently living with HIV/AIDS – 7000 of whom are in urgent clinical need of such treatment – five years without affordable generic medicines could be a death sentence. Presently, only 2700 Guatemalans with HIV receive antiretroviral treatment. “A lot of people throughout Guatemalan society succeeded in pressuring their government to overturn a law that undermined public health,” said Pere-Joan Pons, spokesperson for MSF’s mission in Guatemala. “Now, the Ministry of Health will need to act to urgently expand access for all the Guatemalans who would otherwise die without treatment.” However, MSF warned that CAFTA includes “data exclusivity” and other restrictive intellectual property measures and extends them throughout the entire Central American region. This will further prevent Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua from taking advantage of flexibilities found in the existing World Trade Organization agreement and block generic competition – the only proven mechanism for achieving sustained and systematic price reductions. “We can’t stop at the repeal of the Guatemalan law which blocked patients from receiving life-saving medicines. Repealing Decree 9-2003 will have little meaning if this and other intellectual property restrictions are implemented through CAFTA,” said Ellen ‘t Hoen, the director of policy advocacy for MSF’s Campaign for Access to Essential Medicines. From monica at sarai.net Fri Dec 10 11:14:11 2004 From: monica at sarai.net (Monica Narula) Date: Fri, 10 Dec 2004 11:14:11 +0530 Subject: [Commons-Law] X Notes on Practice Message-ID: Dear all Here is an essay we wrote a few months ago, meant to be published in: Immaterial Labour: Work, Research & Art, ed. Marina Vishmidt, Melanie Gilligan, Black Dog Publishing, London/New York, 2004. This is our day for sending in our essays, so there is another one next which extends some of the ideas raised in this . best Monica/Shuddha/Jeebesh ---------------------- X notes on Practice Stubborn Structures and Insistent Seepage in a Networked World Raqs Media Collective I The Figure of the Artisan The artisan stands at the outer threshold of early modernity, fashioning a new age, ushering in a new spirit with movable type, plumb line, chisel, paper, new inks, dyes and lenses, and a sensibility that has room for curiosity, exploration, co-operation, elegance, economy, utility and a respect for the labour of the hand, the eye and the mind. The artisan is the typesetter, seamstress, block-maker, carpenter, weaver, computer, oculist, scribe, baker, dyer, pharmacist, mason, midwife, mechanic and cook - the ancestor of every modern trade. The artisan gestures towards a new age but is not quite sure of a place in it. The figure of the artisan anticipates both the worker and the artist, in that it lays the foundations of the transformation of occupations (things that occupy us) into professions (institutionalized, structural locations within an economy). It mediates the transfiguration of people into skills, of lives into working lives, into variable capital. The artisan is the vehicle that carried us all into the contemporary world. She is the patient midwife of our notion of an autonomous creative and reflective self, waiting out the still births, nursing the prematurely born, weighing the infant and cutting the cords that tie it to an older patrimony. The artisan makes us who we are. Yet, the artisan has neither the anonymity of the worker drone, not the hyper-individuated solipsism of the artist genius. The artisan is neither faceless, nor a celebrity; she belongs neither in the factory, nor in the salon, but functions best in the atelier, the workshop and the street, with apprentices and other artisans, making and trading things and knowledge. The artisan fashions neither the mass produced inventories of warehouses, nor the precious, unique objects that must only be seen in galleries, museums and auction houses. The objects and services that pass through her hands into the world are neither ubiquitous nor rare, nor do they seek value in ubiquity or rarity. They trade on the basis of their usage, within densely networked communities that the artisan is party to, not on the impetus of rival global speculations based on the volumes and volatility of stocks, or the price of a signature. As warehouses and auction houses proliferate, squeezing out the atelier and the workshop, the artisan loses her way. At the margins of an early industrial capitalism, the artisan seemingly transacts herself out of history, making way for the drone and the genius, for the polarities of drudgery and creativity, work and art. II. Immaterial Labour Due to the emergence of a new economy of intellectual property based on the fruits of immaterial labour, the distinction between the roles of the worker and the artist in strictly functional terms is once again becoming difficult to sustain. To understand why this is so we need to take a cursory look at the new ways in which value is increasingly being produced in the world today. The combination of widespread cybernetic processes, increased economies of scale, agile management practices that adjust production to demand, and inventory status reports in a dispersed global assembly line, has made the mere manufacture of things a truly global fact. Cars, shoes, clothes, and medicines, or any commodity for that matter, are produced by more or less the same processes, anywhere. The manufacture of components, the research and design process, the final assembly and the marketing infrastructure no longer need to be circumscribed within one factory, or even one nation state or regional economic entity. The networked nature of contemporary industrial production frees the finished good from a fidelity to any one location. This also results in a corollary condition - a multiplication of renditions, or editions, (both authorized as well as counterfeit) of any product line at a global scale. Often, originals and their imitations are made in the same out-sourced sweatshop. The more things multiply, the more they tend towards similarity, in form and appearance, if not in function. Thus, when capital becomes more successful than ever before at fashioning the material surface of the world after its own image, it also has more need than ever before for a sense of variety, a classificatory engine that could help order the mass that it generates, so that things do not cancel each other out by their generative equivalence. Hence the more things become the same the more need there is for distinguishing signs, to enable their purchase. The importance given to the notions of 'brand equity' from which we get derivatives from which we get derivatives like 'brand velocity', 'brand loyalty' and a host of other usages are prefixed by the term 'brand' indicative of this reality. Today, the value of a good lies not only in what makes it a thing desirable enough to consume as a perishable capsule of (deferred) satisfaction. The value of a good lies especially in that aspect of it which makes it imperishable, eternally reproducible, and ubiquitously available. Information, which distils the imperishable, the reproducible, the ubiquitous in a condensed set of signs, is the true capital of this age. A commodity is no longer only an object that can be bought and sold; it is also that thing in it which can be read, interpreted and deciphered in such a way that every instance of decryption or encryption can also be bought and sold. Money lies in the meaning that lies hidden in a good. A good to eat must also be a good to think with, or to experiment with in a laboratory. This encryption of value, the codification and concentration of capital to its densest and most agile form is what we understand to be intellectual property. How valuable is intellectual property? How valuable is intellectual property? In attempting to find an answer to a question such as this, it is always instructive to look at the knowledge base that capitalism produces to assess and understand itself. In a recent paper titled "Evaluating IP Rights: In Search of Brand Value in the New Economy" a brand management consultant, Tony Samuel of PricewaterhouseCoopers' Intellectual Asset Management Group says: "This change in the nature of competition and the dynamics of the new world economy have resulted in a change in the key value drivers for a company from tangible assets (such as plant and machinery) to intangible assets (such as brands, patents, copyright and know how). In particular, companies have taken advantage of more open trade opportunities by using the competitive advantage provided by brands and technology to access distant markets. This is reflected in the growth in the ratio of market-capitalised value to book value of listed companies. In the US, this ratio has increased from 1:1 to 5:1 over the last twenty years. In the UK, the ratio is similar, with less than 30% of the capitalised value of FTSE 350 companies appearing on the balance sheet. We would argue that the remaining 70% of unallocated value resides largely in intellectual property and certainly in intellectual assets. Noticeably, the sectors with the highest ratio of market capitalisation to book value are heavily reliant on copyright (such as the media sector), patents (such as technology and pharmaceutical) and brands (such as pharmaceutical, food and drink, media and financial services)."1 The paper goes on to quote Alan Shepard, sometime chairman of Grand Metropolitan plc, an international group specializing in branded food, drinks and retailing which merged with Guinness in 1997 to form Diageo, a corporation which today controls brands as diverse as Smirnoff and Burger King. "Brands are the core of our business. We could, if we so wished, subcontract all of the production, distribution, sales and service functions and, provided that we retained ownership of our brands, we would continue to be successful and profitable. It is our brands that provide the profits of today and guarantee the profits of the future." We have considered brands here at some length, because of the way in which brands populate our visual landscape. Were a born again landscape painter to try and represent a stretch of urban landscape, it would be advisable for him or her to have privileged access to a smart intellectual property lawyer. But what is true of brands is equally true of other forms of intangible assets, or intellectual property, ranging from music, to images to software. The legal regime of intellectual property is in the process of encompassing as much as possible of all cultural transactions and production processes. All efforts to create or even understand art will have to come to terms, sooner or later, with the implications of this pervasive control, and intellectual property attorneys will no doubt exert considerable 'curatorial' influence as art events, museums and galleries clear artists projects, proposals and acquisitions as a matter of routine. These 'attorney-curators' will no doubt ensure that art institutions and events do not become liable for possible and potential 'intellectual property violations' that the artist, curator, theorist, writer or practitioner may or may not be aware of as being inscribed into their work. III The Worker as Artist What are the implications of this scenario? The worker of the twenty first century, who has to survive in a marker that places the utmost value on the making of signs, finds that her tools, her labour, her skills are all to do with varying degrees of creative, interpretative and performative agency. She makes brands shine, she sculpts data, she mines meaning, she hews code. The real global factory is a network of neural processes, no less material than the blast furnaces and chimneys of manufacturing and industrial capitalism. The worker of the twenty first century is also a performer, a creator of value from meaning. She creates, researches and interprets, in the ordinary course of a working day to the order that would merit her being considered an artist or a researcher, if by 'artist' or 'researcher' we understand a person to be a figure who creates meaning or produces knowledge. Nothing illustrates this better than the condition of workers in Information technology enabled industries like Call Centre and Remote Data Outsourcing, which have paved the way for a new international matrix of labour, and a given a sudden performative twist to the realities of what is called Globalization. In a recent installation, called A/S/L (Age/Sex/Location)2, we looked at the performative dimension in the lives of call centre workers. The Call Centre Worker and her world3 A call centre worker in the suburb of Delhi, the city where we live, performs a Californian accent as she pursues a loan defaulter in a poor Los Angeles neighbourhood on the telephone. She threatens and cajoles him. She scares him, gets underneath his skin, because she is scared that he won't agree to pay, and that this will translate as a cut in her salary. Latitudes away from him, she has a window open on her computer telling her about the weather in his backyard, his credit history, his employment record, his prison record. Her skin is darker than his, but her voice is trained to be whiter on the phone. Her night is his day. She is a remote agent with a talent for impersonation in the IT enabled industry in India. She never gets paid extra for the long hours she puts in. He was laid off a few months ago, and hasn't been able to sort himself out. Which is why she is calling him for the company she works for. He lives in a third world neighbourhood in a first world city, she works in a free trade zone in a third world country. Neither knows the other as anything other than as 'case' and 'agent'. The conversation between them is a denial of their realities and an assertion of many identities, each with their truths, all at once. Central to this kind of work is a process of imagining, understanding and invoking a world, mimesis, projection and verisimilitude as well as the skilful deployment of a combination of reality and representation. Elsewhere, we have written of the critical necessity of this artifice to work, (in terms of creating an impression of proximity that elides the actuality of distance) in order for a networked global capitalism to sustain itself on an everyday basis, but here, what we would like to emphasize is the crucial role that a certain amount of 'imaginative' skill, and a combination of knowledge, command over language, articulateness, technological dexterity and performativity plays in making this form of labour productive and efficient on a global scale. IV. Marginalia Sometimes, the most significant heuristic openings are hidden away on the margins of the contemporary world. While the meta-narratives of war, globalization, disasters, pandemics and technological spectacles grab headlines, the world may be changing in significant but unrecognized directions at the margins, like an incipient glacier inching its way across a forsaken moraine. These realities may have to with the simple facts of people being on the move, of the improvised mechanisms of survival that suddenly open out new possibilities, and the ways in which a few basic facts and conceptions to do with the everyday acts of coping with the world pass between continents. Here, margin is not so much a fact of location (as in something peripheral to an assumed centre) as it is a figure denoting a specific kind or degree of attentiveness. In this sense, a figure may be located at the very core of the reality that we are talking about, and still be marginal, because it does not cross a certain low-visibility, low-attention threshold, or because it is seen as being residual to the primary processes of reality. The call centre worker may be at the heart of the present global economy, but she is barely visible as an actor or an agent. In this sense, to be marginal is not necessary to be 'far from the action' or to be 'remote' or in any way distant from the very hub of the world as we find it today. The Margin has its own image-field. And it is to this image-field that we turn to excavate or improvise a few resources for practice. A minor artisanal specialization pertaining to medieval manuscript illumination was the drawing and inscription of what has been called "marginalia"4. "Marginalists" (generally apprentices to scribes) would inscribe figures, often illustrating profane wisdom, popular proverbs, burlesque figures and fantastical or allegorical allusions that occasionally constructed a counter-narrative to the main body of the master text, while often acting as what was known as "exempla": aids to conception and thought (and sometimes as inadvertent provocations for heretic meditations). It is here, in these marginal illuminations, that ordinary people - ploughmen, peasants, beggars, prostitutes and thieves would often make their appearances, constructing a parallel universe to that populated by kings, aristocrats, heroes, monsters, angels, prophets and divines. Much of our knowledge of what people looked like in the medieval world comes from the details that we find in manuscript marginalia. They index the real, even as they inscribe the nominally invisible. It would be interesting to think for instance of the incredible wealth of details of dress, attitude, social types and behaviours that we find in the paintings of Hieronymus Bosch, or Pierre Breughel as marginalia writ large. It is with some fidelity to this artisanal ideal of using marginalia as exemplars that we would like to offer a small gallery of contemporary marginal figures. V. Five Figures to Consider As significant annotations to the text of present realities, and as ways out for the dilemmas that we have faced in our own apprehensions of the world, we find ourselves coming back repeatedly to them in our practice - as images, as datums and as figures of thought, as somewhat profane icons for meditation. We feel that these figures, each in their own way, speak to the predicament of the contemporary practitioner. Figure One: The Alien Navigates a Boat at Sea A boat changes course at sea, dipping temporarily out of the radar of a nearby coast guard vessel. A cargo of contraband people in the hold, fleeing war, or the aftermath of war, or the fifth bad harvest in a row, or a dam that flooded their valley, or the absence of social security in the face of unemployment, or a government that suddenly took offence at the way they spelt their names - study the contours of an unknown coastline in their minds, experiment with the pronunciations of harbour names unfamiliar to their tongues. Their map of the world is contoured with safe havens and dangerous border posts, places for landing, transit and refuge, anywhere and everywhere, encircled and annotated in blue ink. A geography lesson learnt in the International University of Exile. Figure Two: The Squatter builds a Tarpaulin Shelter Tarpaulin, rope, a few large plastic drums, crates, long poles of seasoned bamboo, and quick eyes and skilled hands, create a new home. A migrant claims a patch of fallow land, marked "property of the state" in the city. Then comes the tough part: the search for papers, the guerrilla war with the Master Plan for a little bit of electricity, a little bit of water, a delay in the date of demolition, for a few scraps of legality, a few loose threads of citizenship. The learning of a new accent, the taking on of a new name, the invention of one or several new histories that might get one a ration card, or a postponed eviction notice. The squat grows incrementally, in Rio de Janeiro, in Delhi, in Baghdad, creating a shadow global republic of not-quite citizens, with not-yet passports, and not-there addresses. Figure Three: The Electronic Pirate burns a CD A fifteen square-yard shack in a working-class suburb of northeast Delhi is a hub of the global entertainment industry. Here, a few assembled computers, a knock-down Korean CD writer, and some Chinese pirated software in the hands of a few formerly unemployed, or unemployable young people turned media entrepreneurs, transform the latest Hollywood, or Bollywood blockbuster into the stuff that you can watch in a tea shop on your way to work. Here, the media meets its extended public. It dies a quick death as one high-end commodity form, and is resurrected as another. And then, like the Holy Spirit, does not charge an exorbitant fee to deliver a little grace unto those who seek its fleeting favours. Electronic piracy is the flow of energy between chained product and liberated pixel that makes for a new communion, a samizdat of the song and dance spectacular. Figure Four: The Hacker Network liberates Software A community of programmers dispersed across the globe sustains a growing body of software and knowledge - a digital commons that is not fenced in by proprietary controls. A network of hackers, armed with nothing other than their phone lines, modems, internet accounts and personal computers inaugurate a quiet global insubordination by refusing to let code, music, texts, math and images be anything but freely available for download, transformation and distribution. The freedom is nurtured through the sharing of time, computing resources and knowledge in a way that works out to the advantage of those working to create the software, as well as to a larger public, that begins swapping music and sharing media files to an extent that makes large infotainment corporations look nervously at their balance sheets. The corporations throw their lawyers at the hackers, and the Intellectual Property Shock Troops are out on parade, but nothing can turn the steady erosion of the copyright. Figure Five: Workers Protect Machines in an Occupied Factory Seamstresses at the Brukman Garment Factory in Buenos Aires5 shield their machines against a crowd of policemen intent on smashing them. The power of the Argentine state provokes a perverse neo Luddite incident, in which the workers are attacked while they try to defend their machines from destruction. The Brukman Factory is a "fabrica ocupada", a factory occupied by its workers, one of many that have sustained a new parallel social and economic structure based on self regulation and the free exchange of goods and services outside or tangential to the failed money economy - a regular feature of the way in which working people in Argentina cope with the ongoing economic crisis. Turning the rhetoric and tactics of working class protest on its head, the seamstresses of the Brukman factory fight not to withdraw their labour from the circuit of production, but to protect what they produce, and to defend their capacity to be producers, albeit outside the circuit desired by capital. VI. Significant Transgressions These five transgressors, a pentacle of marginalia, can help us to think about what the practitioner might need to understand if she wants to recuperate a sense of agency. In very simple terms, she would need to take a lesson in breaking borders and moving on from the migrant, in standing her ground and staying located from the squatter, in placing herself as a link in an agile network of reproduction, distribution and exchange from the pirate, in sharing knowledge and enlarging a commons of ideas from the hacker, and in continuing to be autonomously productive from the workers occupying the factory. The first imperative, that of crossing borders, translates as scepticism of the rhetoric of bounded identities, and relates to the role of the practitioner as a 'journeyman', as the peripatetic who maps an alternative world by her journey through it. The second, of building a shelter against the odds of the law, insists however on a practice that is located in space, and rooted in experience, that houses itself in a concrete 'somewhere' on its own terms, not of the powers that govern spaces. It is this fragile insistence on provisional stability, which allows for journeys to be made to and from destinations, and for the mapping of routes with resting places in between. The third imperative, that of creating a fertile network of reproduction of cultural materials, is a recognition of the strength of ubiquity, or spreading ideas and information like a virus through a system. The fourth imperative, of insisting on the freedom of knowledge from proprietary control, is a statement about the purpose of production - to ensure greater pleasure and understanding without creating divisions based on property, and is tied in to the fifth imperative - a commitment to keep producing with autonomy and dignity. Taken together, these five exempla constitute an ethic of radical alterity to prevailing norms without being burdened by the rhetorical overload that a term like 'resistance' invariably seems to carry. They also map a different reality of 'globalization' - not the incessant, rapacious, expansion of capitalism, but the equally incessant imperative that makes people move across the lines that they are supposed to be circumscribed by, and enact the everyday acts of insubordination that have become necessary for their survival. It is important to look at this subaltern globalization from below, which is taking place everywhere, and which is perhaps far less understood than the age-old expansionist drive of capitalism, which is what the term 'globalization' is now generally used to refer to. It embodies different wills to globality and a plethora of global imaginaries that are often at cross-purposes with the dominant rhetoric of corporate globalization. The illegal emigrant, the urban encroacher, electronic pirate, the hacker and the seamstresses of the Brukman Factory of Buenos Aires are not really the most glamorous images of embodied resistance. They act, if anything, out of a calculus of survival and self-interest that has little to do with a desire to 'resist' or transform the world. And yet, in their own way, they unsettle, undermine and destabilize the established structures of borders and boundaries, metropolitan master plans and the apparatus of intellectual property relations and a mechanism of production that robs the producer of agency. If we examine the architecture of the contemporary moment, and the figures that we have described, it does not take long to see five giant, important pillars: (5)The consolidation, redrawing and protection of boundaries (6)The grand projects of urban planning and renewal and (7)The desire to protect information as the last great resource left for capitalism to mine - which is what Intellectual Property is all about, (8)Control over the production of knowledge and culture and (9)The denial of agency to the producer. Illegal emigration, urban encroachment, the assault on intellectual property regimes by any means, hacking and the occupation of sites of production by producers, each of which involve the accumulation of the acts of millions of people across the world on a daily, unorganized and voluntary basis, often at great risk to themselves, are the underbelly of this present reality. But how might we begin to consider and understand the global figures of the alien, the encroacher, the pirate, the hacker and the worker defending her machine? VII. Capital and its Residue The first thing to consider is the fact that most of these acts of transgression are inscribed into the very heart of established structures by people located at the extreme margins. The marginality of some of these figures is a function of their status as the 'residue' of the global capitalist juggernaut. By 'residue', we mean those elements of the world that are engulfed by the processes of Capital, turned into 'waste' or 'leftovers', left behind, even thrown away. Capital transforms older forms of labour and ways of life into those that are either useful for it at present, or those that have no function and so must be made redundant. Thus you have the paradox of a new factory, which instead of creating new jobs often renders the people who live around 'unemployable'; A new dam, that instead of providing irrigation, renders a million displaced, a new highway that destroys common paths, making movement more, not less difficult for the people and the communities it cuts through. On the other hand sometimes, like a sportsman with an injury who no longer has a place on the team, a factory that closes down ensures that the place it was located in ceases to be a destination. And so, the workers have to ensure that it stays open, and working in order for them to have a place under the sun. What happens to the people in the places that fall off the map? Where do they go? They are forced, of course, to go in search of the map that has abandoned them. But when they leave everything behind and venture into a new life they do not do so entirely alone. They go with the networked histories of other voyages and transgressions, and are able at any point to deploy the insistent, ubiquitous insider knowledge of today's networked world. Seepage in the Network How does this network act, and how does it make itself known in our consciousness? We like to think about this in terms of Seepage. By seepage, we mean the action of many currents of fluid material leaching on to a stable structure, entering and spreading through it by way of pores. Until, it becomes a part of the structure, both in terms of its surface, and at the same time continues to act on its core, to gradually disaggregate its solidity. To crumble it over time with moisture. In a wider sense, seepage can be conceived as those acts that ooze through the pores of the outer surfaces of structures into available pores within the structure, and result in a weakening of the structure itself. Initially the process is invisible, and then it slowly starts causing mould and settles into a disfiguration - and this produces an anxiety about the strength and durability of the structure. By itself seepage is not an alternative form; it even needs the structure to become what it is - but it creates new conditions in which structures become fragile and are rendered difficult to sustain. It enables the play of an alternative imagination, and so we begin seeing faces and patterns on the wall that change as the seepage ebbs and flows. In a networked world, there are many acts of seepage, some of which we have already described. They destabilize the structure, without making any claims. So the encroacher redefines the city, even as she needs the city to survive. The trespasser alters the border by crossing it, rendering it meaningless and yet making it present everywhere - even in the heart of the capital city - so that every citizen becomes a suspect alien and the compact of citizenship that sustains the state is quietly eroded. The pirate renders impossible the difference between the authorised and the unauthorised copy, spreading information and culture, and devaluing intellectual property at the same time. Seepage complicates the norm by inducing invisible structural changes that accumulate over time. It is crucial to the concept of seepage that individual acts of insubordination not be uprooted from the original experience. They have to remain embedded in the wider context to make any sense. And this wider context is a networked context, a context in which incessant movement between nodes is critical. VIII. A Problem for the History of the Network But how is this network's history to be understood? To a large measure, this is made difficult by the fact of an "asymmetry of ignorance" about the world. We are all ignorant of the world in different ways and to different degrees. And that is one of the reasons why the "Network" often shades off into darkness, at some or the other point. This is what leads to global networks that nevertheless ignore the realities of large parts of the world, because no one has the means to speak of those parts, and no one knows, whether people exist in those parts that can even speak to the world in the language of the network. Thus the language of the network often remains at best only a mobile local dialect. A media practitioner or cultural worker from India, e.g., is in all likelihood more knowledgeable about the history of Europe than could be the case for the European vis-a-vis India. This is a fact engendered by colonialism that has left some societies impoverished in all but an apprehension of reality that is necessarily global. The historian Dipesh Chakrabarty has reminded us, "Insofar as the academic discourse of history is concerned, 'Europe' remains the sovereign, theoretical subject of all histories, including the ones we call 'Indian', 'Chinese', 'Kenyan', and so on. There is a peculiar way in which all these other histories tend to become variations on a master narrative that could be called 'the history of Europe'."6 But this very same fact, when looked at from a European standpoint, may lead to a myopia, an inability to see anything other than the representational master narrative of European history moulding the world. The rest of the world is thus often a copy seeking to approximate this original. All this to say: not merely that we have incomplete perspectives, but that this asymmetry induces an inability to see the face in the wall, the interesting pattern, produced by the seepage. We may inhabit the anxiety, even be the source and locus of the destabilization and recognize the disfiguration, but the envisioning of possible alternative imaginaries may still continue to elude us. IX. Towards an Enactive Model of Practice Recently in a book on neuropolitics7, we came across an experiment which is now considered classic in studies of perception, (The Held and Heims Experiment) which might give us an interesting direction to follow now. Two litters of kittens are raised in the dark for some time and then exposed to light under two different sets of conditions. The first group is allowed to move around in the visual field and interact with it as kittens do - smelling things, touching them, trying out what can be climbed and where the best places to sleep are. The kittens in the second group, (though they are placed in the same environment) are carried around in baskets rather than allowed to explore the space themselves, and thus are unable to interact with it with all their senses and of their own volition. The two groups of kittens develop in very different ways. When the animals are released after a few weeks of this treatment, the first group of kittens behaves normally, but those who have been carried around behave as if they were blind; they bump into objects and fell over edges. It is clear that the first group's freedom to experience the environment in a holistic way is fundamental to its ability to perceive it at all. What is the significance of this? Within neuroscience, such experiments have served to draw neuroscientists and cognitive scientists away from representational models of mind towards an "enactive" model of perception in which objects are not perceived simply as visual abstractions but rather through an experiential process in which information received from this one sense is "networked" with that from every other. Vision, in other words, is deeply embedded in the processes of life, and it is crucial to our ability to see that we offset the representations that we process, with the results of the experiences that we enter into. We need to know what happens when we take a step, bump into someone, be startled by a loud noise, come across a stranger, an angry or a friendly face, a gun or a jar of milk. In a sense this implies a three-stage encounter that we are ascribing between the practitioner and her world. First, a recognition of the fact that instances of art practices can be seen as contiguous to a 'neighbourhood' of marginal practices embodied by the figures of the five transgressors. Secondly, that 'seeing' oneself as a practitioner, and understanding the latent potentialities of one's practice, might also involve listening to the ways in which each of the five transgressive figures encounters the world. Finally, that what one gleans from each instance of transgression can then be integrated into a practice which constitutes itself as an ensemble of attitudes, ways of thinking, doing and embodying (or recuperating) creative agency in a networked world. For us here, this helps in thinking about the importance of recognizing the particularity of each encounter that the practitioner witnesses or enters into, without losing sight of the extended network, of the 'neighbourhood' of practices. It is only when we see particularities that we are also able to see how two or more particular instances connect to each other. As residues, that search for meaning in other residual experiences; or as acts of seepage, in which the flow of materials from one pore to another ends up connecting two nodes in the network, by sheer force of gravity. Here it is the gradients of the flow, the surface tension that the flow encounters and the distance that the flow traverses, that become important, not the intention to flow itself. Intentions, resistances, may be imputed, but in the end they have little to do with the actual movements that transpire within the network. X. Art practice and protocols of networked conversation What does art and artistic practice have to do with all this? What can the practitioner take from an understanding of interactive embeddedness in a networked world? We would argue that the diverse practices that now inhabit art spaces need to be able to recognize the patterns in the seepage, to see connections between different aspects of a networked reality. To do this, the practitioner probably has to invent, or discover, protocols of conversation across sites, across different histories of locatedness in the network; to invent protocols of resource building and sharing, create structures within structures and networks within networks. Mechanisms of flexible agreements about how different instances of enactment can share a contiguous semantic space will have to be arrived at. And as we discover these 'protocols', their different ethical, affective and cognitive resonances will immediately enter the equation. We can then also begin to think of art practice as enactment, as process, as elements in an interaction or conversation within a network. For the acts of seepage to connect to form new patterns, many new conversations will have to be opened, and mobile dialects will have to rub shoulders with each other to create new, networked Creoles. Perhaps art practice in a networked reality can itself aspire to create the disfigurations on the wall, to induce some anxieties in the structure, even while making possible the reading of the face in the spreading stain, the serendipitous discovery of an interesting pattern or cluster of patterns, and possible alterities. This text draws from a presentation by Monica Narula (Raqs Media Collective) at Globalica - a symposium on "conceptual and artistic tensions in the new global disorder", held at the WRO Center for Media Art, Wroclaw, Poland in May 2003. The images are from A/S/L, an installation by Raqs Media Collective. A/S/L support: Editing: Parvati Sharma, Sound Design: Vipin Bhati, Production Assistance: Ashish Mahajan, T.Meyarivan, Produced at Sarai Media Lab, Sarai/CSDS, Delhi. Notes: 1. Tony Samuel, PricewaterhouseCoopers' Intellectual Asset Management Group, Evaluating IP Rights: In Search of Brand Value in the New Economy http://www.pwcglobal.com/Extweb/service.nsf/docid/210123EF9AEBAC1885256B96003428C6 2. A/S/L: A video, text and sound installation by Raqs Media Collective that juxtaposes the protocols of interpersonal communication, online labour, data outsourcing, and the making/unmaking of remote agency in the 'new' economy. Presented at the Geography and the Politics of Mobility exhibition, curated by Ursula Biemann for the Generali Foundation, Vienna, (January - April 2003). http://www.absolutearts.com/artsnews/2003/01/17/30667.html http://foundation.generali.at/exhibit/2003_1_geo_indexe.htm 3. Raqs Media Collective, "Call Centre Calling: Technology, Network and Location", Sarai Reader 03: Shaping Technologies, February 2003. http://www.sarai.net/journal/03pdf/177_183_raqsmediac.pdf for more on the call center industry in India, see - Mark Landler, "Hi I'm in Bangalore (But I Dare Not Tell)", New York Times (Technology Section) March 21, 2001. http://www.nytimes.com/2001/03/21/technology/21CALL.html?ex=1054353600&en=7576033f99208ca6&ei=5070 India Calling - A Report on the Call Centre Industry in India http://www.researchandmarkets.com/reports/2387/ 4. Andrew Otwell, Medieval Manuscript Marginalia and Proverbs, 1995. http://www.heyotwell.com/work/arthistory/marginalia.html 5. Naomi Klein, Argentina's Luddite Rulers: Workers in the Occupied Factories Have a Different Vision: Smash the Logic, Not the Machines, Dissident Voice, April 25, 2003 http://www.dissidentvoice.org/Articles4/Klein_Argentina.htm 6. Dipesh Chakravarty, "Postcoloniality and the Artifice of History: Who Speaks for 'Indian' Pasts", Representations, 37 (Winter, 1992) 7. William E. Connolly, "Neuropolitics: Thinking, Culture, Speed", Theory Out of Bounds, Number 23, Univ. of Minnesota, 2002 -- Monica Narula [Raqs Media Collective] Sarai-CSDS 29 Rajpur Road, Delhi 110 054 www.raqsmediacollective.net www.sarai.net -- Monica Narula [Raqs Media Collective] Sarai-CSDS 29 Rajpur Road, Delhi 110 054 www.raqsmediacollective.net www.sarai.net From monica at sarai.net Fri Dec 10 11:16:01 2004 From: monica at sarai.net (Monica Narula) Date: Fri, 10 Dec 2004 11:16:01 +0530 Subject: [Commons-Law] Dreams and Disguises, as Usual Message-ID: (This is an essay that we - Raqs - wrote recently to accompany the installation "The Impostor in the Waiting Room", presently still on at the BosePacia Gallery, Chelsea, New York. Hopefully those of you in that city can take the time out and see it :-)) Dreams and Disguises, As Usual. Raqs Media Collective "Fantômas" "What did you say?" "I said: Fantômas." "And what does that mean?" "Nothing Š Everything" "But what is it?" "No one Š And yet, yes, it is someone!" "And what does this someone do?" "Spread Terror!!" (Opening lines of Fantômas, the first novel in the Fantômas series by Pierre Souvestre and Marcel Allain, popular in early twentieth century Paris) In a painting titled Le Barbare (The Barbarian) (1928), René Magritte showed what seemed to be the shadow of a masked man in a hat. The shadow is seen against a brick wall, and it is unclear whether it is appearing or fading away. Magritte, always particular about the eccentric rhetoric of his practice of representation, was careful enough to have a photograph of himself (in a hat) taken next to this image. His face, quizzical, makes us wonder as if he is keeping secrets from us. There are two particularly interesting things about this image: the first that it should be called Le Barbare, and the second, that it is not in fact the first or even the last appearance of a hat, or a man in a hat, in the work of Magritte. Men in hats, and hats, crowd the images made by Magritte. They refuse to go away. (1) What does a man in a hat have to do with impostors and waiting rooms? Perhaps, like the narrator in the first novel of the Fantômas series of fantastic crime novels, we could say, "Nothing ... and Everything". Perhaps one of the secrets that Magritte keeps in this image - paraphrasing the title of another of his paintings - could be that just as the image of a pipe is not a pipe, so too, the image that suggests a suave, urbane man in a hat is actually of someone else. The shadowy visage in a hat in Le Barbare belongs to the figure of Fantômas (2), the archetypal and perhaps primal urban delinquent, the 'lord of terror', the master of disguises who appears and disappears, takes on many personae, and refuses ever to be identified. In The Impostor in the Waiting Room and this text we seek to continue the dialogue that Magritte began with the shadow of Fantômas, and to investigate what it means to conduct a dalliance with the imperative of identification. The imperative of identification, and its counterpoint, the dream of disguise, are impulses we find as central to the story of our times as a threatened assassin, or a murderous corpse, or a missing person who leaves no trace, are to an obstinately intractable pulp fiction pot boiler. In L'Assassin Menacé (The Threatened Assassin), another of his paintings from the same period, Magritte shows Fantômas attentively listening to a gramophone beside the corpse of his female victim, unaware that two detectives in bowler-hats are hovering outside the door with a net and cudgel, even as similarly attired voyeurs peer through the window. It takes a while to figure out that that all of them - murderer, corpse, police and spectators are the same person. The question as to which one is the 'real' Fantômas refuses, like a recalcitrant cadaver, to lie low. Magritte's fascination with a tableau in Louis Feuillade's third Fantômas film Le Mort qui Tue (The Murderous Corpse) is evident in the composition of this picture. This dialogue with the figure of Fantômas that Magritte initiated was a thread that ran through much of his work. In one of his occasional fragments of writing, titled A Theatrical Event, Magritte outlines the following arresting scenario: Fantômas the quarry, and Juve, the detective in pursuit, mesh into each other as disguises, reveries, pursuit, the loss of identity, and the impossibility of capture (except through self-disclosure) are woven together. "ŠJuve has been on the trail of Fantômas for quite some time. He crawls along the broken cobblestones of a mysterious passage. To guide himself he gropes along the walls with his fingers. Suddenly, a whiff of hot air hits him in the face. He comes nearer Š His eyes adjust to the darkness. Juve distinguishes a door with loose boards a few feet in front of him. He undoes his overcoat in order to wrap it around his left arm, and gets his revolver ready. As soon as he has cleared the door, Juve realizes that his precautions were unnecessary: Fantômas is close by, sleeping deeply. In a matter of seconds Juve has tied up the sleeper. Fantômas continues to dream - of his disguises, perhaps, as usual. Juve, in the highest of spirits, pronounces some regrettable words. They cause the prisoner to start. He wakes up, and once awake, Fantômas is no longer Juve's captive. Juve has failed again this time. One means remains for him to achieve his end: Juve will have to get into one of Fantômas's dreams - he will try to take part as one of its characters." (3) Fantômas continues to dream of his disguises, perhaps, as usual, and the pursuer will have to get into the dreams of the pursued, he will have to participate as one of its characters Š the disguise may blur the line between Fantômas and Juve. In the original Fantômas novels, Fantômas was at the very centre of a gang of 'barbarians' who lurked in Paris, called 'The Apaches'. It is as if his wearing the accoutrements of bourgeois civility, the hat, the coat, the occasional umbrella, or walking stick was a careful disguise, a combat camouflage cloaking a raging, rampant otherness. While it throbbed closer than the jugular vein of the modern metropolis of advanced capitalism, it was at the same time at its farthest remove. Fantômas is a barbarian in a hat, or an impostor waiting to be recognized. Looked at in another way, the disguise of the man in the hat and the overcoat is the only effective passport that the 'barbarian' can have into the world enclosed by the modern citadel. The disguise is a means to travel from a world apparently in shadow, to a world where the sharp glare that brings visibility in its iridescent wake is not without the threat of capture and confinement. The liminal zone where roles can be rehearsed, different patois perfected, the various grades of personhood that lead up to the man in the hat and the coat tried on for size, the turban or the loincloth discarded is a waiting room. One awaits one's turn to go into the arc lights. The figure of a person biding time in a waiting room helps us to imagine the predicament of people living in societies often considered to be inhabiting an antechamber to modernity. In such spaces, one waits to be called upon to step onto the stage of history. Most of the world lives in spaces that could be designated as 'waiting rooms', biding its time. These 'waiting rooms' exist in transmetropolitan cities, and in the small enclaves that subsist in the shadow of the edifices of legality. There are waiting rooms in New York just are there are waiting rooms in New Delhi, and there are trapdoors and hidden passages connecting a waiting room in one space with a waiting room in another. Fantômas is a denizen of these spaces. Which is why he appears in Mexico City, in Calcutta, in Caracas, and why he, before Superman or Batman, found his way into short stories, comics, novellas and films in languages spoken in places as far away from Paris as possible. If the 'Apaches' brought Fantômas with them to Paris from some forsaken wilderness, then Fantômas travelled right back to the places where he came from to the urban nether lands of places that had not yet made it in the map of arc-lights. The passage from 'waiting rooms' to the 'stage' often requires a person to go through intense scrutiny. This happens at airports and borders. It also happens in streets, homes and workplaces. The art of the impostor becomes a guide to survival for people negotiating this rough passage. Waiting Rooms everywhere are full of Impostors waiting to be auditioned, waiting to be verified, waiting to know and to see whether or not their 'act' passes muster. The Impostor is an exemplar for a kind of performative agency that renders a person capable of expressing more than one kind of truth of the self to the scrutiny of power. The figure of the impostor offers a method of survival that meets the growing intensification of scrutiny with a strategy based on the multiplication of guises and the amplification of guile. At the same time, the term Impostor is also an accusation. One that power can fling at anyone it chooses to place under scrutiny. It is this double edged-ness, of being a way out as well as a trap, that lends it the capacity it has to be a heuristic device uniquely suited for a nuanced understanding of a time in which criteria such as authenticity, veracity and appropriateness take on intense, almost paranoiac dimensions in the conduct and governance of life's most basic functions. As concepts, the 'impostor', like the 'waiting room', can signify both thresholds meant for quick, sportive and easy crossing, portals into unpredictable futures, that come laden with the thrill that only unintended consequences can bring, and, for some, a bleak and eternal purgatory tinged with its own peculiar anxiety, distrust and fear. The Impostor figure also comes to us by way of another lineage, one closer to home than the bleak sky of Magritte's Brussels and its drizzle of bowler-hatted men. We speak here of the tradition in northern and eastern India known as 'Bahurupiya'. A 'bahurupi' is a person of many forms and guises, a polymorph, a shape-shifter, a fantastic masquerader and pantomime, a primal 'Fantômas'. 'Bahurupis' make their living by masquerade, by the performance of different roles by itinerant practitioners, for the entertainment, edification and occasionally, defrauding of the general public. They might dress up one day as a god, another day in drag; one day as a holy mendicant, another day as a monkey, and a third day as a somewhat comical police constable - and expect to earn money by merely turning up at doorsteps, or hanging around in public spaces, and being offered money or food or shelter in exchange for nothing more than a glance, or a brief stare. Here, disguise, and a degree of necessary ambiguity about the self is a way of life, a calling, a means of subsistence and ordering in a world otherwise deeply invested in certitude. * * * What lies at the origin of the distinction between the 'citizen' (and here we mean also the 'world citizen' who feels at ease and has a sense of entitlement everywhere) and the person who neither belongs nor feels entitled to belong to a city, or state, or the world at large, a person who is in the wrong place at the wrong time for the wrong reasons, everywhere? When does a class of people begin to think about the distinction between themselves and others in terms that require barriers to the circulation of presences? What makes them arrogate to themselves the status of being the exclusive subjects of history? What is it about the spaces of vanguard capitalism that produces the peculiar anxiety of the contamination of its sanity, or its sanitariness, by the uncomfortable proximity of that which lies outside it or perforates it with an insisting presence? Why is that which itself is so invasive so afraid of contagion? Or, as Magritte might have it: Why is Juve so afraid, and of what? Of Fantômas - his quarry - or of his own reflection or shadow? This inchoate fear is underpinned by a furiously-held telos of manifest historical development, which both demands, and provides the wherewithal for, the construction and enforcement of hierarchical taxonomies of people, space and ways of living and being - of those who have 'arrived' onto a notional centre stage of human achievement, and others that have been made to leave the stage, or are yet to make an appearance. Those who have left the stage, or who are yet to make an appearance, are consigned to the waiting room of history, a notional antechamber in relation to the notional centre stage. And as the figure of the 'citizen' tests his paces, he also becomes confident that he cannot be upstaged so long as the motley restless crew in the waiting room is deemed 'alien'. As long as the denizens of the waiting room are seen as unconvincing in their claim to a place in the arc lights, the figure of the citizen can stay on stage. (4) But citizenship too is a template and a score, much more than it is an actual human condition. And an exacting template at that; the successful performance of which is always a matter of an ongoing test. One achieves citizenship, one loses it, one's performance is either applauded or it fails to live up to the demands, requirements and standards that accrue to it. To live with these conditions is to be always on trial, to know that in the eyes of the examining authority one is always, and necessarily, an impostor, unless proved otherwise. It is to know that one has to carry one's credentials at all times and that identities must be produced when they are asked for. The bargain that is struck at the very heart of our times is the understanding that for the citizen, for the legal, for the authorized version and the eloquent oxymoron of the 'true copy' to be understood as such, the apparatus of authentication requires the lengthening shadow of the implied 'offstage' presence, or menace, of the 'alien' being, the unlawful act, the fake item, the impostor, as someone or something that anyone or anything can be shown up to be. This is why the chase never comes to an end. The eye of the state always stays open lest the impostor slip by and disappear into the night and fog of the city and its shadows. (5) Juve must enter the dream of Fantômas to learn to distinguish himself and the part that he has to play. * * * A girl and her brother enter a deserted military airstrip - an overgrown concrete and tarmac ruin of a recent but already forgotten war, where rusting fighter planes lie scattered and waiting as if for the return of their dead pilots. The girl traces the path that the cracks in the tarmac make with her steps into the wind that suddenly blows in a terrifying vision of Kali, the goddess of destruction, who towers over the small child on the desolate airstrip. The girl stands frozen, struck dumb with fear. Her brother rushes in, discovers that the goddess is only a bahurupi, a thin itinerant impostor with a scowl, a set of wooden goddess arms, tinsel weapons and a garland of papier mâché skulls. He asks the impostor angrily who he is and why he must scare children so. The bahurupi-impostor-goddess replies, "I did nothing; she came in the way". This fragment of film, the 'bahurupi in the airstrip' sequence in Ritwik Ghatak's Bengali film Subarnarekha (The Golden Thread, 1965), is laden with strange encounters. A terrifying yet banal masquerade interrupts a child's exploration, a girl crosses the path of a goddess, a military airstrip built in the second world war invades a remote corner of Bengal, rust, time and the obstinate fertility of vegetal undergrowth encroaches upon and encircles the abandoned airstrip and its forgotten fighter aircraft. Everything comes in the way of everything else. Collisions bring collisions in their wake. The girl, her brother, the goddess, the impostor, the airfield, the aircraft, the undergrowth - all seem to be saying, at once, "I did nothing, she came in the way". (6) When two worlds collide, one asks the other, "Who are you and what are you doing in my space?" Usually, the question brings with it an assumption that the questioner has the authority to ask it in the first place, and the confidence or the knowledge that space, and the means of circulation, can also be property. That the 'space' is his to enable the asking of the question to the person immediately categorized as the interloper, the encroacher, the not-quite-the-right-thing or right-person-in-the-right-place. Usually, what is being asked for is an explanation for what is seen as a trespass. When two worlds, or spaces, or beings or things collide in the course of their trajectories, and one is cast as the trespasser, there is a clear understanding that only one of them can have the right of way. The itinerant bahurupi-goddess-impostor and the military airstrip. Which is the trespasser? Why is the sudden apparition of the goddess of destruction in an abandoned theatre of war so strange and so natural at the same time? Is she encroaching, or is she staking out her own territory? Is she in the way, or is everything else in her way? Who must give way? The building of a military airstrip or a highway or a dam or a resort or a housing estate sanctioned by a masterplan can suddenly turn people into trespassers, and their way of life into a culture of trespassing. The masterplan has the right of way, as well as the means, to translate that fact into real control over space and circulation. Sometimes this means that the inhabitants-turned-trespassers make themselves invisible, that they disappear into the cracks and folds of the plan; that they pretend that they are not there. They become impostors of absence, actors of vanishing acts. Sometimes it may mean that the trespassers may be present and visible and pretend to be what they are not, and that it is they who have the right of way. This makes them impostors of presence, pretenders in place. * * * Many contemporary methods of spatial intervention necessitate the hollowing out of ways of life, ecologies and habitation practices from a space, and then filling it in with a one-size-fits-all imagination. Architectural plans, interior design catalogues and real estate brochures determine the 'value' of a location. To have a design on space is half the battle won in terms of the possession and control over that space. Everything that is in the way - people, settled practices, older inner cities, nomadic routes, and the commons of land and water - disappears into the emptiness of the un-inked portions between the rectilinear inscriptions on the surface of the masterplan. As masterplans cordon off greater and yet greater swathes of space, they begin to come up against each other, leading to meta-masterplans that stitch different masterplans together, until more and more stretches of territory end up looking and feeling like clones of each other. The suburb, the gas station, the condominium, the supermarket, the highway, the underpass, the airport, the parking lot, the leisure centre, the school, the factory, the mall, the barbed wire fencing that protects and controls a plot of land from trespass, are the alphabets of a urban language that end up making the same statement everywhere, as the masterplan considers what it sees as waste land, or that which in its view is an urban terra nullis - "It was in the way". What is it that disappears when the ink on the plans has dried? Millions of people fade from history, and often the memory of their disappearance also fades with time. With the disappearance of ways of life, entire practices and the lived experiences and memories that constituted them vanish, or are forced to become something other than what they were accustomed to have been. When they make the effort to embrace this transformation, typically what stands questioned is their credibility. They are never what they seem to be, or what they try to say they are. The annals of every nation are full of adjectives that accrue to displaced communities and individuals that begin to be seen as cheats, forgers, tricksters, frauds, thieves, liars and impostors, as members of 'criminal castes, tribes and clans' or as deviant anomalies who habitually attempt to erode stable foundations with their 'treacherous' ambiguities and their evasive refusal to be confined, enumerated, or identified. These 'missing persons' who disappear, or appear with great reluctance, with their names, provenances, identities and histories deliberately or accidentally obscured in the narratives of 'progress' and the histories of nation states, are to the processes of governance what the figure of the 'unknown soldier' is to the reality of war. The only difference is: there are no memorials to those who fade from view in the ordinary course of 'progress'. The missing person is a blur against a wall, a throw-away scrap of newspaper with a fading, out-of-focus image of a face, a peeling poster announcing rewards for wanted or lost people in a police post or railway station waiting room, a decimal point in a statistic, an announcement that some people have been disowned or abandoned or evicted or deported or otherwise cast away, as residues of history. No flags flutter, no trumpets sound, nothing burns eternal in the memory of a blur. The blur is not even an image that can lay a claim to original veracity, but a hand-me-down version of a reality that is so injured by attempts at effacement that only a copy can have the energy necessary to enable its contents to circulate. The patchwork of faded fakes, interrupted signals, and unrealized possibilities, which does not read well and which does not offer substantive and meaningfully rounded off conclusions, is sometimes the only kind of manuscript available to us. Our engagement with the Impostor is an attempt at coming face-to-face with this world. We would like to do so in a manner that makes anxieties about 'who comes in the way of the reading' appear, at the very least, superfluous, and at best, attenuated, by a desire to listen to stories (and histories) that some might consider incomplete. We are beginning to recognize that we ourselves might appear, occasionally in them, occasionally against them. * * * The collision of worlds (that happens, for instance, when an empire-building sensibility suddenly stumbles upon its grand object, the colony-to-be) is fraught with the trauma of the dispersal of the assumed monadic unity of the self, even of the one we presume to be the victor. The impostor always lurks in the shadow of the unknown to claim the territory of the unsuspecting self, even if that self comes attired as a world conqueror. Sometimes, it is the notion of the unitary, monadic self, with its unique unassailable identity (its 'it-ness', which it witnesses solemnly to itself), that constitutes the biggest obstacle: the fundamental scotoma that makes the image in the mirror so opaque and so elusive at the same time. The early epoch of the ascendancy of the English East India Company (when it was still a minor 'Indian' power jostling with the Marathas, the Sikhs, the Hyderabad Nizamate and Mysore Sultanate, and the French and Dutch East India Company for slices of the crumbling Mughal imperial cake) in the late eighteenth and early nineteenth century India is full of English, Scottish and Irish adventurers turning their backs on Albion and embracing, to the horror of their superior officers, what were called 'native ways': converting to Islam, renouncing the world and becoming itinerant holy men, or thugs, cohabiting with Indian women (and on occasion with Indian men), siring 'half-caste' children, endowing temples and mosques, wearing turbans and tunics after the prevailing Mughal fashion. Sometimes they even forget the English language. Their counterparts within the 'native' populations of the presidency towns of Calcutta, Bombay and Madras make moves in the other direction. Young men full with the heady intoxication of strangeness learn to wear hats and clothes that make little sense in humid weather, break dietary taboos, cross the seas, become fervent Christians, learn to write sonnets, fall in love with English women (and occasionally men), becoming in every way possible, 'sahibs'. The word 'sahib' in Persian, Urdu, Hindi, Bengali and Marathi, meant 'master', or 'lord', but also began shading off at about this time into standing for the white man. In the long torrid summer that stretched over decades while the Mughal Empire dissolved under its own weight, until the conflict of 1857 finished the careers of both the last Mughal emperor and the East India Company, white Mughals met brown sahibs, while xenophobic Englishmen and new, nervously nationalist elites denounced them both as impostors. (7) The edifice of Empire, which relied so heavily on the adventures of impostors to lay its foundations, also required their marginalization. The normalization of the state of power requires new garbs, even a new dress code; a new script and new persona that can help better distinguish the rulers from the ruled. It required new impostors, broken from a different mould. George Orwell speaks of "well-meaning, over-civilized men, in dark suits and black felt hats, with neatly rolled umbrellas crooked over the left forearm" who, sitting in Whitehall, could rule the world with their mastery of the global network created by the telegraph. They had made the earlier phase of empire building, the adventurous career of going east of Suez to discover a new self, redundant, ridding the world forever of the confusing 'White Mughals', and situating in their place, clones of themselves whenever it became necessary to impose "their constipated view of life on Malaya and Nigeria, Mombasa and Mandalay". (8) With the ascent of the man in the hat, the Empire may have lost something by way of its shine, its élan and its energy, but it gained a great deal in staying power. And the apparatus of mature Empire stayed intact far beyond the accidents of changes in the pigmentation of those who grew to rule. Over time, the shape of headgear may have changed to that of a white cap that looks like a lopsided, upended boat. The cut and the cloth of the coat may have undergone transformations, Colonial cuts may have given way to Nationalist styles, even as the dull Khaki of the blunt edge of power retained the hue of the dust of hot places. What remains constant is that something is marked as the costume of rule, the dress suit or uniform of the master, the leader, the office, the 'sahib', the 'neta' (leader). This too is an imposture. But it is a guise marked by the verifying authority of power. An attested true copy. In modern, republican nation states, power is a function of representation. This is as true of states normally thought of as democratic as it is in states where a single centre of power (an individual, a family, a party, a military elite) holds power, metaphorically, 'in the name of the people'. The legislator, the tribune, the one who makes law, represents the populace. We can think of this as an aesthetic problem. More specifically, as a visual, even an ocular problem. Whenever the question of representation appears, we know we are speaking of a likeness, a 'fit' between an object and its image, its referent. The representative of the people is also a likeness of the abstract generality of the people. This likeness between the citizenry and its representatives is always a question plagued by provisionality. Features alter: power gains adipose, loses hair; the citizen sometimes grows pale and thin. How then does the figure of the citizen acquire a semblance of stability? How do the various ambiguities and inconsistencies, the combination of historical and biographical accidents that make up a life, cohere to form a uniform, monovalent image and narrative? How does the person moult into the citizen? How do the various performative stances and experiential realities that add shades and depth to personhood lose rough edges and find points of equilibria that can yield the regularity and predictability necessary to the figure of the citizen? How does a person become a political entity capable of being represented? What garb, which guise, which face, is required for the ruled? * * * The production of the citizen is, among other things, an exercise in the making of a face. Just as the skilful operation of a forensic identikit system can help reconstruct the face of an unidentified, missing or wanted person that can then be printed on 'Hue and Cry' notices and stuck on all the messy surfaces of a city, so too, the apparatus of identification that is necessary for the maintenance of governmentality must register, record and reconstruct the figure of the citizen from a mass of inconsistents. The tension, however, between the image and its shadowy referent, between the identikit photo and the missing person, remains. This tension between citizens and denizens, subjects and aliens, is historically resolved through the approximation of a person's visage to an administrable image of the citizen. The passport, the identification card, the police record, the census datum and the portraits that these instruments build of personhood, are key to this. The frontal portrait makes a claim to be the distillate of truth. This reduction is all that is necessary for him or her to be known as a person with a valid claim to be in a place; all else is superfluous. The man in a bowler hat is a man in a bowler hat. Correspondingly, the barbarian, the alien, the pretender, must be unmasked. (9) This necessarily involves an operation on and with images. These images may be photographic likenesses or biometric codes or iris scans or fingerprints, but in essence they are the condensations of personhood in a manner that lends them to being distilled by the apparatus of power. Consider the formal compositional and aesthetic requirements of portraiture as laid down by a United States passport or visa application form. A passport photograph, in duplicate, must be as follows: - 2x2 inches in size - Identical - Taken within the past 6 months and showing current appearance - Full face, frontal view with a plain white or off-white background showing all facial features - Brightness and contrast should be adjusted to present the subject and background accurately - Photos without proper contrast or color may obscure unique facial features - Color should reproduce natural skin tones - Fluorescent or other lighting with unbalanced color may cause unwanted color cast in the photo - Appropriate filters can eliminate improper color balance - Between 1 inch and 1 3/8 inches from the bottom of the chin to the top of the head - Taken in normal street attire (10) The rigour of this aesthetic stems from the subjective methods that uninformed citizens would generally employ in the earlier half of the twentieth century while sending in photographs of themselves for passports and other identification documents. Cut-outs from family albums or reframed tourist snapshots, in which people smiled or otherwise expressed emotion, made it difficult to affix the face in the stable configuration of features so critical for quick and easy identification. The formal style of the 'passport photo', which then becomes a generic template for all images made for the purposes of identification, emerges from the dissatisfaction that identification apparatuses had with thousands of instances of incidental and unintentionally ambiguous self-portraiture. In a statement to the London Times in the year 1957, Miss Frances G. Knight, Director of the United States Passport Office, said that "people looked thug-like and abnormal when sitting for their passport photographs". (11) Ironically, this 'thug-like and abnormal appearance' stemmed from the effort to stabilize the visage in passport photographs. The very subject produced through a system geared towards the generation of greater credibility appeared, at best, suspect. Fantômas rears his head again. The man in a hat is actually a barbarian, and the more he tries to hold on to his hat, the more savage he appears. More recently, another newspaper report on the introduction of new biometric passports in the UK says: "Under new security measures all mugshots must in future "show the full face, with a neutral expression and the mouth closed". The advice is being sent to all applicants before the introduction next year of "ePassports", which make it harder for terrorists and criminals to get hold of fake passports. The facial image on the photograph will be incorporated in a chip, which will be read by border control equipment. But the high-tech machines need to match key points on the face - a biometric - and this only works if the lips are closedŠ. "An open-mouthed smile will throw the scanner off." Eyes must be open and clearly visible, with no sunglasses or heavily-tinted glasses and no hair flopping down the face. There should be no reflection on spectacles and the frames should not cover the eyes. Head coverings will only be allowed for religious reasons. Photo booth companies, which supply most of the pictures for passports, have been required to update their equipment to ensure they are acceptable. Existing passports are not affected but the new rules will have to be followed when they are renewedŠ Most people already think they look miserable enough on their passports. There is an old joke that if you look anything like your photograph then you need the holiday. A survey of 5,000 Europeans last year suggested the British were among the most embarrassed by passport photos. It found that a fifth of Britons were so uncomfortable with their images that they hid them from their families." (12) The passport, the ID document, is a script, the border is an audition, a screen test, an identification parade, a drill that you practice and never quite get right. Like the random slippage between a North Indian and a North American accent in the voice of a call centre worker in New Delhi talking to New York, the slippage reveals more about a person than the desperate attempts to maintain a flawless performance. That slip, between who you are and 'more' of who you are, accompanies you as a possibility in all your waking and dreaming moments. Fantômas too inhabits Juve's worst nightmares. That slip in the accent, that gust of wind that blows the hat away, that blows your cover, is the give-away that won't let you go through. The spectator who is the policeman who is the assassin who is the corpse who is the god who is the prisoner who is the animal who is the man in a hat with a stick and an overcoat and the transposed head of a donkey... You move between one and the other. Your moves takes you back into the waiting room. Where can you, and your terror, of being everyone and no one, of being everywhere and nowhere, of being the bahurupi and the mug shot, Fantômas and Juve, belong? René Magritte keeps his secrets. So must we. Notes (1) The figure of a man in a hat first appears in an image called "The Menaced Assassin" in 1926, and re-appears several times, including in "The Usage of Speech" (1928), where two men in bowler hats speak the words 'violette' and 'piano', in "Les Chausseurs de la Nuit" (1928) where a man in a hat with a rifle slung across him is seen as if leaning against a wall with his companion, another gunman, both with their backs turned towards the viewer, in "The Therapist" (1939) and "The Liberator" (1947) where he appears with a cloak and a walking stick, in "The Return of the Flame" (1943) where the man in a hat looms across a burning city, in "The Man in a Bowler Hat" (1964), with a dove flying across his face, in "The Time of Harvest" (1950) , and its variant "The Month of the Grape Harvest" (1959) where the man in a bowler hat is an assembly line prototype, an edition made in multiples, in "The Song of the Violet" (1951) where two men in hats, one with his back to us, and the other profiled, stand petrified, in "Golconda" (1953), where it rains bowler hatted men from the sky, and in "The Schoolmaster", and its triune variant "Les Chef d'Oeuvres" (1954-55) where the man/three men appears with his/their back(s) to us against a sea, under a crescent moon, in "The Presence of Mind" (1960), framed between a falcon and a fish, and finally, in "The Son of Man" (1964), which Magritte did tag as a self portrait, where the hat-wearing man's face is obscured by a green apple. The hat appears independently in "The Reckless Sleeper" (1927) and "The Interpretation of Dreams" (1930), along with motley other objects, and it appears as if the man has momentarily lost his hat while looking at a mirror (where he sees himself as an frontally inverted reflection) in "Reproduction Prohibited: Portrait of Edward James" (1937). (2) For more information on Fantômas, his career as a character, and his remarkable influence on twentieth century avant garde literature, art and cinema, see the website dedicated to the Fantômas phenomenon http://www.fantomas-lives.com (3) Translation by Suzi Gablik, from "Magritte", Boston: New York Graphic Society, 1976 (4) The 'waiting room' of history is a metaphor used most eloquently by Dipesh Chakrabarty, who in "Provinicializing Europe" discusses the importance for people outside Europe, and the metropolitan West, of stepping outside the trap of considering themselves forever to be 'waiting' for the arrival of the contemporary moment, even of modernity itself. See "Provincializing Europe: Post Colonial Thought and Historical Difference", Dipesh Chakrabarty, Princeton University Press, 2000, also, "Alternative Histories: A View from India", Shahid Amin, SEPHIS - CSSSC Occasional Papers, 2002 (5) The 'Impostor' figure, particularly the notion of the state treating its subjects as impostors unless proved otherwise, was suggested to us by a reading of Partha Chatterjee's usage of the trope in his recent book "The Princely Impostor". See, "The Princely Impostor: The Strange and Universal History of the Kumar of Bhowal", Partha Chatterjee, Princeton University Press, 2002 (6) 'Subarnarekha', direction Ritwik Ghatak, produced by J.J. Films Corporation, 1965. For more about 'Subarnarekha', see http://www.upperstall.com/films/subarnarekha.html (7) William Dalrymple in "White Mughals" looks at the phenomenon of cultural and physical miscegenation in eighteenth century India. See "White Mughals: Love and Betrayal in Eighteenth Century India", William Dalrymple, Harper Collins, 2003 (8) To read the full text of "The Lion and the Unicorn: Socialism and the English Genius", see - http://www.george-orwell.org/ (9) For an exhaustive history of the Bowler Hat, see "The Man in a Bowler Hat: His History and Iconography", by Fred Miller Robinson, University of North Carolina Press, 1993 For an interesting online profile of the Bowler Hat, and a very arresting image of a crowd of bowler hat-wearing men, see http://www.villagehatshop.com/product1687.html (10) For guidelines on the specifications for correct composition, lighting, exposure and printing of photographs of US Passport and Visa applications see the website of the US State Department Passport and Visa Photography Guide http://travel.state.gov/visa/pptphotos/index.html (11) Quoted in "The Passport: A History of Man's Best Travelled Document", Martin Lloyd, Stroud, Sutton, 2003. (12) "Look Miserable to Help the War on Terrorism", Philip Johnston, Home Affairs Editor, The Telegraph, London, 06/08/2004 -- Monica Narula [Raqs Media Collective] Sarai-CSDS 29 Rajpur Road, Delhi 110 054 www.raqsmediacollective.net www.sarai.net -- Monica Narula [Raqs Media Collective] Sarai-CSDS 29 Rajpur Road, Delhi 110 054 www.raqsmediacollective.net www.sarai.net From sunil at mahiti.org Fri Dec 10 19:48:35 2004 From: sunil at mahiti.org (Sunil Abraham) Date: Fri, 10 Dec 2004 14:18:35 +0000 Subject: [Commons-Law] IOSN: Request for Authors, FOSS: Open Standards Message-ID: <1102688315.711.203.camel@box> Dear Friends, Please see the Terms of Reference below. If you would like to apply please send me your updated Curriculum Vitae and 2-3 samples of your writings on FOSS and Open Standards. Thanks, Sunil --------------------------------------------------------------------------- International Open Source Network: Terms of Reference for Author for Primer: Free/Open Source Software - Open Standards Duration: 6 months --------------------------------------------------------------------------- Background --------------------------------------------------------------------------- The International Open Source Network (IOSN - http://www.iosn.net) is a Centre of Excellence for Free / Open Source Software in the Asia-Pacific Region. IOSN is an initiative of the UNDP's Asia-Pacific Information Development Programme (APDIP - http://www.apdip.net) and is supported by International Development Research Centre (IDRC - http://www.idrc.ca]. Via a small secretariat, the IOSN is tasked specifically to facilitate and network Free / Open Source Software advocates and human resources in the region. Open standards are publicly available specifications for achieving a specific task. By allowing anyone to use the standard, they increase compatibility between various hardware and software components since anyone with the technical know-how and the necessary equipment to implement solutions can build something that works together with those of other vendors[1]. Vendors of proprietary software use proprietary standards or formats to lock-in their customer. Once the customer has legal applications that adhere to proprietary standards and legal data in proprietary formats there is great inertia to shift to a new vendor. It does not matter whether the new vendor promotes proprietary or Free/ Open Source Software [FOSS]. Therefore it could be said that proprietary standards breed unfair and monopolistic business practices and are incongruous with the Free Market. FOSS advocates believe that popular Open Standards are an important stepping stone towards the accelerated adoption of Free/Open Source Software in developing countries. Vendors of proprietary software have realised this and have adopted the strategy of “embrace, extend and extinguish[2]” in an attempt to halt the march of FOSS. --------------------------------------------------------------------------- Title: Free and Open Source Software - Open Standards --------------------------------------------------------------------------- Bruce Perens has identified the following 5 principles for Open Standards. Open Standards are available for all to read and implement. Open Standards maximize end-user choice and they do not lock the customer in to a particular vendor or group. Open Standards are free for all to implement, with no royalty or fee. Open Standards and the organizations that administer them do not favor one implementor over another for any reason other than the technical standards compliance of a vendor's implementation. Implementations of Open Standards may be extended, or offered in subset form[3]. Many public institutions like government agencies and civil society organisations are obliged by new legislation to place information in the public domain. Unfortunately, many of them are using proprietary standards and formats that require members of the public to purchase or pirate expensive proprietary software. --------------------------------------------------------------------------- Objectives --------------------------------------------------------------------------- To produce a primer on Open Standards that will: 1. Introduce Free/Open Source Software and Open Standards and explain the connection between the two. 2. Provide a rationale for the use of Open Standards in Government/Development funded ICT interventions 3. Profile open standards and formats such as HTML, XML, CSS, PNG, SVG RDF, SOAP, UNICODE, SQL, RSS etc. 4. Compare open standards to proprietary equivalents and explain benefits and disadvantages. 5. Give an overview of standards setting bodies such as W3C and Unicode Consortium; enumerate membership requirements for these bodies; describe the process of negotiating, setting and adopting standards. 6. Profile FOSS software and tools that can be used to create new content or migrate existing content. 7. Provide case studies where the use of standards have increased interoperability, scaling up of projects and process efficiency. 8. Provide sample tenders for ICT projects; review existing policies endorsing open standards from this region. --------------------------------------------------------------------------- Duties and Responsibilities of the Author --------------------------------------------------------------------------- The Author will be required to carry out the following: 1. Conduct background research on Open Standards and Formats and particularly in the Asia-Pacific context. 2. Review and analyse all existing Open Standards and Formats. 3. Produce a first draft of the primer according to objectives as described above. 4. Provide drafts of the primer taking into account the feedback provided by APDIP-IOSN according to the time-line below. 5. Consolidate and compile feedback based on a select list of peer reviewers approved by APDIP, and make the necessary revisions. 6. Ensure that the publication material conforms to the UNDP Style Manual, December 2002 version as provided. --------------------------------------------------------------------------- Time Frame --------------------------------------------------------------------------- The project will be undertaken based on the following timetable: Time Output/ Deliverable Responsibility 0th Week Contract signed – project kick off IOSN 2rd Week Annotated outline of the primer Author 3th Week Feedback on primer outline IOSN 8th Week First draft of primer Author 9th Week Internal feedback on the first draft IOSN 12th Week Second draft of primer + response to Author the internal feedback 15th Week Peer and public feedback on the primer IOSN 18th Week Third draft Author 19th Week Feedback on the third draft IOSN 22th Week Final draft Author --------------------------------------------------------------------------- Rights --------------------------------------------------------------------------- All the copyright of research papers, materials, documents, publications, and on-line resources collected and worked upon by the Author belong UNDP-IOSN. UNDP-IOSN will license this body of work to the general public under the Creative Commons Attribution license. Therefore, the Author has full rights to use the content and findings for any work of similar nature that s/he wishes to perform in the future. --------------------------------------------------------------------------- Qualifications and Experience --------------------------------------------------------------------------- 1. Substantial knowledge of Free and Open Source Software movement particularly in the Asia-Pacific region. 2. Prior experience in research and publishing of papers on FOSS and Open Standards and Open Formats 3. Good command of English-language communication and writing skills. 4. Good communication and interpersonal skills and experience in working effectively in a multicultural environment. 5. A team-player and self-starter, able to work with minimum supervision, with sound judgement. --------------------------------------------------------------------------- Terms of Payments --------------------------------------------------------------------------- A lump sum amount of US$3,000 will be paid upon submission and acceptance by APDIP, of the final pre-publication version of the Primer. No further claims will be considered. UNDP-APDIP, Kuala Lumpur, 10th Dec 2004 [1]http://en.wikipedia.org/wiki/Open_standard [2]http://en.wikipedia.org/wiki/Embrace,_extend_and_extinguish [3]http://perens.com/OpenStandards/Definition.html Thanks, ಸುನೀಲ್ Thanks, ಸುನೀಲ್ -- Sunil Abraham, sunil at mahiti.org http://www.mahiti.org 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 51150580. Mob: (60) 1-2205-3895 Currently on sabbatical with APDIP/UNDP Manager - International Open Source Network Wisma UN, Block C Komplex Pejabat Damansara. Jalan Dungun, Damansara Heights. 50490 Kuala Lumpur. P. O. Box 12544, 50782, Kuala Lumpur, Malaysia Tel: (60) 3-2091-5167, Fax: (60) 3-2095-2087 sunil at apdip.net http://www.iosn.net http://www.apdip.net "A world opened up by communications cannot remain closed up in a feudal vision of property" - Gilberto Gil, Minister of Culture, Brazil From kalisaroj at rediffmail.com Fri Dec 10 17:24:03 2004 From: kalisaroj at rediffmail.com (avinash jha) Date: 10 Dec 2004 11:54:03 -0000 Subject: [Commons-Law] Owning 'work or owning 'information' Message-ID: <20041210115403.27615.qmail@webmail18.rediffmail.com> Dear Keith Let me first say that I was glad to discover from your website that you were involved with publication of Prickly Pear pamphlets. When I was working in a documentation centre at Bombay many years ago, a friend brought one of them (I think it was 'on being authentic')from Cambridge. I wrote to the address given in the pamphlet requesting for other publications in the series and a few of them were sent to us. I think you are absolutely right that the politics of law has to be understood and taken into account. I must say that my conception of law is naive and is unable to understand that politics. My naivete about law, however, impels me to venture another question: is law based on knowledge? If law is not 'given', where does it come from? In asking this I am more concerned about future than the past. It seems to me that I hear three answers: law is/was always already there we just have to get to know it, law springs up spontaneously like a flower, law is made by power. I find all three answers unsatisfactory. I think we can agree that law is and should be contingent and not fixed. How does it change? Even if the judgments are made more by precedents than by written laws. If the judges (or all of us; since we all pass judgment) are not following rules, what are they following? Let us for the moment mean by law the process of justice. What kind of knowledge it is that is employed for justice? It will have to be embedded with values and conceptions of right and wrong. In a civilization, or in a modernity, where knowledge and values are opposite poles (if you move towards one, you move away from the other)how do you conceive of such knowledge? I try to imagine a civilization where such knowledge is the norm. You are also right that we cannot take the university, the research institute as they exist now as normal. You are not at all a spoilsport. It is just that I am not so sure how things are going to turn out - whether the future holds university of a different kind or whether something else in the place of the university. All I feel sure is that the society will be complex enough for there to be some form of 'work of knowledge'. There will be some kind of organised social sphere where people will be engaged in the work of creation, organisation and communication of knowledge for a social purpose. What will be the principles of this work and what kinds of institutions will organise such work is an open question. There is work cut out for us. And do not accuse us of being 'reasonable' and 'polite'. We have had enough trouble dealing with accusations of 'unreasonableness' and now you come along to accuse us of being reasonable! If you persist, I might throw an accusation at you of being unsettled when intellectuals outside the west come out of their assigned or adopted niches and arrogate to themselves the right to 'legislate for the future', instead of just creating dissent and disruption. It will serve you right for insisting on 'impoliteness'. In any case, I do not like the tag of 'intellectual' at all. Actually, what bothers me about my milieu is that we do not ask ambitious questions. As a result, we do not even attempt answers, however modest. There certainly is a war on, on a global scale. May be, this is the best time to philosophise. There may be a broad compulstion of being status quo or anti status quo, but important dialogues are among people with similar concerns but with different outlooks. After all, it is not always easy to see what is status quo and what is not. avinash -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041210/a4291bd4/attachment.html From keith at thememorybank.co.uk Sat Dec 11 18:52:39 2004 From: keith at thememorybank.co.uk (Keith Hart) Date: Sat, 11 Dec 2004 14:22:39 +0100 Subject: [Commons-Law] Owning 'work or owning 'information' In-Reply-To: <20041210115403.27615.qmail@webmail18.rediffmail.com> References: <20041210115403.27615.qmail@webmail18.rediffmail.com> Message-ID: <41BAF49F.7010505@thememorybank.co.uk> Dear`Avinash, First, apologies for unwarranted classification and second, thank you for the seriousness of your latest reply. I can only attempt a partial answer to such big questions based on personal experience. This is in any case both the form and the content of my approach I take to the general issues of law, justice, knowledge and value you raise. I agree that we should not limit ourselves unnecessarily in the ambition we bring to our explorations of the world, but then we have to discover a level of engagement with such questions that is appropriate to our circumstances and, perhaps as a result of learning from experience, we may be able to narrow the gap between our puny self and the scope of the universe we inhabit. I will start with a joke. A sociologist interviews a married couple together as part of a survey of decision-making in the home. First i want to fin dout who takes the big decisions, he says. I do, says the husband. Yes, he does, says his wife. OK, perhaps we can be more concrete. If you decided to move to another neighbourhood, who would have the main say in choosing your new house? I would, says the wife. Yes she would, says her husband. Alright, if your child is having problems at school who would be likely to decide whether to transfer him to another school? I would, says the wife. Yes, she would, agrees her husband. The sociologist is a bit perplexed. I thought you said you took th ebig decisions, he says to the husband. Yes I do, he replies. I decide if China should revalue the yuan, whether Israel should be allowed to stay on the West Bank -- the big decisions. Which to say that how you affect the life of your own child may seem to be small potatoes in th egrand scheme of things, but you can be a major force for good or bad, whereas stopping the Indian government from enacting regressive patent legislation is apparently more important, but your personal influence on the decision is likely to be nugatory. The trick is how to scale up ones self and scale down the world so that the two might meet on more menaingful terms than is currently the case. Prayer once filled this need for many. Fiction, novels and movies, enables us to enter history as subjects exercising judgment. The citizen soldier fighting a just war achieves something like this. The suicide bomber likewise. Scientists who seem to explain a whole universe through a single equation pull off this trick. The larger questions can only be addressed if we understand the need to make our effective knowlege at once personal and general. I have no doubt which 20th century figure came to terms with this issue most successfully. In the 19th century western imperialism brought the rest of humanity into world society on extremely unequal terms and they in turn shaped the 20th century by fghting to join it on their own terms. I believe that the 21st century will see world society realigned to reflect where most of the people are, a continuation of what we have already witnessed but more revolutionary even than th eend of colonial empire, since the west, the US and Europe, will lose their control of global institutions along with the transfer of economic power eslewhere, notably to China and India. We are living through the early stages of this latter phase, a period in which the digital revoltuion in communications has simulataneouly speeded up the integration of world society and acclerated the transfer of production away from America and Europe. So when I look for the intelelctuals of the 20th century who made a difference to the content of th eongoging human conversation about a better world, I find them in the anti-colonial revolution. Gandhi to my mind stands head and shoulders above the rest because he synthesised so well a strand of western thinking with eastern traditions. I consider the west Indian revolutionary and writer, CLR Mentor to be my mentor and I have learned also as much from another Caribbean intellectual, Frantz Fanon, but these men were operating largely with the western tradition from a standpoint of resistance to colonialism and racism. James used to say that he always felt he had a fair wind at his back in embarking on what was often a lonely road of anti-colonial politics and writing. The main point I wish to make through a selective reading of Gandhi is th eone I highlighted initially in this message. For evidence i would refer primarily to his autobiography, but also to Bhiku Parekh's Ghandi's Political Philosophy (please excuse the lack in care in scholarly reference, but this is after all just an email message). Gandhi's critique of modern civilization and especially of th emoder state was devastating. He believed that it disabled its citizens, subjecting mind and body to the control of professional experts when the purpose of a civilisation should be to enhance its members’ sense of their own self-reliance. He proposed instead an anthropology based on two universal postulates: that every human being is a unique personality and as such participates with the rest of humanity in an encompassing whole. Between these extremes lie proliferating associations of great variety. As an Indian who had absorbed much that the West has to teach, Gandhi settled on the village and therefore on agricultural society as the most appropriate social vehicle for human development. <> This backward-looking solution to the problem of the modern world makes Gandhi a typical 20^th century figure. But the problem he confronted has been largely ignored by social theorists. It is this. If the world of society and nature is devoid of meaning, being governed by remote impersonal forces known only to specially trained experts, that leaves each of us feeling small, isolated and vulnerable. Yet modern cultures tell us that we are personalities with significance. How do we bridge the gap between a vast, unknowable world, which we experience as an external object, and a puny self endowed with the subjective capacity to act alone or with others? The answer is to scale down the world, to scale up the self or a combination of both, so that a meaningful relationship might be established between the two. Gandhi chose the village as the site of India’s renaissance because it was where most Indians lived, but more importantly because it had a social scale appropriate to self-respecting members of an agrarian civilisation. Moreover, he devoted a large part of his philosophy to building up the personal resources of individuals. His autobiography is full of examples of how he threw himself into sitations he didn't understand and subsequently built up an approach that was both personal and systematic. Read about his initial encounter with London as a law student. His first problem was to find somewhere to eat, but before long he was an active member of the Vegetarian Society, writing political tracts and eating the way he wanted. After the crucial South African period, where he learned his political mission, read also about the amazing intervention he made into a strike in Ahmedabad, where he just turned up and sat down alone on a street corner and within days the whole political situation revolved around him. We can't all be Gandhi, but each of us can learn from him how to train ourselves to enter society more effectively than before. This is no doubt bringing coal to Newcastle. What about your question concerning the source of law? The first thing is to be clear about what modern history is about. It is about democracy. That is the only value that counts or should count in all -- the movement to ensure that the people most affected by a decision have the greatest say in making it. And, as we used to say in Manchester where I grew up, you are no good to anyone else if you can;lt look after yourself. The most pernicious doctrine is the one that says self-preservation or self-interest is selfish and anti-social. We are or should be searching for societies that are conductive to individual self-espression. The idea that ones ultimate self-interest lies in the good of everyone is common to Locke and the Buddha. Similar notions can be found in Hinduism, Christianity etc. But anyone who tells you that must be altruistic in order to serve the collective good is a fraud and probably in the pay of the powers-that-be. I have referred to the English common law tradition before. At a fundamental level the idea of right must come from individual citizens. and be a body of internalized theory that can be applied in practice often under emergency condition. But I also believe that the American and French experiments in a written constitution as the basis for legal judgment were an improvement on the unwritten British constitution. Judgment as a personal quality can only be built up through experience over time. We learn from our commitments and our mistakes. Let me offer a personal example. In fall 1977 I was teaching at Yale. One day a young man in a hunting jacket and big boots came into my office to remove the waste bin. I asked him who he was and the ran away without a word. The office cleaner was an elderly black lady called Lucille and it occurred to me that I hadn't seen her recently. So I asked around and found out that the manual workers union was on strike and the young man was scab labour. On making further inquiries I discovered that this sort of thing happened every three years when the contract had to be renegotiated and it could be better described as a lockout by the Yale authorities since they were often responsible for a breakdown in negotiations. On the last two occasions the workers had been out for several months and the conflict spread to involve the campus as a whole. The pattern had been set some time ago. The union and its supporters tries to knock out the energy supply to the building containing the university's most prestigious scientific experiments as leverage in the dispute. This requires neutralising one power station. The oil is delivered by truck and so, if the Teamsters Union can be persuaded to cooperate, so much the better. In 1971, students lay down in fron front of the trucks when the teamsters refused to play ball. In 1974 students set fire to the power station. In neither case was the station closed down and eventually the workers came back on reduced terms. In 1977 the students were complaining about not being seved breakfasy in their halls of residence. For some reason that I am not sure about, I decided to join the struggle in this time of general demoralisation. I thought it wasn't right. I had never before taken part in any labour dispute, nor was I particularly radical in my politics. I found only a handful of academics willing to come out in support of the workers and most of them were junior researchers reliving their own experiecne of anti-war demos earlier. I was th eonly tenured faculty involved and all of the rest folded within a few days. I found myself escalating -- I gave interviews to the local press and TV saying that the Provost was lying and so on. But I found that I got cool treatment from union officials. The local leader of the union was an Italian gangster who was currently facing a charge in California. The teamsters (another section of the unionised mob) stayed out of attempts to isolate th epower station and the experiments remained safe. eventually I realised that the union had made an informal deal with the university to help them lay off workers for a couple of months, save on their salary bills and bring them back before Christmas with a free chicken as compensation. Itw as a chastening expereince, but I learned quite a lot about the law and especially about the politics of law. I had only been in the USA for a couple of years, but I still felt that this was an issue that would leave unable to face Lucille in future if I didnt find out if there was something I could do. I was naive and ineffective. I never particpate din a similar conflict since then. But it was formative of my personal judgment about the elaw. I gained some knowledge from the experience, but knowledge was not what I brought to the expereince in the first place. On that incolclusive note, I will end this rambling anecdotal reply to your powerful set of questions and go back to thinking about them. Keith From annymcbeal at gmail.com Mon Dec 13 14:09:43 2004 From: annymcbeal at gmail.com (anu) Date: Mon, 13 Dec 2004 14:09:43 +0530 Subject: [Commons-Law] Wikinews Message-ID: <8a1161ed04121300391124c2fb@mail.gmail.com> Check out the widipedia's news collaborative news reporting service! It raises a few questions in my mind, I would like to raise here. May be its the new dawn of new age in news reporting, but I am always skeptical about the reliability in the long run of such 'commons-based' efforts in making of systematic public domain like encyclopedia and news-reporting. anuranjan http://www.hindu.com/biz/2004/12/13/stories/2004121301821700.htm Wikinews: News service with collaborative reporting WIKIPEDIA HAS proved beyond doubt that rich content can be easily generated through collaborative authoring/editing. Wikimedia Foundation, the mentor of Wikipedia, has recently launched another innovative project that aims to generate a free news source using the concept of collaborative reporting. A drawback of the current news media is that it fails to look at many news items/issues. Also, they rake up issues and after a while just forget about it — no follow up, no further research. This shortcoming can be attributed to several factors that include `media interests,' subject-specific approach of established media that limits the nature of its content and so on. Rather than assigning the responsibility of public information dissemination to a minority, if we have a mechanism that provides an opportunity for each of the citizens to report news on any of the issues, it will certainly be more effective. The new on-line news service, Wikinews (http://en.wikinews.org/wiki/Main_Page), sponsored by Wikimedia (http://wikimediafoundation.org/wiki/Home), is an attempt to implement this concept. According to its web site, the objective of Wikinews is to "create a diverse environment where citizen journalists can independently report the news on a wide variety of current events." Here, anyone can report on any event from anywhere on the Net. Being a service developed on the Wiki model, this article can be edited/modified by anyone who reads it. So, though the service allows any person to take up the role of a reporter, he has to be ready to see his piece being mercilessly edited by others. That is, over time, the report content may undergo drastic changes. The reporter has to make sure that his story has enough news value and reliability to withstand the scrutiny of other fellow `citizen' reporters. It is likely that this unruly nature of the service turns out to be a recipe for its complete failure. To save the service from getting out of control, the Wikinews developers have introduced a review process (http://en.wikinews.org/wiki/Wikinews:Article_stages). The articles available on the site fall under various categories such as `Articles in Development,' `Unreviewed articles,' `Reviewed' and so on. Wikinews may not succeed on all aspects of the news creation process. For example, as can be seen from its site, it will be difficult for the service to provide the latest sensational news on time. However, the service may turn out to be a good model for news stories that need to be followed up further with a little bit of research/analysis. It is likely that the review process enriches the story's content further and makes it more accurate. In this respect, Wikinews may emerge as an important news source for researchers. Anyway, we need to wait and see how this novel experiment will evolve. Bibliography management service Compiling a bibliography and presenting it in a standard format is one of the essential skills you need if you are in academics or a writer. To help you manage the various aspects of bibliographic list creation process with ease, several tools are available. Here, we will have a look at a simple free PHP-based bibliography management service that can be easily implemented on your desktop or on a web server with PHP/MySQL support. Wikindx Wikindx (pronounced as Wiki Index) is a bibliography management software that enables you to create bibliographies through a web-based interface. To create a bibliography, you just need to fill up the input form with several fields that include `Title of the resource,' `Type of resource' (Book, Journal Article, Newspaper/Magazine article and so on) and `Publisher Details.' Once the required information is fed to the system it will add the resource entry into your bibliographic database. The database thus created can be retrieved in multiple ways using various search techniques; it can also be exported to different file formats that include RTF (Rich Text Format), BibTex and so on. Another notable feature of this tool is that more than one user can be allowed to create bibliographies. Also, the system allows each user to view the bibliographies created by other users. That is, the product can be used to establish a collaborative bibliography creation infrastructure. As already mentioned, to implement the service you need to have access to a web server with PHP/MySQL support. If you are a Windows user who would like to implement the system on your desktop, first, set-up the server component on your machine. For this, you may use the free WAMP (Window-Apache-MySQL-PHP) server module available at: http://www.wampserver.com/en/index.php. Once the server is configured on your system, download Wikindx archive, expand/store it on to a directory (say `wikindx') in the web server's document root. Create a database and make necessary adjustments in the configuration file as mentioned in the `Install' file that comes along with the archive. Once the set-up is ready, you can start the bibliography creation process by accessing the service using the link: http://localhost/wikindx. If you want to test the features of Wikindx, access the service's `Test-Drive' (http://wikindx.sourceforge.net/) option. On-line notebook For conducting daily life efficiently, many people keep a note of important events, meetings to be attended and other tasks to be performed. If you are a project team member, you may be keen to have a common note that can be viewed/added/edited by any of the team members. Obviously, if we keep such notes on the Net we can access them anytime, anywhere. Those of you who want to keep such on-line notes, check out the free service, `Forty Internet' (http://www.fortyinternet.com/notebook/). After registering with the service, you can start creating notes and sub-notes through its simple web interface. J. Murali Email the author at: murali27 at satyam.net.in From jeebesh at sarai.net Mon Dec 13 18:00:31 2004 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Mon, 13 Dec 2004 18:00:31 +0530 Subject: [Commons-Law] "The Contested Commons/ Trespassing Publics" - Public Lecture Series Message-ID: <41BD8B67.6000901@sarai.net> "The Contested Commons/ Trespassing Publics" - *Public Lecture Series* The Public Service Broadcasting Trust, the Sarai Programme of the CSDS, Delhi and Alternative Law Forum, Bangalore present a series of three public lectures by world renowned scholars, which examine the fate of the commons after new conflicts over the public domain, and intellectual property. I. 6th January, 2005 Thursday, 7 pm, Auditorium, India Habitat Center, Lodi Road, Delhi * "Between Anarchy and Oligarchy: The Prospects for Sovereignty and Democracy in a Connected World "* Prof. Siva Vaidyanathan, New York University Information communication technologies have collapsed distances and lowered the price of connections and transactions around the world. We have only just begun making sense of the changes wrought by the new methods and habits fostered by these technologies. But we have no shortage of grand, totalizing visions that aim to capture the changes we are experiencing. In the 1990s we went through a phase dominated by naive visions of globalized monoculture and consensus, with the "end of history" considered to be the apex of "cultural evolution." Since 2001 the world has been viewed by some (Bush and Bin Laden, chiefly) as torn among "Civilizations." Now we hear explicit calls for a new Western imperialism, based on assumptions of universal benevolence. In opposition to such panicked or triumphal calls for a New World Order, Antonio Negri and Michael Hardt have issued a description of a new global anarchistic state of mind ("Empire" and "Multitude") based on the emerging forms of opposition to the mainstream forms of globalized corporate centralization. This paper finds fault with both Bush and Negri. It argues that efforts to create a world polarized on models of oligarchy and anarchy do not enrich most lives in meaningful ways. Instead, this paper argues for a careful consideration of the democratic potential of the new information ecosystems, and points out specific points of hope and models of optimism that can guide our global future toward a more just state, opening possibilities without sacrificing the granularity of the local, the specific, and the experimental. Siva Vaidyanathan is a well-known cultural historian, media scholar and public intellectual. . He is the author of the classic Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity (New York University Press, 2001) II. 7th January, 2005 Friday, 7 pm, Auditorium, India Habitat Center, Lodi Road, Delhi * "U.S Path to Wealth and Power: Intellectual Piracy and the making of America" * Prof. Doron Ben-Atar Fordham University During the first decades of America's existence as a nation, private citizens, voluntary associations, and government officials encouraged the smuggling of European inventions and artisans to the New World. These actions openly violated the intellectual property regimes of European nations. At the same time, the young republic was developing policies that set new standards for protecting industrial innovations. The American patent law of 1790 restricted patents exclusively to original inventors and established the principle that prior use anywhere in the world was grounds for invalidating a patent. But the story behind the story is a little more complicated - and leaders of the developing world would be wise to look more closely at how the American system operated in its first 50 years. In theory the United States pioneered a new standard of intellectual property that set the highest possible requirements for patent protection-worldwide originality and novelty. In practice, the country encouraged widespread intellectual piracy and industrial espionage. Piracy took place with the full knowledge and sometimes even aggressive encouragement of government officials. Congress never protected the intellectual property of European authors and inventors, and Americans did not pay for the reprinting of literary works and unlicensed use of patented inventions. What fueled 19th century American boom was a dual system of principled commitment to an intellectual property regime combined with absence of commitment to enforce these laws. This ambiguous order generated innovation by promising patent monopolies. At the same time, by declining to crack down on technology pirates, it allowed for rapid dissemination of innovation that made American products better and cheaper. Doron Ben-Atar is professor of history at Fordham University and co-director of Crossroads of Revolution to Cradle of Reform: Litchfield Connecticut 1751-1833. He has won numerous grants and awards, including most recently from the Dorothy and Lewis B. Cullman Center for Scholars and Writers at the New York public library. He is the author of numerous articles and a guest speaker on radio and television stations in the New York area. Ben-Atar's books include The Origins of Jeffersonian Commercial Policy and Diplomacy (Macmillan 1993), Federalists Reconsidered (University Press of Virginia, 1998) and Trade Secrets: Intellectual Piracy and the Origins of American Industrial Power (Yale University Press, 2004). III. 8th January, 2005 Saturday, 7 pm, Auditorium, India Habitat Center, Lodi Road, Delhi *"Magna Carta and the Commons"* Peter Linebaugh University of Toledo Magna Carta has been ignored as a medieval document of little relevance to the modern world at best, or at worst it has been derided as a false facade of liberal intention by Anglo imperialism. Partly as a result of this neglect, fundamental protections against tyranny and aggression have been eroded, such as habeas corpus, trial by jury, prohibition of torture, and due process of law. These cannot be restored without the root and branch recovery of the entire Charter of Liberty which includes the Charter of the Forest. This lost but extraordinary document holds a constitutional key to the future of humanity insofar as it provides protections for the whole earth's commons, particularly its hydrocarbon energy resources, whether these take the form of wood, coal, or petroleum. The key is turned by the women of the planet in Chiapas, Nigeria, India (to name a few places) who have taken the lead in the process of re-commoning what has been privatized and profiteered. Hence, the significance of "widow's estovers" in the Magna Carta as revised after 9/11! Peter Linebaugh is Professor of History at the University of Toledo in Ohio. He is the author of The London Hanged, co-author of The Many Headed Hydra, an editor of Albion's Fatal Tree, and forthcoming studies of the Irish insurrectionist, Edward Despard, as well as Magna Carta. He was raised and educated between two empires, British and American. Schooled in London in the 1940s, tested in Cattaraugus (New York) and Muskogee (Oklahoma) during the 1950s, he finished secondary school at the Karachi Grammar School, before matriculating at Swarthmore College, the liberal, Quaker, college in Pennsylvania. Active there in the civil rights struggle, he then removed to Columbia Univesity in New York until anti-war upheavals of May 1968 when, shaking the dust from his feet, he joined E.P. Thompson at the Centre for the Study of Social History at the University of Warwick. An educator who respects the organizer and the agitator, he has published in the Nation, Viet-Report, New Left Review, Times Literary Supplement, Midnight Notes, and his occasional essays may be read on www.CounterPunch. org. - ALL ARE INVITED - From sunil at apdip.net Fri Dec 10 19:45:23 2004 From: sunil at apdip.net (Sunil Abraham) Date: Fri, 10 Dec 2004 14:15:23 +0000 Subject: [Commons-Law] IOSN: Request for Authors, FOSS: Open Standards] Message-ID: <1102688123.700.199.camel@box> Dear Friends, Please see the Terms of Reference below. If you would like to apply please send me your updated Curriculum Vitae and 2-3 samples of your writings on FOSS and Open Standards. Thanks, Sunil --------------------------------------------------------------------------- International Open Source Network: Terms of Reference for Author for Primer: Free/Open Source Software - Open Standards Duration: 6 months --------------------------------------------------------------------------- Background --------------------------------------------------------------------------- The International Open Source Network (IOSN - http://www.iosn.net) is a Centre of Excellence for Free / Open Source Software in the Asia-Pacific Region. IOSN is an initiative of the UNDP's Asia-Pacific Information Development Programme (APDIP - http://www.apdip.net) and is supported by International Development Research Centre (IDRC - http://www.idrc.ca]. Via a small secretariat, the IOSN is tasked specifically to facilitate and network Free / Open Source Software advocates and human resources in the region. Open standards are publicly available specifications for achieving a specific task. By allowing anyone to use the standard, they increase compatibility between various hardware and software components since anyone with the technical know-how and the necessary equipment to implement solutions can build something that works together with those of other vendors[1]. Vendors of proprietary software use proprietary standards or formats to lock-in their customer. Once the customer has legal applications that adhere to proprietary standards and legal data in proprietary formats there is great inertia to shift to a new vendor. It does not matter whether the new vendor promotes proprietary or Free/ Open Source Software [FOSS]. Therefore it could be said that proprietary standards breed unfair and monopolistic business practices and are incongruous with the Free Market. FOSS advocates believe that popular Open Standards are an important stepping stone towards the accelerated adoption of Free/Open Source Software in developing countries. Vendors of proprietary software have realised this and have adopted the strategy of “embrace, extend and extinguish[2]” in an attempt to halt the march of FOSS. --------------------------------------------------------------------------- Title: Free and Open Source Software - Open Standards --------------------------------------------------------------------------- Bruce Perens has identified the following 5 principles for Open Standards. Open Standards are available for all to read and implement. Open Standards maximize end-user choice and they do not lock the customer in to a particular vendor or group. Open Standards are free for all to implement, with no royalty or fee. Open Standards and the organizations that administer them do not favor one implementor over another for any reason other than the technical standards compliance of a vendor's implementation. Implementations of Open Standards may be extended, or offered in subset form[3]. Many public institutions like government agencies and civil society organisations are obliged by new legislation to place information in the public domain. Unfortunately, many of them are using proprietary standards and formats that require members of the public to purchase or pirate expensive proprietary software. --------------------------------------------------------------------------- Objectives --------------------------------------------------------------------------- To produce a primer on Open Standards that will: 1. Introduce Free/Open Source Software and Open Standards and explain the connection between the two. 2. Provide a rationale for the use of Open Standards in Government/Development funded ICT interventions 3. Profile open standards and formats such as HTML, XML, CSS, PNG, SVG RDF, SOAP, UNICODE, SQL, RSS etc. 4. Compare open standards to proprietary equivalents and explain benefits and disadvantages. 5. Give an overview of standards setting bodies such as W3C and Unicode Consortium; enumerate membership requirements for these bodies; describe the process of negotiating, setting and adopting standards. 6. Profile FOSS software and tools that can be used to create new content or migrate existing content. 7. Provide case studies where the use of standards have increased interoperability, scaling up of projects and process efficiency. 8. Provide sample tenders for ICT projects; review existing policies endorsing open standards from this region. --------------------------------------------------------------------------- Duties and Responsibilities of the Author --------------------------------------------------------------------------- The Author will be required to carry out the following: 1. Conduct background research on Open Standards and Formats and particularly in the Asia-Pacific context. 2. Review and analyse all existing Open Standards and Formats. 3. Produce a first draft of the primer according to objectives as described above. 4. Provide drafts of the primer taking into account the feedback provided by APDIP-IOSN according to the time-line below. 5. Consolidate and compile feedback based on a select list of peer reviewers approved by APDIP, and make the necessary revisions. 6. Ensure that the publication material conforms to the UNDP Style Manual, December 2002 version as provided. --------------------------------------------------------------------------- Time Frame --------------------------------------------------------------------------- The project will be undertaken based on the following timetable: Time Output/ Deliverable Responsibility 0th Week Contract signed – project kick off IOSN 2rd Week Annotated outline of the primer Author 3th Week Feedback on primer outline IOSN 8th Week First draft of primer Author 9th Week Internal feedback on the first draft IOSN 12th Week Second draft of primer + response to Author the internal feedback 15th Week Peer and public feedback on the primer IOSN 18th Week Third draft Author 19th Week Feedback on the third draft IOSN 22th Week Final draft Author --------------------------------------------------------------------------- Rights --------------------------------------------------------------------------- All the copyright of research papers, materials, documents, publications, and on-line resources collected and worked upon by the Author belong UNDP-IOSN. UNDP-IOSN will license this body of work to the general public under the Creative Commons Attribution license. Therefore, the Author has full rights to use the content and findings for any work of similar nature that s/he wishes to perform in the future. --------------------------------------------------------------------------- Qualifications and Experience --------------------------------------------------------------------------- 1. Substantial knowledge of Free and Open Source Software movement particularly in the Asia-Pacific region. 2. Prior experience in research and publishing of papers on FOSS and Open Standards and Open Formats 3. Good command of English-language communication and writing skills. 4. Good communication and interpersonal skills and experience in working effectively in a multicultural environment. 5. A team-player and self-starter, able to work with minimum supervision, with sound judgement. --------------------------------------------------------------------------- Terms of Payments --------------------------------------------------------------------------- A lump sum amount of US$3,000 will be paid upon submission and acceptance by APDIP, of the final pre-publication version of the Primer. No further claims will be considered. UNDP-APDIP, Kuala Lumpur, 10th Dec 2004 [1]http://en.wikipedia.org/wiki/Open_standard [2]http://en.wikipedia.org/wiki/Embrace,_extend_and_extinguish [3]http://perens.com/OpenStandards/Definition.html Thanks, ಸುನೀಲ್ -- Sunil Abraham Manager sunil at apdip.net http://www.iosn.net International Open Source Network - Software Freedom for All UNDP Asia-Pacific Development Information Programme Wisma UN, Block C Kompleks Pejabat Damansara. Jalan Dungun, Damansara Heights. 50490 Kuala Lumpur. P. O. Box 12544, 50782, Kuala Lumpur, Malaysia Tel: (60) 3-2091-5167, Fax: (60) 3-2095-2087 Mob: (60) 1-2205-3895 "A world opened up by communications cannot remain closed up in a feudal vision of property" - Gilberto Gil, Minister of Culture, Brazil From shamnadbasheer at yahoo.co.in Tue Dec 14 15:42:04 2004 From: shamnadbasheer at yahoo.co.in (Shamnad Basheer) Date: Tue, 14 Dec 2004 10:12:04 +0000 (GMT) Subject: [Commons-Law] questionable database rights... In-Reply-To: <41BD8B67.6000901@sarai.net> Message-ID: <20041214101204.77228.qmail@web8407.mail.in.yahoo.com> Picked up this news item from tikiwiki (as reported in the Hindu). Thanks for the fantastic effort, Prashant. I presume the report below means copyright protection for non -original databases (as original databases would merit protection under the existing copyright law anyway). Does anyone have any further details on this questionable initiative?? Several questions: why push this in through an IT legislation?? And when we have some concrete evidence that protecting non original databases does not necessairly increase the production of such databases (theres a recent James Boyle piece illustratrating this in the context of the EU), but that they constrain a number of useful activities that rely on this "non original information", why are we so anxious to protect this? The report also states that the initiative is to 'protect the database of foreign companies'. Even if we did grant this right, arent Indian companies good enough to merit this sort of protection??? (i'll just put that one down to bad reporting..) Regards-Shamnad The Hindu THE Ministry of Information & Technology has decided to amend some of the Sections of the Information Technology Act, 2000 by mid next year to help large MNCs to protect their database against any of their possible piracy. Stating this at a seminar `Strategy for negotiating IT & BPO transactions in global perspectives', Mr Pavan Duggal said that the committee has almost finalised its report, and suggested to the Government that Section 2 of the IT Act be amended to ensure that the database of the foreign companies are protected. Mr Duggal is one of the members of an Expert Committee set up by the Government to recommend measures to amend certain sections of IT Act. The seminar was organised by the Associated Chambers of Commerce and Industry of India (Assocham), the Indo-American? Chamber of Commerce (IACC) and the Electronics & Software Export Promotion Council (ESC). "The amendment in this Section has become necessary in view of oft-repeated complaints of large MNCs abroad that their Indian counterparts pirate their data in a manner that accrue them commercial benefits during the course of their business transactions," Mr Duggal said. The other two members of the committee are the eminent lawyers of the Supreme Court, Mr Sardul Shroff and Mr R. Srinivasan. According to Mr Duggal, the three-member committee will be submitting its recommendations to the Government in the next few months so that the IT Ministry refers the matter to the Law & Justice Ministry for early amendment of certain Sections of the IT Act. "The Act which came into effect in the year 2000 did not foresee the present BPO boom and solutions were not provided in the Act to settle the ongoing BPO related disputes. "That is why the Government had set up the committee to suggest measures for amending certain sections of the Act sometimes in October 2003," Mr Duggal said. © Copyright 2000 - 2004 The Hindu Business Line Yahoo! India Matrimony: Find your life partneronline. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041214/85fda8e3/attachment.html From shamnadbasheer at yahoo.co.in Tue Dec 14 16:00:26 2004 From: shamnadbasheer at yahoo.co.in (Shamnad Basheer) Date: Tue, 14 Dec 2004 10:30:26 +0000 (GMT) Subject: [Commons-Law] marxist -lessigism.. In-Reply-To: <20041214101204.77228.qmail@web8407.mail.in.yahoo.com> Message-ID: <20041214103026.41029.qmail@web8406.mail.in.yahoo.com> Hunter, Dan. "Marxist-Lessigism." Legal Affairs (Nov-Dec 2004) Computer users of the world have united behind Stanford law professor Lawrence Lessig-and what they're doing is much more important than his critics realize. AT SWARTHMORE COLLEGE, the crowd is mostly students, and maybe a few professors and interested outsiders. It's a typical turnout for a public lecture by a well-known law professor. But there is something different and a little odd about this group. Swarthmore doesn't have a law school, so the audience includes no young men in suits that still have the label attached, and no young women with high-heeled shoes so new the soles aren't scuffed. And there is something else, something funny about the T-shirts. Everywhere you look, there are T-shirts with slogans, not logos. No "Tommy Hilfiger" and "Ralph Lauren" here. Just shirts with references too obscure to parse. What is "Downhill Battle"? Or "Grey Tuesday"? One kid has a shirt with the picture of a skull and crossbones on it, and written boldly across it are the words "Home Taping is Killing the Music Industry." Look closer, and you'll see, in tiny type, "(And it's fun)." A couple of students get up to introduce the speaker. They're nervous, disorganized, and rambling. Now you notice the handmade signs: "Swarthmore Coalition for the Digital Commons" is taped to the lectern, and "Free Culture" is written on the wall. It starts to become clear. This isn't just a lecture; it's a political rally. People start to shuffle; the students are losing their audience as the garbled introductions continue. But when the speaker gets up to start, the shuffling ends and there is a ripple of excitement. He is Lawrence Lessig, the Stanford law professor, known to this crowd as Larry. Dressed in black and wearing a pair of spectacles that could have been handed down by Ben Franklin, he waits until the crowd settles. And finally, you get it. Outside, lightning is cracking, but the smell in the air is not the ozone from the thunderstorm. It's the smell of revolution. INTELLECTUAL PROPERTY-"I.P.," AS IT'S CALLED-revolves around three basic property interests granted by federal statute: copyrights, patents, and trademarks. Copyrights cover expression by authors of various sorts, including books, plays, music, and so on. Patents protect underlying ideas of useful inventions and processes, such as a chemical reaction or an inventive mechanical device. And trademarks cover business brands. For much of the 20th century, these I.P. interests (and other close cousins such as trade secrets, unfair competition, and celebrities' publicity rights) were narrow and uncontroversial. Businesses in the industrial era cared about the factory, the production line, and the land needed for them. But as the modern era rolled on, the importance of industrial production waned. No longer were heavy machinery and physical plants the predominant means of production; no longer was physical inventory central to industry. In the developed world, control over intangibles came to dominate the business agenda, and so too the political agenda. First introduced in the United States in 1790, copyright was limited in its infancy to protecting musical, dramatic, literary, and artistic works for 28 years, and it was later broadened to encompass photography, video, and software for a period often in excess of 100 years. Patent scope was widened, first to include computer algorithms and then business methods-including those such as Amazon.com's patent for one-click online purchases-and then life itself. In 2000, companies including Celera Genomics and Incyte started receiving patents on sequences of the human genome. Trademarks too were set loose from their historical moorings. Not only was the trademark term extended, but the prototypical application of a physical brand to a physical product was no longer the limit of trademark. The sound of the Harley-Davidson exhaust for motorcycles or a distinctive color of dry cleaning pads was equally protected. Though I.P. rights are private property there has long been some sense that the public also has interests here. The concept of the public domain was first advanced in 1896, when the Supreme Court noted that upon the expiration of a patent the invention "fell into the public domain" and was free for anyone to use. But over the decades that I.P. rose in importance, the concept of the public domain was ignored, or defined at best in negative terms. It was the carcass left over after the I.P. system had eaten its fill. Still, the seeds of the movement that Larry Lessig now leads blossomed. In the late '70s, prompted by cases examining whether the heirs of Bela Lugosi and Rudolph Valentino could control the current and future representations of these dead actors, a young Duke University law professor named David Lange attended an entertainment law symposium to present a paper on celebrities' rights to their public image. Lange was surprised at the distress of the screenwriters who attended his talk and who argued that expanded publicity rights would reduce their ability to adapt, use, or reimagine these characters and their histories. As Lange described it, "the law of publicity was dispossessing individual creators in order to benefit the interests of celebrities." From this epiphany, Lange recast the public domain. Rather than the negative leftovers, he wrote in an influential article 25 years ago, the public domain was a vital, affirmative entity, the publicly accessible collection of knowledge, ideas, history, and expression on which creators draw in order to make new works. The movement in defense of the public domain soon started to grow. Academic works in the '80s and '90s by law professors Jessica Litman at Wayne State University, Wendy Gordon at Boston University, Pamela Samuelson at the University of California at Berkeley, and James Boyle at Duke University explored the public domain's importance. Then, with the 1998 introduction of the Sonny Bono Copyright Term Extension Act and the Digital Millennium Copyright Act (or DMCA), the public woke up. These statutes extended copyright terms, renewed copyrights on some works that had already fallen into the public domain, and forbade cracking digital locks on copyrighted material like DVDs. But they also motivated public interest groups as never before. Before then, corporate interests lobbied for I.P. expansion without much public comment. This changed overnight as the acts were widely seen as driven entirely by corporate interests, particularly Disney's fear that the first film featuring Mickey Mouse would soon fall into the hands of the public. Unanticipated uses of the DMCA also drew widespread attention. The first incident occurred when a Princeton computer science professor was threatened with prosecution if he disclosed research that he and his lab had performed in breaking a music encryption system. Then a Russian student was arrested while presenting a conference paper that demonstrated how he had cracked digitally encrypted electronic books. By the time students at Swarthmore College were threatened in 2003 with a DMCA injunction against posting details of a potential e-voting election scandal, the message was clear. The restrictions on speech, the threat to research and inquiry, the quashing of dissent, the jailing of researchers-all of Lange's worst fears and then some-were now being realized. The consequent backlash came at a bad time for I.P. owners. The rise of file-sharing systems threatened severe damage to the music and movie industries, and perhaps television networks. And social reformers were beginning to question other parts of I.P. For example, the patent system came under attack for the damage it inflicted on developing countries that had been strong-armed by the United States into adopting U.S.-style I.P. laws. This led to an increase in I.P. enforcement around the world, but it also demonstrated the clear injustices in forcing the poor to dance to the I.P. tune of the rich. American pharmaceutical manufacturers were vilified because they refused to provide drug therapies for HIV/AIDS in Africa for less than their patent-monopoly-controlled price. All the claims that drug manufacturers needed this monopoly to produce other important drugs rang hollow with the millions of people in the developing world dying from AIDS and their sympathizers. Thus was the culture war joined. This is not a war between cultures, but a war over culture-who owns it, who can use it in the future, and how much it will cost. On one side are the I.P. owners, with the money and the ear of government. Against them stand research and advocacy institutes, with names like Creative Commons or the Center for the Public Domain, and political action groups such as the Electronic Freedom Foundation and the ACLU. RECRUITING AND LEADING A BATTALION FOR THIS WAR is what Larry Lessig is doing at Swarthmore on a wet night in April. He's talking about his new book, Free Culture, in which he argues for scaling back the copyright system. Lessig is a prodigy of the legal academy: Now 43, he earned a B.A. in economics and a B.S. in management from the University of Pennsylvania, an M.A. in philosophy from Cambridge, and a J.D. from Yale Law School. He clerked for Richard Posner of the Seventh Circuit Court of Appeals and for Antonin Scalia of the Supreme Court, and he was a professor at the University of Chicago and Harvard Law Schools before Stanford lured him in a competition with Yale and Harvard. His rZsumZ lists four books and 61 law review articles produced in his 15-year career as a legal academic. But not everything he has touched has turned to gold. While he has written about aspects of the Constitution dealing with subjects other than intellectual property, the constitutionalists in the academy greet some of that work with derision and even his admirers often consider him an extravagant self-promoter. With his dazzling academic record, fiery rhetoric, and prolific writing, however, Lessig has become the most recognizable voice to articulate why it was a bad idea to privatize the open environment of the Internet, and how the expansion of I.P. threatens future innovation. Tonight he's lending support to a student protest group, one formed by the students threatened when they exposed the electronic voting scandal. Like other student groups, this one is renouncing private I.P. interests, has the word "commons" in its name, identifies with the I.P. have-nots, and invokes a class struggle. Means of production, communal ownership, class struggle, students with slogans on their shirts. Sounds like a Marxist revolution. LIKE MANY OTHER I.P. REFORMERS, Lessig is routinely denounced as a communist. The most recent such attack was by a high-profile technology columnist named Stephen Manes. In several vitriolic attacks prompted by Lessig's Free Culture, Manes described Lessig as "blustering" and "bloviating," a "buffoon" and an "idiot," whose ideas ("droppings") were "nuts" and "laughable." Manes contrasted Lessig's "radicalism" on copyright policy with the stance of "responsible creators" like Walt Disney, and made it clear that the sort of reform Lessig advocates is ideologically suspect because it involves stealing property from copyright owners. Manes proposed renaming Lessig's book, Freeloader Culture: A Manifesto for Stealing Intellectual Property. The allusion to Karl Marx and Friedrich Engels's Communist Manifesto is hard to miss. Manes's attacks, though startling in their bile, are hardly surprising. He is a columnist at Forbes, a magazine that urbanely styles itself as the "Capitalist Tool." If any organ is going to spy Marxist leanings in the intellectual property reform movement, it is this one. Manes is not the first to sniff Marxism in I.P. reform proposals. A senior writer at the Ayn Rand Institute accused Lessig of Marxism a number of years before, suggesting that his efforts in the case of Eldred v. Ashcroft, in which Lessig argued for overturning one of Congress's many recent copyright extensions, were shameful and would lead to "cannibalism" of property interests. Mouthpieces for high-profile I.P. owners such as Paramount Pictures also smell "whiffs of Marxism" in the reformer's distaste for corporate control of culture. The Marxist slur is a simple rhetorical device that paints I.P. reformers as both dangerous and willfully ignorant. Not only do they desire a Bolshevik revolution, and probably a Stalinist purge, but these reformers don't realize that the communists lost the Cold War. Yet this use of the "Marxist" tag is shallow and empty. When people such as Manes or those at the Ayn Rand Institute charge Lessig with Marxism, they refer to two features of Marxist-Leninism: the rejection of private property, and the civil uprising that Mikhail Bakunin and V.I. Lenin said was necessary to move from capitalism to communism. The kind of social reform of intellectual property proposed by Lessig doesn't involve either of these elements. Lessig isn't some modern-day Pierre-Joseph Proudhon claiming that "intellectual property is theft." His reform agenda is the I.P. analog of the New Deal social welfarism that ameliorated the worst excesses of capitalism, and rescued it from social disaster. It's the recognition that private property systems function better if some limits are placed upon the market. Even many of the most ardent capitalists have learned the Marxian lesson that unrestrained free market capitalism creates a permanent underclass that is much more likely to revolt and overthrow the system. It's a better idea for the wealthy to provide a safety net for the lumpenproletariat than to be the first up against the wall when the revolution comes. ON THE OTHER HAND, WHILE LESSIG'S PROPOSED I.P. REFORM stops well short of the destruction of private property, it stirs a Marxian debate in a much more interesting and crucial sense. For starters, it is clear that I.P. reform is a conflict involving a significant class struggle. There are I.P. haves and I.P. have-nots. And in a world where the means of production are increasingly controlled by intellectual property, the dynamics exist for significant conflict. But the majority of the I.P. have-nots are in the developing world, which is why the globalization debate often involves intellectual property. Any Marxist-Lessigist revolution therefore is likely to be mediated through the cordon sanitaire of international trade, and through the World Trade Organization. The prospect of I.P.-induced violence, at least in the United States, is unlikely. But more than this, I.P. reform arises out of a genuine Marxism, that of the open source movement. Open source, or "copyleft," as the movement is often called, involves the transfer of the means of cultural and creative production from capital to the worker. It is usually thought to be limited to computer software. The Linux operating system was created by thousands of programmers and has been freely distributed on the understanding that others might amend, fix, improve, and extend it. But while software might be the paradigmatic example of open source, the revolution it promises reaches much further. The widest-read and most influential newspaper in South Korea is Ohmynews, whose motto is "Every Citizen is a Reporter." Ohmynews hires no reporters, and relies wholly on individual contributions of news stories by its readers. Another example is the Wikipedia, an open source, online encyclopedia that is entirely written, edited, and rewritten by anyone who cares to contribute to it. Even though there is no control structure-there are no editors, nor is there a publisher-it rivals commercial encyclopedias in scope and quality of coverage. Or consider the Distributed Proofreader's Project, a group of people who volunteer to proofread and edit vast reams of scanned documents for inclusion in Project Gutenberg, another open source initiative that puts out-of-copyright books online. Though Bill Gates recognizes Linux as a threat to Windows, it is easy to miss the truly revolutionary nature of this type of cultural production. If you give people the opportunity to create, they will do so, even without economic incentives. The core justification for intellectual property protection is that, without it, no one would have any reason to produce cultural, creative content. They would undertake a rational calculus and go off to become tax attorneys. But the dynamism of the open source movement shows that this fundamental justification doesn't hold. Many people will produce creative content even outside what we can think of as the capitalist underpinnings of I.P. It's a small step to go from this to a Marxist revolution: The open source movement promises to put the means of creative production back in the hands of the people, not in the hands of those with capital. It is not an accident that open source and Marxist-Lessigist I.P. reform have occurred at the same time, or that Lessig is a prominent advocate of Linux. Open source software demonstrated that the "incentive justification" for I.P. wasn't supported once you put the means of creative endeavor and the means of dissemination in the hands of individuals, as the Internet has done for many fields. So, when the DMCA and other corporate-controlled I.P. expansions came about, programmers weaned on open source code no longer bought the corporations' arguments that these new laws were necessary for innovation and progress to continue. The I.P. reform movement began with software, but it is moving into all types of cultural material: newspapers, magazines, commentary, music, even movies. Given the experience we now have with open source, this is not strange. A Marxist might suggest that it is inevitable. What is unusual is how, in their rush to vilify Marxist-Lessigism, I.P. owners and copyright apologists like Stephen Manes miss the importance of open source, which, as the true creative workers' revolution, threatens the core of their industries. While copyright and patent reform might be the most visible aspect of the Marxist-Lessigist revolution, it is the least significant. IT'S STILL RAINING AT SWARTHMORE. Larry Lessig is explaining the importance of the public domain as a source for future creativity, when a series of thunderclaps shakes the auditorium. For a moment everybody stops. Lessig jokes about the "black helicopters" of the I.P. owners, and people relax. At the end of his presentation, student activists swamp him with requests for guidance about what they should do next. They plot how to reverse the enclosure of the public domain. If nothing else, these students are engaged with the political process of intellectual property in a way that has never been seen before. The expansion of I.P. has led to the creation of a movement that is fascinating in two ways: It guarantees that the public will have a voice in future I.P. policy making, and it has created a new kind of student movement that is one of the more active political movements on college campuses. There are no riots, but this movement promises a more socially conscious intellectual property system, one achievable without bloodshed. But away from the zeal of the student activists, the real revolution is taking place. None of the revolutionaries recognize themselves as such-they're just open source programmers or "citizen journalists." But they promise to upend the intellectual property system because they are creating things for the sake of curiosity, or for the approbation of their peers, or because it's fun. This revolution will just happen, as people take up the means of production for themselves-and even if it won't be televised, it will surely be reported in Ohmynews. Dan Hunter teaches at the University of Pennsylvania. Yahoo! India Matrimony: Find your life partneronline. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041214/cf65a88a/attachment.html From tahir.amin at btopenworld.com Tue Dec 14 18:49:19 2004 From: tahir.amin at btopenworld.com (TAHIR AMIN) Date: Tue, 14 Dec 2004 13:19:19 +0000 (GMT) Subject: [Commons-Law] BBC - Google to scan famous libraries Message-ID: <20041214131919.95714.qmail@web86103.mail.ukl.yahoo.com> Google to scan famous libraries The libraries of five of the world's most important academic institutions are to be digitised by Google. Scanned pages from books in the public domain will then be made available for search and reading online. The full libraries of Michigan and Stanford universities, as well as archives at Harvard, Oxford and the New York Public Library are included. Online pages from scanned books will not have adverts but will have links to online store Amazon, Google said. Lengthy project "The goal of the project is to unlock the wealth of information that is offline and bring it online," said Susan Wojcicki, director of product management at Google. This is the day the world changes John Wilkin, University of Michigan There will also be links to public libraries so that the books can be borrowed. Google will not be paid for providing for the links. It will take six years to digitise the full collection at Michigan, which contains seven million volumes. Users will only have access to extracts and bibliographies of copyrighted works. The New York library is allowing Google to include a small portion of books no longer covered by copyright. Harvard is limiting its participation to 40,000 books, while Oxford wants Google to scan books originally published in the 19th Century and held in the Bodleian Library. A spokeswoman for Oxford University said the digitised books would include novels, poetry, political tracts and art books. "Important works that are out of print or only available in a few libraries around the world will be made available to everyone," she said. About one million books will be scanned by Google, less than 15% of the total collection held in the Bodleian. "We hope that Oxford's contribution to this project will be of scholarly use, as well as general interest, to people around the world," said Reg Carr, director of Oxford University Library Services. Impact on libraries "It's a significant opportunity to bring our material to the rest of the world," said Paul LeClerc, president of the New York Public Library. "It could solve an old problem: If people can't get to us, how can we get to them?" "This is the day the world changes," said John Wilkin, a University of Michigan librarian working with Google. "It will be disruptive because some people will worry that this is the beginning of the end of libraries. "But this is something we have to do to revitalise the profession and make it more meaningful." --------------------------------- ALL-NEW Yahoo! Messenger - all new features - even more fun! -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041214/dd65d584/attachment.html From diana at bootlab.org Wed Dec 15 02:15:24 2004 From: diana at bootlab.org (diana at bootlab.org) Date: Tue, 14 Dec 2004 21:45:24 +0100 (CET) Subject: [Commons-Law] Intellectual Honesty: Plagiarism, Copyright, and File-sharing Message-ID: <1227.194.38.98.238.1103057124.squirrel@webmail.mailb.org> ---------------------------- Original Message ---------------------------- Subject: Intellectual Honesty: Plagiarism, Copyright, and File-sharing From: ... Date: Tue, December 14, 2004 9:20 pm To: "McCarty Diana" -------------------------------------------------------------------------- GSAS Students: Intellectual honesty is the foundation of our academic lives. Original thought and proper credit for others' work is central to learning and teaching. Like plagiarism, violation of copyright is a serious breach of the commitment to intellectual integrity that you made when you came toColumbia. You each should have received a letter over the summer from the Provost and General Counsel alerting you to your responsibilities under copyright law when usingColumbia’s computer systems and network. As indicated in that letter, the use of peer-to-peer file-sharing programs such as Kazaa and Morpheus to make and share copies of copyrighted music and movies is a violation of copyright law and University policy. Such violations are a matter of student conduct and will be dealt with by my office as a disciplinary matter. Over the past academic year the University has received hundreds of verified allegations of the illegal possession and distribution of copyrighted materials over theColumbia network. Each student involved has received a letter from his or her Dean, a letter that is placed in the student's file until graduation. Students committing a repeat violation will be subjected to a disciplinary hearing, where the recommended penalty is probation. Before you install Kazaa or any other file-sharing software, here are some facts from the University’s lawyers and from Academic Information Systems about copyright law in general and peer-to-peer file-sharing in particular: Copyright Law •Copyright protection covers any original work of authorship that is fixed in some tangible medium of expression •A work is protected from the moment it is created, •A work does not have to contain a copyright notice to qualify for protection. •Virtually any work you find whether software, music, videos, or email; whether on the Internet, a CD, DVD, or tape, is almost certainly protected by copyright. •While there are exceptions under the law that allow copying or distribution of copyrighted work, the use of file-sharing software to share copyrighted music and movies, without permission, would virtually never qualify for an exception. Peer-to-peer file-sharing Copyright owners scan our network every day for unlawful use of their works. •The University must take action upon receiving a complaint. •You can be held legally liable if you have downloaded music, movies or other files without permission from the copyright owner. •Students here and at other universities have been sued and forced to pay damages. •The Recording Industry Association of America has filed hundreds of lawsuits against individual college students based on its scans of university networks, and promises to increase its enforcement actions. The Motion Picture Association of America has announced that it will follow suit with its own lawsuits against students. Please see http://www.columbia.edu/cu/policy/copyright-info.html for more on copyright and the University's compliance with the Digital Millennium Copyright Act. See http://www.columbia.edu/cu/policy for complete information on the University's Computer and Network Use Policy Whether a citizen, resident, or visitor in theUnited States, you are personally responsible for abiding by the law. As a member of the University community, you are equally responsible for adhering to the University's policies for the network and the use of other online and computing resources, including respect for copyright. From aidslaw at bom5.vsnl.net.in Wed Dec 15 11:17:17 2004 From: aidslaw at bom5.vsnl.net.in (lawyers) Date: Wed, 15 Dec 2004 11:17:17 +0530 Subject: [Commons-Law] Patently unfair Message-ID: <009201c4e269$892a22e0$0e00a8c0@lawyers> Patently unfair The third amendment to the Indian Patents Act, due to be passed in the winter session of Parliament, threatens to compromise the public's access to essential medicines and, thereby, people's right to health. AMMU JOSEPH explores the implications of the proposed legislation for citizens in the context of the passage of Human Rights Day — December 10 — which looks at among other things, the right to health and healthcare. TANNEN MAURY/BLOOMBERG NEWS Life-saving medicines could become extremely unaffordable. NEW year resolutions may have to include "I will stay healthy," backed up with crossed fingers and touched wood, if the Patent (Amendment) Bill, 2004 becomes law in its current form. According to public interest groups working on health issues, the prices of drugs required for the treatment of many common diseases could shoot up if the Government goes ahead with pushing the Bill through Parliament during the winter session or even, as some reports suggest, issuing an ordinance that will render the amendment a reality without the inconvenience of a legislative debate, let alone a public one. Unlike most year-end resolutions, which generally depend on individual will, good health clearly cannot be guaranteed through personal endeavour. Among those likely to be affected by the proposed amendment are the large numbers of people suffering from a wide range of illnesses — including life-threatening and chronic conditions — such as diabetes, asthma, hypertension, coronary heart disease, schizophrenia, depression, cancer, HIV/AIDS, arthritis, spondylitis, and respiratory and urinary tract infections. This is because the relatively low-cost, locally manufactured generic drugs that are currently available to patients here may have to be withdrawn from the market when the patent applications pending for several medicines used in the treatment of these and other ailments are granted, as they are likely to be, under the proposed legislation. Health advocates suggest that it is time citizens became aware of the sword of Damocles hanging over their heads and got involved in protecting the public's right to health and healthcare, which is critically dependent upon access to affordable medicines. It is significant that the October 2004 report of the Fourth People's Commission on Review of Legislations Amending Patents Act 1970, chaired by former Prime Minister I.K. Gujral, with a number of eminent persons as members, reflects the concerns of health activists. Obligation under TRIPS The controversial third amendment to the Indian Patents Act, 1970 relates to India's obligations under the global agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), adopted in 1994 as one of a package of agreements that member states of the World Trade Organisation (WTO) must adhere to. Under the agreement, developing countries like India have to introduce patent protection for pharmaceutical and agro-chemical products by January 1, 2005. The Indian patent law has already been amended twice — in 1999 and 2002 — to comply with TRIPS. Thanks to earlier amendments, the term of patent protection has been extended from seven to 20 years, and Exclusive Marketing Rights (EMR) are available for drugs and agro-chemicals, allowing manufacturers a monopoly over products even before their patent applications are approved. The primary purpose of the present Bill is to introduce product patents, as required by TRIPS. At present Indian law provides patent protection for processes — not products — in the pharmaceutical and food sectors. Since a process patent gives the owner exclusive right only over the manufacturing process, anyone can make and sell a particular product as long as they use a different process to produce it. On the other hand, a product patent prevents others from manufacturing, selling, distributing or importing the patented product — even versions produced through different processes — without authorisation. The process patent regime that has prevailed so far, and the competition that it has allowed, has kept the prices of medicines in the country amongst the lowest in the world (even though certain recent developments in drug policy have already driven the cost of several drugs up to unprecedented levels). With the introduction of a product patent regime, patent owners will be able to monopolise the market for 20 years and, in the absence of competition, get away with exorbitant prices that could put many essential medicines out of the reach of the majority of Indians. Likely impact of monopolies The case of a drug used in the treatment of patients suffering from Chronic Myeloid Leukaemia (CML) illustrates the likely impact of monopolies in the pharmaceutical sector. The generic version of the drug, produced in India, costs Rs. 9,000 to Rs. 12,000 per month. The government has now granted EMR to Novartis AG for their version of the drug, Gleevec. If it is enforced, generic versions of the drug will have to be withdrawn from the market, forcing most Indians suffering from CML to do without the life-saving medicine because Gleevec is priced at an astronomical Rs. 1,20,000 per month. Their fate now hangs in the balance, with both the pharmaceutical industry and civil society groups having challenged the grant of EMR for this product before the Supreme Court. Health activists allege that the Bill in its present form does not use the limited flexibility available within TRIPS, especially in the context of the 2001 Doha Declaration on Public Health. Despite several ambiguities and deficiencies, the latter does state that the agreement should be interpreted and implemented in the light of WTO member countries' right to protect public health and promote access to medicines for all. A loophole For example, the Bill appears to provide a loophole for pharmaceutical companies to keep products patented in perpetuity by proposing grant of patents for existing drugs for which a "new use" has been found — even though there is no obligation under TRIPS to issue patents for different uses and/or dosages of known medicines. Even the official committee that looked into the regulation of the pharmaceutical sector, headed by Dr. R.A. Mashelkar, had recommended just last year that patents should be given only to new chemical molecules or entities, so as to limit the number of patent protected drugs. Health activists believe that this provision will extend patent protection to medicines even after the 20-year period, for less than valid reasons. This provision also nullifies the common assertion that product patents will not push the cost of medicines up because most drugs used for common ailments are already in the generic category. This argument is misleading because new and better drugs required for the effective treatment of many illnesses are constantly being produced and patented. At present, locally manufactured versions of many new drugs are available in the country for a fraction of their cost in most other parts of the world. The situation is expected to change once product patents come into force. Take the example of "atypical anti-psychotic" drugs, used in the treatment of schizophrenia, a common and life-long mental illness. There is currently little price difference between old and new drugs in this category here, and the prices of locally produced brands are far lower than those of multinational companies. As a result even public hospitals such as the National Institute for Mental Health and Neurosciences (NIMHANS) in Bangalore are increasingly prescribing the latter, which have fewer side-effects and ensure better quality of life. If the patent application pending for one of these drugs — Olanzapine — is successful, cheaper local versions of it will no longer be available to patients here. No doubt more drugs in this category — and others — will soon follow suit. The implications The financial implications of sharp increases in the cost of medicines are particularly serious in the Indian context. In the absence of an effective public health system and universal — let alone public — health insurance, patients here, and their families, typically shoulder the entire burden of medical expenses, including purchase of drugs. Another worrying aspect of the Bill is that it apparently proposes to do away with the "pre-grant opposition procedure," an important mechanism that enables civil society to block frivolous patents. According to health activists, with nearly 5,000 patent applications for pharmaceutical products currently pending in the mailbox (a majority filed by foreign corporations and individuals), public scrutiny is essential to ensure that only necessary, useful drugs are granted patents. The Bill's provisions relating to compulsory licenses — an important mechanism within TRIPS that allows countries to get around patent monopolies under certain, specified circumstances — are also being opposed by health activists, who believe that a complete revamp of the compulsory license system is called for in the interest of public health. The significance of compulsory license becomes clear in the context of treatment for people living with HIV/AIDS (PLHA). As recently as four years ago, millions of PLHA across the world, and in India, could not afford the cost of treatment with antiretroviral (ARV) drugs, known to prolong the lives of HIV+ people. At that time prices ranged between US$ 10,000 and 12,000 (approximately Rs. 4,50,000 to Rs. 5,40,000) per person per annum. Prices began falling when Indian manufacturers introduced generic versions of ARV drugs until, by 2003, the annual cost per person had come down to US$ 140 (about Rs. 6,300). Such a dramatic decrease was possible because of India's process patent regime, which is about to pass into history. The introduction of a product patent regime will make compulsory licenses all the more important for the promotion of public health. Yet the Bill reportedly does little to strengthen this mechanism and ensure that it can be used at least to the extent envisaged in the Doha Declaration. Health activists point to a number of legal documents, both international and national, including the International Covenant on Economic Social and Cultural Rights and India's Protection of Human Rights Act, 1993, to argue that the country must not trade away its right, and duty, to protect and promote public health. A number of other landmark documents relating to health, including international ones such as the 1978 Alma Ata Declaration and the 2000 People's Charter for Health, as well as domestic ones like the 1946 report of the Health Survey and Development Committee headed by Sir Joseph Bhore and the 1983 National Health Policy recognise the provision of essential drugs at affordable costs as a key ingredient of a humane and just health policy. Speaking at the World Health Assembly in Geneva in 1981, Indira Gandhi said, "My idea of a better ordered world is one in which medical discoveries would be free of patents and there would be no profiteering from life or death." It would be ironical if, by passing this Bill in its present form, those who claim to represent her legacy foist a very different world on the people of this country. © Copyright 2000 - 2004 The Hindu -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041215/aaca2ee8/attachment.html -------------- next part -------------- A non-text attachment was scrubbed... Name: not available Type: image/jpeg Size: 13492 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20041215/aaca2ee8/attachment.jpe From lawrence at altlawforum.org Thu Dec 16 08:47:27 2004 From: lawrence at altlawforum.org (Lawrence Liang) Date: Thu, 16 Dec 2004 08:47:27 +0530 Subject: [Commons-Law] Relief for Indian Domestic Pharma Majors on Mailbox filings In-Reply-To: <68752c9f0412150200731f415d@mail.gmail.com> Message-ID: ------ Forwarded Message From: Ram Reply-To: Ram Date: Wed, 15 Dec 2004 15:30:37 +0530 To: Subject: [Ip-health] Relief for Indian Domestic Pharma Majors on Mailbox filings Indian Generic drug makers cannot be sued retrospectively Relief for domestic pharma majors on Mailbox filings KG NARENDRANATH | Financial Express New Delhi, Dec 14 In what could be a relief to domestic pharma majors, the government has made a last-minute modification in the Patent Amendment Bill. Under this, beneficiaries of MailBox patent filings would not have the right to prosecute, with retrospective effect, producers of existing generic drugs on the grounds of patent infringement. The department of industrial policy and promotion (DIPP) has sent a revised note on the Bill to the Cabinet, which is likely to take it up for consideration on Wednesday, an official source said. If the Cabinet clears the Bill, it would be introduced in Parliament on Thursday. Or else, the government may opt for the ordinance route to meet the Trips (Trade Related Intellectual Property Rights) deadline for introducing product patents in pharma and agrochem sectors. The MailBox is a facility introduced through the first amendment to the Patent Act in 1999. It allows filing of applications for product patents for drugs, agro-chemicals and food products discovered during the period January 1995-December 2004. The patent office will begin examining these applications from January, and any patent based on the MailBox filings, if granted, will be effective for 20 years from the date of MailBox application. For instance, an application filed in the MailBox in 2000 can potentially lead to a patent valid until 2020. Domestic drug companies which already sell generic versions of the clutch of drugs for which MailBox applications are pending, feared they would then become liable for prosecution by successful MailBox applicants. New Prescription € Last-minute modification made in Patent Amendment Bill to address concerns of generic drug producers € Generic drug producers granted immunity from prosecution by beneficiaries of Mailbox patent filings with retrospective effect € No such immunity given to generic drug producers from date of grant of patent € No change in provision regarding 'patentable subject matter', compulsory licensing and pre-grant opposition on the grounds of patentability In future, it will be up to patent-holders and generic drug producers to sort the issue out either through commercial agreements or through litigation. The revised Cabinet note does not propose any modification of provisions regarding "patentable subject matter" and compulsory licensing. This seems to be because they were framed as per the recommendations of the Joint Parliamentary Committee, which discussed the relevant issues in great detail. The revised Bill also retains the provision for pre-grant opposition on grounds of patentability, the sources said. "All the points raised by the Left parties have been addressed to the extent they can be," an official said. Politburo member of the CPI-M S Ramachandran Pillai, however, told FE that the Bill did not make full use of the flexibilities available in the Trips agreement for protecting domestic interests. These flexibilities, he said, would have restricted the scope of patent monopoly. URL: http://www.financialexpress.com/fe_full_story.php?content_id=76928 Print this Story On Wed, 15 Dec 2004 09:29:47 +0100, Ellen T HOEN wrote: > Ram > Is there any news about the patent amendment act? How are things standing > at the moment. > Please let me know today as soon as you can - I am on a conference call > with the media this afternoon and I am sure they will ask about it. > Ellen > > ********************************************************** > Ellen F.M. 't Hoen LL.M. > Medecins sans Frontieres > Access to Essential Medicines Campaign > 8, rue Saint - Sabin > 75544 Paris cedex 11 > France > > tel: + 33 1 4021 2836 > fax: + 33 1 40212960 > e-mail: ellen.t.hoen at paris.msf.org > www.accessmed-msf.org > > -- "Press ON: Nothing in the world can take the place of Perseverance. TALENT will not; nothing is more common than unsuccessful men with talent. GENIUS will not; unrewarded genius is almost a proverb. EDUCATION will not; the world is full of educated derelicts. Only...PERSISTENCE and DETERMINATION alone are omnipotent." -- "Press ON: Nothing in the world can take the place of Perseverance. TALENT will not; nothing is more common than unsuccessful men with talent. GENIUS will not; unrewarded genius is almost a proverb. EDUCATION will not; the world is full of educated derelicts. Only...PERSISTENCE and DETERMINATION alone are omnipotent." _______________________________________________ Ip-health mailing list Ip-health at lists.essential.org http://lists.essential.org/mailman/listinfo/ip-health ------ End of Forwarded Message From vivek at sarai.net Thu Dec 16 11:54:07 2004 From: vivek at sarai.net (Vivek Narayanan) Date: Thu, 16 Dec 2004 11:54:07 +0530 Subject: [Commons-Law] selected Independent Fellows 2004-2005 Message-ID: <41C12A07.3030700@sarai.net> Dear all, Because we seem to be having some problem uploading this list to our website, I post below the list of selected independent fellows this year. Thanks, Vivek. FINAL LIST OF SARAI INDEPENDENT FELLOWSHIPS 2004-2005 /Selected Hindi I-Fellows/ /(Alphabetical by last name)/ Anurag Laghu Patrika Andolan: Abhivyakti ke Naye Aayam: Ek Padtal/Little Magazine Movement: New Dimensions of Expression Vijender Singh Chauhan Beeti Vibhavari Jaag ri: Dilli ke City-scape mein Dik wa Kaal / Time and Space in the Cityscape of Delhi S.M. Irfan Awazein FM Radio kee/Voices of FM Radio Archana Jha Nautunki Shahar mein: Audyogik nagri Kanpur mein lok manch kala ke vikas wa patan ka anveshan / Nautanki in the Industrial City of Kanpur: A Historical Study Sunil Kumar Aa Mata Tujhe Dil ne Pukara: Khani Dilli ki Jagaran Partiyon ki / Jagaran Tales in Delhi Himanshu Ranjan Hindi-Urdu kshetra ke ek sanskritik kendra ke roop mein Ilahabad ka Vikas aur Hastakshep / The Rise and Fall of Allahabad as the Intellectual-cultural capital of the Hindi-Urdu belt Gurminder Singh Samaj par Langar ka Arthik wa Samajik Prabhav: ek adhyayan / A Study of the Langar and its Social and Economic Impact Jitendra Shrivastav Ek Shahar ke Roop mein Gorakhpur ki Pehchan mein Gita Press aur Kalyan ki Bhoomika / Role of Gita Press and Kalyan in the making of Gorakhpur's identity Prem Kumar Tiwari Dilli ka ek Pravasi Gaon: Sahipur, Shalimarbagh / Sahipur: A Migrant Village in Delhi /Selected English I- Fellows/ /(Alphabetical by Last Name)/ Prayas Abhinav Ahmedabad Publicity Promises in the Public Space in Ahmedabad S.Ananth Vijaywada The Culture of Business : The Informal Sector and Finance Buisness in Vijaywada Hilal Bhat Srianagar Shrine as an Anodyne in Strife Torn Kashmir Urmila Bhirdikar Pune The Relationship Between the Production and Consumption of Thumri and Allied Forms : The Female Impersonator - Bal Gandharva Moyukh Chatterjee and Swara Bhaskar Delhi Of Riots and Ruins : Space and Violence in Vatva, Gujarat Sudeshna Chatterjee Delhi Children's Friendship with Place : A Framework for Evaluating the Environmental Childfriendliness in Indian Cities Karen Coelho Chennai Tapping In : Urban Water Conflicts as Citizenship Claims in Chennai Sumangala Damodaran Delhi Protest Through Music : A Documentation and Analysis of the Structure, Content and Context of the Musical Tradition of the IPTA Nitoo Das Delhi Hypertextual Poetry : the Poetry of MSN Poetry Communities Uddipan Datta Tezpur The Growth of Print Nationalism and Assamese Identity in the Early Colonial Period Reading Through Two Early Assamese Magazines Madhavi Desai Ahmedabad Women and their Spatial Narratives in the City of Ahmedabad Mahmood U R Farooqui Delhi Tale Tellers : Dastangoyee - The Culture of Story Telling in Urdu Dev Kamal Ganguly Hyderabad The Culture and Sociological Significance of the Genre of Crime Pulp Fiction in Bengal Syed Bismillah Gilani Delhi The Kashmiri Encounter in Delhi Shai Heredia Mumbai Indian Experimental Fillm Excavating A Lost Indian Film Form Syed Khalid Jamal and Amit Ghosh Delhi Work Culture in Fast Food Chains Kiran Jonnalagadda Bangalore An Investigation of how Form Affects Discussion and Community in Online Discussion Spaces Vasudha Joshi Kolkata History and Storytelling about Kolkata and Howrah Integrating Narratives and Database Boddhisattva Kar and Subhalakshmi Roy Delhi Messing with the Bhadraloks : Towards a Social History of the Mess Houses in Calcutta 1890s-1990s Kuldeep Kaur Chandigarh The Hospital Labour Room as a Space for Unheard Voices Maninder Jit Kaur Delhi Spoke/d Vision: Cyclists in Delhi Pankaj Rishi Kumar Mumbai Ponytails-Rings-Punches : Female Boxers in India Lakshmi Kutty Mumbai High Rise Hygiene : Narrativising Mumbai's New Urban Culture Faraaz Mahmood Udaipur A Study of Changing Banking Practices in Udaipur Anannya Mehta Delhi The Viewership of Non Commercial and Independent Film in Delhi Kaiwan Mehta Mumbai Reading Histories - Migration and Culture : The Politics of Mapping and Representation of Urban Communities (Purba Kolkata) Nagarik Mancha Kolkata Factory Closures, Plight of Workers and Urban Space Veena Naregal Delhi Informal Economies and Distribution Practices : Studying Bollywood Leela Rani Narzary, Nidhi Bal Singh, Sabir Haque Delhi Developments of the Eastern Yamuna River in Delhi and the Displacement of Peasants Prashant Pandey Delhi Documenting the Contemporary History of the Making of the Hindi FIlm Song Jasmeen Patheja Bangalore Blank Noise : Building Testimonies in Public Space Meera Pillai Bangalore Foodcourts and Footbridges : Conceptualizing Space in Vijaywada Railway Station Rochelle Pinto Mumbai Manuel in the City : A Semi Fictionalized Illustrated Book on the Arrival and Absorption of Goan Migrants to Mumbai Muthatha Ramanathan Bangalore Tracing Spatial Technology in the Rural Development Landscape of South India Mario Rodrigues Mumbai The Political Sociology of Golf in South Asia Biswajit Roy and Nilanjan Datta Kolkata Media Coverage of the Execution of Dhananjay Chatterjee, a rape and murder accused and its impact on the Children of West Bengal Ruhani Delhi The Masking of Images : Photography and Puppetry T P Sabitha Delhi Early Womens Magazines in Kerala and the Construction of Femininity Abdus Salam Delhi Strangers in the City : the Lives and Longings of Bangladeshi Immigrants in Guwahati Abhishek Sharma Mumbai The Colorization of Mughal E Azam B . Mahesh Sarma Delhi Contesting Techno Paradigms of Contested Public Space (The Politics of CNG) Nitin Sethi Delhi Mapping the Urban : GIS and Master Plans in Delhi and Bangalore Prasad Shetty Mumbai Stories of New Entrepreneurship Soudhamini Chennai Madurai : Mythical City - Representations Old and New Vandana Swami An Allegorical, Historical Journey into the Archives of the Great Indian Peninsular Railway Madhavi Tangella Mumbai Sagar Cinema : An Illegal 'Poor Man's Multiplex' in a Malad Slum Sovan Tarafdar Kolkata A Brief History of New Urban Leisure in Kolkata Tasneem, Fatima and Marya Delhi Death and the Bazaar : A Look at the Death Care Industry T Vishnu Vardan Bangalore The Impact of Mythologicals in Telugu Cinema Shivam Vij Delhi The Nature of Ragging in Hostels From jeebesh at sarai.net Thu Dec 16 12:58:25 2004 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Thu, 16 Dec 2004 12:58:25 +0530 Subject: [Commons-Law] Public Domain Video contest result Message-ID: <41C13919.5060105@sarai.net> Dear Friends, If you have a moment, please go to http://www.law.duke.edu/cspd/contest/finalists/ where you can see (and vote for) the finalists in the Duke Center for the Study of the Public Domain 2 minute video competition. The competition was an international one for the best 2 minute video or animation about the ways that intellectual property affects art -- specifically music or documentary film. The videos range from the account of a documentarian trying to cover army recruiters in the North Carolina Piedmont, to a Polish animator's science fiction vision of music's apocalytic future, from a college student's efforts to make a Public Service Announcement about the Civil Rights movement, to a dissection of the law behind "Supersize Me." You can vote for your favorite at the site. The winners -- both Judges' Selections and "the People's Choice" -- will be announced on January 15th. The competition is part of Jennifer Jenkins' Arts Project, which is supported by a generous grant from the Rockefeller Foundation. Happy Holidays, J www.law.duke.edu/cspd _____________________________ James Boyle William Neal Reynolds Professor of Law Duke University Law School Science Drive & Towerview Box 90360 Durham, NC 27708-0360 919 613-7287 ph. Home Page & Essays http://james-boyle.com From registration at sarai.net Fri Dec 17 12:58:03 2004 From: registration at sarai.net (registration at sarai.net) Date: Fri, 17 Dec 2004 08:28:03 +0100 (CET) Subject: [Commons-Law] Call for Registration Message-ID: <51528.210.7.77.145.1103268483.squirrel@mail.sarai.net> Call for Registration Contested Commons/Trespassing Publics: A Conference on Inequalities, Conflicts and Intellectual Property, 6- 8 January 2005, India Habitat Center, New Delhi, India. The past few years have seen conflicts over the regulation of information; knowledge and cultural materials increase in intensity and scope covering new geographical spaces, particularly China, India, South Africa and Brazil. A range of new problems, including the expansion of intellectual property protection to almost all spheres of our social life, has intensified the nature of the conflict. It is important to recognize that the nature of the conflict gets configured differently as we move from the United States and Europe to social landscapes marked by sharp inequalities in Asia, Latin America and Africa. In the light of these transformations, we would like to revisit earlier discussions on creativity, innovation, authorship, and the making of property. Is it possible to draw comparative registers between earlier histories of violence and dispossession that accompanied the making of property, and the current turbulence around intellectual property on world scale? We would also like to build a dialogue between different moments in media history: print, film, music and the new media, so as to prise open questions around culture, circulation and property. Speakers include John Frow, Peter Jaszi, Moinak Biswas, Peter Linebaugh, Doron Ben-Atar, Siva Vaidyanathan, Jane Anderson, Jane Gaines, Sibaji Bandopadhya, Rosemary Coombe, Nitin Govil, Cori Hayden, Sharon Daniel, Daya Shanker, Sophea Lerner, Swapan Chakravorty, Brian Larkin, N.Gopakumar, Laikwan Pang, Hou Hanru, and many others. Registration is now open for the Conference. To register yourself, email us your name, professional affiliation and your complete postal address to , with the subject line "registration". From lawrence at altlawforum.org Fri Dec 17 22:57:58 2004 From: lawrence at altlawforum.org (Lawrence Liang) Date: Fri, 17 Dec 2004 22:57:58 +0530 Subject: [Commons-Law] Statement from the French Trade Minister on the upcoming Indian Patents Bill. In-Reply-To: <41C30033.9050403@cptech.org> Message-ID: ------ Forwarded Message From: Mike Palmedo Date: Fri, 17 Dec 2004 10:50:11 -0500 To: Ip-health Subject: [Ip-health] Statement from the French Trade Minister on the upcoming Indian Patents Bill. Statement from the French Trade Minister on the upcoming Indian Patents Bill. Paris, December 16 2004 François Loos pleads for India to keep playing an active role in supplying medicines to least-advanced countries During his trip to India on December 6-10, François Loos, French Minister for Foreign Trade, commended to the Ministers of Trade and Finance - Mr Nath and Mr Chadambaram - India's efforts to make its patent protection law compliant with international intellectual property agreements. "France hopes that the Indian law will ensure a level of intellectual property protection faithful to the TRIPS Agreement, which will facilitate foreign investment as well as protect Indian inventions" Minister Loos explained. Both Indian Ministers indicated to him that a law to this effect would be adopted by next January 1st. The Minister also recalled that he is pleading for a rapid transposition into European Community law of the agreement on medicines of August 2003. He has just written to the European Commission to that effect. François Loos also invited India to put its manufacuting capacities at the disposal of countries with no such capacity for the fight against health crises. "France is very attached to the continuance of India's role as a provider of generic medicines to least-advanced countries, notably in the fight against AIDS. I hope that India will take the necessary steps for implementing the August 30 2003 agreement on medicines in the spirit of its adoption in Geneva, and that the triggering treshold for compulsory licensing can be lowered" the Minister pleaded with his Indian counterparts. Contact : Sophie GUILLON - Communications Advisor to the Minister for Foreign Trade Telephone : +33.(0)1 53 18 46 57 - Fax : +33.(0)1 53 18 97 39 Mobile : +33.(0)6.81.58.99.03 Mail : sophie.guillon at cabinets.finances.gouv.fr _______________________________________________ Ip-health mailing list Ip-health at lists.essential.org http://lists.essential.org/mailman/listinfo/ip-health ------ End of Forwarded Message From kat at nls.ac.in Sat Dec 18 00:07:27 2004 From: kat at nls.ac.in (kat at nls.ac.in) Date: Sat, 18 Dec 2004 00:07:27 +0530 (IST) Subject: [Commons-Law] Some doubts on the MMS prosecution In-Reply-To: <20041217063012.9BC3828E943@mail.sarai.net> References: <20041217063012.9BC3828E943@mail.sarai.net> Message-ID: <1801.61.95.195.26.1103308647.squirrel@61.95.195.26> My apologies if I am cross posting. Connected with the MMS case in Delhi, Avnish Bajaj of Baazee (Acquired by EBAY) has been prosecuted today. Times of India reports: ?NEW DELHI: Avnish Bajaj, CEO of a popular Internet auction portal baazee.com is arrested in Delhi on Friday for allowing the sale of pornographic VCDs showing two Delhi school students in an explicit sexual act. Sleuths of Delhi Police's Economic Offences Wing (EOW) on Friday began questioning officials of baazee.com for allowing an Indian Institute of Technology (IIT) student in West Bengal to put up the VCDs for sale. The investigating authorities rejected the initial statement by baazee.com officials that the company was unaware of the contents of the VCD, officials said. Said a police officer, "The VCDs clearly carried the label of Delhi Public School", which attained notoriety after an MMS clip containing a sexually explicit act by two of its student was sent out to mobile phones across the Capital. Police have arrested IIT student Ravi Raj Singh on multiple charges, including invasion of privacy. "We are trying to tie the loose ends so that we can trace back the origin of sale of the clip," Deputy Commissioner of Police Prabhakar said. Prabhakar, who uses only one name, told reporters that action would be taken against all those involved in the sale of the VCDs. Officials said action was also likely against baazee.com as the portal had received a commission from Singh for sale of the VCDs. He had apparently sold pornographic VCDs worth Rs 17,000. Singh was brought to New Delhi from Kharagpur in West Bengal by train on Thursday for interrogation. The sensational story of the sleazy MMS broke in newspapers last month, two weeks after the school suspended the students involved in the act.? The prosecution has supposedly been done under Section 67 of the Information Technology Act, 2000. The Section reads as follows: ?Publishing of information which is obscene in electronic form.-Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to ten years and also with fine which may extend to two lakh rupees.? I wonder whether such a prosecution cannot at all be sustained under this section. In this case, the CD was offered for sale on Baazee, there was no publication of obscene material as the section seems to require. Or is the mere offer for sale of a pornographic video an obscenity?! Is there any interpretation of the section that can sustain the prosecution? Best regards, Karthik Ashwin Thiagarajan From asimov at vsnl.com Sat Dec 18 02:16:45 2004 From: asimov at vsnl.com (Badri Natarajan) Date: Sat, 18 Dec 2004 02:16:45 +0530 Subject: [Commons-Law] Some doubts on the MMS prosecution In-Reply-To: <1801.61.95.195.26.1103308647.squirrel@61.95.195.26> References: <20041217063012.9BC3828E943@mail.sarai.net> <1801.61.95.195.26.1103308647.squirrel@61.95.195.26> Message-ID: > >I wonder whether such a prosecution cannot at all be sustained under this >section. In this case, the CD was offered for sale on Baazee, there was no >publication of obscene material as the section seems to require. Or is the >mere offer for sale of a pornographic video an obscenity?! Is there any >interpretation of the section that can sustain the prosecution? Anytime there's kind of funny activity online people start talking about S.67 of the IT Act, but it is actually pretty narrowly drawn - I don't see how these actions can fall under S.67. On the other hand, offering obscene material for sale is clearly an offence under S.292 of the IPC (which is probably a little more relevant). Either way, I don't see how Baazee.com is liable for anything. They weren't aware of the CD's contents, (assuming it is obscene), and they removed the listing as soon as they became aware. S.79 of the IT explicitly provides a safe-harbour for such situations (although I'm uncertain if Baazee qualifies as a "network service provider" under that section..but given the definition, it probably does..) This reminds of that Asian School of Cyberlaws case against Rediff.com a few years ago, accusing them of S.292 obscenity because they operated a search engine which allowed access to pornography. That case was basically laughed out of court in Pune (although I have no more details - does anyone have the judgment?), but there are no other Indian precedents for vicarious liability of ISPs/website hosts that I am aware of.. Badri From lawrence at altlawforum.org Sat Dec 18 09:33:14 2004 From: lawrence at altlawforum.org (Lawrence Liang) Date: Sat, 18 Dec 2004 09:33:14 +0530 Subject: [Commons-Law] ANC Today Attacks TAC -- Please distribute widely In-Reply-To: <00da01c4e475$54bcc360$0308a8c0@Zackie> Message-ID: ------ Forwarded Message From: Zackie Achmat Date: Fri, 17 Dec 2004 22:16:38 +0200 To: 'TAC International Activist' , PATAM , "IP Health List (IP Health List)" Cc: Subject: [Ip-health] ANC Today Attacks TAC -- Please distribute widely This is a multi-part message in MIME format. -- [ Picked text/plain from multipart/alternative ] Dear All Below is an attack published on TAC and ARVs in the ANC Today. This is my personal view. As our offices closed on Wednesday and most of my comrades are away, I have not had a chance to discuss properly. We will discuss soon what action to take. As usual President Mbeki and certain of his colleagues in the ANC prefer unsigned attacks on TAC rather than to show the courage of their convictions as HIV denialists. They deliberately misrepresent, misquote and mislead. As an ANC member and a TAC member I am ashamed that the power of the president's office, the resources of government and the prestige, power and strength of the ANC is used to sow confusion among people who are sick and dying. When I read the article below I am reminded of George Orwell's comment: "Political language is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind." To see TAC statements on nevirapine please go to www.tac.org.za Regards Zackie Achmat HEALTH Nevirapine, drugs & African guinea pigs Some years ago, our national licensing authority, the Medicines Control Council, MCC, provisionally licensed the drug Nevirapine for mother-to-child-prevention of HIV transmission (MTCT). The licence was provisional because the manufacturer had not supplied all the necessary information required to license drugs. Some time after this, the same manufacturer failed to supply the US drug licensing authority, the Food and Drug Administration, FDA, with the same information requested by the MCC. When the FDA asked them to supply this information, the manufacturers withdrew their application and have not resubmitted it ever since. In this regard, AP has reported that because of the known problems about the Uganda "study", "NIH at first sought to postpone the FDA review of nevirapine, then top NIH and FDA officials arranged for the drug maker to pull its U.S. application rather than risk a public rejection that might scare African countries looking for U.S. guidance on the drug." This tells the deeply disturbing and frightening story that "top" U.S. government officials were ready to hide from "African countries looking for U.S. guidance on the drug", the adverse effects of nevirapine they knew very well, and which they were certain would oblige the FDA to reject the licence application of the drug maker. In other words they entered into a conspiracy with a pharmaceutical company to tell lies to promote the sales of nevirapine in Africa, with absolutely no consideration of the health impact of those lies on the lives of millions of Africans. Sensitive to all these developments, our national Health Department decided to introduce the now provisionally-licensed nevirapine in 18 trial sites throughout our country, both to make the drug available to our people and to try to answer the many unanswered questions about the drug. This necessary investigative work, targeted at ensuring that our public health system did not further compromise the health of our people, especially the poor who depend exclusively on the public health system, had to come to a stop, because essentially the Constitutional Court ruled that there should be a general "roll-out" in terms of the availability of nevirapine. Having carried out further investigations concerning this drug, this year the MCC directed that nevirapine should no longer be used as mono-therapy for purposes of MTCT. As was to be expected, various individuals and NGOs in our country dedicated to the marketing of anti-retroviral drugs, immediately spoke out against the decision of the MCC, which was based on the obligation of the Council to protect the health and lives of our people from harmful drugs. And then earlier this month, the news agency Associated Press (AP) revealed that indeed the MCC decision was fully justified. The agency reported that the clinical "study" carried out in Uganda to validate nevirapine as a correct intervention to address MTCT, was scientifically faulty and could not be used to authorise the use of nevirapine for MTCT. "Among other things it said, Dr. Betsy Smith's report, finished in January 2003, said the Uganda trial suffered from "incomplete or inadequate safety reporting" and records on patients were "of poor quality and below expected standards of clinical research." "She strongly urged NIH not to make sweeping conclusions about nevirapine based on the Uganda research. "Safety conclusions from this trial should be very conservative," she wrote." The news agency also reported: "The government's chief AIDS researcher removed some negative safety conclusions from a subordinate's report on a U.S.-funded drug experiment, then ordered the research to resume over objections from his staff, memos show. "As justification, Dr. Edmund Tramont, chief of the National Institutes of Health's (NIH) AIDS Division, cited his four decades of medical experience and argued that Africans with an AIDS crisis deserved some leniency in meeting U.S. safety standards, according to interviews and documents obtained by the Associated Press. "Tramont's staff, including his top deputy, had urged more scrutiny of the Uganda research site to ensure it overcame record-keeping problems, violations of federal patient safety safeguards and other issues. These problems had forced a 15-month halt to the research into using a single dose of nevirapine to prevent African babies from getting AIDS from their mothers. "AP reported on Monday that NIH knew about the problems in early 2002 but did not tell the White House before President Bush launched a plan that summer to spread nevirapine throughout Africa. "Now, officials have new concerns that the lone dose of nevirapine may cause long-term resistance to AIDS drugs in the hundreds of thousands of African patients who received it, foreclosing future treatment options." AP also reported that "Westat, a medical auditing firm hired by NIH to visit and audit the Uganda site" found in March 2002 that, "It appeared likely, in fact, that many adverse events and perhaps a significant number of serious adverse events for both mother and infant may not have been collected or reported in a timely manner. "Westat reported there were 14 deaths not reported in the study database as of early 2002 and that the top two researchers in Uganda acknowledged thousands of bad reactions that weren't disclosed." During the same month it reported the highly unethical conduct concerning the alteration of the report on the Uganda "study", Associated Press reported on the death of a woman in the US who had been prescribed an anti-retroviral regimen that included nevirapine. It said: "In July 2003, the Tennessee woman (Ms Hafford) was hospitalized and on a respirator, and top government scientists were monitoring reports of her worsening condition. NIH officials suspected the drug regimen was the cause as it contained nevirapine. Since at least 2000, the government has warned that nevirapine could cause lethal liver damage or rashes when taken in multiple doses over time. "Ouch! Not much [we] can do about [dumb] docs," Dr. Edmund Tramont, chief of NIH's AIDS Division, wrote in an e-mail after his staff reported that physicians continued giving Hafford nevirapine and Combivir despite signs of liver failure." In this case, evidently, Dr Tramont blamed "dumb doctors". In the earlier case relating to the Uganda "study" and the felt need to dispense nevirapine in Africa, regardless of the grave health concerns expressed by his team of scientists, according to AP he had pleaded political imperatives. AP reported that, "Tramont wrote in 2003 e-mails that he reopened the clinics (in Uganda despite the objections of his scientific team) because he didn't want NIH "perceived as bureaucratic but rather thoughtful and reasonable" and that it was important to encourage Africans' fight against AIDS "especially when the president (George W.Bush) is about to visit them." Having been kept completely in the dark about what the U.S. government medical scientists knew about nevirapine and MTCT, understandably and honestly President Bush announced that "This major commitment of my government, (relating to the expenditure of large sums of money to fight HIV and AIDS especially in Africa and the Caribbean), to prevent mother-to-child HIV transmission, is the first of this scale by any government, anywhere." Nevirapine would be the drug given to Africans on the continent and the Diaspora to meet this unprecedented commitment! Clearly, what was important for Dr Tramont was not the health of the African people, but the success of President Bush's visit to our continent, during which he would market nevirapine to convince all of us that he is concerned about our health, not knowing that the US state medical research authorities had kept him ignorant about the serious concerns relating to the use of nevirapine. In other words, Dr Tramont was happy that the peoples of Africa should be used as guinea pigs, given a drug he knew very well should not be prescribed. Understandably outraged at this contemptuous attitude towards the lives of Africans, which is informed by the conviction that they are worth nothing, compared to perceptions about US state institutions and the image of an innocent President Bush, the prominent African American US leader, Rev Jesse Jackson issued the following statement: "I read with outrage and disbelief that Dr. Edmund Tramont, chief of the National Institutes of Health's AIDS Division, had removed some negative safety conclusions from a subordinate's report on a U.S.-funded drug experiment for Africa and then ordered the research to resume over objections from his staff. "According to news reports, Dr. Tramont doctored the final document to under report thousands of severe reactions, including deaths and long-term resistance, to Nevirapine. This was not a thoughtful and reasonable decision, but a crime against humanity. Furthermore, upon learning of the potential lethal side effect of Nevirapine, President Bush and his administration did nothing to stop the shipment and usage of the drug in Africa. They must be held accountable for their inaction. "Africa, a continent with the world's largest HIV/AIDS population, claiming about 25 million of the estimated 38 million people infected with HIV/AIDS, is once again being marginalized. For the millions of Africans who pined their faith and hope on U.S. moral leadership in the fight against this pandemic, disappointment and devastation are understatements in expressing their feelings. "Moreover, for the National Institute of Health (NIH) to know about the problems in early 2002 but failed to inform the White House before President Bush launched a plan that the same year sought to increase the distribution of nevirapine throughout Africa, is an outrage. The President should demand nothing less than a thorough investigation of the matter. The fact that Dr. Tramont rushed to secretly alter the report findings and then dismissed the objections of professional safety monitors hired by NIH, when President Bush was about to visit Africa, seems to be a political decision. "I call upon both houses in Congress to open a thorough investigation of this catastrophe and hold the NIH and the Bush administration responsible for spreading this deadly drug. With more than 5,000 Africans dying a day from HIV/AIDS, the U.S. should double its efforts in fighting this pandemic, instead of adding to the agony. "Research standards and drug quality that are unacceptable in the US and other western countries must never be pushed onto Africa. We should stop discounting the lives of Africans. We are all God's children, created equally. And where there is suffering, it is our moral obligation to do all we can to save humanity. "Keep Hope Alive!" The Republican Finance Committee Senate Chairperson, Senator Charles Grassley was similarly outraged by the conduct of Dr Tramont of the NIH. He has therefore asked the US Justice Department to investigate this conduct. AP reported that "In a letter released Monday, Grassley said he was compelled to do so by 'the serious nature of these allegations and the grave implications if the allegations have merit' " AP also reported that the NIH had hired an auditor, who "first helped disclose the problems" with the nevirapine saga. The auditor, Michael Hensley, had said that "NIH officials were in a rush to declare that things were OK." Most interestingly, and specifically with regard to our own country and people, Mr Hensley told AP: "It seemed to me we were drawing conclusions too quickly across the board, especially the implementation of nevirapine in South Africa." As will inevitably happen, in time the truth will come out! This includes the truth about the origins of the enormous pressure that was put on our government to make nevirapine generally available throughout the public health system. As the foregoing shows, many people and institutions especially in the United States are deeply worried about what Senator Grassley described as the "grave implications" of the AP disclosures about the nevirapine affair. We too agree that these disclosures have grave implications. But obviously, the TAC does not agree. It is determined to continue to pursue its mission to promote the widest possible use of anti-retroviral drugs in our country, at all costs. In this regard, despite the fact that it is a mere NGO, and not a body of suitably qualified scientists, it is quite ready even to deny the reality of established scientific truths. Consequently, despite and in the face of everything we have reported in this article, it issued a statement which said, among other things: "The criticisms levelled by the parties involved in the NIH news story, that broke two days ago, do not provide evidence questioning the safety or efficacy of short-course nevirapine. It is false, as has been reported in some places and by the Department of Health, that short-course nevirapine has been associated with thousands of adverse events. There is to date not a single life-threatening adverse event associated with this regimen which is widely used in the developing world." Desperate to ensure that the truth does not undermine its drug marketing campaign, the TAC said, "The TAC is angry and considering legal advice on the Department of Health's continued misinformation campaign on nevirapine." Intent to sustain public pressure for the expansion of the market for anti- retroviral drugs in general, and nevirapine in particular, the TAC also said: "Reporting in South Africa over the last 24 hours regarding this (NIH) news story has been sloppy, with many journalists failing to understand the content or context of what is being debated. This has the potential to undermine public confidence in nevirapine unnecessarily. Science reporting in South Africa is generally poor and the TAC will endeavour in the future to work with journalists and other organisations to improve the quality of science reporting." And so, to guarantee and improve the sale of anti-retroviral drugs, this being the central mission of the treatment campaign of the Treatment Action Campaign, the TAC boldly proclaims that it is a Science Institute that is capable of improving the quality of scientific reporting in our country, and undoubtedly especially "scientific reporting" about nevirapine and other anti-retroviral drugs! It counts our courts as its ally, which, presumably because of past experience, it is confident would adjudicate the scientific and health controversy that has arisen concerning nevirapine, in its favour. Perhaps our judges will have to decide whether they are a scientific review panel or an institution that has oversight over the faithful implementation of our Constitution and our laws. But to make doubly sure that it achieves its objective of marketing anti- retroviral drugs at all costs, the TAC also pledges to position itself as the central adjudicator of what should appear in our mass media as quality science reporting! And the quality science reporting it seeks should be such that it does not unnecessarily "undermine public confidence in nevirapine". Naturally! Michael Hensley said it seemed to him that despite the known adverse effects of the drug, the NIH was very keen to expedite "the implementation of nevirapine in South Africa." Jesse Jackson wrote that "We should stop discounting the lives of Africans". Strangely for an organisation that presents itself as African, passionately concerned about the health and the lives of Africans, the TAC seems quite happy to "discount the lives of Africans", and to ensure "the implementation of nevirapine in South Africa", regardless of "the significant number of serious adverse events for both mother and infant (that) may not have been collected or reported in a timely manner during the course of the Uganda "study". Whose interests does the TAC serve? ------------------------------------------------------------------------ -------- MEDIA FOCUS What the media says Like many others, we have, in the past, expressed serious concern at the quality of some of the journalism in our country, seemingly to no avail. The December 10, 2004 edition of the Financial Mail contains fiction presented as fact that illustrates precisely what we have been complaining about. In her "Editor's Note" the Editor says that at its next National Conference in 2007, the ANC will choose a "party leader" to succeed ANC President Mbeki. She also anoints Comrade Nkosazana Dlamini-Zuma as President Mbeki's "favourite" to succeed him. In an Editorial entitled "ZANU-PF still fiddling while Zimbabwe burns", the journal says that President Mbeki met MDC President Morgan Tsvangirai last month "for the first time". It also says that President Mbeki "thought it more important to fly off to mediate in the Ivory Coast than to take action in the crisis closer to home", referring to Zimbabwe. All these are inventions dressed up as facts. Absolutely nobody knows whether the 2007 ANC National Conference will decide to replace President Mbeki with somebody else as the President of the ANC. The ANC Constitution has no term-limitation affecting any official position. So far there has been no discussion in the ANC at any level suggesting that Thabo Mbeki should not be re-elected ANC President in 2007. We know it as a matter of fact that President Mbeki has not communicated any information to the Editor of the FM, or anybody else for that matter, concerning any member of the ANC, if any, who might be his "favourite" to occupy any position within the ANC. President Mbeki has met Mr Tsvangirai in Zimbabwe a number of times. The last time was last December, President Mbeki's last visit to Zimbabwe, an encounter that was widely reported by the media. President Mbeki went to the Cote d'Ivoire at the request of the Chairperson of the African Union, President Obasanjo, and not because "he thought it more important" to visit the Cote d'Ivoire rather than Zimbabwe. Perhaps because they lack the wisdom of the FM, other international organisations such as the UN, the EU, the World Bank, the IMF and ECOWAS, also thought, like the AU, that it was important that President Mbeki should assist in the effort to end the highly dangerous Ivorian crisis. For this reason all these organisations delegated high-level representatives to accompany President Mbeki throughout the five days he was in the Cote d'Ivoire. President Mbeki maintains continuous contact with the situation in Zimbabwe, consistent with the express wishes of the major protagonists in that country. Nothing required that he should be in Zimbabwe during the period December 2 to 6, when he was in the Cote d'Ivoire. The FM has every right to its opinions and the pursuit of its political agenda. However, regardless of its devotion to the success of its political cause, it has no right deliberately to mislead its readers by presenting fabrications as facts. ------------------------------------------------------------------------ -------- This is the last edition of ANC Today for 2004. The first edition of 2005 will be published on 7 January 2005. We wish all our readers well over the festive season. ------------------------------------------------------------------------ -------- This issue of ANC Today is available from the ANC web site at: http://www.anc.org.za/ancdocs/anctoday/2004/at50.htm To receive ANC Today free of charge by e-mail each week go to: http://www.anc.org.za/ancdocs/anctoday/subscribe.html To unsubscribe yourself from the ANC Today mailing list go to: http://lists.anc.org.za/mailman/listinfo/anctoday -- _______________________________________________ Ip-health mailing list Ip-health at lists.essential.org http://lists.essential.org/mailman/listinfo/ip-health ------ End of Forwarded Message From lawrence at altlawforum.org Sun Dec 19 12:09:28 2004 From: lawrence at altlawforum.org (Lawrence Liang) Date: Sun, 19 Dec 2004 12:09:28 +0530 Subject: [Commons-Law] A Bitter Pill for Aam aadmi In-Reply-To: <51DAA2D1-5136-11D9-AC76-000A95D7D472@yale.edu> Message-ID: ------ Forwarded Message From: Amy Kapczynski Date: Sat, 18 Dec 2004 15:49:32 -0500 To: , Subject: [Ip-health] opinion piece on changes to India patent law -- [ Picked text/plain from multipart/alternative ] This opinion piece appeared this weekend in Outlook, a weekly Indian magazine similar to Newsweek here. ak http://outlookindia.com/full.asp? fodname=20041227&fname=Column+Drug+%28F%29&sid=1 > OPINION > > A Bitter Pill For Aam Aadmi > > Why is the government afraid to openly debate a move that may > quadruple drug prices? > > RAHUL RAJKUMAR, AMY KAPCZYNSKI, ACHAL PRABHALA > > While we are distracted by fallen gods and bickering billionaires, > decisions are being made behind closed government doors that could > mean the difference between life and death for millions of Indians. > The issue is India's patent law, and this government's decision to > avoid any public or parliamentary debate, to sneak in an ordinance > (probably based on the bill introduced by the previous regime) to > adhere to a World Trade Organisation (WTO) requirement that forces > India to offer patents on medicines by January 1, 2005. The new patent > law may lead to sky-rocketing prices-the cost of some medicines may > double, triple, quadruple, or go even higher. > > > Indian pharmaceutical companies may suffer serious setbacks, as could > patients, for whom medicines already comprise an estimated 40-50 per > cent of treatment costs. > > > Patents are temporary monopolies granted by the government and, > because they block competition, they allow inventors a free hand with > pricing. When economists want evidence of just how high medicine > prices could go after patents are introduced, they look, for instance, > at Pakistan-which allows patents. A recent study showed that the > antibiotic ciprofloxacin costs eight times more in Pakistan than in > India. Recently, India granted exclusive marketing rights-similar to a > patent-to Swiss company Novartis for a medicine that works wonders on > a rare form of cancer called chronic myeloid leukaemia. Novartis is > trying to use its rights to shut out local manufacturers, who charged > as little as Rs 9,000 per month for the medicine, so that it can > charge Rs 1,20,000 per month without competition. > > As it is, few patients can afford the lower prices; so how can they > possibly pay more? > > It was this that India had in mind in 1970, when it did away with > colonial-era patents on medicines. In part, because of this decision, > India became the world's biggest-and often cheapest-producer of > generic medicines. Companies like Cipla and Ranbaxy have taken the > world by storm-slashing the cost of a year's supply of AIDS drugs from > $10,000 to $140. This has made it possible to treat AIDS in India, and > other poor countries-and, through treatment, to turn a death sentence > into a manageable chronic disease, like asthma or diabetes. Now, in > order to comply with the WTO's trips agreement, India has to offer > patents on medicines. No one knows how many medicines could come under > patents-but many drugs developed in the last 10 years, and all those > that may be developed in future, are at risk. > > Who stands to gain? The MNCs that have huge coffers and a head start > in r&d. As trade economist Jagdish N. Bhagwati noted, in the 1980s, > software and pharma MNCs muscled their way into the WTO. They had a > prophetic vision: if they could export strong intellectual property > laws from the US and Europe to the rest of the world, they could > extend their monopolies to new territories, and kill competition from > emerging markets in one fell swoop. US and European governments > readily obliged their corporate patrons. The result is an agreement > that requires WTO members to adhere to minimum standards of > intellectual property protection. > > The dominant logic of patents is: more protection = more revenue = > more innovation. But while profits for pharma MNCs will increase in > Indian markets, economists conclude that since this increase will be > so small-globally speaking-it will not spur local r&d. Indian patients > will just pay much more for medicines. But none of this has to happen. > By being shrewd about how it implements trips, India can comply with > WTO rules, protect the health of its constituents, and continue to > serve as a model for the developing world. > > First, the new law must be changed so that India can refuse patents > on minor innovations. Why give companies huge profits for simply > combining two known compounds, or reformulating an old drug? Indian > law has some curbs on the scope of patents; these must be > strengthened.Consider this. It has been widely reported that there are > 4,000 pharma patent applications in India's "mailbox", waiting to be > examined. But according to the US government, only about 250 new > chemical entities have been discovered in the 10-year period that the > mailbox covers. Other applications are probably for variations on > known medicines-new formulations, dosages, etc. This blanket > patenting-a common practice in the US-can be prevented by a strict law > that limits patents to major innovations. > >  Just as importantly, the new law must streamline the 'compulsory > licensing' process, which allows the government to override patents on > medicines when, for example, they aren't reasonably priced. Lastly, > the new law should also maintain an important provision in the current > Patents Act that permits challenges to frivolous patent applications > before they are granted. Unless these steps are taken, red tape and > costly lawsuits will tie India's generic industry in knots. Though > these proposals are consistent with trips, they aren't included in the > proposed ordinance. In fact, the government has acted in near-secrecy, > closeting the revision process to a small ministerial group that has > refused to invite public comment or publish a working draft of the > bill. Unfortunately, the UPA is poised to push through almost the > same, heavily criticised bill proposed last year by the NDA. > > Ironically, India has been a model of how to use trips flexibilities > to ensure access to affordable medicines. A humane, shrewd patent law > was a cornerstone of this commitment to public health. There can be no > retreat from this. For, at stake is the price of life. Can the Indian > government seriously think that it isn't high enough already? > > (Amy Kapczynski is Yale University fellow in Law & Public Health; > Achal Prabhala is an ipr researcher; Rahul Rajkumar is a Yale Law > School student. Contact: essentialmedicines.org) > > -- _______________________________________________ Ip-health mailing list Ip-health at lists.essential.org http://lists.essential.org/mailman/listinfo/ip-health ------ End of Forwarded Message From lawrence at altlawforum.org Mon Dec 20 11:13:44 2004 From: lawrence at altlawforum.org (Lawrence Liang) Date: Mon, 20 Dec 2004 11:13:44 +0530 Subject: [Commons-Law] Leading Rock Band in India Announces it =?iso-8859-1?q?=B9?= s Open Music License Message-ID: Hi All Bangalore based rock band ³Thermal and a Quarter², who have in the past years created quite a reputation for themselves have announced the release of their next album on an open music license called the ³Thermal and A Quarter Open Music License². Over the next eight weeks, you will be able to download a new song every week. I am including the link to the Thermal site, as well as a small extract from their introduction to why they are going down the open content route. Here is hoping for more such initiatives http://www.thermalandaquarter.com For a visual or text version of the license see: http://www.thermalandaquarter.com/planB_TOML_bendtheworld.html Lawrence ----------------------- ³We (Thermal and a Quarter) are an independent music band, which has been producing original music for the past eight years. Thermal and a Quarter ( TAAQ) has self-produced and distributed three independent albums, which we have distributed through informal networks. Our biggest connection with our listeners has been through more than 150 live concerts, most of which have been organized by the band itself. Our aim remains to reach as many people as possible with our music through our concerts and recordings. We acknowledge that you, our listener are an important factor in the spread of our music. We recognise that the internet offers bands like ours an immense opportunity to reach out to a much larger audience, within India and internationally. We are also inspired by initiatives like the Creative Commons which promotes greater possibilities for collaboration and creation between musicians. We would like you, our listener, to spread this music as much as possible within the liberal constraints of this open music license that has been created to make sharing our music easy and convenient. Unlike many recording contracts, we believe in giving our music the maximum freedom. We would also like you to support us and enable us to continue making original music by attending our concerts and purchasing our albums. We have therefore decided to take the lead in announcing the rel4easse of our latest album Plan B, on a free to download basis under the terms and conditions of the "Thermal and a Quarter Open Music License" From manu_shahalia at hotmail.com Mon Dec 20 12:04:19 2004 From: manu_shahalia at hotmail.com (Manu Luv Shahalia) Date: Mon, 20 Dec 2004 12:04:19 +0530 Subject: [Commons-Law] In Re "A Bitter Pill for Aam aadmi" Message-ID: Hi all, this is regarding what Lawrence put up the otherday regarding Patenting and Price Rise. it is to be noted that the opposition to the New Patents Amendment Bill is not focussing at another aspect of Drug Price Control in the Indian Context, vide the Drug Price Control Order, 1995 [DPCO] issued under the Drugs and Cosmetics Act. It is very interesting to Firstly note that the Indian companies such as Cipla, Ranbaxy et al are not even complying with the DPCO. Secondly that the new Product Patent regime would have limited effect so long as the Patent holder is forced to comply with the DPCO once the drug, whose price is sought to be controlled is brought under Schedule I & II of the DPCO. There are various bottlenecks in this picture that i have painted and thus feedback/comments, critically examining this dimention of Price Control in India are welcome especially yours Lawrence. Thanx Manu Luv Shahalia Advocate 19, Raj Niwas Marg, Civil Lines, Delhi - 110 054 -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041220/e6c6b4eb/attachment.html From jaynakothari at justice.com Mon Dec 20 13:59:38 2004 From: jaynakothari at justice.com (jaynakothari at justice.com) Date: Mon, 20 Dec 2004 00:29:38 -0800 (PST) Subject: [Commons-Law] In Re "A Bitter Pill for Aam aadmi" Message-ID: <20041220082939.28399.fh034.wm@smtp.sc0.cp.net> Dear all, I think Manu raises a very important point about the DPCO in the entire HIV/AIDS drugs pricing and the new Patents Amendment Bill. The Drugs Price Control Order (DPCO), 1995 is an order issued by the Government of India under Section 3 of the Essential Commodities Act, 1955 to regulate the prices of drugs. The Order provides the list of price controlled drugs, procedures for fixation of prices of drugs, method of implementation of prices fixed by Government and penalties for contravention of provisions among other things. For the purpose of implementing provisions of DPCO, powers of the Government have been vested in the National Pharmaceutical Pricing Authority (NPPA). Drugs have been declared as essential and accordingly put under the Essential Commodities Act. Presently only around 74 out of 500 commonly used bulk drugs are kept under statutory price control. All formulations containing these bulk drugs either in a single or combination form fall under the price control category. However, the prices of other drugs can be regulated, if warranted in public interest. Presently it seems that some important essential medicines have been out of price control — painkillers, anti-anaemic drugs, drugs in the treatment of epilepsy, elephantiasis, heart diseases, cancers, AIDS; vaccines and sera to prevent and treat dangerous infections. Only one drug each for the treatment of tuberculosis, malaria and high-blood pressure is under price control. Some obsolete drugs (analgin, sulfadimidine) and some rarely used drugs (mebhydrolin, pantothenate, diosmine, becampicillin, licomycin, methendienone, etc), constituting 20 per cent of the DPCO, are under price control! Also, the new DPCO 2002 is being challenged in the Supreme Court. However I do remember reading in some newspaper report that the Supreme Court in its interim order had directed that the life saving/essential drugs should not go out of price control. If anyone has any details or information about this case pending before the Supreme Copurt it would be very useful to the Patents Amendment Bill and drugs pricing debate. cheers, Jayna On Mon, 20 Dec 2004 12:04:19 +0530, "Manu Luv Shahalia" wrote: Hi all, this is regarding what Lawrence put up the otherday regarding Patenting and Price Rise. it is to be noted that the opposition to the New Patents Amendment Bill is not focussing at another aspect of Drug Price Control in the Indian Context, vide the Drug Price Control Order, 1995 [DPCO] issued under the Drugs and Cosmetics Act. It is very interesting to Firstly note that the Indian companies such as Cipla, Ranbaxy et al are not even complying with the DPCO. Secondly that the new Product Patent regime would have limited effect so long as the Patent holder is forced to comply with the DPCO once the drug, whose price is sought to be controlled is brought under Schedule I & II of the DPCO. There are various bottlenecks in this picture that i have painted and thus feedback/comments, critically examining this dimention of Price Control in India are welcome especially yours Lawrence. Thanx Manu Luv Shahalia Advocate 19, Raj Niwas Marg, Civil Lines, Delhi - 110 054 Ashira Law Advocates and Legal Consultants 50/6 Palace Road Bangalore 56 00 52 Ph: 0091-80-2261090 _________________________________________________ FindLaw - Free Case Law, Jobs, Library, Community http://www.FindLaw.com Get your FREE @JUSTICE.COM email! http://mail.Justice.com From manu_shahalia at hotmail.com Mon Dec 20 14:37:28 2004 From: manu_shahalia at hotmail.com (Manu Luv Shahalia) Date: Mon, 20 Dec 2004 14:37:28 +0530 Subject: [Commons-Law] In Re "A Bitter Pill for Aam aadmi" References: <20041220082939.28399.fh034.wm@smtp.sc0.cp.net> Message-ID: Hi all, Thanx Jayna, and i stand corrected for the DPCO is issued under the Essential Commodities Act [and not the Drugs and Cosmetics Act]. We see that the aim of the Legislation was to make "essential commodities" available at "affordable prices" to the "aam admi". now even drugs fall in this category of an "essential commodity" vide the DPCO. We also see that the Supreme Court has asked the Government to Rework the list of controlled drugs in such a way that essential drugs do not go out of price control. The Sandhu Committee has however given its interim report, it is still open for beneficial and constructive Executive action and remedies in this regard. The Interim Report of the Sandhu Committee has recommended for fixing a ceiling on "retail" and "wholesale" "trade margins". While for the branded generic category, the Committee suggests for 35 per cent retailer and 20 per cent wholesaler margins, for generic-generics it recommends 20 per cent retailer and 10 per cent wholesaler margins. it is to be seen whether the trad emargins would be adopted. these trade margins also cover the "royalty apportionments". - From this flows a "tradeoff" that the Government should make; that being "we give you full patent protection and in return give us controlled royalty returns on your products in public interest". The problem also needs to be answered on a normative level [as Lawrence very well does] and also at the practicality of such a "trade-off" option. Thanx Manu Luv Shahalia Advocate 19, Raj Niwas Marg, Civil Lines, Delhi - 110 054 09818500977 ----- Original Message ----- From: To: Sent: Monday, December 20, 2004 1:59 PM Subject: Re: [Commons-Law] In Re "A Bitter Pill for Aam aadmi" Dear all, I think Manu raises a very important point about the DPCO in the entire HIV/AIDS drugs pricing and the new Patents Amendment Bill. The Drugs Price Control Order (DPCO), 1995 is an order issued by the Government of India under Section 3 of the Essential Commodities Act, 1955 to regulate the prices of drugs. The Order provides the list of price controlled drugs, procedures for fixation of prices of drugs, method of implementation of prices fixed by Government and penalties for contravention of provisions among other things. For the purpose of implementing provisions of DPCO, powers of the Government have been vested in the National Pharmaceutical Pricing Authority (NPPA). Drugs have been declared as essential and accordingly put under the Essential Commodities Act. Presently only around 74 out of 500 commonly used bulk drugs are kept under statutory price control. All formulations containing these bulk drugs either in a single or combination form fall under the price control category. However, the prices of other drugs can be regulated, if warranted in public interest. Presently it seems that some important essential medicines have been out of price control - painkillers, anti-anaemic drugs, drugs in the treatment of epilepsy, elephantiasis, heart diseases, cancers, AIDS; vaccines and sera to prevent and treat dangerous infections. Only one drug each for the treatment of tuberculosis, malaria and high-blood pressure is under price control. Some obsolete drugs (analgin, sulfadimidine) and some rarely used drugs (mebhydrolin, pantothenate, diosmine, becampicillin, licomycin, methendienone, etc), constituting 20 per cent of the DPCO, are under price control! Also, the new DPCO 2002 is being challenged in the Supreme Court. However I do remember reading in some newspaper report that the Supreme Court in its interim order had directed that the life saving/essential drugs should not go out of price control. If anyone has any details or information about this case pending before the Supreme Copurt it would be very useful to the Patents Amendment Bill and drugs pricing debate. cheers, Jayna On Mon, 20 Dec 2004 12:04:19 +0530, "Manu Luv Shahalia" wrote: Hi all, this is regarding what Lawrence put up the otherday regarding Patenting and Price Rise. it is to be noted that the opposition to the New Patents Amendment Bill is not focussing at another aspect of Drug Price Control in the Indian Context, vide the Drug Price Control Order, 1995 [DPCO] issued under the Drugs and Cosmetics Act. It is very interesting to Firstly note that the Indian companies such as Cipla, Ranbaxy et al are not even complying with the DPCO. Secondly that the new Product Patent regime would have limited effect so long as the Patent holder is forced to comply with the DPCO once the drug, whose price is sought to be controlled is brought under Schedule I & II of the DPCO. There are various bottlenecks in this picture that i have painted and thus feedback/comments, critically examining this dimention of Price Control in India are welcome especially yours Lawrence. Thanx Manu Luv Shahalia Advocate 19, Raj Niwas Marg, Civil Lines, Delhi - 110 054 Ashira Law Advocates and Legal Consultants 50/6 Palace Road Bangalore 56 00 52 Ph: 0091-80-2261090 _________________________________________________ FindLaw - Free Case Law, Jobs, Library, Community http://www.FindLaw.com Get your FREE @JUSTICE.COM email! http://mail.Justice.com _______________________________________________ commons-law mailing list commons-law at sarai.net https://mail.sarai.net/mailman/listinfo/commons-law From shamnadbasheer at yahoo.co.in Mon Dec 20 15:42:04 2004 From: shamnadbasheer at yahoo.co.in (Shamnad Basheer) Date: Mon, 20 Dec 2004 10:12:04 +0000 (GMT) Subject: [Commons-Law] In Re "A Bitter Pill for Aam aadmi" In-Reply-To: Message-ID: <20041220101204.32473.qmail@web8406.mail.in.yahoo.com> Thanks Manu and Jayna for raising this overlooked issue. It is critical that we work out the parameters of the interaction b/w the DPCO and the Patents Act. Perhaps drug price control isnt as critical today (as we have no product patents and it is assumed that competition amongst generics will shoot down prices anyway) as it is bound to be tomorrow. One needs to be really careful though in regulating at the price level-as too low a price can even result in the drug being taken off the market completely by the pharma company. No other company can sell such drug it as it is patent protected-showing again the tremendous value in having some sort of automatic compulsory licensing for drug patents (Hamid of Cipla argues for this in a recent news item, offering upto 4% of sales as royalties). It is only such compulsory licensing schemes that can achieve the dual purpose of keeping prices low and ensuring that the drug is still available on the market. On another note, I read with interest the "Aam Admi" piece in Outlook. I think its all too easy to keep criticising the government (as the article does), alleging that they are trying to sneak in these amendments. The fact remains that the bill was available for critique almost 2 years back. Where were all these international bodies then-that are now concerned that their supply of cheap drugs would soon run out. Or even the Indian public-including you and me?? This is not in any way an excuse for the pathetic way in which the government thought through this Billl. We had a superb committee and a fantastic report (Ayyangar Report) that informed our 1970 regime-literally just a one man committee (the other member was sick for half the year..) circumnavigated the patent laws of the world and took a call on what they thought would best suit India. Their hunch paid off. Our generic industry today is testimony to this. The stakes being so high, we should have undertaken a similar exercise now. My only fear is that it is too late in the day now. The government is not about do what they did in 1999 (amending to conform to TRIPS obligations that were due in 1995). Today, the dynamics are very different-we have the textile quota business at stake. We're quite keen on respecting these international obligations as much as we are interested in holding others to theirs...(Do unto others as you would have them do unto you..) So how exactly do we propose to buy time. Have any of these commentators sought to address this?? If we realistically don’t have time, do we wish to be strategic about what changes we wish to push into this bill. Rather than focussing solely on the big changes that we want (which would by their very nature have to include a year long study by select committees), do we wish to also focus on the smaller, more modest changes. For one, its easy to rectify loopholes-at least to the extent that most agree it to be a loophole. The date from which generics would become liable to drug patent owners for infringement (once the patent was issued) was one such issue. The generics lobbied to clog this loophole (I also wrote a short piece on this in the economic times that I later posted on this list)-and this is one of the few changes that the government did carry out. Similarly, as Anand Grover points out effectively, the provision for the issuing of compulsory licenses for exports to LDC’s suffers from a major failing. The provision is limited to those instances where there is a patent in the LDC as well-if this is indeed an LDC (or a country with insufficient manufacturing capacity-which is the correct term to use) -would we expect all drugs to be patented there as well. I mean-how stupid can we get? This is definitely a mistake-an error-and a stand that doesnt, at the very least, require an expert committee to vindicate it. The government may be more willing to rectify these loopholes that to amend in a big way-as that would involve deliberations on issues that are not settled. I am not in any way belittling the efforts of those that seek to bring about critical changes (quite the contrary, I've been trying to argue for such changes-including an 'automatic compulsory licensing' for drugs, much like the 'licenses of right' structure that we had under the earlier regime). My only plea is-lets be a little strategic here. Along with the big changes that we want, lets also focus on the smaller ones that may be easier to bring about. Lets also focus on things like price control that are critical to this debate-and which have been raised very pertinently by Jayna and Manu. Surely we don’t want to end up with no changes at all-'something' after all is better than 'nothing' . Regards-Shamnad Manu Luv Shahalia wrote: Hi all, Thanx Jayna, and i stand corrected for the DPCO is issued under the Essential Commodities Act [and not the Drugs and Cosmetics Act]. We see that the aim of the Legislation was to make "essential commodities" available at "affordable prices" to the "aam admi". now even drugs fall in this category of an "essential commodity" vide the DPCO. We also see that the Supreme Court has asked the Government to Rework the list of controlled drugs in such a way that essential drugs do not go out of price control. The Sandhu Committee has however given its interim report, it is still open for beneficial and constructive Executive action and remedies in this regard. The Interim Report of the Sandhu Committee has recommended for fixing a ceiling on "retail" and "wholesale" "trade margins". While for the branded generic category, the Committee suggests for 35 per cent retailer and 20 per cent wholesaler margins, for generic-generics it recommends 20 per cent retailer and 10 per cent wholesaler margins. it is to be seen whether the trad emargins would be adopted. these trade margins also cover the "royalty apportionments". - From this flows a "tradeoff" that the Government should make; that being "we give you full patent protection and in return give us controlled royalty returns on your products in public interest". The problem also needs to be answered on a normative level [as Lawrence very well does] and also at the practicality of such a "trade-off" option. Thanx Manu Luv Shahalia Advocate 19, Raj Niwas Marg, Civil Lines, Delhi - 110 054 09818500977 Yahoo! India Matrimony: Find your life partneronline. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041220/2152cc14/attachment.html From sudhir75 at hotmail.com Mon Dec 20 16:39:57 2004 From: sudhir75 at hotmail.com (sudhir krishnaswamy) Date: Mon, 20 Dec 2004 11:09:57 +0000 Subject: [Commons-Law] In Re "A Bitter Pill for Aam aadmi" In-Reply-To: Message-ID: Dear Manu I've been very surprised at the shape of the public debate and civil society activism around the recent Patent Amendments. It has focussed almost exclusively on us meeting Jan 2005 TRIPs commitments relating to product patents in drugs and chemical fertiliser painting a doomsday scenario with respect to the access to drugs in particular. This resonates with the extreme versions of the Neem/Turmeric panic of the early 90s where we were warned that we may not be able to use these plants domestically in the future! So I appreciate you making the point about the role played by the Drug Price Control Order made under the Drugs and Cosmetics Act. The key to the access to medicine debate is not who produces drugs but price control. Unfortunately little attention has been paid to the latter regulatory device and the argument proceeds as if product patents will automatically result in higher prices. Despite Ram Vilas Paswan's earlier noises regarding the application of the DPCO to a wider array of drugs, the tendency over the last few years has been to narrow the basket of drugs so regulated. Moreover, even where prices are regulated the enforcement and compliance with this regulatory regime has been poor! As Drug Pricing regulation for essential drugs, together with the new competition regime for all other drugs, are presently not the subject of international obligations, a campaign around drug pricing could force the Union Government to overcome most of the access to medicine issues that may arise in 2005. Having said that, other significant issues remain. Product patents will result in: 1. A reorganization of the structure of the Indian pharma industry, particularly with respect to new drugs. MNC pharma which dominate this field are likely to enhance market share rapidly. Unless oppostion to MNC pharma is premised on political economy concerns other than cost to consumers, a revitalized DPCO + competition law regime to control pricing can take care of most access issues. 2. The competencies built up by domestic pharma by reverse engineering drugs has resulted in significant acquisition of knowhow over and beyond the terms of patent disclosure. The presence of product patents will restrict this aspect of domestic pharma competency. A research exception to the patent monopoly [much like fair use in Copyright] will go a long way in preserving this mode of acquisition of knowledge through reverse engineering. Section 47 (3) expressly makes the grant of patents subject to such a research exception and this provision needs to be exploited to the maximum extent possible. 3. AIDS drugs raise two significant problems: A. The single pill formulations arrived at by combining patent drugs owned by different pharma companies has achieved treatment and follow up performance that must be encouraged. To do this the Union government must invoke the provisions in s 83 (d), (e) and (g) of the Patent Act which allow it to issue compulsory cross licensing to generic producers to continue the production of these formulations. B. The manufacture of AIDS drugs by generic producers to LDC's may easily be achieved by inserting a new clause in s 107A which provides for certain exceptions to infringement. This will allow LDCs to benefit from Indian manufacturing facilities providing them generic drugs while fulfilling the public health exceptions in the Doha Agreement. All in all, the introduction of product patents into Indian law is a significant development, but not for many of the reasons which have dominated the public discourse. The patenting of drugs theoretically responds to the problem of the incentive to develop new drugs. The most ardent supporter of domestic pharma's successes will have to concede that the present IP policy environment has failed to encourage new drug development for other widely prevalent diseases like TB and malaria. So we need to refocus on how precisely we may innovatively develop new drugs at the lowest cost possible. Patent law is only one of the range of possible policy devices that can secure this end with significant downsides to unrestrained monopolies. Recent work at the WHO makes interesting progress while evaluating other possible approaches. [ http://www.who.int/intellectualproperty/en/ ] But by conflating the issue of access to drugs and pricing, with the terms and conditions of the ownership of knowledge and information in patent law, we risk mis-targetting the precious and scarce resource of public activism. Best Sudhir _________________________________________________________________ Express yourself instantly with MSN Messenger! Download today - it's FREE! http://messenger.msn.click-url.com/go/onm00200471ave/direct/01/ From lawrence at altlawforum.org Mon Dec 20 18:58:40 2004 From: lawrence at altlawforum.org (Lawrence Liang) Date: Mon, 20 Dec 2004 18:58:40 +0530 Subject: [Commons-Law] In Re "A Bitter Pill for Aam aadmi" In-Reply-To: Message-ID: Hi all On the nature of the public debate that has happened so far, it would be wrong to state that there has been no work done on drug pricing issue, in fact the Peoples Health Movement has always represented both of them together. As a matter of Strategy the media may have chosen to use the drug pricing story more than any other angle for obvious reasons, that a 'people centered story' is more catchy than a story. In fact a quick survey of the kind of materials that have been going around will also reveal how the entire analysis of the 1970 Act and the implementation of the Ayyangar Committee report was not seen in isolation in terms of it being a patent issue but went with the DPCO. More importantly I think the issue is that it is the multiplicities of issues, and multiple interventions are more than welcome, please do contribute to papers etc on the drug pricing aspects and open up the debate more in public forum Lawrence From shamnadbasheer at yahoo.co.in Mon Dec 20 20:51:16 2004 From: shamnadbasheer at yahoo.co.in (Shamnad Basheer) Date: Mon, 20 Dec 2004 15:21:16 +0000 (GMT) Subject: [Commons-Law] In Re "A Bitter Pill for Aam aadmi" In-Reply-To: Message-ID: <20041220152116.95045.qmail@web8407.mail.in.yahoo.com> Fantastic post, Sudhir. Loved some of your points there. For whatever its worth, my comments (in bold): sudhir krishnaswamy wrote: The key to the access to medicine debate is not who produces drugs but price control. NOT QUITE SURE ABOUT THIS. WITH GENERIC PRODUCTION, PRICES WOULD BE LOW, RIGHT?? IN WHICH CASE, THE ENTITY PRODUCING THE DRUG SHOULD MATTER. AS I'D MENTIONED EARLIER, YOU CANT RELY ON PRICE CONTROL TO SORT OUT THE ACCESS ISSUE IN ITS ENTIRETY. IF YOU PEG THE PRICES TOO LOW THROUGH PRICE CONTROL, YOU RUN THE RISK OF NOT HAVING THE DRUG IN YOUR COUNTRY AT ALL (THE PATENTEE MAY DECIDE THAT ITS NOT PROFITABLE TO SELL). THIS IS WHERE A GOOD COMPULSORY LICENSING REGIME WOULD HELP-AS YOU CAN THEN HAVE THE GENERIC STEP IN TO TAKE OVER PRODUCTION -AND AS IS NORMALLY THE CASE, GENERICS WOULD SELL CHEAPER.. 2. The competencies built up by domestic pharma by reverse engineering drugs has resulted in significant acquisition of knowhow over and beyond the terms of patent disclosure. The presence of product patents will restrict this aspect of domestic pharma competency. A research exception to the patent monopoly [much like fair use in Copyright] will go a long way in preserving this mode of acquisition of knowledge through reverse engineering. Section 47 (3) expressly makes the grant of patents subject to such a research exception and this provision needs to be exploited to the maximum extent possible. FANTASTIC POINT. COULDNT AGREE WITH YOU MORE. IN FACT, DURING A SURVEY THAT WE CONDUCTED SOMETIME BACK, WE FOUND THAT IN SEVERAL WAYS, THIS PROVISION WAS BROADER THAN THE BRITISH ONE (FROM WHICH IT ALLEGEDLY ORIGINATED) AND OF COURSE, THE AMERICAN ONE (DONT KNOW HOW MUCH OF A RESEARCH EXEMPTION THEY HAVE NOW -AFTER MADEY??). LUCKILY, "NON DETECTION" IS A BIG PLUS POINT HERE I.E. UNLESS A FOLLOW ON PRODUCT USING THE PATENTED ITEM IS RELEASED INTO THE MARKET-ITS VERY RARE THAT THE PATENTEE WOULD KNOW THAT THE PATENT IS BEING USED IN A LAB.... To do this the Union government must invoke the provisions in s 83 (d), (e) and (g) of the Patent Act which allow it to issue compulsory cross licensing to generic producers to continue the production of these formulations. THESE ARE NOT GROUNDS PER SE BUT MERELY CIRCUMSTANCES TO BE TAKEN INTO ACCOUNT WHILE INVOKING THE VARIOUS GROUNDS (SEPARATELY MENTIONED UNDER 84 AND 92). AS YOU MENTION THOUGH, 83 (G) IN PARTICULAR IS PRETTY POWERFUL TO CATER TO THE AVAILABILITY OF AIDS DRUGS(THOUGH 84 (B) LISTS THIS DIRECTLY AS A GROUND..). QUITE APART FROM THE GROUNDS PER SE, HISTORY TELLS US THAT ITS PROCEDURAL AND ADMINISTRATIVE BOTTLENECKS THAT STAND IN THE WAY OF EFFECTIVE UTILISATION OF COMPULSORY LICENSING (CL) PROVISIONS. THIS IS ONE AREA THAT COULD HAVE BEEN IRONED OUT IN THE BILL-BETTER STILL, AN ALMOST AUTOMATIC CL SCHEME FOR DRUGS WOULD HAVE BEEN IDEAL. B. The manufacture of AIDS drugs by generic producers to LDC's may easily be achieved by inserting a new clause in s 107A which provides for certain exceptions to infringement. This will allow LDCs to benefit from Indian manufacturing facilities providing them generic drugs while fulfilling the public health exceptions in the Doha Agreement. THE MAIN PROVISION TO ACHIEVE WHAT YOU HAVE IN MIND IS SECTION 92 A-WHICH PROVIDES FOR THE ISSUING OF COMPULSORY LICENSES TO MANUFACTURE DRUGS THAT COULD THEN BE EXPORTED TO LDC'S. AS I'D MENTIONED IN MY PREVIOUS POST (AND AS RIGHTLY POINTED OUT BY AMTC AND ANAND), THIS PROVISION, AS PRESENTLY WORDED SUFFERS FROM CERTAIN SHORTCOMINGS. SECTION 107A PERTAINS TO WHAT IS COMMONLY REFERRED TO AS THE 'BOLAR EXCEPTION'. AND THIS PROVISION (AS AMENDED IN 2002) DOES CATER TO SITUATIONS WHERE INDIAN GENERICS USE THE PATENTED DRUG IN QUESTION TO GENERATE INFORMATION THAT IS THEN SUBMITTED TO A REGULATORY BODY IN THE CONCERNED LDC. TO THIS EXTENT, IT DOESNT NEED ANY FURTHER AMENDMENT. OR DID YOU HAVE SOMETHING ELSE IN MIND?? All in all, the introduction of product patents into Indian law is a significant development, but not for many of the reasons which have dominated the public discourse. The patenting of drugs theoretically responds to the problem of the incentive to develop new drugs. The most ardent supporter of domestic pharma's successes will have to concede that the present IP policy environment has failed to encourage new drug development for other widely prevalent diseases like TB and malaria. So we need to refocus on how precisely we may innovatively develop new drugs at the lowest cost possible. Patent law is only one of the range of possible policy devices that can secure this end with significant downsides to unrestrained monopolies. Recent work at the WHO makes interesting progress while evaluating other possible approaches. [ http://www.who.int/intellectualproperty/en/ ] AGAIN, COULDNT AGREE WITH YOU MORE. JAMIE LOVE'S R&D TREATY IS A GOOD EXAMPLE OF ONE SUCH ALTERNATE MECHANISM TO INCENTIVISE DRUG RESEARCH. QUITE APART FROM THINKING ONLY IN TERMS OF INCENTIVISING DRUGS OR VACCINES, WE ALSO NEED TO THINK OF OTHER WAYS TO CONTROL THE DISEASE OR EPIDEMIC IN QUESTION. A RECENT LETTER BY TWO OXFORD SCIENTISTS TO CHANCELLOR GORDON BROWN ILLUSTRATES THIS POINT BRILLIANTLY. WHILE BROWN PROMISED SEVERAL MILLION POUNDS TO GSK AND OTHERS TO COME UP WITH A MALARIA VACCINE IN FUTURE, THESE SCIENTISTS WORKED OUT THAT IT WOULD BE FAR CHEAPER TO BUY MOSQUITO NETS AND SUPPLY THEM IN SUB-SAHARAN AFRICA. QUITE AS EFFECTIVE AS THE PROPOSED VACCINE. BESIDES, A VACCINE IS ALWAYS A GAMBLE-YOU MAY NOT HAVE ANY PRODUCT AT THE END OF ALL THAT EXPENSIVE RESEARCH. But by conflating the issue of access to drugs and pricing, with the terms and conditions of the ownership of knowledge and information in patent law, we risk mis-targetting the precious and scarce resource of public activism. ABSOLUTELY. WE DEFINITELY NEED TO LOOK AT THE BIGGER PICTURE AND SEE THESE VARIOUS CROSS CONNECTIONS. WITH THE GOVT TAKING SO MUCH TIME TO IRON OUT OBVIOUS DISCREPANCIES IN THE BILL (AT A TIME WHEN THE ENTIRE WORLD IS WATCHING...), ASKING IT TO LOOK AT ALTERNATE WAYS OF INCENTIVISING DRUG CREATION OR INCREASING ACCESS IS NO DOUBT AN UPHILL TASK. LETS HOPE WE CREATE ENOUGH NOISE TO GET THEM THINKING AT LEAST ON THESE LINES.... Best Sudhir _________________________________________________________________ Express yourself instantly with MSN Messenger! Download today - it's FREE! http://messenger.msn.click-url.com/go/onm00200471ave/direct/01/ _______________________________________________ commons-law mailing list commons-law at sarai.net https://mail.sarai.net/mailman/listinfo/commons-law Yahoo! India Matrimony: Find your life partneronline. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041220/8552186b/attachment.html From fred at bytesforall.org Tue Dec 21 01:19:41 2004 From: fred at bytesforall.org (Frederick Noronha (FN)) Date: Tue, 21 Dec 2004 01:19:41 +0530 (IST) Subject: [Commons-Law] Tere Vaden: Information wants to be free Message-ID: Tere Vaden Professor, Hypermedialab University of Tampere The possibilities that Free/Libre and Open Source Software (FLOSS) offers for development in information and communications technology (ICT), in general, and for the developing countries, in particular, have recently gained increasing attention and importance. The following report provides encouraging examples of the role FLOSS has already had or can have in the developing countries and developmental co-operation. The reason for the increased attention is simple: the philosophy, economy and software development model of FLOSS have in the past 20 years or so made an ineradicable impact on how information technology is conceptualised, used and developed. Since FLOSS does not rely on concepts like intellectual property or copyright but rather on concepts of voluntary co-operation and copyleft ("copyright turned around"), it has been seen as an ideal tool for bridging the so-called digital divides. What has made an even stronger impression on some researchers has been the fact that in the case of FLOSS fun and ethics seem to travel hand in hand, at least part of the way. The developers of FLOSS, the hackers, often "scratch their own itch", that is, do what is fun. It appears that in most cases this fun can be had only if the software the hackers are interested in having fun with is free and open. The background motivations that the hackers have for engaging in FLOSS development can, indeed, be quite varied, and still the result contributes to a freely distributable, modifiable and usable pool of good quality software. For instance, the philosophical and social motivations of the Free Software movement and the Open Source movement are quite different, even antithetical at places, but the movements can still share-and-share-alike when it comes to creating software that excels in its technical qualities. It seems that this kind of co-operation is precisely what bridging the digital divides on the software side needs. The question of whether ICT development is necessary or whether it should be prioritised when it comes to countries that have severe problems with providing for the basic needs of their citizens may be debated. It seems clear, however, that if and when ICT development is, for instance, a part of developmental co-operation, the basic concepts and day-to-day practises of using and developing FLOSS offer a footing that may be used with benefit. Because the background motivations for creating and using FLOSS are varied, the arguments for FLOSS are also diverse. They range from the purely technical (e.g. speed of development, security and privacy, technological independence, ease of use) to the deeply economic, social, political and philosophical (e.g. price, co-operation, equality, commitment to the right to know). This spectrum of arguments can be stratified by thinking about the different levels on which digita l information has an impact. Underlying all the discussions on ICT and its effect on the emerging information societies is the fact that by its nature information is different from material things. Information is abstract in the sense that giving or sharing information does not diminish the amount of information that the giver or sharer has. Furthermore, the reproduction and copying of information can be d one with much less cost than the reproduction and copying of material goods. These characterisations of the nature of information can be captured in the phrase "Information can be free". As a means of production and ex change, information is different from material things in that it can be free; as a resource, information is non-rivalrous. The different kind of " being" that information has compared to the "being" of material things means that the sharing of information is in its ontological nature unlike the sharing of material goods: this is the sense in which information "can" be free. The next level of argumentation is crystallised in the rallying-cry of hackerdom: "Information wants to be free". Information wants to be free in the sense that information, e.g. computer software, as a tool is made better if it is free. This is the level of argument that the Open Source movement emphasises. The development of good quality software is faster and more efficient if the source code of the software is open and if everyone potentially interested in the code is free to contribute to the development. As a means to an end, software is best developed if it is free. The so-called Linus' Law, after the Linux-hacker Linus Torvalds, is often cited in this context: "Given enough eyeballs all bugs are shallow". The global society of hackers has through the internet harnessed its pool of skills and interests in a distributed working model that has produced software at a pace that has defied all economic theory and continues to baffle computer scientists. Software as a tool makes best progress when it is free. Therefore it wants to be free; its goal as a tool is to be free. Information technology as a means is, of course, used towards some ends. The use and development of technology is embedded in practises and cultures. It is obvious that technology in general and information technology in particular are not culturally neutral: a given type of technology use and development always favours or disfavours different types of social arrangements. In the case of FLOSS, the position of the Free Software movement is formulated through considering the ends to which software contributes. From this viewpoint, the question to be asked about different models of using and developing software is what kind of society does this or that model promote. Like Richard M. Stallman, the founder of the Free Software movement, has emphasised, the goal of the Free Software movement is to create a society based on co-operation, equality and sharing, therefore software is instrumental only if it is free. Software can be a means to the end of a co-operative and ethically sound society only if it is free in the sense of free speech; even openness of the source code is not enough. This third level of viewing software through its social and political goals can be expressed in the slogan "Information ought to be free". The social commitment to supporting and creating a society that is not a jungle but a co-o perative whole implies an ethical commitment to the freedom of information. This third level of argument can be augmented. Following Aristotle, we may see the goals towards which we are striving as finalities, as goals-in-themselves that do not require any further motivation. Finalities do not require motivation, they are the motivation that give shape to the tools, practises and social arrangements that embody the finalities. It is this level of commitment that often means taking extra effort. In this sense the (ethical) commitment to certain finalities can also be quite different from having fun, or from the technical considerations that have to do with the properties of software seen purely as a tool. For instance, democracy is often seen as a finality. Even though democracy might be inefficient and costly, the extra effort is worth taking, because of the ethical and social goods that democracy includes. Democracy is worth it for its own sake. This level of motivation applies also to FLOSS, even though it can not be easily captured in a phrase. Maybe the verb "x" describing this fourth level of finalities in the phrase "Information 'x' be free" would have to combine the senses of the verbs "can", "wants to", "ought to" and "will". It is also through this fourth level of argumentation that we reach one of the crucial questions that the so-called developed countries face when it comes to the use of FLOSS in developmental co-operation. The global trend towards an "information society" gives an increasing role to information, knowledge and other immaterial assets in production. Therefore the economy is also seeking ways of controlling, identifying and using immaterial assets. This happens largely through the concept of intellectual property. In economic terms, the notion of intellectual property and the connected immaterial property rights are a way of regulating free markets, setting up limited monopolies in the name of economic incentive for innovation and creativity. This mega-company-driven trend towards an increasingly tight "intellectual property" regime conflicts squarely with all the above verbs. If information is made into property, it can not, will not and should not be free. Taken to its extreme, the notion that information or knowledge is owned and that its use should be controlled by the "owners" becomes absurd. An infant either has to be taught that information is owned or otherwise remains ignorant of the fact. In both cases information freely shared is the basis on which the ownership of information can be based. The absurdity can be seen in the following scenario: if all information is proprietary, then the information that information is proprietary is proprietary, too, and I can choose to stay ignorant of that information. As with material property, intellectual property relies on the goodwill of non-proprietary social functions and arrangements. Therefore its beneficiality is not a given. Through this perspective it is obvious that a very strict regime of intellectual property will lead to increased fragmentation and the unbalanced division of wealth in the world. It would not be too extreme to claim that certain forms and applications of so-called intellectual property rights are a way of protecting the "firstness" of the "first" world against the interests of the other worlds. At its worst, the concept of intellectual property works in ways that are analogous to the colonialising effects that the concept of material property has had in the previous centuries. It has always been known that "intellectual property laws" can be a hindrance to economic development. This was the reason why the United States decided not to recognise European copyrights and patents in the 19th century. It is very likely that following a tight regime of intellectual property rights will be an obstacle to the economic development of the developing countries today, too. Therefore it is essential that the legislative system and the policies of the "first" world will allow for intellectual and software freedom. When it comes to information technology, the task is to create a balanced environment for innovation, both social and technological. It is a well-known fact that things like software patents and the idea of "trusted computing" seriously threaten the possibility of FLOSS development. Therefore it is extremely troubling to see how a strong big-industry lobby is pushing the legislation and its interpretation in the "first" world towards an increasingly biased and restrictive direction. Software patents have already become a burden on FLOSS development and the innovation of small and medium-sized software companies in the US, and currently the EU is thinking about having a software patent legislation of its own. Software patents are a good example of "intellectual property rights" that are not only harmful to FLOSS in the "first" world but also to the use of FLOSS in developmental co-operation. A healthy global information society needs a political and legal environment that gives possibilities to both independent FLOSS type development and proprietary software development. Shutting one or the other out will only aggravate the existing digital divides. >From the point of view of finalities the question is: "What is information technology for?" Answering this "why" question can give sustainable form to the "how" questions. For instance, economic and cultural "whys" may give different weights to different factors. Globalisation as a narrowly defined economic trend and the creation of a particular type of information society push towards a strict intellectual property regime. This, however, does not mean that intellectual property as a concept or as a practice systematically favours equality, democracy or development - quite the contrary. Intellectual property rights might, in principle, protect the livelihood of indigenous populations and local cultural endeavours, but in practice they next to never do. This is because established organisations, institutions and companies have an upper hand when it comes to interpreting the concept and enforcing the laws that codify it. "First" world countries like Finland can therefore advance the creation of a global sustainable information society by giving enough weight to social and ethical issues in the legislative framework that partly creates the international information environment. Especially so because there are also strong economic arguments that speak in favour of free markets and against the restrictions in terms of "intellectual property". The use of FLOSS is motivated through concepts like freedom, independence and swantantra. These concepts have at the same time their economic, technical and cultural meanings. Freedom and independence in all of these senses are finalities, goals in themselves and in that sense very well in line with the ideals of a global sustainable information society. Making grand ideals like this happen is, of course, always a complicated thing. However, to be fair, FLOSS is not a dream, but a rapidly growing reality that has several success stories in its track record. As noted above, FLOSS is no one thing, either. There are different sets of philosophical underpinnings, different models of development, different technological options and so on. There is no reason to downplay the internal variation of FLOSS or the different options in building an information society. The proof of the pudding is in the eating, and the proof of the bridge is in the crossing. Let us attend to the details. Introduction During the last couple of years the use of Free/Libre Open Source Software (FLOSS) has gathered momentum, which has surprised its proponents and opponents alike. Looking at the figures, it would not be an exaggeration to say that the Internet is powered by FLOSS.1 (See. David Wheeler - Why OSS/FS?) Given such a huge spread in the use of FLOSS and its very significant economic impact, the questions arising from the perspective of development aid and sustainable development are: Does FLOSS offer developing countries any significant alternative in addressing crucial problems, such as the alleviation of poverty, the democratization of society, the reduction of illiteracy, conflict reduction, access to knowledge, dealing with natural calamities and other emergencies, etc.? Does FLOSS have the potential to help bridge the digital divide? In our view, the answers to most of the above questions is a definite YES, but without attributing some magic wand status to a ny technology, especially Information and Communications Technologies (ICT), including FLOSS. The solutions to the problems facing developing countries are very complex, and ICT and FLOSS can at best provide a helping hand to humans determined to solve those problems. Lacking the political will an d social forces necessary to solve problems, any technology is just another tool which may throw us into *techno-optimism*, that is, the belief that *future economic prosperity is dependent upon the rapid development of national electronic infrastructures* without actually meaningfully solving the burning problems facing the developing world. Commenting on the role and impact of Bangalore, capital of the Indian state of Karnataka, and that country's foremost hi-tech centre, noted economist and Nobel laureate Dr. Amartya Sen2 said: *New centres of excellence such as Bangalore can prosper and flourish. Yet even 100 Bangalores would not solve India*s poverty and deep-seated inequality. For this to happen, many more people must participate in growth. This will be difficult to achieve across the barriers of illiteracy, ill health and inequalities in social and economic opportunities.* (from The Oxfam Education Report Chapter 1)3 Already at this stage, we should note that the present study is not an economics-based one. The team responsible for it lack expertise in economics, and is not making any significant claims regarding the impact of ICT on economies. Having said that, we can still refer to a number of studies and views which actually show that there is no direct link between computers and productivity. For instance, World Bank economist Charles Kenny, in his well argumented paper at a WIDER conferenceon New Economy in May 2002,4 believes that the **Solow paradox*5 * widespread evidence of computer use, little evidence of (widespread) productivity growth * continues, at least in modified form.* Warning against techno-optimism and pinning too many hopes on the Internet and ICT, Kenny notes: *The Internet is a powerful technology that will have a long-term impact on the quality of life in developing countries* and *Having said that, our record in predicting the dy namic impact of technologies on development in the past has been very w eak. To take three communications-related examples, the railway was predicted to spark the dictatorship of the proletariat, the telegraph was predicted to engender world peace and the television to revolutionize education. Broadly, it appears that even while the role of technology in economic growth cannot be questioned, the dynamic impact of a particular, invented technology is never very large. It looks increasingly as if the impact of the computer on US productivity will be a good example of this. The impact has been limited so far, and might not increase in the future.* (Charles Kenny: The Internet and Economic Growth in Least Developed Countries. A Case of Managing Expectations?)6. At the same time, however, we can note that ICT, or rather thelack of it, does significantly impede access to information and knowledge for a vast majority of developing countries, especially their academic and educational institutions, students, government officials, economic and financial institutions, businesses, etc. The main objective of this report has been to analyse the significance and relevance of FLOSS for developing countries.i In doing so, we have tried to take a brief look at the the overall use of ICT and FLOSS, especially at some of its most significant and popular software, such as GNU/Linux, Apache, Mozilla, Open Office etc, as well as its possible impact on the societies, lives, and economies of the people of those countries. As noted earlier, our focus in this study is more on the wider impact of ICT and FLOSS on societies than on economics. That is why we have tried to look at a number of issues which hinder a more widespread use of ICT in general and FLOSS in particular in most of the developing world. Keeping in mind a host of social, political and economic factors, especially the overall huge cost of employing ICT (compounded in most cases by hard currency shortages), we contend that FLOSS offers an affordable and useful alternative to proprietary software for all the concerned parties in those countries: governments, public institutions, education, NGOs and the private sector. Another objective has been to evaluate projects which utilise FLOSS technologies and to see whether they have any significant impact on the democratization of countries, increased access to knowledge, enhancing the quality of education, andaiding sustainable development. We have tried to achieve that objective by going beyond the purely technical merits and use of FLOSS and look instead at the very nature of FLOSS (its philosophy of freedom, openness, community activation and collaborative nature) as well as make a link between FLOSS and any developmental effort dependant upon humans determined to solve problems. We let the reader determine if we have succeeded in achieving those objectives. We can only reiterate that FLOSS and developing countries make a great partnership. Helsinki, 28th February 2003 ----------------------------------------------------------------------- THIS IS THE FOREWORD to the report 'Free as in Education. Significance of the Free/Libre and Open Source Software for Developing Countries'. Version 1.0 dated 13.05.2003 and available online at http://www.maailma.kaapeli.fi/FLOSS_for_dev.html. ---------------------------------------------------------------------------- Frederick Noronha (FN) Nr Convent Saligao 403511 GoaIndia Freelance Journalist P: 832-2409490 M: 9822122436 http://www.livejournal.com/users/goalinks http://fn.swiki.net http://www.ryze.com/go/fredericknoronha http://fn-floss.notlong.com ---------------------------------------------------------------------------- Difficulties to send email across? Write to fredericknoronha at vsnl.net ============================================================================ Please avoid sending me Word or PowerPoint attachments See http://www.fsf.org/philosophy/no-word-attachments.html From sudhir at circuit.sarai.net Tue Dec 21 12:14:44 2004 From: sudhir at circuit.sarai.net (sudhir at circuit.sarai.net) Date: Tue, 21 Dec 2004 07:44:44 +0100 (CET) Subject: [Commons-Law] In Re 'A Bitter Pill for Aam aadmi' In-Reply-To: References: Message-ID: <1439.202.142.101.34.1103611484.squirrel@mail.sarai.net> Dear Lawrence Agree entirely with what you've said, particularly the need for a diversity of views. I should have emphasised that I was only expressing surprise with respect to the campaign around the Patent Amendment 2004 and not the wider work in the public health field. The People's Health Movement [ http://www.phmovement.org/index.html ]has worked on drug pricing issues over a long period of time, even when product patents were not on the horizon. They've been pushing the scope and ambit of DPCO application for some time now. Moreover, by emphasising that access to drugs is both a distributional and price issue they've retained focus on the state health delivery systems. This is particularly important when we realize that the majority of essential drugs are off patent! Best Sudhir > Hi all > > > On the nature of the public debate that has happened so far, it would be > wrong to state that there has been no work done on drug pricing issue, > in > fact the Peoples Health Movement has always represented both of them > together. As a matter of Strategy the media may have chosen to use the > drug > pricing story more than any other angle for obvious reasons, that a > 'people > centered story' is more catchy than a story. > > > In fact a quick survey of the kind of materials that have been going > around > will also reveal how the entire analysis of the 1970 Act and the > implementation of the Ayyangar Committee report was not seen in isolation > in terms of it being a patent issue but went with the DPCO. > > More importantly I think the issue is that it is the multiplicities of > issues, and multiple interventions are more than welcome, please do > contribute to papers etc on the drug pricing aspects and open up the > debate > more in public forum > > > Lawrence > > > > > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > From aidslaw at bom5.vsnl.net.in Tue Dec 21 13:44:14 2004 From: aidslaw at bom5.vsnl.net.in (lawyers) Date: Tue, 21 Dec 2004 13:44:14 +0530 Subject: [Commons-Law] Transcripts of parliament proceedings on the Patents Amendment Message-ID: <04b001c4e735$0f424220$0e00a8c0@lawyers> Pasted below are the Uncorrected Lok Sabha debates (not for publication) transcripts of the proceedings in the House when the issue of the Patents Amendment was raised by PC Thomas on 20 December 2004. MR. SPEAKER : We appreciate your feelings. Shri P.C. Thomas to speak now. SHRI P.C. THOMAS (MUVATTUPUZHA): Sir, India is obliged to bring a law regarding patent products before 1.1.2005. But, so far, no legislation has come forth and no draft has been given and there is no move from the Government side to pass the Bill before this Session is going to end in three-four days. We apprehend that this is going to come as an Ordinance which, of course, will be a very serious matter because this requires a lot of discussion. It has to go to the Standing Committee and it has to go to the public. It has to be discussed in detail. We would also like to suggest very many important things especially the serious matters have to be taken into account to see that the prices of the life-saving drugs should not go very high and they should be accessible and acceptable. MR. SPEAKER : What is your point? … (Interruptions) PROF. VIJAY KUMAR MALHOTRA (SOUTH DELHI): Sir, this is a very important point. MR. SPEAKER : I know it; that is why I allowed it. PROF. VIJAY KUMAR MALHOTRA (SOUTH DELHI): This patent issue is not being discussed in the House. … (Interruptions) MR. SPEAKER : Malhotraji, you are a senior member. I would like him to make his point. Shri Thomas, what is the point you are making? SHRI P.C. THOMAS (MUVATTUPUZHA): Sir, all these matters regarding medicine, agriculture, farmers and software are important. We really apprehend that an Ordinance will be issued without discussion. We have been hearing some Members saying that ‘I am not prepared to support this law; but because it came as an Ordinance, I have no other way’. We have seen it coming from the side of some supporting parties. MR. SPEAKER : Very well, that is the point. … (Interruptions) (w/1240/san-mkg[reporter40] ) SHRI P.C. THOMAS (MUVATTUPUZHA) : So, my submission is that if, at all, the Government intends to bring the law, it should be brought before this Session ends. Secondly, if the Government cannot do that, it must call a Special Session of Parliament immediately so that this must be discussed in detail. It has to go to the Standing Committee and it has also to go to the people for further discussion. … (Interruptions) PROF. VIJAY KUMAR MALHOTRA (SOUTH DELHI): What is the response of the Government? … (Interruptions) MR. SPEAKER: The Government does not have to respond. This is very unfair. … (Interruptions) PROF. VIJAY KUMAR MALHOTRA (SOUTH DELHI): Sir, the whole country will be suffering. … (Interruptions) MR. SPEAKER: There are 35 matters raised and then on 17 matters, you want the Government to respond every time. No, I cannot ask the Government. It is entirely for the Government to respond. I cannot compel them. … (Interruptions) MR. SPEAKER: Shri Santasri Chatterjee. … (Interruptions) MR. SPEAKER: I am not preventing them, but I cannot compel them. You know this very well. … (Interruptions) MR. SPEAKER: Shri Santasri Chatterjee. Nothing else will be recorded. Available at http://164.100.24.208/today/tdailydeb.htm#_msoanchor_40 20-Dec-2004 14:38 Opposition raps govt on patent law amendment Member alleges government intention to bypass Parliament, demands special session to discuss WTO mandate. Opposition members in the Lok Sabha have voiced concern over a possible move by the Government to promulgate an ordinance in order to amend the 1970 Patent Law without taking Parliament into confidence despite it being in session. The amendment is an obligation under WTO. Raising the issue during zero hour, P C Thomas (IFDP) said, though the Government needed to ensure that the WTO obligations are fulfilled in a way that would possibly bring the measure in before the stipulated period of January 1st, 2005, the amendment to the Patent Law would have adverse effects on life-saving drugs and substances produced by chemical processes. Commerce Minister Kamal Nath told members in the Rajya Sabha that in accordance with India's obligations under the Agreement on Trade Related Aspects of Intellectual Property Rights, the Patents Act, 1970, is required to be amended effective from January one, 2005. He said that this was in order to introduce a product patent regime for inventions in the field of food, drug or medicine and substances produced by chemical processes. Thomas, backed by BJP members, alleged that despite the Parliament being in session, the Government had not not brought any bill before the House. He demanded that the Government summon a special session of Parliament to discuss the issue and later refer it to the Standing Committee of Parliament for further deliberation. URL: http://www.moneycontrol.com/backends/News/frontend/news_detail.php?autono=157651 -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041221/8300a69e/attachment.html From aidslaw at bom5.vsnl.net.in Tue Dec 21 15:44:16 2004 From: aidslaw at bom5.vsnl.net.in (lawyers) Date: Tue, 21 Dec 2004 15:44:16 +0530 Subject: [Commons-Law] What changes does our Patent Act need? Message-ID: <055801c4e745$d3fc3f20$0e00a8c0@lawyers> What changes does our Patent Act need? Anand Grover Advocate Bombay High ( Economic Times 201, December 2004) Court India has had to introduce changes in its patent law by January 1, 2005, because of its obligations under the TRIPS agreement. There are basically two types of patents — product and process. The protection of a product patent produces an absolute monopoly, stifles competition and permits high pricing. Process protection, however, allows for more than one producer, competition and restrains prices. That has been the experience of the working of the Indian Patent Act, passed by Parliament in 1970 after much deliberation, and reports of two committees headed by eminent judges. India, as one of the main leaders of developing countries, was able to secure that the TRIPS provides for only the minimum conditions, allowing a large amount of flexibility for the signatories. TRIPS requires that patents be granted for an invention that is new, involves an inventive step and is capable of industrial application. Protection has to be granted both for products and processes, and for a minimum period of 20 years. Compulsory licences can be provided for, but with certain safeguards. We have already, to a large extent, implemented our obligations under TRIPS by amendments introduced in 1995 and 2002. Thus the concept of what is patentable, protection for both product and process patents, the period of protection of 20 years, the provision of the mail-box facility for product patent applications to be opened only after December 31, 2004 and, in the interim period, between January 1, ’95 and January 1, 2005, for the granting of EMRs, and compulsory licences, have already been incorporated with all the necessary safeguards. Thus, to comply with TRIPS now, we will need to make minimal amendments; those will be needed to process product patent applications. However, the NDA Bill, (the UPA government appears to have adopted that Bill despite its commitment in the CMP to use the flexibility in TRIPS ) seeks not only to go beyond what is required under TRIPS, but is detrimental to the Indian pharma industry -- and consumers too. I list some of the main objections to the proposed amendment as follows: New use: Section 3 of the Act provides for what is to be excluded from being patented. At the moment the new use of any product is not patentable. The proposed amendment seeks to exclude what is mere new from being patentable. Apart from the fact that the new use of an old product would be patentable, the use of the word “mere” will only help lawyers and encourage endless litigation. The expression needs to be removed. Pre-grant opposition: As of now, after the patent controller’s examination for patentability, novelty and priority, is published, any member of the public has the right to make objections. The objector is treated as a party and has a right to participate in all the proceedings in the grant of a patent. This procedure is based on the understanding that the public is vitally concerned with the ultimate effect of the grant of a monopoly. Now pre-grant opposition is sought to be done away with, and will be limited only to patentablity and the wrongful furnishing of information. Also, the objection will only be taken on record; the objector will not be considered to be a party. It is vital that pre-grant opposition is preserved in its present form. Compulsory licensing : The procedures provided for are cumbersome and need to be simplified and made liberally applicable, based on a fixed percentage of royalty on the grant of patent, and not after three years. There is, in addition, no need that exports to a LDC with little, or no, manufacturing capacity should require a compulsory licence by the importing country, a LDC. Pertinently, LDCs which are free from complying with TRIPS yet may not have a patent regime. The question of the issue of a compulsory licences will, hence, not arise. This provision does not help the consumer in the LDC or Indian pharma companies. This, like all the provisions which are sought to be introduced that go beyond TRIPS, only helps MNCs; the latter want to block generics from entering countries who desperately need cheap drugs without which, as the AIDS crisis in those countries has so tragically shown, vast numbers of their citizens will die prematurely. This norm too must go. (The author is also Co-ordinator for Affordable Medicines & Treatment Campaign) -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041221/2429dee0/attachment.html From vasumank at yahoo.com Wed Dec 22 07:07:06 2004 From: vasumank at yahoo.com (Vasuman Khandelwal) Date: Tue, 21 Dec 2004 17:37:06 -0800 (PST) Subject: [Commons-Law] Subramania Bharati and Copyright In-Reply-To: Message-ID: <20041222013706.12503.qmail@web50904.mail.yahoo.com> http://www.hindu.com/2004/12/22/stories/2004122200621000.htm Bharati and his copyright By Mira T. Sundara Rajan Many problems affecting Subramania Bharati's works amount to clear violations of the author's moral rights under the Indian copyright law. C. SUBRAMANIA BHARATI died in 1921 at the early age of 39. The copyright in Bharati's works was taken over by the Government of Madras State in 1949, and, after the appearance of some initial publications, given as a gift to the people of India. From this time onwards, anyone in India would be free to undertake publication of Bharati's works. Publishers of Bharati's works would not be required to pay a copyright fee, or to submit their editions to any external process of review, whether administered by the Government, the universities, or other bodies of scholars. The public gift of Bharati's copyright led to an explosion of activity. Publishers saw an extraordinary opportunity, in both commercial and cultural terms. Eighty-three years after his death, Bharati's writings are indeed as readily available "as a matchbox," as the poet once dreamed. However, the publication rush has also led to numerous problems � problems that the Government failed to foresee, and that will now be difficult to remedy. In dealing with Bharati's writings, the Government faced a classic copyright dilemma. On the one hand, it wanted to promote the widest possible access to, and dissemination of, these important works. On the other hand, it could not sidestep the challenge of protecting the integrity of these works, and the stature of the personality behind them. In Bharati's case, the most effective approach to copyright in relation to culturally-important works may actually involve the joint pursuit of objectives that are often thought of as contradictory in copyright parlance: attempting to fulfil simultaneously the goals of dissemination and integrity. These two fundamental objectives of copyright policy should be recognised as interdependent and complementary means of furthering the cause of Indian culture. Over the past 75 years, numerous editions of Bharati's poetry have appeared. His works have been translated extensively, and both he, as a "character," and his works have been featured in a number of films. However, the expansion of public access to Bharati's works has been matched by a decline in the quality of publication, from both technical and critical points of view. The problems that have accumulated over the years in the publication of Bharati's works include careless printing that incorporates both typographical and interpretative errors into the final texts; false attribution of the works of other poets to Bharati; inaccurate and inappropriate translations; misleading representations of the poet's personality; and erroneous statements about his life and works. How can such problems be resolved? It seems natural to turn towards the law, and towards copyright law in particular, for guidance. Copyright in India is governed by the Indian Copyright Act of 1957. If Bharati's copyright had been allowed to run its course unimpeded under Indian legislation of the time � the landmark British colonial statute of 1911 � it would have expired in 1971, 50 years after the end of the year in which the author died. It is noteworthy that this period of copyright protection is well short of the accepted international norm today, lifetime of the author and 70 years after his death, as well as being shorter than today's Indian norm of life plus 60 years. By making the copyright public, the Government of India further curtailed the enjoyment of the usual period of copyright protection. It is important to be aware that the policy behind protecting copyright after the author's death is to ensure that his family is able to survive and, indeed, to enjoy the economic benefit of its ancestor's success. The Bharati family was never in a position to do so. However, the expiry of copyright � not natural in this case but brought about by the conscious actions of the Indian Government � does not dispose of copyright matters in the poet's work. This is because copyright is not limited to the economic rights of the author. Rather, it includes something called a "moral right": the author may have sold his copyright, but he continues to retain other kinds of right in his work, including the right to be acknowledged as the author of his own work, and the right to restrain the mistreatment of his work. These rights seek to protect the author's personal relationship with his own work, and in doing so, they play a valuable role in protecting the integrity of important works of culture that make up a country's cultural heritage. Just as moral rights continue to stay with the author even after he has parted with the economic rights in his work, they continue to subsist in his work even after the author's death. The author can appoint someone to be the executor of his moral rights after his death; if he does not do so, his heirs will be entrusted with the protection of his moral rights. In theory, moral rights can last forever. In India, moral rights are protected in Section 57 of the Indian Copyright Act, and, in keeping with the theory behind these rights, they continue to remain in the author's works in perpetuity. The protection of moral rights in the Copyright Act is strongly supported by Indian judges, who view these rights as an important tool in the protection of Indian authors against unscrupulous commercial exploitation of their works, and in the preservation of India's cultural heritage. Many of the problems affecting Bharati's works amount to clear violations of the author's moral rights under the Indian copyright law. What are the implications of moral rights for protecting his works today? The expression, "moral rights," is itself a somewhat awkward translation into English of the original term in French law, droit moral. The connotations of this French expression are quite different from its English equivalent, evoking, rights of a "personal or spiritual" nature, above all. The two main types of moral rights are the rights of attribution and integrity. The right of attribution allows an author to assert authorship of his work, and to prevent another person from claiming authorship of his work. In addition, an author may prevent the attribution of works to him which he did not create. The right of integrity allows the author to protest any distortion, mutilation, modification, or other treatment of his work which is, in the language of the Berne Convention, "prejudicial to his honour or reputation." In contrast to the highly specific right of attribution, the right of integrity is a broad right which allows authors to object to a wide range of practices � including editing, publishing, performance, and possibly exhibition � which may not be compatible with the intentions of the author. The Indian Copyright Act currently provides protection for authors' moral rights in conformity with the international standard established in the Berne Convention. Many of the problems involving Bharati's works may effectively amount to violations of the author's moral rights. The false attribution of the works of other authors to Bharati contravenes his right of attribution. Faulty printing is a modification of his work that could prejudice his reputation, depending on the nature and extent of the errors, and violates his right to the integrity of his work. In addition, the issue of appropriation of Bharati's personality is one that arises frequently in practice and must be considered. Arguably, it is logical for moral rights standards to include some kind of protection for an author's personality, since the moral rights doctrine is itself based on the idea that the author's personality is reflected in his works. The protections offered by moral rights clearly implicate a number of legal concepts outside copyright's traditional reach � for example, the laws of privacy and misappropriation of personality come to mind. Misrepresentation of an author's personality may have an impact not only on how his work is received, but also on how it is interpreted and understood. Notwithstanding these pragmatic concerns, a strong case can be made for extending perpetual protection to Bharati's moral rights, as would have been possible prior to the 1994 amendments to the Copyright Act. Because Bharati's works entered the public domain only three decades after his death, protection of his copyright was actually curtailed long before the time when it would have expired "naturally" � that is, in accordance with statutory provisions. In effect, these immortal and incomparable works were denied even the level of copyright protection granted to ordinary works. Moreover, given that interest in the works of important authors often develops long after their death, it seems unnecessarily restrictive to limit the protection of their moral rights to the duration of their economic rights. In the case of cultural works of outstanding importance, the perpetual protection of moral rights would provide a valuable means of supervising the treatment of these works to ensure that their integrity is maintained on an ongoing basis. In Bharati's case, his works are not only outstanding examples of literature, but they are also historical and social documents of great value. (The author holds a D. Phil from Oxford, and is a leading international expert on copyright law. She is a great-granddaughter of poet C. Subramania Bharati. An uncondensed version of this essay can be obtained by writing to v_bharati at hotmail.com) --------------------------------- Do you Yahoo!? Yahoo! Mail - Find what you need with new enhanced search. Learn more. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041221/6e7dc246/attachment.html From Jane.Anderson at aiatsis.gov.au Wed Dec 22 12:04:07 2004 From: Jane.Anderson at aiatsis.gov.au (Jane Anderson) Date: Wed, 22 Dec 2004 17:34:07 +1100 Subject: [Commons-Law] Re: commons-law Digest, Vol 17, Issue 23 (Away from mail Jan-May 2005) Message-ID: I will be in Washington from January to May 2005. I will check my emails occassionally. However if there are any urgent matters please contact either Katharine Oliver or the Director of Research Dr Peter Veth . From kat at nls.ac.in Wed Dec 22 13:15:17 2004 From: kat at nls.ac.in (kat at nls.ac.in) Date: Wed, 22 Dec 2004 13:15:17 +0530 (IST) Subject: [Commons-Law] Bharati's Works In-Reply-To: <20041222063011.A6AB0291196@mail.sarai.net> References: <20041222063011.A6AB0291196@mail.sarai.net> Message-ID: <34508.202.54.87.179.1103701517.squirrel@202.54.87.179> Thanks Vasuman Should anyone be interested in the copyright aspects on Bharati's works, See, Mira T Sundara Rajan, Copyright Matters in the Works of Indian National Poet C Subramania Bharati, 2001 Sing. J. Legal Stud. 161. Further, one of the reasons South-Indian Classical Music is as rich as it is today is because performers have always stood on the "shoulders of giants" like the musical trinity of Saint Thiagaraja, Dikshitar and Shyamashastri, to name a few. The fact that they are free to publicly perform these songs, has resulted in a great amount of creativity without the threat of an IP regime burdening them. However, does anybody know whether the Raags(Ragas) (a combination of seven notes) can be the subject matter of copyright? Are their instances of people exerting such rights? Best, Karthik Ashwin Thiagarajan From kat at nls.ac.in Wed Dec 22 13:44:00 2004 From: kat at nls.ac.in (kat at nls.ac.in) Date: Wed, 22 Dec 2004 13:44:00 +0530 (IST) Subject: [Commons-Law] The MMS Case as an excuse for the DMCA In-Reply-To: <20041222063011.A6AB0291196@mail.sarai.net> References: <20041222063011.A6AB0291196@mail.sarai.net> Message-ID: <38303.202.54.87.179.1103703240.squirrel@202.54.87.179> India plans US model cyber law AKSHAYA MUKUL [http://economictimes.indiatimes.com/articleshow/967428.cms] TIMES NEWS NETWORK[ WEDNESDAY, DECEMBER 22, 2004 10:00:34 AM] NEW DELHI: The MMS porn case has jolted the authorities to move to remove the ambiguities in the existing cyber laws. In the wake of arrest of baazee.com CEO allegedly for selling MMS clips involving school children on its website, government is planning a special law for fixing the responsibility of the provider of online services or network access or operator of these facilities in such situations. Based on the Digital Millennium Copyright Act of US, the new law would make a online service provider liable for putting out copyright infringing material on the web. At the same time, every service provider would have to put in place a "responsible person" who could be pointsman to deal with cases of copyright infringing material being posted on the web. Explaining the rationale for such a law, a senior government official said, "In the MMS case the objectionable clip was put on the website by someone who had access to it and not necessarily the person behind it. It was an infringement of the copyright. Moreover, despite the incident becoming a public knowledge the clip was not removed." The new law, he says, would put a set of standard procedures for the service providers to be followed in course of their various functions. "Copyright infringement can be anything ranging from an academic work to a porn clip. As long as persons responsible for their work do not give consent it is infringement. Even in US the law came as late as 1998. With MMS incident it has become a must" he says. According to the official, the proposed law would also limit the liability of a service provider in case it has followed the procedures. Like the US law, the new Indian law would deal with four categories of functions by a service provider: transitory communications, system caching, storage of information on systems or networks and information location tools. In case of transitory communication, a service provider would have no liability if it has met the following conditions. Transmission must be initiated by a person other than the provider; transmission, routing, provision of connection, or copying be done by automatic technical process without selection of material by the service provider; the service provider must not determine the recipients of the material; the material must be transmitted with no modification to its content. With regard to system cacheing (i.e making copy for later use) a service provider would have no liability if it does not have actual knowledge of the infringement, is not aware of facts or circumstances of an apparent infringing activity and after becoming aware of such an infringement has responded immediately by taking down the material or blocking access to it. A set of procedures and would be in place which includes a notice from the copyright owner to the service provider's "pointsman" to pull down the infringing material, failing which action could follow. Service providers would have to adhere to a set of procedures in case it wants to limit its liability about hyperlinks, online directories and search engines on its site. The content of the retained material must not be modified, provider must limit users access to the material in accordance with conditions on access imposed by the copyright owner. From anand at sarai.net Wed Dec 22 15:03:27 2004 From: anand at sarai.net (Anand V. Taneja) Date: Wed, 22 Dec 2004 10:33:27 +0100 (CET) Subject: [Commons-Law] a historical understanding of 'property' in india? Message-ID: <1734.221.134.49.208.1103708007.squirrel@mail.sarai.net> dear all, leading up to the IP conference early in January, Jeebesh wanted to get a student of history involved, to prepare a bibliography of published articles in historical journals, and thus to chart out the evolution of property forms in India. Since early December, Anish Vanaik, a masters student of modern history at JNU has been going through the journals at the Nehru Memorial Library (Teen Murti) and at JNU. here are his initial impressions, after a couple of weeks of work - ... I just wanted to run some of my impressions by you. I've > kept in mind ranajit guha's work as a broad guideline. Now the thing > about that is that, like the original debate about the permanent > settlement, there is a trend of writing which emphasises the fact that > British policy in the constitution of property and the property > relations that emerged in the country side were a result of power > contestations and experience-based formulation/implementation rather > than derived from a pre-existing set of notions. So, apart from essays > that talk about the formulation in law of regimes of property, I've > looked at essays that are also dealing with actual relations in the > countryside as emerging out of these kinds of interactions that have > not so much to do with notions of property in collision as much as > winners and losers over a period in which property relations are > changing. Now some of the essays that talk about these processes will > be only partially talking about the questions that might > seem pertinent. Also, these might be tending towards the direction of > the outlines of agrarian history of India which can get sort of > specialised at times. This is also true of much of the work that deals > with the nature and effects of tenancy legislation and the systems of > tenure that are in place. So what would you want vis a vis some of > these essays The second thing is that overwhelmingly the stuff > i've come across relates to agrarian contexts. I've found some stuff > on forests, almost nothing on ports or castal areas or rivers, or > mines. Even the stuff on forests is absent till quite recently. Again, > i've found nothing on discourses about protection of heritage or the > processes of setting up state property except, e.g., as relates to > labour in the setting up of the railways. Again, these might be > emphases that are emerging in more recent writings that, at least in > the IESHR, i haven't got to so far. Apart from agrarian histories, > there are some essays that are dealing with questions of the setting > up of legal and juridical frameworks. For instance, essays about the > question of inheritance in islamic law, or the share of daughters in > property etc. These are obviously important in terms of talking about > the emergence of a regime of rights and enforceability of these but > often would obliquely deal with the issue of property. Finally, most > of the stuff is about India, a disproportionate amount is about > Bengal. I've found very little about Sri Lanka or Nepal or other > regions, so a South Asia perspective is not really on. I've tried to > incorporate essays that are talking about property regimes in other > regions than Bengal. This, sometimes might also tend int he direction > of increasing the amount of investment of time in the agrarian history > of India. So this question of detail is one that I keep coming up > against. here is an initial response from me, which i am also posting on the list to elict responses and comments - Perhaps, where the scholars have failed us, we could think and approach manners tangentially A perhaps not very illustrative example. Iqtidar Alam Khan (or was it A. Jan Qaisar?) had written an article on the use of gun powder and handguns by the peasantry of sixteenth and seventeenth century Malwa. The basic thrust of the argument was that the specific use of firearms in this particular province meant that the coercive powers of the Mughal armoured cavalry was highly ineffective in this province as far as tax collection went. Now why was this? What were the particular historical factors and ideological(?) beliefs in property and its appropriation that led the peasantry of Malwa to carry firearms and not, say Uttar Pradesh? I know that still limits us to agricultural property, but the Mughal system of property beliefs has other interesting ideas. Normatively, in the Mughal regime, a mansabdar did not actually own anything. His income was based on the zat and sawar ranks bestowed by the emperor. At death, all property reverted to the emperor, and the mansabdar’s heirs did not inherit. They had to join imperial service at an entry level rank. How is this idea subverted and rebelled against? And how does this approach change with changing property relations in eighteenth and nineteenth century India? I think perhaps you need to look in directions that haven’t been looked at before, at least not with the focus on property. The change of perceptions of property, the boom in the economy, the breakdown of a centralised, non-property holding bureaucracy, and the rapid colonisation of land for agriculture in eighteenth century India. Chris Bailey’s books on rulers, townsmen and bazaars might be good to revisit. (what about the role of property in 1857? I am thinking specifically of loyalty to the small rajas of UP by the peasantry despite the fact that they were also heavy taxers as contrasted to the Brits. What is the fundamental break the British bring to oudh in the 1850s? the figure of the rebellious peasant might give us insights into localised imaginations of property and rights. During 1857, in Delhi, the gujars burnt down Metcalfe House because it enclosed their traditional grazing grounds. After 1857, the village was shifted to Chandrawal as we know it today from the banks of the river. After 1947, and azaadi, apparently they wanted land and claimed freedom fighter benefits because of their historic role in burning English property during the gadar. Nayanjot Lahiri has alluded to this in a recent article, presented at the City One conference. ) I don’t think any work has been done on technology and property relationships either. (but then of course, I haven’t been a student of history for the past three years, so you’ll have to excuse ignorance.) however, work has been done on technological histories. A. Jan Qaisar’s book on ‘The Indian Response to European Technology and Culture’ might have some clues. In some work on the Indian economy and capitalist potentialities, Irfan Habib examples of the rise of the artisan as capitalist entrepreneur – many of these examples have to do with ship building and ports. Perhaps the slim volume on the Economic History of Medieval India (which has separate sections on Mughal and earlier medieval India) might help, at least as far as citations and original sources go. For works on forests, perhaps it would be best to look at some non-scholarly histories of the Chipko movement. There is a definite link, I think, between the coming of the railways, and timber becoming state property, and the rise of the contractors, and the loss of traditional rights. (unless the forest department is a post-Independence creation, which I doubt.) the chipko movement has engaged with these issues, and any well researched lay history should have some material. Also, thinking purely locally, when does the violence of state acquisition of property get sanction? I think the violence of state appropriation of property only begins after 1857 in Delhi, when the British first clear a ‘field of fire’ around the Red Fort, and the coming of the railway into the Old city in 1862, also for strategic and military purposes, also accompanied by a great deal of dispossession. I don’t think this appropriation of civil property (non military, non royal) for administrative necessity (as contrasted to conqueror’s loot) had been imagined before. Another aspect you could look at is the assumption of quasi property rights by subaltern service providers in urban settings. I am thinking of the way a friend of mine had to deal with two dhobis recently in Noida, one of who claimed that he should get the clothes to iron as this was his ‘ilaaka’, whereas the other claimed kinship ties, as his brother had been the dhobi for my friend earlier. I doubt any work has been done on this by historians, but perhaps in journals of sociology? (or Partha Chaterjee on patron-client relationships in the premature Metropolis?) What about the role of pagdi transactions in land deals, and the rights they confer? In our work in PPHP, Bhrigu, and later I, have come across the phenomenon of goondagardi, and the right to sell tickets in black for particualt cinema halls being vested in certain ‘dadas’. Bhrigu has asked indicative questions, and I have a slightly more fleshed out history of goondagardi in one cinema hall , Imperial cinema, which I am writing right now as part of a larger paper on cinema in the city. However, neither of them has any definitive answers or accounts as of yet, but the work would pose interesting questions. Also, how the change in land use patterns and ticket pricing regulations by the MCD, along with the repeal of the Urban Land Ceiling Act has led to the growth of a completely new form of leisure, and of property – the mall-multiplex culture. Cheers, Anand -- The Sarai Programme http://www.sarai.net/ Weblog http://synchroni-cities.blogspot.com/ From tahir.amin at btopenworld.com Thu Dec 23 12:18:56 2004 From: tahir.amin at btopenworld.com (TAHIR AMIN) Date: Thu, 23 Dec 2004 06:48:56 +0000 (GMT) Subject: [Commons-Law] Sicko - new Michael Moore Film Message-ID: <20041223064856.52778.qmail@web86105.mail.ukl.yahoo.com> Coming next from Michael Moore: Sicko, the film Gary Younge in New York Thursday December 23, 2004 The Guardian He doesn't do undercover. And he is not someone who easily melts into the background. But when an industry thinks it is about to become the latest target of the film maker Michael Moore, precautions have to be taken. According to the Los Angeles Times, at least six of America's largest pharmaceutical firms have issued internal notices to their workforces warning them to be on the lookout for "a scruffy guy in a baseball cap" who asks too many questions. Rotund and amiable he may seem, but this could be Moore, digging for dirt for his new movie, provisionally entitled Sicko. Having watched the Bush administration and the gun lobby come a cropper in Moore's last two works, the pharma giants are not taking any risks. "We ran a story in our online newspaper saying Moore is embarking on a documentary - and if you see a scruffy guy in a baseball cap, you'll know who it is," Stephen Lederer, a spokesman for Pfizer Global Research and Development, told the LA Times. Five other big companies have told employees that any approach by Moore should be rebuffed and referred to the company's corporate communications department. "Moore's past work has been marked by negativity, so we can only assume it won't be a fair and balanced portrayal," said Rachel Bloom, executive director of corporate communications at AstraZeneca, which is based in Delaware. "His movies resemble docudramas more than documentaries." The US pharmaceutical industry has been criticised in recent months for being undercut by cheaper Canadian equivalents. Some well-known drugs have been taken off the market after they were shown to have serious side effects. "We have an image problem - not only with Michael Moore, but with the general public," said MJ Fingland, senior director of communications for the lobbying group Pharmaceutical Research and Manufacturers of America. Rumours are already swirling within an industry that is becoming paranoid about Moore's movie-making tactics. Moore, it is said, has hired actors to portray pharmaceutical salesmen who offer gifts to doctors who promote their products. There is also word that he has offered physicians $50,000 (nearly £26,000) apiece to install secret cameras in their offices in an effort to document alleged corruption. Ms Bloom said Moore had been spotted at all six of her business centres nationwide. "Michael Moore is becoming an urban legend." --------------------------------- ALL-NEW Yahoo! Messenger - all new features - even more fun! -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041223/21d1ffe3/attachment.html From aidslaw at bom5.vsnl.net.in Thu Dec 23 13:04:25 2004 From: aidslaw at bom5.vsnl.net.in (lawyers) Date: Thu, 23 Dec 2004 13:04:25 +0530 Subject: [Commons-Law] Letter to Sonia Gandhi on Patent Ordinance Message-ID: <008901c4e8c1$d4138e00$0e00a8c0@lawyers> 20 December 2004 By Facsimile Kind Attn: Ms. Sonia Gandhi To Sonia Gandhi Chairperson, UPA 10, Janpath New Delhi 110 001 Dear Ms Gandhi Sub: Ordinance to Amend of Patents Act 1970 I am writing this letter on behalf of Affordable Medicines and Treatment Campaign (AMTC). AMTC is a national campaign aimed at creating an environment that will ensure sustained accessibility and affordability of medicines and treatment for every individual in India, including access to affordable Anti-retroviral Therapy for persons living with HIV/AIDS. It consists of civil society organisations, NGOs, patients groups, healthcare providers and concerned individuals. Through this letter, AMTC would like to bring certain serious concerns on the process as well as content of the third amendment of the Patents Act to your notice. As you are aware that the amendment process of Patents Act was initiated by the previous NDA Government. A Bill was introduced to this effect in the 13th Lok Sabha in December 2003. However, the bill lapsed due to the dissolution of Lok Sabha. Public interest groups and individuals raised their objections on the Bill from the very beginning and requested the new UPA government to redraft the Bill. In response to these demands, the UPA government appointed a Group of Ministers (GoM) to examine the contentious issues in the Bill. However, the GoM, without inviting any comments from any stake holders, decided to retain the old bill without any substantial change. The only change the GoM agreed is to retain the pre-grant opposition with certain conditions. Further, recommendations of the GoM should have been made public to create a debate on this issue. Instead of doing this, the government went ahead with finalising the provisions of the Bill. Till date, the public is not aware of the exact content of the Bill, which is going to have direct impact on their enjoyment of right to health. As per our information, the Bill in its present form seriously compromises the accessibility and availability of medicines, a primary component of right to health. Introduction of the product patent is the only obligation under TRIPS to be carried out by India. However, the draft bill goes beyond the TRIPS obligation and strengthens patent monopoly without properly placing any safeguards against abuse of patents. Please find enclosed specific objections to the draft bill. Moreover, we have learned from news reports that the government is bringing an ordinance to amend the Patent Act by converting the draft bill into an ordinance. The conversion of draft bill into ordinance is unwarranted and flawed strategy to comply with TRIPS because many provisions in the draft Bill goes beyond TRIPS obligations. Moreover, the ordinance route of amendment without any discussion is fall short of transparency requirement of any democratic government. We feel that the deadline of introduction of patents should not be used as a justification for bypassing public debate on this issue, where right to health of millions are at stake. A few months delay in the introduction of product patent is not going to create any consequence to India. We would like to remind you the promise made in the Common Minimum Programme "to take all steps to ensure availability of life savings drugs at reasonable prices". Hence we seek your intervention as chairperson of United Progressive Alliance to prevent the government from introducing an ordinance to amend the Patent Act. Hope to hear from you soon in this regard. Thanking you Anand Grover Director, Lawyers Collective HIV/AIDS Unit For AMTC. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041223/4e26a1ff/attachment.html From shamnadbasheer at yahoo.co.in Thu Dec 23 19:55:45 2004 From: shamnadbasheer at yahoo.co.in (Shamnad Basheer) Date: Thu, 23 Dec 2004 14:25:45 +0000 (GMT) Subject: [Commons-Law] Re: antitrust ruling forces scaled back version of Windows in Europe (without media player) In-Reply-To: <1734.221.134.49.208.1103708007.squirrel@mail.sarai.net> Message-ID: <20041223142545.20608.qmail@web8406.mail.in.yahoo.com> http://news.zdnet.com/2100-3513_22-5501485.html?tag=zdnn.alert shamnad ________________________________________________________________________ Yahoo! India Matrimony: Find your life partner online Go to: http://yahoo.shaadi.com/india-matrimony From shuddha at sarai.net Thu Dec 23 19:58:26 2004 From: shuddha at sarai.net (Shuddhabrata Sengupta) Date: Thu, 23 Dec 2004 19:58:26 +0530 Subject: [Commons-Law] Lysander Spooner on Intellectual Property Message-ID: <41CAD60A.1000406@sarai.net> Dear All, Recently came across a text by a nineteenth century legal scholar, abolitionist and libertarian (the jury is out on whether of the left or of the right !) who (rumour has it, and I am sure that I am wrong on this one, but would like to make sure that I am) is apparently the first person to use the expression 'Intellectual Property' (with the property after the intellectual). He seems to have been an interesting character, and I would be happy to know more about him - anyway, here is a link to his 'defence' of the idea of "Intellectual Property" , written in 1855 INTELLECTUAL PROPERTY; OR, AN ESSAY ON THE RIGHT OF AUTHORS AND INVENTORS TO A PERPETUAL PROPERTY IN THEIR IDEAS. by Lysander Spooner http://www.lysanderspooner.org/bib_new.htm cheers Shuddha -- Shuddhabrata Sengupta (Raqs Media Collective) The Sarai Programme Centre for the Study of Developing Societies (CSDS) 29 Rajpur Road, Delhi 110054, India Phone : + 91 11 23960040 Fax : + 91 11 23943450 E Mail : shuddha at sarai.net http://www.sarai.net http://www.raqsmediacollective.net From patrice at xs4all.nl Thu Dec 23 23:24:41 2004 From: patrice at xs4all.nl (patrice at xs4all.nl) Date: Thu, 23 Dec 2004 18:54:41 +0100 (CET) Subject: [Commons-Law] Lysander Spooner and Intellectual Property Law Message-ID: <4958.62.57.227.144.1103824481.squirrel@62.57.227.144> Lysander Spooner might be the first, but is surely not the last and only American to hold somewhat 'fundamentalist' ideas about 'intellectual property'. I had a quick flip thru the site and the article quotted and it would appear to me that the validity of his argument basically boils down to the degree of sacro-sanctedness one is inclined to give to property sui generis, and to its duration (id est in casu ad aeternitatem - excuse the Latin) in particular. In which case also the smooth aedequation of material and immaterial ('intellectual') property is absurdly simple to make. So nothing new really, save some respectable antiquation of the cause put forward for 'intellectual' property rights. Apart from the academic excentric (greek sounding name forgotten) who remained largely unknown because he would consider any quotting of his ideas as an infringement of his intellectual property rights, the funniest (?) instance of this line of thought I found in the Jack Valenti's sponsored law proposal to extend the protection of copyrighted work to "eternity minus one day". cheers from Barcelona, patricio y los Dinosaures! > Dear All, > > Recently came across a text by a nineteenth century legal scholar, > abolitionist and libertarian (the jury is out on whether of the left or > of the right !) who (rumour has it, and I am sure that I am wrong on > this one, but would like to make sure that I am) is apparently the first > person to use the expression 'Intellectual Property' (with the property > after the intellectual). He seems to have been an interesting character, > and I would be happy to know more about him - anyway, here is a link to > his 'defence' of the idea of "Intellectual Property" , written in 1855 > > INTELLECTUAL PROPERTY; OR, AN ESSAY ON THE RIGHT OF AUTHORS AND > INVENTORS TO A PERPETUAL PROPERTY IN THEIR IDEAS. > by Lysander Spooner > http://www.lysanderspooner.org/bib_new.htm > > cheers > > Shuddha > > From mrinalinikpillai at gmail.com Fri Dec 24 10:29:48 2004 From: mrinalinikpillai at gmail.com (Mrinalini Kochupillai) Date: Fri, 24 Dec 2004 10:29:48 +0530 Subject: [Commons-Law] Performer's Right and Recording query Message-ID: If Ustad xyz (Ghazal singer) were to perform in my house and I were to record his performance (with him knowing that I am recording but without express consent), can I later sell copies of the recording ? Do I have to pay a royalty to Ustad xyz? What if Ustad xyz dies – can I then sell copies of the recording made by me? What if he has an heir (son) who is now managing xyz's record sales – do I need to give the heir a royalty before I can sell copies of the recording done by me at my house? From sudhir at circuit.sarai.net Fri Dec 24 11:34:34 2004 From: sudhir at circuit.sarai.net (sudhir at circuit.sarai.net) Date: Fri, 24 Dec 2004 07:04:34 +0100 (CET) Subject: [Commons-Law] Updating the GPL Message-ID: <1878.202.142.101.34.1103868274.squirrel@mail.sarai.net> Sprucing up open source's GPL foundation By Stephen Shankland URL: http://news.zdnet.com/2100-3513_22-5501561.html Modernization is coming to the General Public License, a legal framework that supports a large part of the free and open-source software movements and that has received sharp criticism from Microsoft Chairman Bill Gates. GPL author Richard Stallman said he's working on amendments that could deal better with software patents; clarify how GPL software may be used in some networked environments and on carefully controlled hardware; and lower some barriers that today prevent the mixing of software covered by the GPL and other licenses. In the 13 years since the current GPL version 2 was released, the license has moved from the fringes to the center of the computing industry. GPL software is now common at Fortune 500 companies and endorsed by most large computing firms. But that prominence has made some eager for an update. News.context What's new: The General Public License, the legal foundation for free and open-source software movements' collaborative philosophy, is being modernized to deal with new realities in the software realm. Bottom line: Observers believe the GPL could be improved to better deal with a world that involves patent lawsuits, locked-down hardware and publicly available Web services--all items on the GPL agenda. More stories about the GPL and other licenses "The GPL has become the pivot point of a multibillion-dollar industry. Frankly, I don't think it was designed for that," said Mark Radcliffe, an attorney with Gray Cary who has studied the GPL and other licenses extensively. For example, some would like to see clarifications that could help reduce the threat that using GPL software could entangle users in patent litigation. And the GPL could be better adapted to recent industry initiatives such as building sophisticated Web services on the Internet and boosting security through trusted computing methods. Ordinarily only attorneys give much thought to the legal documents that govern how software may be used. But the GPL is different. The license is the agreement that helped show that cooperation can work in an industry dominated by competition. And the most persuasive illustration of its power is Linux, a rising threat to computing giants such as Microsoft and Sun Microsystems. The GPL governs the programming instructions called source code that developers write and then convert into the binary files that computers understand. At its heart, the GPL permits anyone to see, modify and redistribute that source code, as long as they make changes available publicly and license them under the GPL. That contrasts with some licenses used in open-source projects that permit source code to be made proprietary. Another requirement is that GPL software may be tightly integrated only with other software that also is governed by the GPL. That provision helps to create a growing pool of GPL software, but it's also spurred some to label the license "viral," raising the specter that the inadvertent or surreptitious inclusion of GPL code in a proprietary product would require the release of all source code under the GPL. Gates in particular derided the license as "Pac Man-like," evoking an image of a GPL software module gobbling its way along and forcing the release of source code it touches. Thus far, that scenario hasn't come to pass. The GPL, though, has threatened Microsoft in another way: It helped foster a vast, vibrant programming community. Microsoft is keenly watching the arrival of the new GPL, which Stallman said likely will be labeled version 3. But the company probably won't see changes to that core provision separating GPL and proprietary code. "Overall it's going to be the same," the globe-trotting Stallman said in a telephone interview from Morocco. "I don't expect anyone releasing software under the GPL to be unhappy with the changes." Changes aren't going to happen anytime soon, though. "We're nowhere near ready to have anything to show people anything yet. We know what we'd like to do, but how to do it is not clear," Stallman said. Only when he's good and ready will he begin seeking comments on a draft. Richard Stallman Stallman wrote the GPL in the 1980s as part of his Gnu's Not Unix, or GNU, project to create a clone of the operating system unfettered by Unix's proprietary constraints--thus the term "free software" and the Free Software Foundation that Stallman established to promote it. According to Freshmeat, which calls itself "the Web's largest index of Unix and cross-platform software," there are more than 19,000 GPL-covered software projects, and the GPL governs 68 percent of projects in the Freshmeat index. The most prominent GPL project is Linux, the kernel of an operating system that will underlie a $35.7 billion business in 2008, according to a forecast by market researcher IDC. Among others: the MySQL database, the netfilter/iptables protective firewall and the Samba file-sharing software. But programmers have other choices if they're not happy with the GPL. Other licenses cover the Mozilla project, which helped launch the open-source movement in 1998, and the widely used Apache server software. And Sun Microsystems is testing its Community Development and Distribution License, which likely will be used to govern its Solaris version of Unix. The patent problem Patents are one reason Sun chose the license it did. How the GPL deals with that thorny legal area is the issue more than a dozen experts raised most often in discussions for this story. The patent problems boil down to two issues. First, should the license explicitly require those who distribute GPL software to grant others unhindered use of whatever patented technology is involved in that software? And second, should there be some form of punishment for those who file lawsuits alleging that GPL software infringes their patents? These issues are under discussion for the next version of the GPL. "It may possibly help protect our community from pirates armed with patents," said Stallman, an outspoken critic of the overall idea of software patents. One interpretation of the current GPL is that patent holders who distribute GPL software "are in effect granting an implied license" to those patents, said Mark Webbink, the lead intellectual-property attorney for Linux seller Red Hat and a person who first saw revised GPL drafts in 2000. But it might be useful to have an explicitly expressed patent agreement, he said. "A distributor may not want to leave that ambiguous as to what rights they are giving." Frank Bernstein, an attorney with Sughrue Mion, suggests Stallman look for inspiration to Apple Computer's Apple Public Source License and the Common Public License IBM often uses. Both grant a license to use patents covering the software, and when it comes to organizations that sue for patent infringement, both licenses terminate their rights to use and distribute the software. Bernstein said addressing patents could make the GPL more palatable among corporations--users that have become major contributors to, and customers of, open-source software. But some would like to see the GPL be more of a political tool tooverturn the idea of software patents. "We need to find some way to monkey-wrench the awful, broken software-patent oligopoly before it does more serious damage," said Eric Raymond, president of the Open Source Initiative. "If GPL (version) 3 can help do that, it would be extremely valuable." And Bruce Perens, an open-source advocate, would like to see damages for a patent-infringement suit extended to prohibit use not just of the software in question but of all programs classified as free software. "I would like to see the next issue of the GPL include a mutual-defense clause regarding patents, such that if you enforce a patent against any free software, your rights to use free software terminate," Perens said. A middle ground is possible, Linux seller Novell said in a statement. "Intellectual-property protection and open source can work hand in hand and are not mutually inconsistent," the company said. Other changes Stallman listed several other areas where modifications are under way: • The GPL will become more compatible with some other free software licenses that have minor conditions that currently prohibit programmers from intermingling the GPL and non-GPL code. None of those other licenses are very widely used, however, he said. • An area of investigation is getting GPL software to run on devices such as TiVo's digital video recorders, which use a specific version of Linux but won't run modified versions. But prohibitions on modifications violates the spirit of the GPL. "This is not what free software is supposed to be," Stallman said. • The next version likely will have a mechanism for dealing with GPL software that has been modified and that runs on publicly accessible computers. Today, a programmer who wanted his or her GPL software to run in this public fashion could insert a programming command that would let the public download a version of the software if it's been modified. However, with the current GPL, the organization running the software could simply remove that section of the code. Stallman is considering a provision that would prohibit its removal. "If the program has such a command already, and you modify the program, you must keep that working," he said. Stallman isn't the only one looking for improvements. Martin Fink, vice president of Linux at Hewlett-Packard, has been grappling with some thorny GPL issues. One problem he foresees--related to the TiVo issue Stallman raises--is integration with the "trusted computing" technology under development. Trusted computing Among other things, trusted computing is designed to permit execution only of software that has been cryptographically signed--but that signature process could be at odds with the goals of sharing and modification at the heart of the GPL, Fink said. Another specific hitch is that the GPL isn't clear about what exactly "distribution" means, Fink said. How should GPL software be treated that's distributed from a corporation to a subsidiary? Or from one machine to another as the program executes? "We're dealing in a world where a program entity is not confined to a machine. You can have bits and parts of a program that are highly distributed," Fink said, as in the widely embraced Web services concept. Attorney John Ferrell of Carr & Ferrell would like to see a better indication of the use of derivative works--software based on the original GPL product. Is it a derivative work to include a GPL component unmodified as part of a larger software suite? Derivative works, copyrights and other concepts are central to the GPL but those concepts vary by country and state. Radcliffe of Gray Cary would prefer precise definitions that are more absolute. GPL improvements are crucial to the open-source software realm, Fink said. Improvements could help the license become more popular and better understood, which in turn would mean a larger body of GPL software that could be shared among projects. "I'm trying to stop people from creating new licenses," Fink said. "To the extent we can create a license that has a broader buy-in, that stops proliferation of more licenses, that to me is goodness." From avinash at sarai.net Sat Dec 25 14:41:40 2004 From: avinash at sarai.net (avinash kumar) Date: Sat, 25 Dec 2004 14:41:40 +0530 Subject: [Commons-Law] 1847 intellectual property law for the colonies Message-ID: <41CD2ECC.1000101@sarai.net> Here is an interesting bit of info. which might be useful for some of us looking into the history of these debates. Looking through some of these aspects in the context of Hindi during the late colonial period, I found regular refences to it which the Hindi writers found particularly useful. avinash The policies of Britain towards its colonies are instructive. During the nineteenth century British administered a two-tiered international intellectual property system that attempted to address the needs of its colonies. The 1847 Foreign Reprints Act allowed colonies to import the works of British authors without copyright protection, and also allowed legal price discrimination with significantly lower prices for overseas editions. The current tendency towards uniformly strong IP regimes will only be restrained if some of the developed countries similarly use their influence to provide countervailing power to the ‘one size fits all’ pressure group. cited from: Intellectual Property and Economic Development: Lessons from American and European History B. Zorina Khan Department of Economics 9700 College Station Bowdoin College Brunswick Maine USA 04011 and National Bureau of Economic Research From shamnadbasheer at yahoo.co.in Sat Dec 25 13:15:47 2004 From: shamnadbasheer at yahoo.co.in (Shamnad Basheer) Date: Sat, 25 Dec 2004 07:45:47 +0000 (GMT) Subject: [Commons-Law] Great news-India defers patent amendment.. In-Reply-To: <1878.202.142.101.34.1103868274.squirrel@mail.sarai.net> Message-ID: <20041225074547.85845.qmail@web8403.mail.in.yahoo.com> Some fantastic news-though its quite cryptic (and doesnt give us more particulars such as the time frame..does anyone here have any clues??). Merry Christmas to all of you. Shamnad http://www.indiadaily.com/breaking_news/18078.asp India defers decision on changing patent laws Dec. 24, 2004 The Indian government deferred a decision on Friday to make its patent laws compliant with commitments under the World Trade Organisation (WTO) agreement, Commerce Minister Kamal Nath said on Friday. The ruling Congress-led coalition has been under pressure from its powerful communist allies, who want adequate safeguards in the patent laws before changing them to ensure that prices of medicines remain stable. They fear firms holding product patents for life-saving drugs would increase prices once the new laws come into force. India currently has a process patent and not a product patent, which it must implement by Jan. 1, 2005 under WTO commitments. "We discussed various options -- we know our obligations, we discussed meeting them or not meeting them," Nath told reporters after a cabinet meeting. The government was supposed to introduce legislation on changing patent laws in the recent winter session of parliament but could not do so due to differences with its communist allies. ________________________________________________________________________ Yahoo! India Matrimony: Find your life partner online Go to: http://yahoo.shaadi.com/india-matrimony From prashant at nalsartech.org Mon Dec 27 09:39:14 2004 From: prashant at nalsartech.org (Prashant Iyengar) Date: Mon, 27 Dec 2004 09:39:14 +0530 Subject: [Commons-Law] Patents ordinance issued Message-ID: <1104120554.41cf8aeab23a9@www.nalsartech.org> New Delhi, Dec 26 The Centre issued an ordinance on Sunday to bring its patent laws into compliance with commitments under the WTO agreement, commerce minister Kamal Nath told Reuters. Although details of the decree were not available, it signals a breakthrough in patent reform, which had been stalled by political concerns that reforms would result in higher drug prices. The UPA government has been under pressure from its communist allies, who want adequate safeguards in the amended patent laws to ensure that prices of medicines would remain stable. Communist parties and other political parties fear that firms holding product patents for life-saving drugs will increase prices once the new laws come into force. The government had been scheduled to introduce legislation on changing patent laws in the just-concluded winter session of Parliament but could not do so due to differences with its communist allies. Mr Nath did not elaborate but told Reuters that he would hold a news conference on Monday to announce the details. India at present has patents for processes but not for products. It must implement them by January 1, 2005, under WTO commitments. The change in patent laws is aimed at spurring innovative drug companies to switch away from making copycat generic drugs. —Reuters URL: http://www.financialexpress.com/fe_full_story.php?content_id=78058 From prashant at nalsartech.org Mon Dec 27 11:47:54 2004 From: prashant at nalsartech.org (Prashant Iyengar) Date: Mon, 27 Dec 2004 11:47:54 +0530 Subject: [Commons-Law] Patent Ordnance 2004 Message-ID: <1104128274.41cfa91277a5a@www.nalsartech.org> Hi, The Ministry of Law and justice has a pdf copy of the Patent Ordnance but I don't know if this is the right one. http://lawmin.nic.in/Patents%20Amendment%20Ordinance%202004.pdf Section 5 of the Act which conferred process patents on food and drugs has been omitted entirely. Am still going through the text so don't have any detailed comments right now. regards, Prashant From prashant at nalsartech.org Mon Dec 27 11:50:12 2004 From: prashant at nalsartech.org (Prashant Iyengar) Date: Mon, 27 Dec 2004 11:50:12 +0530 Subject: [Commons-Law] Patents ordinance issued Message-ID: <1104128412.41cfa99cef4b1@www.nalsartech.org> Hi, I sent this message earlier but it didn't get through for some reason. Regards. Prashant URL: http://www.financialexpress.com/fe_full_story.php?content_id=78058 New Delhi, Dec 26 The Centre issued an ordinance on Sunday to bring its patent laws into compliance with commitments under the WTO agreement, commerce minister Kamal Nath told Reuters. Although details of the decree were not available, it signals a breakthrough in patent reform, which had been stalled by political concerns that reforms would result in higher drug prices. The UPA government has been under pressure from its communist allies, who want adequate safeguards in the amended patent laws to ensure that prices of medicines would remain stable. Communist parties and other political parties fear that firms holding product patents for life-saving drugs will increase prices once the new laws come into force. The government had been scheduled to introduce legislation on changing patent laws in the just-concluded winter session of Parliament but could not do so due to differences with its communist allies. Mr Nath did not elaborate but told Reuters that he would hold a news conference on Monday to announce the details. India at present has patents for processes but not for products. It must implement them by January 1, 2005, under WTO commitments. The change in patent laws is aimed at spurring innovative drug companies to switch away from making copycat generic drugs. —Reuters ----- End forwarded message ----- From shamnadbasheer at yahoo.co.in Mon Dec 27 12:17:22 2004 From: shamnadbasheer at yahoo.co.in (Shamnad Basheer) Date: Mon, 27 Dec 2004 06:47:22 +0000 (GMT) Subject: [Commons-Law] Patent Ordnance 2004 In-Reply-To: <1104128274.41cfa91277a5a@www.nalsartech.org> Message-ID: <20041227064722.96852.qmail@web8401.mail.in.yahoo.com> Thanks for that Prashant, Also noticed that section 11 dealing with retrospective rights does not apply to pharma mail box applications that were filed prior to 1.1. 2005. (i.e. normally, patentees can claim damages retrospectively from the date of publication of their patent applications-which means that the moment a patent application is advertised (as opposed to a patent being granted), a third party runs the risk of damages if he/she infringes..) If our patent office adopts the EMR strategy (one of which was to delay their examination considerably..), perhaps theres going to a huge time lag before a patent on a new drug issues -till which time, generics can continue to make copies. If reports are correct that we had about 6000 mail box applications, thats a considerable number of potentially patentable inventions, for which this strategy could be adopted... Take care-Shamnad --- Prashant Iyengar wrote: > Hi, > The Ministry of Law and justice has a pdf copy of > the Patent Ordnance but I > don't know if this is the right one. > http://lawmin.nic.in/Patents%20Amendment%20Ordinance%202004.pdf > > Section 5 of the Act which conferred process patents > on food and drugs has been > omitted entirely. Am still going through the text so > don't have any detailed > comments right now. > regards, > Prashant > > > > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > ________________________________________________________________________ Yahoo! India Matrimony: Find your life partner online Go to: http://yahoo.shaadi.com/india-matrimony From sudhir at circuit.sarai.net Mon Dec 27 12:26:28 2004 From: sudhir at circuit.sarai.net (sudhir at circuit.sarai.net) Date: Mon, 27 Dec 2004 07:56:28 +0100 (CET) Subject: [Commons-Law] Patent Ordnance 2004 In-Reply-To: <1104128274.41cfa91277a5a@www.nalsartech.org> References: <1104128274.41cfa91277a5a@www.nalsartech.org> Message-ID: <1435.202.142.101.34.1104130588.squirrel@mail.sarai.net> Dear Prashant Thanks for the quick reference. Just scanned through the ordinance with the AMTC Campaign documents as a checklist: 1. Product patents - in place for pharma and fertiliser as s 5 has been omitted. Though I suspect no one really expected that this would be delayed! 2. New Compulsory License for drug export - new s 92A introduced which is phrased broadly to include drugs, their active ingredients and diagnostic equipments. 3. Existing broad compulsory license grounds have not be tampered with - but the proposals for streamlining the process of grant of compulsory licenses with strict time lines have not been accomodated. 4. Pre-grant opposition process has been modified - but not diminished or done away with. The number of grounds for opposition have been reduced, but the broad phrasing of the new section should catch most possible objections. 5. The non-patentability of computer programmes per se, has been elaborated on to ensure that only software embedded in hardware is protected. Business methods, algorithms and mathematical methods have been left out of patent scope. So, a first reading gives me the sense that this is a reasonable legislative effort. Am sure others may notice something I've missed out on! Best Sudhir > Hi, > The Ministry of Law and justice has a pdf copy of the Patent Ordnance but > I > don't know if this is the right one. > http://lawmin.nic.in/Patents%20Amendment%20Ordinance%202004.pdf > > Section 5 of the Act which conferred process patents on food and drugs has > been > omitted entirely. Am still going through the text so don't have any > detailed > comments right now. > regards, > Prashant > > > > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > From shamnadbasheer at yahoo.co.in Mon Dec 27 13:21:58 2004 From: shamnadbasheer at yahoo.co.in (Shamnad Basheer) Date: Mon, 27 Dec 2004 07:51:58 +0000 (GMT) Subject: [Commons-Law] Patent Ordnance 2004 In-Reply-To: <1435.202.142.101.34.1104130588.squirrel@mail.sarai.net> Message-ID: <20041227075158.11682.qmail@web8401.mail.in.yahoo.com> Dear Sudhir: Thanks for that note. Most of the changes that you point to were already part of the Bill (that was first published at around the same time last year..), including even the provisions dealing with post grant oppositions. The additional changes demanded by AMTC and others went beyond this. The only serious change as I see it (from the earlier version of the bill) is the provision pertaining to retrospective damages re: drug patent applications. And of course the clarification on scope of patentability of computer programmes (which one may again argue is a clarification and doesnt change much..-going by the patents already granted in this field). Some very obvious mistakes werent rectified. For one, AMTC's proposal for amending 92A (to permit exports to countries where there was no corresponding patent) wasnt carried through. Of course, one could argue that a sensible interpretation of this section by a sensible judge (should it come to this) would permit this-then again, theres not much of a loss to anyone in making things clearer, is there? Also, as you rightly note, nothing was done to streamline the CL process and remove procedural bottlenecks-this was one major area for change (where history did teach us some important lessons..most notable a CL application that dragged on till the patent itself expired..) Regards -Shamnad --- sudhir at circuit.sarai.net wrote: > Dear Prashant > > Thanks for the quick reference. Just scanned through > the ordinance with > the AMTC Campaign documents as a checklist: > > 1. Product patents - in place for pharma and > fertiliser as s 5 has been > omitted. Though I suspect no one really expected > that this would be > delayed! > > 2. New Compulsory License for drug export - new s > 92A introduced which is > phrased broadly to include drugs, their active > ingredients and diagnostic > equipments. > > 3. Existing broad compulsory license grounds have > not be tampered with - > but the proposals for streamlining the process of > grant of compulsory > licenses with strict time lines have not been > accomodated. > > 4. Pre-grant opposition process has been modified - > but not diminished or > done away with. The number of grounds for opposition > have been reduced, > but the broad phrasing of the new section should > catch most possible > objections. > > 5. The non-patentability of computer programmes per > se, has been > elaborated on to ensure that only software embedded > in hardware is > protected. Business methods, algorithms and > mathematical methods have been > left out of patent scope. > > So, a first reading gives me the sense that this is > a reasonable > legislative effort. Am sure others may notice > something I've missed out > on! > > Best > Sudhir > > > ________________________________________________________________________ Yahoo! India Matrimony: Find your life partner online Go to: http://yahoo.shaadi.com/india-matrimony From prashant at nalsartech.org Mon Dec 27 13:53:19 2004 From: prashant at nalsartech.org (Prashant Iyengar) Date: Mon, 27 Dec 2004 13:53:19 +0530 Subject: [Commons-Law] Omissions from the Patent Act Message-ID: <1104135799.41cfc677b2a00@www.nalsartech.org> Hi Sudhir and Shamnad, I agree with Sudhir that, it appears to be reasonably drafted. I'm remain very sceptical about product patent protection for medicines and food, though. As regards EMRs, I think this was expected from the media reports in the last 2-3 weeks atleast. I'm interested in hearing other people's views on this. I'm including a table of omissions from the Act - a small effort in carrying this discussion forward. Personal impressions at bottom. Omissions: 1) Clause 2(1)(g) - definition of "food" 2) Clause 2(1)(l) - definition of "medicine" 3) Clause 3(k) has been substituted with two clauses (computer programs and business methods" 4)Section 5 - Process patents for food/medicines/chemical processes 5) Subsection 18(4) - "Insertion of reference to another complete specification" 6) Sections 22-24 - Acceptance and Publication of complete specification 7) Chapter IV A - Exclusive Marketing Rights 8) Section 27 - Power of Controller to refuse to grant patent otherwise than on an opposition proceedings 9) Subsection 28(5) - Request to be mentioned as inventor) 10)Provisio to Section 48 (Rights of patentees - "Provided that the product obtained is not a product in respect of which no patent shall be granted under this Act" 11) Subsection 53(3) - Extension of term for payment of renewal fee 12) Clause 116(2)(c) - Qualifications for a member of the Appellate board (Advocating having practiced for at least 10 years) 13) Sub-Clause 126(1)(c)(i) - qualification for patent agents (requirement of being an Advocate done away with) 14) Section 152 - Transmissions of All copies of specifications to be open to public view I think the various provisions of this Act put together, take a heavy toll on the public domain. Specifically, the following : 1) Sections dealing with the Publication of Complete specifications have been done away with. This makes one of the grounds of opposing the patent application - incomplete filing of specifications - virtually redundant. 2) In Section 11 A - Insertion of new situattions where Secrecy of the application will be maintained. The list now includes situations where the application has been abandoned. 3)Section 68 of the Act deals with Assignment of rights. Earlier, this was required to be registered and a copy had to be submitted to the Controller. This requirement has been done away with which makes it difficult to know exactly in whose ownership of a patent lies. 4) Last but not least - Omission of Section 152 which provided that copies of all specificatins, drawings etc were to be open to public inspection. This one is big, imho. Regards, Prashant Quoting sudhir at circuit.sarai.net: > Dear Prashant > > Thanks for the quick reference. Just scanned through the ordinance with > the AMTC Campaign documents as a checklist: > > 1. Product patents - in place for pharma and fertiliser as s 5 has been > omitted. Though I suspect no one really expected that this would be > delayed! > > 2. New Compulsory License for drug export - new s 92A introduced which is > phrased broadly to include drugs, their active ingredients and diagnostic > equipments. > > 3. Existing broad compulsory license grounds have not be tampered with - > but the proposals for streamlining the process of grant of compulsory > licenses with strict time lines have not been accomodated. > > 4. Pre-grant opposition process has been modified - but not diminished or > done away with. The number of grounds for opposition have been reduced, > but the broad phrasing of the new section should catch most possible > objections. > > 5. The non-patentability of computer programmes per se, has been > elaborated on to ensure that only software embedded in hardware is > protected. Business methods, algorithms and mathematical methods have been > left out of patent scope. > > So, a first reading gives me the sense that this is a reasonable > legislative effort. Am sure others may notice something I've missed out > on! > > Best > Sudhir > > > Hi, > > The Ministry of Law and justice has a pdf copy of the Patent Ordnance but > > I > > don't know if this is the right one. > > http://lawmin.nic.in/Patents%20Amendment%20Ordinance%202004.pdf > > > > Section 5 of the Act which conferred process patents on food and drugs has > > been > > omitted entirely. Am still going through the text so don't have any > > detailed > > comments right now. > > regards, > > Prashant > > > > > > > > _______________________________________________ > > commons-law mailing list > > commons-law at sarai.net > > https://mail.sarai.net/mailman/listinfo/commons-law > > > > > From prashant at nalsartech.org Mon Dec 27 14:02:12 2004 From: prashant at nalsartech.org (Prashant Iyengar) Date: Mon, 27 Dec 2004 14:02:12 +0530 Subject: [Commons-Law] (no subject) Message-ID: <1104136332.41cfc88cc8351@www.nalsartech.org> Hi Sudhir and Shamnad, I agree with Sudhir that, it appears to be reasonably drafted. I'm remain very sceptical about product patent protection for medicines and food, though. As regards EMRs, I think this was expected from the media reports in the last 2-3 weeks atleast. I'm interested in hearing other people's views on this. I'm including a table of omissions from the Act - a small effort in carrying this discussion forward. Personal impressions at bottom. Omissions: 1) Clause 2(1)(g) - definition of "food" 2) Clause 2(1)(l) - definition of "medicine" 3) Clause 3(k) has been substituted with two clauses (computer programs and business methods" 4)Section 5 - Process patents for food/medicines/chemical processes 5) Subsection 18(4) - "Insertion of reference to another complete specification" 6) Sections 22-24 - Acceptance and Publication of complete specification 7) Chapter IV A - Exclusive Marketing Rights 8) Section 27 - Power of Controller to refuse to grant patent otherwise than on an opposition proceedings 9) Subsection 28(5) - Request to be mentioned as inventor) 10)Provisio to Section 48 (Rights of patentees - "Provided that the product obtained is not a product in respect of which no patent shall be granted under this Act" 11) Subsection 53(3) - Extension of term for payment of renewal fee 12) Clause 116(2)(c) - Qualifications for a member of the Appellate board (Advocating having practiced for at least 10 years) 13) Sub-Clause 126(1)(c)(i) - qualification for patent agents (requirement of being an Advocate done away with) 14) Section 152 - Transmissions of All copies of specifications to be open to public view I think the various provisions of this Act put together, take a heavy toll on the public domain. Specifically, the following : 1) Sections dealing with the Publication of Complete specifications have been done away with. This makes one of the grounds of opposing the patent application - incomplete filing of specifications - virtually redundant. 2) In Section 11 A - Insertion of new situattions where Secrecy of the application will be maintained. The list now includes situations where the application has been abandoned. 3)Section 68 of the Act deals with Assignment of rights. Earlier, this was required to be registered and a copy had to be submitted to the Controller. This requirement has been done away with which makes it difficult to know exactly in whose ownership of a patent lies. 4) Last but not least - Omission of Section 152 which provided that copies of all specificatins, drawings etc were to be open to public inspection. This one is big, imho. Regards, Prashant Quoting sudhir at circuit.sarai.net: > Dear Prashant > > Thanks for the quick reference. Just scanned through the ordinance with > the AMTC Campaign documents as a checklist: > > 1. Product patents - in place for pharma and fertiliser as s 5 has been > omitted. Though I suspect no one really expected that this would be > delayed! > > 2. New Compulsory License for drug export - new s 92A introduced which is > phrased broadly to include drugs, their active ingredients and diagnostic > equipments. > > 3. Existing broad compulsory license grounds have not be tampered with - > but the proposals for streamlining the process of grant of compulsory > licenses with strict time lines have not been accomodated. > > 4. Pre-grant opposition process has been modified - but not diminished or > done away with. The number of grounds for opposition have been reduced, > but the broad phrasing of the new section should catch most possible > objections. > > 5. The non-patentability of computer programmes per se, has been > elaborated on to ensure that only software embedded in hardware is > protected. Business methods, algorithms and mathematical methods have been > left out of patent scope. > > So, a first reading gives me the sense that this is a reasonable > legislative effort. Am sure others may notice something I've missed out > on! > > Best > Sudhir > > > Hi, > > The Ministry of Law and justice has a pdf copy of the Patent Ordnance but > > I > > don't know if this is the right one. > > http://lawmin.nic.in/Patents%20Amendment%20Ordinance%202004.pdf > > > > Section 5 of the Act which conferred process patents on food and drugs has > > been > > omitted entirely. Am still going through the text so don't have any > > detailed > > comments right now. > > regards, > > Prashant > > > > > > > > _______________________________________________ > > commons-law mailing list > > commons-law at sarai.net > > https://mail.sarai.net/mailman/listinfo/commons-law > > > > > From prashant at nalsartech.org Mon Dec 27 14:02:12 2004 From: prashant at nalsartech.org (Prashant Iyengar) Date: Mon, 27 Dec 2004 14:02:12 +0530 Subject: [Commons-Law] (no subject) Message-ID: <1104136332.41cfc88cc8351@www.nalsartech.org> Hi Sudhir and Shamnad, I agree with Sudhir that, it appears to be reasonably drafted. I'm remain very sceptical about product patent protection for medicines and food, though. As regards EMRs, I think this was expected from the media reports in the last 2-3 weeks atleast. I'm interested in hearing other people's views on this. I'm including a table of omissions from the Act - a small effort in carrying this discussion forward. Personal impressions at bottom. Omissions: 1) Clause 2(1)(g) - definition of "food" 2) Clause 2(1)(l) - definition of "medicine" 3) Clause 3(k) has been substituted with two clauses (computer programs and business methods" 4)Section 5 - Process patents for food/medicines/chemical processes 5) Subsection 18(4) - "Insertion of reference to another complete specification" 6) Sections 22-24 - Acceptance and Publication of complete specification 7) Chapter IV A - Exclusive Marketing Rights 8) Section 27 - Power of Controller to refuse to grant patent otherwise than on an opposition proceedings 9) Subsection 28(5) - Request to be mentioned as inventor) 10)Provisio to Section 48 (Rights of patentees - "Provided that the product obtained is not a product in respect of which no patent shall be granted under this Act" 11) Subsection 53(3) - Extension of term for payment of renewal fee 12) Clause 116(2)(c) - Qualifications for a member of the Appellate board (Advocating having practiced for at least 10 years) 13) Sub-Clause 126(1)(c)(i) - qualification for patent agents (requirement of being an Advocate done away with) 14) Section 152 - Transmissions of All copies of specifications to be open to public view I think the various provisions of this Act put together, take a heavy toll on the public domain. Specifically, the following : 1) Sections dealing with the Publication of Complete specifications have been done away with. This makes one of the grounds of opposing the patent application - incomplete filing of specifications - virtually redundant. 2) In Section 11 A - Insertion of new situattions where Secrecy of the application will be maintained. The list now includes situations where the application has been abandoned. 3)Section 68 of the Act deals with Assignment of rights. Earlier, this was required to be registered and a copy had to be submitted to the Controller. This requirement has been done away with which makes it difficult to know exactly in whose ownership of a patent lies. 4) Last but not least - Omission of Section 152 which provided that copies of all specificatins, drawings etc were to be open to public inspection. This one is big, imho. Regards, Prashant Quoting sudhir at circuit.sarai.net: > Dear Prashant > > Thanks for the quick reference. Just scanned through the ordinance with > the AMTC Campaign documents as a checklist: > > 1. Product patents - in place for pharma and fertiliser as s 5 has been > omitted. Though I suspect no one really expected that this would be > delayed! > > 2. New Compulsory License for drug export - new s 92A introduced which is > phrased broadly to include drugs, their active ingredients and diagnostic > equipments. > > 3. Existing broad compulsory license grounds have not be tampered with - > but the proposals for streamlining the process of grant of compulsory > licenses with strict time lines have not been accomodated. > > 4. Pre-grant opposition process has been modified - but not diminished or > done away with. The number of grounds for opposition have been reduced, > but the broad phrasing of the new section should catch most possible > objections. > > 5. The non-patentability of computer programmes per se, has been > elaborated on to ensure that only software embedded in hardware is > protected. Business methods, algorithms and mathematical methods have been > left out of patent scope. > > So, a first reading gives me the sense that this is a reasonable > legislative effort. Am sure others may notice something I've missed out > on! > > Best > Sudhir > > > Hi, > > The Ministry of Law and justice has a pdf copy of the Patent Ordnance but > > I > > don't know if this is the right one. > > http://lawmin.nic.in/Patents%20Amendment%20Ordinance%202004.pdf > > > > Section 5 of the Act which conferred process patents on food and drugs has > > been > > omitted entirely. Am still going through the text so don't have any > > detailed > > comments right now. > > regards, > > Prashant > > > > > > > > _______________________________________________ > > commons-law mailing list > > commons-law at sarai.net > > https://mail.sarai.net/mailman/listinfo/commons-law > > > > > From shamnadbasheer at yahoo.co.in Mon Dec 27 15:09:35 2004 From: shamnadbasheer at yahoo.co.in (Shamnad Basheer) Date: Mon, 27 Dec 2004 09:39:35 +0000 (GMT) Subject: [Commons-Law] Omissions from the Patent Act In-Reply-To: <1104135799.41cfc677b2a00@www.nalsartech.org> Message-ID: <20041227093935.35524.qmail@web8404.mail.in.yahoo.com> Dear Prashant, Great that you're taking so much pain to get this debate moving. I havent gone through all the provisions listed by you-but am reacting to one that drew my attention right away.. --- Prashant Iyengar wrote: > 4) Last but not least - Omission of Section 152 > which provided that copies of > all specificatins, drawings etc were to be open to > public inspection. This one > is big, imho. Are you sure about this? Didnt section 152 only relate to the transmission of otherwise public documents to places designated by the Central Govt (at which places it would again be publicly accessible). Removal of 152 would not therefore mean that the documents in the patent office itself are not public-theres another porvision (somewhere in the rules i guess) that provides for the fact that published specifications etc in the patent office are publicly accessible. My guess is that section 152 may have been removed because it was redundant and never used in a concrete way by the Central Govt. These are thoughts off the top of my head-so would be really keen on hearing the views of someone who's studied this provision.. Regards-Shamnad ________________________________________________________________________ Yahoo! India Matrimony: Find your life partner online Go to: http://yahoo.shaadi.com/india-matrimony From prashant at nalsartech.org Mon Dec 27 17:14:36 2004 From: prashant at nalsartech.org (Prashant Iyengar) Date: Mon, 27 Dec 2004 17:14:36 +0530 Subject: [Commons-Law] Omissions from the Patent Act Message-ID: <1104147876.41cff5a41d502@www.nalsartech.org> Hi Sudhir and Shamnad, I agree with Sudhir that, it appears to be reasonably drafted. I'm remain very sceptical about product patent protection for medicines and food, though. As regards EMRs, I think this was expected from the media reports in the last 2-3 weeks atleast. I'm interested in hearing other people's views on this. I'm including a table of omissions from the Act - a small effort in carrying this discussion forward. Personal impressions at bottom. Omissions: 1) Clause 2(1)(g) - definition of "food" 2) Clause 2(1)(l) - definition of "medicine" 3) Clause 3(k) has been substituted with two clauses (computer programs and business methods" 4)Section 5 - Process patents for food/medicines/chemical processes 5) Subsection 18(4) - "Insertion of reference to another complete specification" 6) Sections 22-24 - Acceptance and Publication of complete specification 7) Chapter IV A - Exclusive Marketing Rights 8) Section 27 - Power of Controller to refuse to grant patent otherwise than on an opposition proceedings 9) Subsection 28(5) - Request to be mentioned as inventor) 10)Provisio to Section 48 (Rights of patentees - "Provided that the product obtained is not a product in respect of which no patent shall be granted under this Act" 11) Subsection 53(3) - Extension of term for payment of renewal fee 12) Clause 116(2)(c) - Qualifications for a member of the Appellate board (Advocating having practiced for at least 10 years) 13) Sub-Clause 126(1)(c)(i) - qualification for patent agents (requirement of being an Advocate done away with) 14) Section 152 - Transmissions of All copies of specifications to be open to public view I think the various provisions of this Act put together, take a heavy toll on the public domain. Specifically, the following : 1) Sections dealing with the Publication of Complete specifications have been done away with. This makes one of the grounds of opposing the patent application - incomplete filing of specifications - virtually redundant. 2) In Section 11 A - Insertion of new situattions where Secrecy of the application will be maintained. The list now includes situations where the application has been abandoned. 3)Section 68 of the Act deals with Assignment of rights. Earlier, this was required to be registered and a copy had to be submitted to the Controller. This requirement has been done away with which makes it difficult to know exactly in whose ownership of a patent lies. 4) Last but not least - Omission of Section 152 which provided that copies of all specificatins, drawings etc were to be open to public inspection. This one is big, imho. Regards, Prashant Quoting sudhir at circuit.sarai.net: > Dear Prashant > > Thanks for the quick reference. Just scanned through the ordinance with > the AMTC Campaign documents as a checklist: > > 1. Product patents - in place for pharma and fertiliser as s 5 has been > omitted. Though I suspect no one really expected that this would be > delayed! > > 2. New Compulsory License for drug export - new s 92A introduced which is > phrased broadly to include drugs, their active ingredients and diagnostic > equipments. > > 3. Existing broad compulsory license grounds have not be tampered with - > but the proposals for streamlining the process of grant of compulsory > licenses with strict time lines have not been accomodated. > > 4. Pre-grant opposition process has been modified - but not diminished or > done away with. The number of grounds for opposition have been reduced, > but the broad phrasing of the new section should catch most possible > objections. > > 5. The non-patentability of computer programmes per se, has been > elaborated on to ensure that only software embedded in hardware is > protected. Business methods, algorithms and mathematical methods have been > left out of patent scope. > > So, a first reading gives me the sense that this is a reasonable > legislative effort. Am sure others may notice something I've missed out > on! > > Best > Sudhir > > > Hi, > > The Ministry of Law and justice has a pdf copy of the Patent Ordnance but > > I > > don't know if this is the right one. > > http://lawmin.nic.in/Patents%20Amendment%20Ordinance%202004.pdf > > > > Section 5 of the Act which conferred process patents on food and drugs has > > been > > omitted entirely. Am still going through the text so don't have any > > detailed > > comments right now. > > regards, > > Prashant > > > > > > > > _______________________________________________ > > commons-law mailing list > > commons-law at sarai.net > > https://mail.sarai.net/mailman/listinfo/commons-law > > > > > From prashant at nalsartech.org Mon Dec 27 22:40:03 2004 From: prashant at nalsartech.org (Prashant Iyengar) Date: Mon, 27 Dec 2004 22:40:03 +0530 Subject: [Commons-Law] Section 152 Message-ID: <1104167403.41d041ebcd172@www.nalsartech.org> Dear Shamnad, I think you're right about Section 152. I misread it in my haste. However in this instance, even taking a closer look at this section isn't helping me very much either. What does "left at the patent office" in this section mean? Why was this special provision to make specifications, drawings etc left at the patent office open to public inspection? .. If "normal" public access has been granted by the rules, then what did this section provide for. I'm reproducing this section below in case anyone wants a crack at deciphering it. Sorry for sending out the last message 3 times. More than one ways of making a forceful argument.. :) Prashant 152. Transmission of copies of specifications, etc. and inspection thereof Copies of all such specifications, drawings and amendments left at the patent office as become open to public inspection under the provisions of this Act, shall be transmitted, as soon as may be, after the printed copies thereof are available, to such authorities as the Central, Government may appoint in this behalf, and shall be open to the inspection of any person at all reasonable times at places to be specified by those authorities and with the approval of the Central Government. From sudhir at circuit.sarai.net Tue Dec 28 11:45:14 2004 From: sudhir at circuit.sarai.net (sudhir at circuit.sarai.net) Date: Tue, 28 Dec 2004 07:15:14 +0100 (CET) Subject: [Commons-Law] Section 152 In-Reply-To: <1104167403.41d041ebcd172@www.nalsartech.org> References: <1104167403.41d041ebcd172@www.nalsartech.org> Message-ID: <1406.202.142.94.114.1104214514.squirrel@mail.sarai.net> Dear Prashant and Shamnad I looked through the Act to work out the particular role played by s 152. It seems to me that this section is not the only basis for public access to patent filings so its deletion may not have the kind of consequences that Prashant had anticipated. If only, the Patent Office goes one step forward and puts all Patent filings online and freely accessible, this issue may be settled! Hopefully this can be provided for in the rules. Sudhir > Dear Shamnad, > I think you're right about Section 152. I misread it in my haste. However > in > this instance, even taking a closer look at this section isn't helping me > very > much either. > What does "left at the patent office" in this section mean? > Why was this special provision to make specifications, drawings etc left > at the > patent office open to public inspection? > .. > If "normal" public access has been granted by the rules, then what did > this > section provide for. > I'm reproducing this section below in case anyone wants a crack at > deciphering > it. > > Sorry for sending out the last message 3 times. More than one ways of > making a > forceful argument.. :) > Prashant > > 152. Transmission of copies of specifications, etc. and inspection thereof > Copies of all such specifications, drawings and amendments left at the > patent > office as become open to public inspection under the provisions of this > Act, > shall be transmitted, as soon as may be, after the printed copies thereof > are > available, to such authorities as the Central, Government may appoint in > this > behalf, and shall be open to the inspection of any person at all > reasonable > times at places to be specified by those authorities and with the approval > of > the Central Government. > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > From vishwas123_ at hotmail.com Tue Dec 28 13:37:09 2004 From: vishwas123_ at hotmail.com (Vishwas Devaiah) Date: Tue, 28 Dec 2004 09:07:09 +0100 (CET) Subject: [Commons-Law] Invitation Message-ID: <25395608.1104221443527.JavaMail.root@nelson> Vishwas Devaiah has invited you to join hi5. By joining hi5, you will be connected to Vishwas and all of Vishwas's friends. hi5 is the place where friends meet. You can use hi5 for the following purposes: * Find old friends * Meet new people * Browse photos Join Vishwas, meet Vishwas's friends, and meet people that share your interests now! Click here: http://www.hi5.com/splash/E8B3T?inviteId=5L6X5EQ2YV6221267c126264762 This invitation was sent to commons-law at sarai.net on behalf of Vishwas Devaiah (vishwas123_ at hotmail.com). If you do not wish to receive invitations from hi5 members, click on the link below: http://www.hi5.com/friend/displayBlockInvite.do?inviteId=126264762 -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041228/3de89976/attachment.html From kat at nls.ac.in Tue Dec 28 11:29:59 2004 From: kat at nls.ac.in (kat at nls.ac.in) Date: Tue, 28 Dec 2004 11:29:59 +0530 (IST) Subject: [Commons-Law] Embedded Software and the Amendments Message-ID: <52338.202.54.87.179.1104213599.squirrel@202.54.87.179> What is the position on embedded software in the Patent Act amendments? I think they are moving silently to provide this type of software patentability. Has there been any specific/general opposition to this move? Best regards, KAT From manu_shahalia at hotmail.com Wed Dec 29 11:41:17 2004 From: manu_shahalia at hotmail.com (MANU LUV SHAHALIA) Date: Wed, 29 Dec 2004 11:41:17 +0530 Subject: [Commons-Law] Embedded Software et al In-Reply-To: <52338.202.54.87.179.1104213599.squirrel@202.54.87.179> Message-ID: An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041229/299ba498/attachment.html From manu_shahalia at hotmail.com Wed Dec 29 11:55:50 2004 From: manu_shahalia at hotmail.com (MANU LUV SHAHALIA) Date: Wed, 29 Dec 2004 11:55:50 +0530 Subject: [Commons-Law] Section 152 In-Reply-To: <1406.202.142.94.114.1104214514.squirrel@mail.sarai.net> Message-ID: An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041229/1930948a/attachment.html From tahir.amin at btopenworld.com Mon Dec 27 12:58:49 2004 From: tahir.amin at btopenworld.com (TAHIR AMIN) Date: Mon, 27 Dec 2004 07:28:49 +0000 (GMT) Subject: [Commons-Law] Patent Ordinance Message-ID: <20041227072849.9879.qmail@web86110.mail.ukl.yahoo.com> Ordinance kicks in product patents regime BS Economic Bureau in New Delhi | December 27, 2004 09:59 IST The government tonight issued an ordinance for introducing a product patent regime for pharmacueticals and agro-chemicals from January 1, 2005. The ordinance has been issued to fulfil India's obligation to the World Trade Organisation. Commerce and Industry Minister Kamal Nath told Business Standard the Ordinance had been issued after obtaining the Presidential assent. The Cabinet had on Friday cleared the ordinance, but did not make a formal announcement since Parliament had not been prorogued. The ordinance, allowing for full introduction of product patents will delete the exclusive marketing rights, a transitional arrangement provided to drug companies until a full product patent regime was introduced. "The EMRs had been provided in 1995 as a facilitating measure until the full product patent regime was introduced. This was a lower flexibility provided to countries that did not have a product patent regime. This facility will now be withdrawn," a government official said. Officials said under the product patent regime, no new-use patents would be granted. "If a new use is discovered of an already patented drug, it cannot be granted a patent. It has to be a new invention," an official said. The ordinance also seeks to strengthen opposition proceedings by allowing for both pre-grant and post-grant opposition. "Pre-grant opposition can be filed anytime after publication. While earlier there was no time-frame, the ordinance states that if a pre-grant application is filed close to a patent being granted then in certain cases it has to be cleared within 90 days," the official said. The ordinance also seeks to simplify and rationalise the time-frame for process of patents. The time limit for giving requests for examination has been reduced to 36 months from 48 months earlier. Security provisions will also be tightened, particularly for dual-use patent applications. "Such patents will now be scrutinised by the patent office," an official said. Officials said while software would continue to be copyright protected, embedded software that has technical applications can now be patented. The measures contained in the ordinance are based on the recommendation of a group of ministers headed by Defence Minister Pranab Mukherjee. --------------------------------- ALL-NEW Yahoo! Messenger - all new features - even more fun! -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041227/5e70c36a/attachment.html From devilspot at yahoo.com Wed Dec 29 17:52:36 2004 From: devilspot at yahoo.com (protima pandey) Date: Wed, 29 Dec 2004 04:22:36 -0800 (PST) Subject: [Commons-Law] Appeal on behalf od Tsunami victims Message-ID: <20041229122237.57454.qmail@web13823.mail.yahoo.com> Dear Friends, I am an active volunteer of Asha's Redlands, CA chapter,� a zero overhead global non-profit organization that is raising money for Tsunami relief efforts. Asha for Education has launched an appeal to support relief efforts in response to the widespread devastation caused by tidal waves and floods along the coasts of Southern India. On the morning of December 26th, a massive earthquake occurred near Sumatra, Indonesia, which caused a series of tsunamis to strike the coasts of India and other South Asian countries. The quake registered 8.9 in magnitude, the worst earthquake in 40 years. The tsunamis destroyed homes, roads, and swept people out to sea. More than 24,000 people are reported dead and up to 2 million people have been left homeless. Growing estimates indicate that close to 6000 people in the Indian states of Tamil Nadu, Andhra Pradesh, Kerala and the Andaman and Nicobar islands have been killed, and thousands more are homeless and without access to clean water, shelter, food or clothing. There is an immediate need to provide relief to the victims, and to evacuate those in affected areas. Asha volunteers in India are currently assessing the impact of the disaster on projects in affected states, and are assisting with relief and rehabilitation efforts. In the last 13 years, Asha for Education has supported over 100 projects in the states of Andhra Pradesh and Tamil Nadu. Asha is working with our partners to support rehabilitation work in the weeks and months to come. How you can contribute to the relief effort: Make a secure online donation by credit card at: <>. Send checks in US dollars made payable to 'Asha for Education', with 'Tsunami Relief' in the memo, to this address: Asha for Education P.O. Box 322 New York, NY 10040-0322 All US donations are 100% tax deductible under Section 501(c)3 of the IRS Tax Code. Send checks in Indian rupees made payable to 'Asha'� to this address: Asha, c/o Sandeep A-893, Indira Nagar, Lucknow -226016 Uttar Pradesh All Indian donations are 50% tax deductible under Section 50(g) of the Income Tax Act. Asha was recently ranked as a� top charity with the best 4 star rating by Charity Navigator, an independent US charity evaluator. Please feel free to ask me any questions. Sincerely, Protima Pandey Asha Redlands, CA OUR VOLUNTEERS IN INDIA ARE ALSO MAINTAINING A LIVE UPDATE BLOG AT: http://ashatsunamirelief.blogspot.com/ ===== "Education is the ability to listen to almost anything without losing your temper or your self-confidence." Robert Frost __________________________________ Do you Yahoo!? All your favorites on one personal page � Try My Yahoo! http://my.yahoo.com From songcraft at yahoo.com Fri Dec 31 04:50:54 2004 From: songcraft at yahoo.com (Anthony McCann) Date: Thu, 30 Dec 2004 15:20:54 -0800 (PST) Subject: [Commons-Law] Music and Copyright In-Reply-To: Message-ID: <20041230232054.53688.qmail@web41315.mail.yahoo.com> Hello, Just a note to let you know that I have started www.musicandcopyright.org. It's still a baby, but I hope it will grow over the next few years and be of help to people. All the best, Anthony McCann -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041230/e3d5f53e/attachment.html From songcraft at yahoo.com Fri Dec 31 20:58:44 2004 From: songcraft at yahoo.com (Anthony McCann) Date: Fri, 31 Dec 2004 07:28:44 -0800 (PST) Subject: [Commons-Law] Enclosure bibliography In-Reply-To: <20041230232054.53688.qmail@web41315.mail.yahoo.com> Message-ID: <20041231152844.73207.qmail@web41304.mail.yahoo.com> Hello, Just a note to let you know that I've posted an abbreviated enclosure bibliography on www.beyondthecommons.org. Bibliographic suggestions and bibliographies always welcome. All the best, Anthony McCann -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041231/dacef1b9/attachment.html From prabhuram at gmail.com Fri Dec 31 13:09:06 2004 From: prabhuram at gmail.com (Ram) Date: Fri, 31 Dec 2004 13:09:06 +0530 Subject: [Commons-Law] China court rules against Nike in copyright battle Message-ID: <68752c9f04123023393f0c434a@mail.gmail.com> A Chinese animator has won a court battle against the US footwear and apparel maker Nike Inc over the company's use of a stick figure illustration, state media reported yesterday. Internet cartoonist Zhu Zhiqiang had asked for 2 million yuan (US$240,000) in compensation from Nike as well as a public apology for allegedly copying his "Little Match Man" illustration in one of its worldwide ad campaigns. A Beijing court ruled on Wednesday in Zhu's favor, ordering Nike to pay 300,000 yuan (US$36,000) in compensation and issue a public apology to Zhu, the China Daily newspaper said. "I got what I wanted -- confirmation on my copyright over my stickman," Zhu was quoted as saying. Zhang Zaiping, a lawyer for the Beaverton, Oregon-based Nike, had argued that the image used by Nike was a common symbol not entitled to protection under copyright law. "From mural and stone paintings in ancient times to Sherlock Holmes stories, the logo has been used repeatedly," Zhang was quoted as saying in an earlier China Daily report. The stick figure logo for Nike's "Creativity in Sports" campaign was designed by an American advertising company in 2002 at a cost of 25 million yuan (US$3 million). Nike plans to appeal the ruling, the paper said. The case is an unusual reversal of roles for China, which has frequently been criticized by the US for being lax about protecting patents and other intellectual property. The country's thriving industry in product piracy routinely violates copyrights, trademarks and patents on movies, designer clothes and other goods, despite promises by Beijing to crack down.