From sunil at mahiti.org Fri Oct 1 06:52:55 2004 From: sunil at mahiti.org (Sunil Abraham) Date: Fri, 01 Oct 2004 01:22:55 +0000 Subject: [Commons-Law] Request for Feedback: Free And Open Source Software Licensing Primer Message-ID: <1096593774.1316.119.camel@box> Dear Friends, Apologies for cross posting. The IOSN/APDIP/UNDP FOSS Licensing Primer is a brief introduction to different FOSS licenses, primarily the GNU GPL license. It presents a summary of issues involved with using the different FOSS licenses. It offers several scenarios, and proposes a framework for licensing of government sponsored software. The primer also addresses common questions and misconceptions regarding copyright and licensing issues. Please download from here: http://www.iosn.net/licensing/foss-licensing-primer/foss-licensing-primer.sxw http://www.iosn.net/licensing/foss-licensing-primer/foss-licensing-primer.pdf So far we have got feedback from Richard M. Stallman, Eric S. Raymond, Dr. Nah Soo Hoe and Mahesh T. Pai We would be very grateful if you could send in your comments and feedback by 10 October 2004. Thanks, Sunil ------------------------------------------------------------------------ INTERNATIONAL OPEN SOURCE NETWORK ------------------------------------------------------------------------ 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 Asia-Pacific Information Development Programme (APDIP - http://www.apdip.net), which has been supporting the strategic and effective use of Information Communication Technology (ICT) for poverty alleviation and sustainable human development in the Asia-Pacific region since 1997. Via a small secretariat, the IOSN is tasked specifically to facilitate and network Free / Open Source Software advocates and human resources in the region. Activities undertaken by IOSN is listed below: A. Free / Open Source Information Resource Facility 1. Collaborative Website: On-going Mapping of Free / Open Source activities in Asia-Pacific; Collaborative database of countries; languages, fonts,and organisations in Asia-Pacific; On-line Information/Clearing-house and Mailing Lists 2. Software Repository: A collection of FOSS software and GNU/Linux distributions specific to the Asia Pacific is being created. 3. Documentation of Best Practise 4. Open Source Primers: General FOSS by Kenneth Wong/Phet Sayo; Malaysia; Licensing by Shunling Chen ­ Taiwan; Policy by Kenneth Wong; Localisation by Anousak Souphavanh / Theppitak Karoonboonyanan - Thailand; Network/Security/Infrastructure by Gaurab Raj Upadhaya - Nepal; and Education by Wooi Tong Tan - Malaysia. B. Creation of a Database of Free / Open Source Experts and Human Resources in the Region 1. Networking of Experts 2. Technical Support C. Training and Workshops 1. FOSSAP 2004: More than 50 senior policy makers and open source practitioners from 20 countries attended this event. http://www.iosn.net/fossap/ 2. Training of Trainers: We are currently planning the first training in Vietnam in partnership with Linux Professional Institute D. Research and Development 1. Localisation Toolkit in collaboration with Centre for Advanced Computing [CDAC], India 2. End-user training material in Text and Multimedia format. Script by Dr. Nah Soo Hoe, Malaysia and production by GetIT multimedia, Singapore. 3. GNU/Linux Live CD Project by Colin Charles, Australia of the Fedora Project. 4. Q&A on FOSS R&D/Case Studies of implementations 5. Micro-grant Programme in collaboration with University of South Pacific ------------------------------------------------------------------------ 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. Mobile: +91 80 36701931 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 From lawrenceliang at vsnl.net Fri Oct 1 10:32:02 2004 From: lawrenceliang at vsnl.net (Lawrence) Date: Fri, 01 Oct 2004 10:32:02 +0530 Subject: [Commons-Law] FW: [Patents] AP on WIPO/Geneva Declaration In-Reply-To: <415BD34D.EA7CAD67@RealMeasures.dyndns.org> Message-ID: Subject: [Random-bits] AP on WIPO debate Date: Thu, 30 Sep 2004 04:06:20 -0400 From: James Love To: random-bits at lists.essential.org For background on issue, see: http://www.cptech.org/ip/wipo/genevadeclaration.html AP story: http://english.daralhayat.com/business/09-2004/Article-20040929-4b0e450b-c0a 8-01ed-002c-03ff9bccd5b7/story.html UN to Relax Protection for Intellectual Property to Help Developing Countries AP 2004/09/29 Geneva The United Nations should relax protection for owners of copyright, patents and trademarks and pay more attention to the interests and needs of developing countries, a group of activists said today. Five hundred scientists, economists, legal experts and consumer activists have signed a statement lending support to a proposal by a group of developing countries to the UN body that oversees intellectual property, the World Intellectual Property Organization. "This development agenda would involve a moratorium on the negotiation of new treaties that hike intellectual property protections, and redirecting the agency to a range of initiatives more responsive to development and the concerns of WIPO's critics," the signatories said in a statement. WIPO's mission statement says it is "dedicated to helping to ensure that the rights of creators and owners of intellectual property are protected worldwide ... This international protection acts as a spur to human creativity." But campaigners claim WIPO, a specialist agency based in Geneva, is blinkered and is only directed toward protecting the rich. They say intellectual property protection should be a means to promote innovation and creativity rather than an end in itself, and that WIPO must evaluate the economic and social benefits of protection rather than just enforcing the law. For instance, the agency's copyright treaty, which came into force in 2002, includes technological protection measures which preclude "fair use of educational learning tools," harming the interests of developing countries, said Thiru Balasubramaniam, Geneva representative of the Washington-based Consumer Project on Technology. "In a lot of (WIPO) treaties, the U.S. norm becomes the standard," Balasubramaniam said. Brazil and Argentina tabled the development proposal, which is being discussed at WIPO's general assembly this week. It calls on the agency to consider the broad development goals of the United Nations and not to limit itself to increasing protection for intellectual property. If accepted by WIPO's 181 member states, the proposal could lead to a change in the agency's constitution. "Today many developing countries are concerned that they have to adhere to patent or copyright levels ... that are excessively high," said Martin Khor of Third World Network, a nonprofit organization which promotes the interests of developing countries. "This is the right time to reconsider the role of WIPO." Other developing countries such as Iran, Kenya, South Africa and Venezuela are expected to support the proposal. "WIPO is working to maintain a balance between the interests of the holders of intellectual property rights and those of the public at large," WIPO spokeswoman Samar Shamoon said. "The WIPO secretariat is entirely neutral on all proposals that are presented by its member states for discussion," Shamoon told The Associated Press, adding that "any decision taken by the member states will be followed-up by the secretariat." Most rich countries claim there is no need to discuss the development agenda, said Julia Oliva of the Washington-based Center for International Environmental Law. There should be greater balance between the interests of poorer countries and the owners of intellectual property, Oliva said. "This balance is being skewed." Since 1997, WIPO has introduced several measures which help to protect the interests of developing countries. These include creating a department concerned with rules for small and medium enterprises and new rules on the protection of traditional knowledge and folklore, issues of particular importance to the Third World. -- James Love | Consumer Project on Technology http://www.cptech.org | mailto:james.love at cptech.org P.O. Box 19367, Washington, DC 200036 voice +1.202.387.8030 | fax +1.202.234.5176 ------ End of Forwarded Message From mrinalinikpillai at gmail.com Sat Oct 2 15:00:15 2004 From: mrinalinikpillai at gmail.com (Mrinalini Kochupillai) Date: Sat, 2 Oct 2004 15:00:15 +0530 Subject: [Commons-Law] Patents and Tax Deductions Message-ID: The Central Board of Direct Taxes (CBDT) has ruled that the Controller General of Patents, Designs and Trade Marks would be the specified authority for certifying the claims made by a resident individual seeking tax deduction on royalty income earned from use of patents registered in India. A new section 80RRB was inserted in the Income Tax Act, 1961 through the Finance Act 2003 that provided tax breaks on royalty income earned from patents. A deduction equivalent to the royalty income received or Rs. 3,00,000, whichever is less, is allowed as deduction to an individual who is registered under the Patents Act as the true and first inventor in respect of an invention. Even a co-owner of a patent can opt for the deduction. The CBDT has also prescribed the format of the form (FORM 10CCE) that would have to be annexed with the return of income for claiming the deduction. From vishwas123_ at hotmail.com Sun Oct 3 21:14:01 2004 From: vishwas123_ at hotmail.com (Vishwas Devaiah) Date: Sun, 03 Oct 2004 15:44:01 +0000 Subject: [Commons-Law] videos pirates under the Goondas Act in Tamil Nadu Message-ID: An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041003/9a77dfa9/attachment.html From joe_tantine at yahoo.com Mon Oct 4 13:59:48 2004 From: joe_tantine at yahoo.com (Joe Joe Harding) Date: Mon, 4 Oct 2004 01:29:48 -0700 (PDT) Subject: [Commons-Law] Marx, Private Property and cultural common Message-ID: <20041004082948.47966.qmail@web90010.mail.scd.yahoo.com> One sees quite of lot of Marx and his quotes in discussions on property. Few things need to be kept in focus in using Marx. For Marx privately owned production enterprise (the proverbial 'capitalists' owned enterprises) were the object of analysis. The falling rate of profit was 'the Law" which would posit the objective limits of these enterprises. Perhaps this law did posit the objective limits. They were transcended by stock companies and state owned enterprises. For Marx stock companies were a 'negation of capital' and he termed them the negative negation of capital. For many later day Marxists the state owned enterprises were also negation of capital and perhaps a positive one - a.k.a. first stage of communism. Marx excluded stock capital from the dynamics of Falling ROP and instead included it in the counteracting influences on the falling rate of profit. For Marx falling ROP does have any crucial influence on Stock Capital. The mode of distribution of redistribution of social labour in situation with predominant stock-state-loan-dependent mode of production was thus not within Marx's purview, since it is through Falling ROP that Marx explained the distribution and redistribution of social labour in Capital. Significant part of Marx's analysis of Capital as a whole 'the Vol. III' is dated and needs to be superseded. This part of Marx's analysis has little relevance in the present. Indiscriminately using Marx in analyzing today's world where private owned production enterprises has a very insignificant existence, creates much more confusion than it aims to solve. Loan dependent enterprises (what has been interestingly termed as managerial capitalism), sate owned production enterprises and other such conglomerations are the predominant mode of production based on wage labour today. Marx�s characterization of wage labour based commodity production with its basis as the production, realisation and accumulation of surplus value is still the foundational theorisation of present day production. Having said that it also needs to be pointed out Marx dealt with non wage labour based commodity production in a very cursory way. The artisans and the peasants have a significant existence in many parts of the world and to many theorists has a crucial importance in the survival and growth of the capitalist social relation. All struggles are not struggle of wage labour and capital and not even class struggle per see. Many factions of capital, many modes of commodity production and many modes of production struggle against each other. To collapse all struggle under the rubric of class struggle is erroneous. The Culture war thesis appears to be doing just that. The public and class seems to be synonymous in this thesis! Free software movement and Marx perhaps may be discerned to have similar passion for freedom. And there perhaps the similarity ends. Free software movement is a creative constructive challenge to commodity production. It is perhaps prefiguration of the new that many of us desire. The new which neglects the ethos of the commodity economy - the ethos of personification of things and reification of social relations. Marx's analysis informs what is quintessentially commodity production, and free software movement tells us how it can be transcended in practice. Marx analysis needs to be extended to today's world and free software movement needs to extended to other fields of social life. Marx's analysis needs to be grounded on the passionate anti-commodity ethics of Free software movement, which perhaps was implicit in Marx but got lost somewhere in Marxism. And free software movement needs to be encapsulated with in a broader framework of production and reproduction of social life. Joe __________________________________ Do you Yahoo!? Yahoo! Mail - 50x more storage than other providers! http://promotions.yahoo.com/new_mail From keith at thememorybank.co.uk Thu Oct 7 01:08:20 2004 From: keith at thememorybank.co.uk (Keith Hart) Date: Wed, 06 Oct 2004 21:38:20 +0200 Subject: [Commons-Law] Culture War In-Reply-To: References: Message-ID: <416449AC.1000001@thememorybank.co.uk> Hi Lawrence, Because of the personal form of address, I assumed that you had sent your conclusions to your open content licenses paper to me rather than to the list. So I put it in the pile of academic exchanges to be serviced and the result is that you are getting a response later than if I had recognized it for what it was. The piece you posted is very rich. Indeed I can imagine spending the rest of my life trying to deal with the questions you raise. The central one is surely what to do with the liberal tradition that helped to form England and America in their revolutionary period and now, in a perverse way, drives corporate aspirations for global domination. It seems obvious that the original premise of personal autonomy being secured through a law of property is an inappropriate framework for thinking about politics today (or anything else), serving only to mask the new social forms by an anachronistic and confusing rhetoric. This is the opening seized by the anti-liberal tendency from Spinoza and Nietzsche to Deleuze and Negri. But I believe the latter throw out the baby with the bath water. It is hard for me to imagine a democratic politics without the citzen subject or personal judgment and individual responsibility. I am happy to discuss building community, but not at the expense of considering the impersonal conditions for personal agency. I think that poor old Locke has carried the can for unbridled capitalism to an unfair degree and I am not sure that the free software movement deserves to be condemned by association with the motherland's contradictory history. I agree with you that this debate about licenses is too legalistic and US-centric. I would like to see a shift, echoed by your conclusions, to considering common sense and common law (imagine!) as the internalised basis of personal judgment and action. I will address your thoughts on the gift at some length, since I have written and thought deeply about that. I think it is useful to consider Mauss's The Gift (1925) in relation to his uncle Emile Durkheim's book, The Division of Social Labour (1893) and his own political writings, published in 1998. I have many detailed comments to make on your chapter. I call it a chapter, since the rest of it must be a book to have conclusions of this size. I don't know if the list is an appropriate vehicle for what may turn out to be a personal exchange of little public interest. But, as I said, this piece certainly hit the spot for me. So first some metaphysical groundwork for what I hope will be a fruitful exchange. Keith Durkheim sought, in work published in the decades around the turn of the century, to establish a science of society with which to counteract the market liberalism of his day. He identified the ideology of economic individualism with the English thinker, Herbert Spencer, whose ideas enjoyed enormous popularity at the turn of the century in a form which has come to be known as “Social Darwinism”. This doctrine combined evolutionary biology and the economic theory of competitive markets to explain riches and poverty as the outcome of innate individual differences. Durkheim had no time for the self-serving racism and class triumphalism of the bourgeoisie; his target was a broader and more elusive one. <> He believed that, although society is not easily visible to us, we must strive to understand its influence on our individual behaviour. We live normally in an everyday world made up of small events and pragmatic decisions, never pausing to ask how our ability to do these things rests on a largely invisible framework of shared social life. Durkheim despised economic individualism not because it was wrong, but because it left out the parts of human existence that we most need to understand, if we are to escape from the narrow treadmill of an unreflecting daily routine. In /The Division of Social Labour/ he focused on the core of everyday business practice, contracts. The exchange of contracts between individuals depends on a collective tradition of customary law, forms of government, social institutions and shared culture which might not always be visible, but are essential nonetheless. It may seem that, when you pay a few pence to a street vendor for a newspaper, only the immediate interests of the two parties are involved and then only for a transient moment. But try the thought experiment of locating the transaction in a largely uninhabited jungle and you can imagine what might be missing from that fleeting urban encounter. Durkheim called this social background to individual acts of exchange “the non-contractual element in the contract”; and it was central to his vision of the world. <> His main enquiry was into the sources of common moral sentiments or social solidarity. France’s experience of modern history had been highly disruptive, to say the least, with wars, invasions and revolutions punctuating attempts to stabilise political order. Durkheim’s interest was in securing the foundations of the Third Republic; and to this end he constructed two types corresponding roughly to primitive and modern societies. In the first, which he called “mechanical solidarity”, people thought alike and hung together because they were in essence the same, lived the same kind of life; whereas in the second, “organic solidarity”, division of labour made people interdependent precisely because they were different, did different things. The organic solidarity of industrial societies was potentially more durable than the mechanical form because specialised producers need each other and people who are self-sufficient do not. Implicit in this analysis was a critique of nationalism, the attempt to build solidarity on a primitive appeal to sameness. <> Durkheim, like many of his contemporaries, noticed that the world was rapidly becoming centralised, as large-scale industry concentrated people in mushrooming cities and governments acquired unprecedented powers of control over these anonymous masses. Economic individualism seemed anachronistic in such a world and, with the intellectuals at least, Herbert Spencer fell out of favour, so that in the 1930s, Talcott Parsons, the founder of modern American sociology, was able to write: “Spencer is dead. But who killed him and how? This is the problem”, listing Durkheim himself as the principal suspect. <> When the Romans were still Latins living as part of a disorganised rabble in West-Central Italy, they invented the word society (/societas/). Only much later, as the medieval French word /société/, did this come to mean a bounded entity with a fixed centre. Originally it meant a loose network of allies, a confederation of equals pledged to follow any group whose need in an emergency gave them temporary leadership. This was the context for another invention, the word “distribution”. At some stage it was felt that the association needed greater coherence. Accordingly, the confederation was divided into three parts (tribes or thirds) and in this form its members met from time to time to perform a ritual in which a cow was split into three and eaten by them separately and together. This process of division and allocation was called /distributio/, a sharing out between the tribes. <> I mention this origin myth because it illustrates something important. Division is not just a way of separating parts from wholes, it can also be preliminary to their recombination as a whole made stronger by having well-defined complementary parts. The model of division of labour promoted by Adam Smith and his successors argues that economic efficiency is advanced by specialisation. The good of us all is increased by leaving each to do what they can do best. Countries and regions should trade only in what they are naturally suited to produce (“comparative advantage”). Within work organisations, tasks should be broken down into their minimal components in order to benefit from smooth repetition. Competitive markets will weed out the inefficient operations. This is all very well, but most people and social groups fear the consequences of going out of business; they resent performing mindless tasks; and they wish to ensure that provision of basic needs remains within their own control. This version of division of labour seems to rest on a distribution mechanism that is inadequately social. <> Emile Durkheim argued that the point of division is to increase the cohesion of the whole, as in the case of the Latin tribes mentioned above. To divide is not just to separate, but potentially to unify on the basis of complementary difference. So that one reason for the traditional division of tasks between men and women might be to add strength to their union over long periods (in marriage, for example), when otherwise they would drift apart. In this scenario, markets induced by specialisation create the conditions for interdependence which could mitigate war. Europeans made a common market not least because they did not want to repeat the experience of two world wars fought largely on their territory. Division of labour can thus also be seen as a matter of life and death. Our future as a species depends on how the evolutionary questions raised here are resolved. Marcel Mauss, Durkheim’s nephew, started in the mid-1920’s with the recent ethnography of gift-exchange produced by Malinowski for the Pacific and by Franz Boas and his students for America's Northwest Coast. In the latter case, an institution known as /potlatch/ pitted indigenous leaders against each other in an orgy of competitive giving and material destruction. Mauss saw that there were parallels in western history and he proposed to outline a general theory of exchange based on these examples. Many people have subsequently read his /Essai sur le Don (The Gift)/ as offering a model of the gift economy to set in opposition to modern commerce, much as Malinowski// did. In fact, Mauss's intentions were the opposite. He wanted to show that the contrast between primitive and modern economy was a false one, being based on a split between society and the individual which has to be integrated if human beings of any time or place are to enjoy full lives. <>The simple contrastive approach to markets and gift-exchange rests on the notion that whereas “we” moderns are selfish individuals, “they”, the primitives, serve only the interests of their communities. Hence they prefer the generosity, even altruism and self-sacrifice of the gift, while we base our contracts on the pursuit of narrow personal advantage. By labelling one practice primitive and the other modern, we imply that the direction of social evolution is, however regrettably, towards economic individualism. Mauss profoundly rejected this argument. First of all, his uncle had already shown that market economy rests on social institutions as well as on individual interests. Then again, the gift still flourishes in pockets such as Christmas and weddings; and can be shown to underlie some of the contracts most central to capitalism, such as wages. Equally, the /kula/ and the /potlatch/ reveal a rampant egotism on the part of competing leaders which hardly squares with the stereotype of primitive communism. No, this attempt to separate individual and society as a developmental sequence just will not do. Mauss held that there are two prerequisites for being human: we each have to learn to be self-reliant to a high degree and we have to belong to others in order to survive, merging our identities in a bewildering variety of social relationships. Managing to be both at once is extraordinarily difficult and this accounts for how few truly successful human beings there are. Even so, we must try and this means that we all carry around in our heads knowledge of the principles of exchange, whether or not we succeed in practising them. <> Mauss asked how we create society where it did not exist before; and by this he meant every new instance of social connection from falling in love and bringing up baby to registering a business and establishing international relations. His answer was reciprocity, the idea that exchange must be two-sided. He broke reciprocity down into three rules which he believed were common to all humanity: the obligation to give; the obligation to receive the gift; and the obligation to make a return gift in time. All forms of exchange are variants of this logic which is as universal as parent-child relations. Mauss wrote of a spiritual bond between persons and material objects which extended to relationships formed through the circulation of these objects. In every way modern markets deny this premise, separating individuals from the object world and from each other, banishing the spirituality and social substance from exchange. Yet our humanity inserts the spirit of the gift into market economy in profound ways. <> Mauss believed that reciprocity probably had its origin in sacrifice, /do ut des/, I give so that you will give to me. Faced with the overwhelming forces of the natural world, primitive man gave up something material in the hope of making a spiritual connection which would be translated into a reciprocal social relationship with unseen powers, the gods. The next stage in this speculative evolutionary sequence he called “total prestations”, meetings between whole communities in which everything was exchanged, much in the manner of medieval fairs. Mauss imagined that gift-exchange might be a step towards individuation of these collective encounters, leading as it does to the threshold of authoritarian rule. Giving in the form of alms or charity exchanges material support for moral deference in evolved systems of social stratification. Finally, individuals confront each other as equals in markets, without benefit of social or spiritual ties. And this enables, on the face of it, a clean separation of persons and things to occur, so that buyers can walk away from sellers, knowing that any obligation between them has been wiped out by the equivalence of whatever has been paid. <> In this account, the human story begins with religious alienation and culminates in a secular version of the same condition with which we are all too familiar. Mauss sought to provide us with the means of rediscovering the common basis of reciprocity that underlies market economy, since the logic of the gift persists at all sorts of levels unknown to the prevailing ideology. The big difference between gifts and market contracts, according to Mauss, lies in the timing of the return. A gift must be returned at some time in the future, whereas a contract is defined by the instant equivalence of the exchange. Mauss noted that givers are superior to receivers as long as their gift stays unreciprocated; if recipients cannot make a material return, they owe spiritual deference. This points to the conclusion that giving is intrinsically unequal, leading to the contests between participants in gift-exchange, each striving to outdo the other in order to cancel outstanding debts and establish a temporary advantage as the last one to give. If anyone should doubt the inequality of the gift (as in the Innuit proverb: “Gifts make slaves as whips make dogs”) remember that the archetypal gift relationship is that between parents and children and they don't come more unequal than that. <> It follows that Mauss thought markets were a force for greater social equality. The idea that “my money is as good as yours” and that people walk away from contracts having established their mutual equality was quite widespread in the Manchester of my childhood. My grandmother, whose family was not long emancipated from a feudal estate, refused to join the “free” library or to accept National Health spectacles, since they smacked of the gift and charity. She had no intention of going back to the world of handouts from the lord and master. Today we are more sensitive perhaps to the fact that people enter the market with huge discrepancies in the amount of money at their disposal; and we vote for governments pledged to redressing such inequalities through the power of the state. Mauss was prescient (as was my grandmother) in recognising the potential of the welfare state to reproduce a new class system based on the superiority of tax donors to the recipients of benefits. <> His more general point was that we all understand the principles of exchange, whether we objectify them or not. A young woman who goes out with a man to the cinema has a stock repertoire of responses to his offer to buy both tickets. Going dutch means that she refuses social obligation at this stage; accepting the offer leaves open the question of how the gift will be returned... On other occasions we make compromises, perhaps offering to pay the tip while one’s companion picks up the bill for a shared meal. This retains the social and spiritual companionship of the gift, while asserting an underlying willingness and ability to reciprocate as an equal in future. <> Seen in this light, the pure types of selfish and generous economic action obscure the complex interplay of human reciprocity as we seek to define our individuality while belonging in subtle ways to others. Immature individuals have problems with subtlety and commonly have resort instead to one extreme or the other. Consider, for example, the baby in its pushchair. One moment it clings to its toy as a matter of life or death, refusing to part with it, person and thing wedded together in a parody of possessive individualism; the next moment it throws the toy overboard, supremely indifferent to its fate or perhaps altruistically sharing it with the world. It says little for our ideologies that they rest on a similar childishness. Consider again how lovers behave, especially at the beginning of an affair. One moment he will insist on controlling her every movement, the next he will be offering himself, heart and soul for ever, with no thought for his own independence. It is a sad reflection on our world than many people never get beyond this stage. If learning to be two-sided, to reciprocate, is the means of becoming human, then the lesson is clearly hard to learn. <> The ideology Mauss fought has made a strong recovery in the second half of the twentieth century. So much so that most readers of his essay still think that it is about an alternative to capitalism called the gift economy. His mission was to show people who live by markets that they too belong to each other in society. This is not the opposite of individualism, since no-one is of any use to society if they can't look after themselves. The same imperatives hold in so-called “primitive” societies, as Malinowski’s ethnography showed, even if his rhetoric favoured a more extreme contrast with the West. Mauss concluded that the gift was still present in such market contracts as wages; for does not the worker give his labour on the promise of future payment? Even more profoundly, the linguistic distinction between sellers and buyers, between those who give and take in trade, suggests an older inequality beneath the surface of equal exchange. And, as a personal example of the kind of society he wanted to live in, he laboured to publish the research of colleagues killed needlessly in the first world war. <> I often wondered why Mauss wrote so little, a handful of essays only; and the idea of selfless labour on behalf of dead colleagues filled that gap. But recently a huge volume of his occasional political writings was published, 800 pages, two thirds of them written in the period 1920-25. Here Mauss is revealed as a passionate advocate of the co-operative labour movement and prescient critic of Bolshevism. The societies he was concerned with (in rough order of index citations) were France, Russia, England, Germany, the United States, Switzerland, Italy, Belgium, Holland, Scotland, Morocco and Denmark. Not much on the /kula /or the /potlatch /here. It is something of a tragedy that Mauss’s academic admirers in the late 20^th century should have been oblivious of what was clearly his greater commitment, to the political causes of his day. This separation of engagement and exoticism, of the personal and the impersonal, which Mauss reproduced even as he transcended it, is one legacy of modern anthropology that we must put behind us. From rajlakshmi_nesargi at yahoo.com Thu Oct 7 11:54:40 2004 From: rajlakshmi_nesargi at yahoo.com (Rajlakshmi Nesargi) Date: Wed, 6 Oct 2004 23:24:40 -0700 (PDT) Subject: [Commons-Law] EPO revokes Monsanto patent on Indian Wheat variety Message-ID: <20041007062440.69823.qmail@web51601.mail.yahoo.com> SUDDENLY SOMETHING Another piece of news ..... Business Standard 06.10.04 SUDDENLY SOMETHING EPO revokes patent on Indian �Nap Hal� In a clear victory for Indian farmers, the European Patent Office has revoked the patent on Indian �Nap Hal� wheat variety following a legal opposition filed by Greenpeace at the EPO in February. EPO has informed Grenpeace that the patent has been revoked in total, according to Ashesh Tayal, scientific advisor, Greenpeace India. The EPO in Munich has granted a patent to Monsanto on May 21, 2003The patent covered wheat exhibited a special baking quality that Monsanto claimed to be its invention. However, Greenpeace proved that the wheat variety was bred by Indian farmers for improving its baking quality and it was not a genetically-engineered invention as claimed by Monsanto. __________________________________________________ Do You Yahoo!? Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com From karim at sarai.net Thu Oct 7 12:29:27 2004 From: karim at sarai.net (Aniruddha Shankar) Date: Thu, 07 Oct 2004 12:29:27 +0530 Subject: [Commons-Law] Interesting US ruling on EULAs Message-ID: <4164E94F.4080800@sarai.net> The UNITED STATES DISTRICT COURT of the EASTERN DISTRICT OF MISSOURI has ruled [1] that an EULA (End User License Agreement) of a commercial product can legally prohibit the licensees from interoperating with other software. Blizzard Entertainment, makers of the wildly popular game series starcraft, warcraft and diablo and owners of the battle.net online service for multiplayer gaming between blizzard games sued the bnetd project in early 2002. The bnetd project, an open source effort, allows people to run multiplayer game servers that emulate the battle.net servers, allowing people who have purchased / licensed the game to connect to a bnetd server instead of the official battle.net server. Blizzard argued that the programmers who wrote BnetD violated the DMCA's anti-circumvention provisions and that the programmers also violated several parts of Blizzard's EULA, including a section on reverse engineering The Electronic Frontier Foundation (EFF), co-counsel for the defendants, argued that programming and distributing BnetD was fair use. The programmers reverse-engineered Battle.net purely to make their free product work with it, not to violate copyright. According to discussants on Slashdot[2], the highlights of the ruling include: 1. A clickthrough EULA isn't unconscionable (and thus enforceable) 2. Fair Use rights can be waived in a EULA 3. First Sale rights (!) can be waived in a EULA 4. The DMCA's interoperability provisions are not a defense There's an interesting comment[3] and a counter [4] to which commons-lawyers might want to respond. 3: "*Huh?* If you are that concerned about EULA's (and I'm not saying that you are wrong to be) simply email the company asking to see their Eula before purchasing. Adobe (for example) lists their EULA on their webpage, and refers you there from the outside of the box [I think this is the way to go]. It used to be standard practice to print the EULA on the outside of the shrinkwrapped plastic disk package. If you're concerned with the usage-restrictions in a EULA, take the time to find out. And if you don't agree with the terms (quite reasonable in the case of spyware etc.) don't accept the EULA and send back the software for a refund; that is: don't use the software . It is the software maker's perogative to offer their software on whatever conditions they want, and it is your perogative to NOT USE THEIR SOFTWARE (and instead consider giving your money to a competing product)." 4" If you're concerned with the usage-restrictions in a EULA, take the time to find out. That's bullshit. When I head over to my local bookstore, I don't first log into the publishers web site to see if I'll be able to sell the book to a used book shop. When I go buy a CD, I don't check to see if I can make a tape copy, or if I can sell it to a used cd shop. The software industry has managed to convince the world that they get to have magical new rules unlike those anywhere else in the world. This little trick is based on some downright flaky court rulings and an ignorant public. It does not need to be this way, and it should not need to be this way. I'm perfectly happy to make contracts. I sign employment agreements, cell phone contracts, auto-loan contracts, service contracts, and more. In those situations it's done honestly; we agree roughly on the terms, I'm presented with and sign the contract, we then exchange goods, services, and/or money. And if you don't agree with the terms (quite reasonable in the case of spyware etc.) don't accept the EULA and send back the software for a refund; that is: don't use the software Hahahahahahaha. Sure. Take it back; I'm sure they'll happily give you a refund. Right. And since we're in fantasy-land anyway they'll reimburse you for the time you wasted buying a product you only learned you couldn't use when you got home. It is the software maker's perogative to offer their software on whatever conditions they want, and it is your perogative to NOT USE THEIR SOFTWARE (and instead consider giving your money to a competing product). Sure. I was at Best Buy recently. There were music CDs, the offer appeared to be about $18 for a music CD, o strings attached. There were some magazines, the offer was often something like $3.95 for a magazine, no strings attached. I actually bought a new clock-radio; the posted offer was $29.95, no strings attached. I headed over to check out pricing for Doom III. The posted offer was $54.99. There was no sign warning me of additional limitations. There certainly wasn't any contract present that I could review. Yet, for some magical reason, I'm supposed to treat Doom III different. It'll complete bullshit. If software publishers want contracts with customers, they can afford to be up-front and honest about it." [1] http://www.freedom-to-tinker.com/doc/2004/bnetd_30sep.pdf [2] http://yro.slashdot.org/article.pl?sid=04/10/02/1648254 [3] http://yro.slashdot.org/comments.pl?sid=124141&cid=10414495 [4] http://yro.slashdot.org/comments.pl?sid=124141&cid=10417723 From vivek at sarai.net Fri Oct 8 13:16:15 2004 From: vivek at sarai.net (Vivek Narayanan) Date: Fri, 08 Oct 2004 13:16:15 +0530 Subject: [Commons-Law] [Fwd: [foil] Diebold ("touch screen voting machines") Loses Key Copyright Case ] Message-ID: <416645C7.7090604@sarai.net> Sorry for those who already saw this article. I'm afraid I don't have anything very intelligent to say about this, but it sounds like good news! V. Wired 05:03 PM Sep. 30, 2004 PT Diebold Loses Key Copyright Case http://www.wired.com/news/evote/0,2645,65173,00.html Students who sued Diebold Election Systems won their case against the voting machine maker on Thursday after a judge ruled that the company had misused the Digital Millennium Copyright Act and ordered the company to pay damages and fees. Lawyers for the students call the move a victory for free speech. A judge for the California district court ruled that the company knowingly misrepresented that the students had infringed the company's copyright and ordered the company to pay damages and fees to two students and a nonprofit internet service provider, Online Policy Group. Last October, students at Swarthmore College in Pennsylvania posted copies and links to some 13,000 internal Diebold company memos that an anonymous source had leaked to Wired News. The memos suggested that the company was aware of security flaws in its voting system when it sold the system to states. Diebold sent several cease-and-desist letters to the students and threatened them with litigation, citing the Digital Millennium Copyright Act, or DMCA. Online Policy Group was also threatened after someone posted a link to the memos on a website hosted by the ISP. Diebold said the memos were stolen from a company server and that posting them or even linking to them violated the copyright law. The Electronic Frontier Foundation, which took on the case for the Online Policy Group, argued that the memos were an important part of the public debate on electronic voting systems. After a slew of bad publicity criticizing their strong-arm tactics, Diebold backed down and withdrew its legal threats in December, but a spokesman said at the time that no one should interpret the move as implying that the DMCA did not apply in the case. "We've simply chosen not to pursue copyright infringement in this matter," spokesman David Bear told Wired News. But the California district court judge ruled otherwise. Judge Jeremy Fogel wrote in his decision that "no reasonable copyright holder could have believed that portions of the e-mail archive discussing possible technical problems with Diebold's voting machines were protected by copyright." The judge ruled that Diebold "knowingly materially misrepresented" that the students and ISP had infringed Diebold's copyright. Wendy Seltzer, staff attorney for the Electronic Frontier Foundation, said she hopes the decision will encourage ISPs to resist takedown demands from companies that use the DMCA to bar the speech of their clients. Seltzer said she hoped the decision would show colleges and ISPs that they shouldn't cave because they think litigation will be too expensive and useless. "For people who are facing threats under the Safe Harbor provision of the DMCA, this gives them another tool in the arsenal to resist demands," Seltzer said. "If the ISP now has the right to cover its fees and costs, the ISP can now be more confident in standing up to its accusers." Diebold will have to pay the students and the ISP their attorney fees, court costs and various other damages, which Seltzer said will probably be in the "low six figures." Seltzer said the figure wasn't going to bankrupt Diebold but she said that was never their goal. The ruling makes Diebold the first company to be held liable for violating section 512(f) of the Digital Millennium Copyright Act, which makes it unlawful to use the DMCA takedown threats when the copyright holder knows that infringement hasn't occurred. "We weren't out to get Diebold," Seltzer said. "We were out to crack down on the misuse of copyright threats. It's a matter of showing Diebold and companies that there is a cost to making false threats and to show ISPs that they have a remedy if they feel they are being unfairly threatened. It's not free to threaten infringement when there's no good faith claim for infringement." From shamnadbasheer at yahoo.co.in Fri Oct 8 16:21:48 2004 From: shamnadbasheer at yahoo.co.in (Shamnad Basheer) Date: Fri, 8 Oct 2004 11:51:48 +0100 (BST) Subject: [Commons-Law] Re: AMTC letter on patent amd bill In-Reply-To: <416645C7.7090604@sarai.net> Message-ID: <20041008105148.79204.qmail@web8405.mail.in.yahoo.com> Since the recent patents amendment bill in India has been sparking some discussion (thankfully), I thought it may be a good time to include the below letter, as also a recent piece that I wrote for the ET. Unfortunately, the ET piece is quite technical-my apologies to the lay reader- I will be happy to explain some of the terms used though. Regards-Shamnad Please find bleow the copy of AMTC's letter to the Chairperson of the Group= of Ministers on Patent ( Amendment Bill). 8th September 2004 Mr. Pranab Mukherjee Hon'ble Minister of Defence Room No. 104, South Block, New Delhi 110 001 Dear Mr. Mukherjee Sub: Group of Ministers (GoM) on the Patent Amendment Bill Affordable Medicine and Treatment Campaign (AMTC) is a national campaign ai= med at creating an environment that will ensure sustained accessibility and= affordability of medicines and treatment for every individual in India, in= cluding access to affordable Anti-Retroviral Therapy for persons living wit= h HIV/AIDS. It consists of civil society organisations, NGOs, patients grou= ps, healthcare providers and concerned individuals. The campaign was initia= ted in 2001 with the following mission statement: The right to life and health is a fundamental right guaranteed to every per= son living in India and is non-negotiable. This campaign aims to demand and= create an environment that will ensure sustained accessibility and afforda= bility of medicines and treatment for every individual in India, including = access to affordable Anti-Retroviral Therapy for persons living with HIV/AI= DS. This campaign shall be democratic and participatory. It will seek the m= obilization of communities and civil society to make state, national and in= ternational agencies and industry accountable for securing health for all. The AMTC attempts to encourage action on a wide spectrum of issues relating= to the right to treatment. These include WTO negotiations relating to the = TRIPS agreement (TRIPS), the impending amendment to Patents Act, law and re= gulation of drug pricing, national and state level governmental policies re= lating to health including vertical disease programmes, health needs of the= population, transparency and accountability in the pharmaceutical sector, = treatment literacy and health care infrastructure and capacity etc. We have learned from the newspaper reports that Cabinet has referred the Pa= tent Amendment Bill to a Group of Ministers (GoM) consisting of Defence Min= ister, Health Minister, Human Resources Minister and Commerce Minister. Acc= ording to the reports the intention of the referral is to study and report = back to the Cabinet about the implications of the contentious issues in the= third Patents Amendment Bill. We also have unconfirmed reports that the Bi= ll before the Group of Ministers is identical to the third Amendment Bill i= ntroduced in the last Lok Sabha in December 2003. If that is the case, we h= ave serious concerns about the contents of the Bill. The main concerns rais= ed by public interest groups against the third Amendment Bill are as follow= s. Firstly, the Bill proposes to extend the scope of patentability beyond the = TRIPS requirements by amending Section 3 (d) to permit new use patents. The= re is no requirement under TRIPS to provide patent protection to new use of= known drugs. The Mashelkar Committee had recommended restricting the paten= t protection only to new chemical molecules. Secondly, the Bill proposed to= do away with the pre-grant opposition procedure. Currently there are appro= ximately 6000 applications pending in the mailbox. In the absence of pre-gr= ant opposition, these 6000 applications would escape much needed public scr= utiny. Public scrutiny becomes crucial in light of the fact that less than = 500 drugs have been granted marketing approvals in India between 1995-2004.= Thirdly, the Bill has not properly incorporated the August 30th Decision, = which permits the grant of compulsory licence for export purposes. The Bill= proposes to permit compulsory licensing for export purpose if there is a c= ompulsory license in the importing country having no or insufficient manufa= cturing capacity in the pharmaceutical sector. This ignores the fact that i= n many instances, there may not be any patent protection in the importing c= ountry because the time line for Least Developing Countries (LDCs) to compl= y with TRIPS is 2016. In that event, the Indian drug companies would not be= able to export to LDCs in the absence of a compulsory licence granted by t= he LDC. Lastly, the Bill fails to revamp the compulsory licensing mechanism= . The compulsory licence regime within the Patents Act contains cumbersome = procedures without any time line for the final disposal of the applications= . All these have serious and adverse ramifications for public interest and = security of the country. Further we feel that Government views the issue of patent law only as a tra= de issue between Indian drug companies and foreign companies not a health i= ssue concerning the public as a whole and civil society in particular. As a= result, with a few exceptions the civil society participation is negligibl= e in intellectual property related law and policy making. This has resulted= in the marginalisation of human rights concerns in the intellectual proper= ty law and policy. Therefore we think that civil society groups working on = intellectual property, food and health issues should be consulted and heard= before finalising any decision on the third amendment because people at la= rge, as an affected party, have a right to be consulted and heard. Hence, w= e would request you to give us an opportunity to place our views on the Thi= rd Amendment Bill along with other interested groups and individuals. Hope to hear from you soon in this regard Thanking you For AMTC Anand Grover Lawyers collective HIV/AIDS Unit -- ________________________________________________________________________ Yahoo! India Matrimony: Find your life partner online Go to: http://yahoo.shaadi.com/india-matrimony From shamnadbasheer at yahoo.co.in Fri Oct 8 16:27:17 2004 From: shamnadbasheer at yahoo.co.in (Shamnad Basheer) Date: Fri, 8 Oct 2004 11:57:17 +0100 (BST) Subject: [Commons-Law] Economic Times In-Reply-To: <416645C7.7090604@sarai.net> Message-ID: <20041008105717.76658.qmail@web8406.mail.in.yahoo.com> Sorry-forgot to include the piece that I had recently written for ET (published in the Sunday edn-26th Sept) Shamnad OF GENERICS, PHARMACEUTICAL PATENTS AND THE COUNTDOWN TO 2005: A NOTE TO POLICY MAKERS The pharmaceutical industry waits with bated breath for the year 2005-it is expected that this year will see the ushering in of a product patent regime for pharmaceuticals in India. Naturally enough, generic companies are apprehensive-they fear that their golden days of cashing in on generic versions of patented drugs will soon have to end. A recent report in the Economic Times (30 July 2004), titled “Pharma Companies agree to pay royalty to patent-holders” echoed these deep seated fears of the generic companies by reporting that they were willing to pay a 4% royalty for the use of patented drugs. This report went on to state that the recent Patents Bill, 2003 makes infringement provisions applicable to ‘mailbox applications’ too. As most readers are aware, India amended her patent regime in 1999 to provide that applications claiming pharmaceutical inventions would be put away in a mailbox, to be examined in 2005-these applications are commonly referred to as ‘mailbox applications’. The report above hints at a retrospective application of patent rights i.e. patentees can claim damages, even though the alleged acts of infringement occur prior to the grant of patent itself. However, in so far as this retrospectivity applies to mailbox applications, there is some uncertainty as to the precise point in time from which damages can be claimed. This uncertainty will most likely result in litigation, a consequence likely to benefit only one section of the public - lawyers. The recent change in government and the consequent lapsing of the 2003 Bill presents an ideal opportunity to remove this uncertainty. This note is a plea to policy makers and legislators to take note of this uncertainty and rectify it as soon as possible so as to save valuable resources that would otherwise be lost in endless litigation. Like Rights/Privileges: It is logical to assume that patent rights would accrue only after a patent has been granted. After all, any rights accruing prior to the patent grant would prove problematic, in the event that a patent is not ultimately granted. However there is one exception to this rule enshrined in the Indian Patents Act. And it is this exception that is likely to pose some problems for generic manufacturers, post 2005. Section 24 of the Patents Act, 1970 provides as follows: On and from the date of advertisement of the acceptance of a complete specification and until the date of sealing of a patent in respect thereof, the applicant shall have like rights and privileges as if a patent for the invention had been sealed on the date of advertisement of acceptance of the complete specification: Provided that the applicant shall not be entitled to institute any proceedings for infringement until the patent has been sealed. As made clear from this section, from the time of advertisement of the acceptance of the complete specification, the patentee would have ‘like privileges and rights as if the patent had been granted’. Consequently, a patentee, upon grant of the patent, could claim damages retrospectively from an infringer for any infringement that occurred after the date of advertisement of acceptance of the complete specification. The rationale behind section 24 appears to be that since the contents of the patent specification come to the knowledge of the public at the time of advertisement of acceptance of the complete specification, the prospective patentee ought to be given some sort of interim protection till such time that the patent is granted. Stripped of all its esotericism, a patent is essentially a bargain between the inventor and the society: the inventor gains a temporary monopoly in exchange for revealing his/her invention to society. It is therefore only fair that upon revealing such information (through the advertisement of the complete specification), the inventor be granted rights akin to those of a patent. Under the 2002 amendments to the Patents Act, 1970, section 11A was added to mandate that every patent application shall be published soon after 18 months from the date of filing of the patent application. Consequently, this date of publication now became the date of first public knowledge of the contents of patent specifications. One would have thought that the ‘like rights and privileges’ principle underlying section 24 would be replicated in section 11A i.e. that any specification published in accordance with section 11A (within 18 months) gain ‘rights and privileges’ akin to those of a patent. However, in what appears to be a genuine drafting mistake, this was not done. This oversight was then sought to be rectified by Clause 10 (b) of the 2003 Bill. In much the same way as section 24, Clause 10 (b) states that an applicant shall have like rights and privileges as if a patent for the invention had been granted on the date of publication of the application – provided that the applicant will not be entitled to institute any proceeding for infringement until the patent has been granted. Retrospectivity of the 2003 Bill: It is expected that the 2003 bill (either in its present form or as amended) would come into force sometime in 2005. An interesting question would therefore arise: Would Clause 10 (b) apply retrospectively i.e. from the date of publication of a mail-box application? It must be noted that in accordance with section 11A, some mailbox applications were published in July 2003. In the event of Clause 10 (b) applying retrospectively to such publications, generic companies would be adversely impacted. Let us assume for the sake of argument that the 2003 bill comes into force on 1.1. 2005. If a retrospective operation is given to clause 10 (b), generic companies would be made liable for all infringements between July 2003 (the date of publishing of some mail box applications) and 1.1. 2005-when during this interval, they had absolutely no clue that they could be made so liable. There are several other arguments that would support a prospective and not retrospective reading of Clause 10 (b). One could argue that a statutory provision cannot be given retrospective effect, without the legislature expressly stating so or by necessary implication. In Jose De Costa v. Bascora Sadasiva Sinai Narcornim AIR 1975 SC 1843, the court endorsed the principle by Lopes LJ in Pulborough Parish School Board Election, Bourke v Nutt (1894) 1QB 725 that ‘provisions which touch a right in existence at the passing of a statute are not be applied retrospectively in the absence of express enactment or necessary intendment’. Thus for example, section 1(2) of the Patents (Amendment) Act, 1999 stated that the entire Act would come into effect retrospectively from 1st January 1995. Since there is no such similar provision accompanying the introduction of Clause 10(b) of the 2003 Bill, it would be reasonable to infer that the said Clause cannot be given a retrospective operation. Providing protection to mailbox applications published in July 2003 under a Bill that finally becomes law only in 2005 (or thereafter) would amount to granting retrospective operation. It would also appear that in view of the fact that TRIPS mandates product patents to pharmaceutical products only from 1.1.2005, the legislature could not have intended Clause 10 (b) to operate retrospectively. Of course, the Indian government is free to implement TRIPS even prior to this date. However, considering the fact that our obligation to put in place a ‘mail box facility’ was finally effectuated only in 1999 (despite TRIPS mandating that this be done by 1995), it seems unlikely that the Indian government would intend a premature application of the product patent regime for pharmaceuticals. A retrospective reading of Clause 10 (b) would in an indirect way amount to granting protection to pharmaceutical products prior to 2005. As all of the above arguments indicate, logic dictates against retrospectivity. Unfortunately, logic does not always inform judicial reasoning. It is quite possible that a judge read Clause 10 (b) retrospectively, making generics accountable for damages from the date of publication of the mailbox applications. To provide against such a potentially inequitable result, it is important to provide explicitly in the 2003 Bill that Clause 10 (b) operates only prospectively and not retrospectively. Needless to say, none of this uncertainty would have crept in, had the publication mandate within section 11(A) excluded mail box applications. Given the fact that these applications were not to be examined till 31 December 2004 (see section 24A of the Patents Act), there was no need to have them published at such an early date. However as section 11 (A) did not expressly exclude mailbox applications, they were published as early as July 2003. As to whether these publications made the position of innovative pharmaceutical companies worse off is debatable. Generics would contend, and forcefully so, that they did not need to see such published specifications to arrive at their generic versions-rather they could very well have done so through reviewing applications filed abroad or even by procuring the drug from abroad and reverse engineering it. Even assuming that the publication of mailbox applications did detrimentally impact innovative pharmaceutical companies, such ‘acts’ of publication would not impose any liability on India under TRIPS. Article 70.1 of the TRIPS Agreement states that TRIPS ‘does not give rise to obligations in respect of ‘acts’, which occurred before the date of application of the Agreement for the Member in question’. The “date of application” of the agreement, as used in the provision above varies according to the stage of development of the WTO members. In the context of India and its obligation to provide patent protection to pharmaceuticals, the relevant date of application is 1 January 2005 (Article 65.4). The next question, and perhaps, the most relevant one to ask would be: At what stage would mail box applications that have already been published merit protection? A prospective reading of Clause 10 (b) would ensure that any such applications published after the coming into force of the 2003 Bill would gain ‘like rights and privileges’. However, in so far as applications published in July 2003 are concerned, the position remains unclear. Ideally speaking, such applications should merit a ‘like rights and privileges’ protection upon the entry into force of the 2003 Bill. This again ought to be expressly provided for in the Bill so as to prevent any sort of uncertainty and ensuing litigation. The year 2005 will prove a good one for patent lawyers-the innovative vs. generic courtroom battles will soon find their way to India. Let not uncertainties in our patent regime provide fodder for such battles. Uncertainty in the law does no one any good-and it is important that we plug any loopholes in our regime as quickly as possible. Shamnad Basheer Associate Oxford Intellectual Property Research Centre (OIPRC) University of Oxford Oxford OX1 2DL Email: shamnad.basheer at law.ox.ac.uk Phone: +44 7765407707 ________________________________________________________________________ Yahoo! India Matrimony: Find your life partner online Go to: http://yahoo.shaadi.com/india-matrimony From lawrence at altlawforum.org Fri Oct 8 17:18:58 2004 From: lawrence at altlawforum.org (Lawrence Liang) Date: Fri, 08 Oct 2004 17:18:58 +0530 Subject: [Commons-Law] Copyright enforcement arrives at home Message-ID: 459 Net song-swappers sued REUTERS[ THURSDAY, OCTOBER 07, 2004 09:45:25 PM ] LONDON: The piracy-battered music industry said on Thursday it will sue British, French and Austrian music fans for the first time as it intensifies its legal crackdown on Internet song-swappers. The drive singles out users of popular file-sharing networks Kazaa, eDonkey, and Gnutella where Internet users can download and exchange songs for free. Trade group the International Federation of the Phonographic Industry (IFPI) said it filed 459 criminal and civil lawsuits against some of the most prolific users of Internet file-sharing networks in the UK, France and Denmark, with a second wave of law suits in Germany, Italy and Denmark. The suits were filed on behalf of some of the largest music labels, including EMI, Warner Music and Universal Music. Rather than going for people simply downloading songs for their own use, they specifically target "uploaders" or those who share their music collection with others, thus creating a vast market in free tunes. "We are taking this action as a last resort and we are doing it after a very long public awareness campaign," said IFPI chairman Jay Berman. "We have spent more than a year discussing the damage illegal file-sharing is doing to the music industry, including countless warnings of the legal consequences. Now, finally, we are at the point where the law has to be enforced. "People who love music should buy it online and not swap files illegally," he added. The IFPI warned more countries will be added to the dragnet in coming months. To date, the music industry has announced lawsuits against over 5,700 individuals in the United States since September, 2003, and 650 in Europe since March this year. Industry officials called the first wave of lawsuits a successful deterrent, pointing to a 20 per cent decline in usage of Kazaa since January. In Britain, music officials said that as part of a new "rolling programme of legal actions", they will launch 28 civil court cases against British uploaders. Criminal and civil court cases are being filed against 50 alleged uploaders in France, 100 in Austria, 174 in Denmark, and 100 in Germany. In Italy, home to one of the toughest copyright protection laws in the world, police have raided the premises of seven large-scale file-sharers. The music industry is determined to woo back music fans from free-file sharing networks to stem declines in CD sales and support fledgling download services such as Apple Computer's iTunes and Sony Connect. From lawrenceliang at vsnl.net Fri Oct 8 18:42:04 2004 From: lawrenceliang at vsnl.net (Lawrence) Date: Fri, 08 Oct 2004 18:42:04 +0530 Subject: [Commons-Law] Alternatives for the patent system? In-Reply-To: Message-ID: E-DRUG: Alternatives for the patent system? ------------------------------------------- [Drug prices are growing out of control in the USA [and the rest of the world; WB]. Is there any alternative to the patent system for funding drug research? The executive summary below is from a report submitted to WHO Commission on Intellectual Property Rights, Innovation and Public Health (CIPIH) by Dean Baker, co-director of the Center for Economic and Policy Research (CEPR). The full paper can be downloaded from http://www.who.int/intellectualproperty/news/en/Submission-Baker.pdf More info re CIPIH at http://www.who.int/intellectualproperty/en/ CEPR is at http://www.cepr.net WB] Financing Drug Research: What Are the Issues? by Dean Baker, co-director of the Center for Economic and Policy Research (CEPR) [Executive Summary] Rising drug prices are placing an ever larger burden on family budgets and the economy. The Center for Medicare and Medicaid Services estimates 2004 expenditures at $207 billion (more than $700 per person), and projects that annual spending will grow to more than $500 billion by 2013 (more than $1,600 per person). The immediate cause of high drug prices is government granted patent monopolies, which allow drug companies to charge prices that are often 400 percent, or more, above competitive market prices. Patent monopolies are one possible mechanism for financing prescription drug research. Rapidly increasing drug costs, and the economic distortions they imply, have led researchers to consider alternative mechanisms for financing drug research. This paper outlines some of the key issues in evaluating patents and other mechanisms for financing prescription drug research. It then assesses how four proposed alternatives to the patent system perform by these criteria. The most obvious problem stemming from patent protection for prescription drug is the huge gap it creates between the cost of producing drugs and the price. In addition, to making drugs unaffordable in many cases, high drug prices also lead to enormous economic inefficiency. Patent monopolies cause economic distortions in the same way that trade tariffs or quotas lead to economic distortions, but the size of the distortions are far greater. While trade barriers rarely increase prices by more than 10 to 20 percent, drug patents increase prices by an average of 300- 400 percent above the competitive market price, and in some cases the increase is more than 1000 percent. Simple calculations suggest that the deadweight efficiency losses from patent protection are roughly comparable in size to the amount of research currently supported by the patent system  approximately $25 billion in 2004. Projections of rapidly rising research costs, and therefore a growing gap between price and marginal cost, imply that the deadweight loss due to drug patents will exceed $100 billion a year by 2013. As economic theory predicts, government granted patent monopolies lead not only to deadweight efficiency losses due to the gap between the patent protected price and the competitive market price, but also to a variety of other distortions. Among these distortions are: 1) excessive marketing expenses, as firms seek to pursue the monopoly profits associated with patent protection  data from the industry suggests that marketing costs are currently comparable to the amount of money spent on research; 2) wasted research spending into duplicative drugs  industry data indicates that roughly two thirds of research spending goes to developing duplicative drugs rather than drugs that represent qualitative breakthroughs over existing drugs; 3) the neglect of research that is not likely to lead to patentable drugs; 4) concealing research findings in ways that impede the progress of research, and prevent the medical profession and the public from becoming aware of evidence that some drugs may not be effective, or could even be harmful. In addition, the patent system for financing prescription drug research poses large and growing problems in an international context. Disputes over patent rules have increasingly dominated trade negotiations. Furthermore, problems of enforcement have persisted even after agreements have been reached. These problems are likely to worsen through time, as the pharmaceutical industry seeks to increase the amount of money it extracts from other countries through patent rents. This paper examines four alternatives to the patent system: 1) A proposal by Tim Hubbard and James Love for a mandatory employer-based research fee to be distributed through intermediaries to researchers (Love 2003); 2) A proposal by Aidan Hollis for zero-cost compulsory licensing patents, in which the patent holder is compensated based on the rated quality of life improvement generated by the drug, and the extent of its use (Hollis 2004); 3) A proposal by Michael Kremer for an auction system in which the government purchases most drug patents and places them in the public domain (Kremer 1998);2 and 4) A proposal by Representative Dennis Kucinich to finance pharmaceutical research through a set of competing publicly supported research centers (Kucinich 2004). All four of these proposals finance prescription drugs in ways that allow most drugs to be sold in a competitive market, without patent monopolies. These proposals also would eliminate many of the economic distortions created by the patent system. [Table omitted] Hay and Zammit (2002) suggest a variant of the Kremer auction system, in which only patents that are especially important for public health (e.g. an AIDS vaccine) are put up for auction and bought by the government. Under this system, many drug patents would remain privately held, with drugs sold in the same manner as they are now. These proposals, along with other plausible alternatives to the patent system, deserve serious consideration. Current projections for drug spending imply that patent supported prescription drug research will lead to ever larger distortions through time. For this reason, it is important to consciously select the best system for financing prescription drug research, not to just accept the patent system due to inertia. --- _______________________________________________ e-drug mailing list e-drug at healthnet.org http://list.healthnet.org/mailman/listinfo/e-drug ------ End of Forwarded Message From sudhir at circuit.sarai.net Fri Oct 8 21:56:26 2004 From: sudhir at circuit.sarai.net (sudhir at circuit.sarai.net) Date: Fri, 8 Oct 2004 21:56:26 +0530 (IST) Subject: [Commons-Law] [Fwd: [foil] Diebold ('touch screen voting machines') Loses Key Copyright Case ] In-Reply-To: <416645C7.7090604@sarai.net> References: <416645C7.7090604@sarai.net> Message-ID: <3068.163.1.43.132.1097252786.squirrel@163.1.43.132> Dear Vivek An instance of the copyright abuse doctrine taking good effect. Interestingly the Copyright Act 1957 has strong copyright abuse provisions. Section 60 which provides for declaratory injunctions and damages has been put to work in several cases - but not many which have the public interest at the fore. Sudhir > Sorry for those who already saw this article. I'm afraid I don't have > anything very intelligent to say about this, but it sounds like good news! > > V. > > Wired > 05:03 PM Sep. 30, 2004 PT > > > Diebold Loses Key Copyright Case > http://www.wired.com/news/evote/0,2645,65173,00.html > > > > > Students who sued Diebold Election Systems won their case against the > voting machine maker on Thursday after a judge ruled that the company had > misused the Digital Millennium Copyright Act and ordered the company to > pay > damages and fees. Lawyers for the students call the move a victory for > free > speech. > > A judge for the California district court ruled that the company knowingly > misrepresented that the students had infringed the company's copyright and > ordered the company to pay damages and fees to two students and a > nonprofit > internet service provider, Online Policy Group. > > Last October, students at Swarthmore College in Pennsylvania posted copies > and links to some 13,000 internal Diebold company memos that an anonymous > source had leaked to Wired News. The memos suggested that the company was > aware of security flaws in its voting system when it sold the system to > states. > > Diebold sent several cease-and-desist letters to the students and > threatened them with litigation, citing the Digital Millennium Copyright > Act, or DMCA. Online Policy Group was also threatened after someone posted > a link to the memos on a website hosted by the ISP. Diebold said the memos > were stolen from a company server and that posting them or even linking to > them violated the copyright law. > > The Electronic Frontier Foundation, which took on the case for the Online > Policy Group, argued that the memos were an important part of the public > debate on electronic voting systems. > > After a slew of bad publicity criticizing their strong-arm tactics, > Diebold > backed down and withdrew its legal threats in December, but a spokesman > said at the time that no one should interpret the move as implying that > the > DMCA did not apply in the case. > > "We've simply chosen not to pursue copyright infringement in this matter," > spokesman David Bear told Wired News. > > But the California district court judge ruled otherwise. > > Judge Jeremy Fogel wrote in his decision that "no reasonable copyright > holder could have believed that portions of the e-mail archive discussing > possible technical problems with Diebold's voting machines were protected > by copyright." The judge ruled that Diebold "knowingly materially > misrepresented" that the students and ISP had infringed Diebold's > copyright. > > Wendy Seltzer, staff attorney for the Electronic Frontier Foundation, said > she hopes the decision will encourage ISPs to resist takedown demands from > companies that use the DMCA to bar the speech of their clients. Seltzer > said she hoped the decision would show colleges and ISPs that they > shouldn't cave because they think litigation will be too expensive and > useless. > > "For people who are facing threats under the Safe Harbor provision of the > DMCA, this gives them another tool in the arsenal to resist demands," > Seltzer said. "If the ISP now has the right to cover its fees and costs, > the ISP can now be more confident in standing up to its accusers." > > Diebold will have to pay the students and the ISP their attorney fees, > court costs and various other damages, which Seltzer said will probably be > in the "low six figures." Seltzer said the figure wasn't going to bankrupt > Diebold but she said that was never their goal. > > The ruling makes Diebold the first company to be held liable for violating > section 512(f) of the Digital Millennium Copyright Act, which makes it > unlawful to use the DMCA takedown threats when the copyright holder knows > that infringement hasn't occurred. > > "We weren't out to get Diebold," Seltzer said. "We were out to crack down > on the misuse of copyright threats. It's a matter of showing Diebold and > companies that there is a cost to making false threats and to show ISPs > that they have a remedy if they feel they are being unfairly threatened. > It's not free to threaten infringement when there's no good faith claim > for > infringement." > > > > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > From sudhir at circuit.sarai.net Fri Oct 8 22:43:39 2004 From: sudhir at circuit.sarai.net (sudhir at circuit.sarai.net) Date: Fri, 8 Oct 2004 22:43:39 +0530 (IST) Subject: [Commons-Law] Convergence of movements Message-ID: <3120.163.1.43.132.1097255619.squirrel@163.1.43.132> Dear all What follows below is a recent GRAIN editorial piece which considers the possibility that different social movements ranged against IPL excesses could learn from each other. This was the central theme of a workshop titled New Technologies, Social Knowledge and Intellectual Property Law we organized in November 20-21st, 2003 where we brought together organizations like GRAIN and RFSTE with those pioneering the use of open source software. This is a significant shift for organizations like GRAIN, which have previously endorsed state led propertization/regulation of biodiversity and traditional knowledge. It is not readily apparent what a justifiable public domain strategy on traditional knowledge issues would look like. [See Madhavi Sunder for criticisms of such an approach http://papers.ssrn.com/sol3/papers.cfm?abstract_id=562301 ] What's interesting and important is that such a enquiry has begun in earnest. Best Sudhir BIO-IPR docserver | http://www.grain.org/bio-ipr ________________________________________________________ TITLE: Freedom from IPR: Towards a convergence of movements AUTHOR: GRAIN PUBLICATION: Seedling (editorial) DATE: October 2004 URL: http://www.grain.org/seedling/?id=301 ________________________________________________________ GRAIN | Seedling | October 2004 FREEDOM FROM IPR: TOWARDS A CONVERGENCE OF MOVEMENTS There has never been a time of more centralised power and control. The free space in which we can create, co-operate, learn and share with other people is diminishing by the day as we lose our ability to think and live outside the reach of transnational corporations. They own the water, they control the media and they dominate our food supply. At the core of this control is the whole system of intellectual property rights (IPR) -- copyrights, patents, trademarks, broadcasters' rights and so on. IPR are now the central source of profits in the so-called "knowledge economy", making their expansion crucial for corporations investing in new technologies and new markets across the planet. But they are killing innovation, freedom and access to essential things like culture, health and education -- our innovations, our freedom, our education. Farmers can't save seeds. Sick people can't afford drugs. Computer programmers can't modify software. Librarians won't let you photocopy a magazine article. Students can't afford textbooks. Why? Because of myriad IPR laws being strengthened every day to stop you from doing things with someone else's "creative work". Over the past decades, the drive to privatise and criminalise everything in the name of a few companies' supposed genius has gone too far. The backlash is inevitable. New social spaces Where there is oppression there is always resistance. Today, people are using all kinds of creative means to organise and push back the IPR onslaught. The free software and open source movements are directly challenging Microsoft's monopoly practices, dodgy products and sloppy standards through their own approaches to programme development and distribution. Music enthusiasts have set up peer-to-peer networks on the internet, like Napster and Kazaa, to share digital recordings. The creative commons community is promoting alternative forms of copyright to let authors put their works in the public domain and minimise restrictions on what readers can do. Librarians are campaigning hard to save "fair use" principles in the US and Europe, while AIDS activists throughout the world are demanding that medicine serve the health of people, not the advertising budgets of mega-drug firms. Farmers are ripping up fields of genetically modified (GM) crops, hitting back at Monsanto's efforts to patent, contaminate and take over the seed supply that farmers themselves developed over generations. And indigenous peoples continue to fight against the intensifying theft and destruction of their knowledge. When you put all these pieces together, it's astounding to see how many people are saying "Enough!" to the excesses of IPR laws and the ever-encroaching practices of large companies to make us pay for essential things underpinning our health, work, food, education and leisure. And a lot of that effort is not just about saying no, but developing new and often community-based means to produce and disseminate books, music, films, software, agricultural innovations and the like. Until recently, however, many of these initiatives have been growing in isolation. People from different sectors are now realising that the new social spaces they are creating have a lot in common, and efforts are underway to bring the various struggles together. Some people are looking at applying "open source" models -- where people are free to access, modify and disseminate a product, as long as they keep it free -- to seeds, music and even wheelchairs. Free software works, and the community of users and developers is growing by the day, so why not free the seeds? One Linux enthusiast recently mused, "Will José Bové become the Richard Stallman of the peasant sector?" [1] Vice-versa, there's talk of applying the strategy of GM-free zones to software -- imagine Microsoft-free offices everywhere! In the past few years, the potential synergy in the battle against patents on seeds and drugs has grown clear, particularly around the Trade-Related Intellectual Property Rights Agreement of the World Trade Organisation. Activists have forced the issue of access to essential medicines high on the agenda of anyone discussing patent law these days. So why not forge closer links with food and seeds, as well as with traditional medicine and traditional knowledge? Consumers movements are also starting to draw the links between these different elements. Many have been fighting drug patents for a while. But software patents and digital rights are a new problem, biopiracy is hitting the radar as a threat to food security and traditional knowledge is also coming into the picture. In September 2004, the Trans Atlantic Consumer Dialogue, which is coordinated by the NGO Consumers International, held a large two-day meeting in Geneva on all of these questions, focusing on the role of World Intellectual Property Organisation. Finally, copyright activists and the digital rights community are also seeing connections between their arenas of struggle -- both are concerned with promoting sharing and protecting the public domain -- and what is happening with the patent clampdown on software, seeds and medicine. All of these various movements are supported and sustained by grassroots activism in the broad but critical area of information technology, communications and media, where people are claiming and building the space, capacity and freedom to share information outside of the mainstream sources that are monopolised by a few multimedia giants. Community radio networks like AMARC and alternative media movements like Indymedia, for instance, are breaking important ground in this direction for the benefit of social movements across the planet. In the face of intellectual property rights, they are campaigning for "communication rights" as a human right threatened by corporate interests, privatisation and monopoly control through both technology and law. These are all very encouraging signs that point to a possible convergence of movements. If activists, campaigners, and innovators working on free software, no-patents-on-life, access to generic drugs, traditional medicine, digital rights, peer-to-peer networking and "fair use" came together and formulated one common platform to rein in the IPR system, the effect could be explosive. For sure, the pieces would not fit perfectly together. There=20 are differences driving these different sectors and their struggles that need to be properly understood and respected. But if these differences are handled well, a powerful mass movement could emerge. Differences we may face One warning flag might crop up around the notion of "public domain" or "commons". Some people assume that both are inherently good. There is a tendency to use the terms interchangeably and see them as the answer to privatisation. [2] But many indigenous peoples have serious problems with these concepts for historical and ongoing reasons. And it's not clear for many people what these concepts mean and who defines them. It's one thing if putting a book in the public domain means anyone can use or print it. It's quite another if putting seeds in the public domain means Monsanto can inject them with Terminator genes to destroy peasant agriculture. Another warning flag might be on the issue of using licenses as a tool to protect cultures of sharing. Open source licensing tries to articulate permissions (what you can do), rather than prohibitions (what you can't do). Still, some people might find it hard to see what licensing -- whether a set of do's or don'ts -- has to do with freedom. Others might ask whether it doesn't actually reinforce the system that it is meant to challenge. For example, an open source type of license may be non-monopolistic but still express ownership, when ownership may not be the point for some people (e.g. small farmers), or it may be something that others really want to avoid (e.g. indigenous peoples). It can also be impractical. Imagine a typical farmer in Mali using a license to protect her seeds when bioprospectors come around! In the same way, there are flags of caution already draping the word "open" as in open source, open education or even open agriculture. Openness provides access, but it doesn't necessarily provide power or choice or control. In short, open may not mean free. The question of property is also tricky. Most movements would probably all agree on the fight against monopolies, but what about property? Who will cling to it as necessary, who will give it up and who is not interested in it to begin with? And then there is the question of whether the IPR and non-IPR worlds can live together in the different sectors: whether free software or free seeds can co-exist with their patented versions. For instance, IPR in crop development has brought us genetic erosion and genetic contamination, physically undermining the future for any kind of breeding, free or unfree. Yet we haven't lost words because of copyright. And neither the existence nor dominance of Microsoft's proprietary code is stopping Mozilla. Towards a convergence of movements These are just warning flags -- differences to be aware of -- not walls. They should not let us lose sight of the enormous potential of bringing the various movements together. Wherever and whenever possible, efforts in this direction should be supported. We need to reach out to each other, build bridges, discuss mutual commonalities and differences and build joint strategies. Too many basic acts of every day life -- sharing and saving seeds, finding affordable health treatment and education, copying books, swapping CDs, watching television, improving computer programmes, etc are either becoming really expensive or outlawed and controlled by a smaller and smaller number of conglomerates trying to secure a captive world market. The words common to our various struggles might be: community, sharing, freedom, collaboration, choice, diversity. Those are definitely not the words of the IPR emperors, the Microsofts, Monsantos and IBMs. And we may find that, if we build a strong enough movement to reject their monopoly claims across the board -- whether patents on rice or trademarks on the colour purple -- the emperors have no clothes. For their demands are only as good as we accept them. If we stand together, their chains of monopoly control would fall apart. __________ GRAIN is starting to look more closely at the potential for ?convergence? between these different struggles against IPR. We aim to publish more analysis, viewpoints and strategy ideas about it in future issues of Seedling. If you have materials to contribute, proposals to share or want to get involved in any other way, please contact us. Notes: [1] Bové is a peasant leader with La Confédération Paysanne: www.confederationpaysanne.fr. Stallmann is the founder of the free software movement: www.gnu.org. [2] For a more detailed discussion on the commonalities and differences between public domain and the commons, see Brewster Kneen, "Redefining 'property': Private property, the commons and the public domain", Seedling, January 2004, p 1. [3] Martin Khor, "Hue and Cry Over Copyrights", The Star Online, 27 September 2004: http://202.186.86.35/news/story.asp?file=/2004/9/27/focus/8986541 ________________________________________________________ From sudhir at circuit.sarai.net Sat Oct 9 15:26:54 2004 From: sudhir at circuit.sarai.net (sudhir at circuit.sarai.net) Date: Sat, 9 Oct 2004 11:56:54 +0200 (CEST) Subject: [Commons-Law] Pirates and Tamil Cinema Message-ID: <4023.163.1.43.132.1097315814.squirrel@163.1.43.132> Dear all Following up on Vishwas's lead on the TN State govt's anti-piracy strategy. The feature article below provides an interesting insight into the political economy of film production in TN - and puts piracy in context! Sudhir Date:09/10/2004 URL: http://www.thehindu.com/2004/10/09/stories/2004100905220400.htm Tamil Nadu Pirates or no pirates, industry is star-crossed By Sudhish Kamath CHENNAI. OCT. 8. The police have cracked down on the pirates. Most of them have shut shop, at least temporarily. The Government has cut down the tax. Now, it is apparently the "best in the country." The film industry is ecstatic. Things seem to be looking up. Really? No, warn trade pundits. "The industry needs to put its house in order first," says Sreedhar Pillai, a trade analyst. "It needs to think of ways of cutting down costs. The bane of the industry is the star-driven system. It is spending 50 or 60 per cent on star fees. Either the stars should take a cut or take their share after the film is sold. Producers should not cater blindly to the star system," he says. The average budget of a film with a top hero is about Rs. 7 crores, half of which goes to the star. "It is ridiculous. Some of these stars charge as much as Shah Rukh Khan would. A Shah Rukh Khan movie has an international market of at least Rs. 50 crores. And the King Khan takes his fee only after the film is sold. Here, even the biggest hit of the year makes only about 15 crores and a star wants over Rs. 3crores." Distributors' role Distributors believe that the audience goes only for star-based films. As the stars call the shots, the themes are so stale that it is the same formula, of six songs and six fights, that is rehashed film after film, explains Mr. Pillai. Out of about 1,500 theatres in the State, only 500 are active and that too because of the ancillary industry — canteen and parking. The rest, in rural centres, bank on fan clubs. The clubs buy up all tickets and sell them in ``black'' to create an opening for the film. In cases where the theatre has paid a minimum guarantee amount to the distributor, the management runs up to seven shows a day and accommodates extra seats, making accounting impossible. Computerisation Because of the role of black money, theatre owners are hesitant to computerise their systems. Once every ticket sold is accounted for, even producers of low budget and smaller films will get their due because they know how much exactly it is. Computerisation of the ticketing system will check artificial demand and under-declaration. Thus, distributors too will be encouraged to accept even smaller films and subjects with different themes, feel experts. In Andhra Pradesh, the compounding tax system for theatres has encouraged computerisation, notes Sundaresan Kumar, regional manager of Shrinagar films. With computerisation and recording of transactions, not only will the Income Tax department finally get proper records, stars will also be bound to honour commitments. Right now, most disputes are settled internally and most contracts are oral. "We are like a family," says a senior star. "Once we give our word, we honour it or we settle it within ourselves." It is this attitude, which has led to pressure on producers and distributors, some of whom are terrorised by financiers through goondas. `Creating a villain' "The industry needed a villain. So they blamed us for everything. How much damage can we do? If a movie is good, won't you go to the theatre and watch it," asks a video storeowner at Anna Nagar here, who has now shut shop and started an ice-cream parlour. "Now, the truth will come out. The real problem is within the industry." © Copyright 2000 - 2004 The Hindu From shamnadbasheer at yahoo.co.in Mon Oct 11 13:42:00 2004 From: shamnadbasheer at yahoo.co.in (Shamnad Basheer) Date: Mon, 11 Oct 2004 09:12:00 +0100 (BST) Subject: [Commons-Law] open source and hawaiian surfers In-Reply-To: <4023.163.1.43.132.1097315814.squirrel@163.1.43.132> Message-ID: <20041011081200.20732.qmail@web8401.mail.in.yahoo.com> to figure out this connection, take a look at http://msnbc.msn.com/id/6214135/site/newsweek/. am particularly interested in its application to the biomed sector-and am hoping that the Cambia project works well.. Regards-Shamnad ________________________________________________________________________ Yahoo! India Matrimony: Find your life partner online Go to: http://yahoo.shaadi.com/india-matrimony From sunil at mahiti.org Mon Oct 11 22:36:02 2004 From: sunil at mahiti.org (Sunil Abraham) Date: Mon, 11 Oct 2004 17:06:02 +0000 Subject: [Commons-Law] UNESCAP EGP: OSS + KM Message-ID: <1097514362.647.88.camel@box> Dear Friends, This is our presentation at the UNESCAP Expert Group Meeting: Open Source Software for Knowledge Management (KM), 11-13 October 2004, Bangkok. Thanks, Sunil ------------------------------------------------------------------------- Free/Open Source Software and the International Open Source Network Presented at the Expert Group Meeting on Open Source Software for Knowledge Management UN-ESCAP, Bangkok 11-13 October, 2005 ------------------------------------------------------------------------- Introduction to IOSN ------------------------------------------------------------------------- The International Open Source Network1 is a Centre of Excellence for Free / Open Source Software (FOSS) in the Asia-Pacific Region. IOSN is an initiative of the UNDP’s Asia-Pacific Information Development Programme2, which supports effective use of Information and Communications Technology (ICT) for poverty alleviation and sustainable human development. Via a small secretariat, the IOSN is tasked specifically to accelerate the adoption of FOSS by facilitating and networking advocates, developers, and users in the region; developing FOSS tools; building capacities; and supporting FOSS R&D. ------------------------------------------------------------------------- Community Management ------------------------------------------------------------------------- IOSN runs a portal which has over 1000 registered members and has had over 100,000 unique visitors in the last two months. This global community has created over 2,500 content objects in a voluntary capacity. The content organisation is based on region, country and theme and interested members have been granted additional permission to manage and publish content these public sections. Other users publish content only in their personal folders. ------------------------------------------------------------------------- Publications ------------------------------------------------------------------------- IOSN publishes a FOSS primer series. The current and upcoming titles include general introduction to FOSS; FOSS government policy; FOSS in education, localisation; licensing; open content; open standards; network security and infrastructure. The authors come from the Asia-Pacific region. The primers undergo peer and public review before being published electronically and in hard copy. These primers are aimed at policy-makers and decision-makers from the government, multilateral, donor, and development agencies. ------------------------------------------------------------------------- Events ------------------------------------------------------------------------- IOSN organises conferences such as Free Open Source Software – Asia-Pacific (FOSSAP). Last year, more than 50 senior policy-makers and FOSS practitioners from 20 countries attended this regional consultation in Kuala Lumpur (www.iosn.net/fossap). IOSN has promoted and supported events such as Software Freedom Day, which is an annual event in celebration of FOSS on August 28th. IOSN is also organising a talk series in partnership with government, academia and the local FOSS community. The first speaker will be Richard Stallman, Founder of the Free Software Movement, who will speak in Malaysia and Singapore. ------------------------------------------------------------------------- Training ------------------------------------------------------------------------- IOSN is producing end-user training material in print and interactive multimedia format. It covers the use of the GNU/Linux desktop for users that may have no prior knowledge of Linux or PC usage. IOSN is also producing a live CD for users of proprietary software who wish to learn more about FOSS. Both these projects are in partnership with private sector and academia from Malaysia, Singapore, and Australia. A pilot Linux training of trainers and proctors in partnership with the Ministry of Science and Technology of Vietnam, Ho Chi Minh City government and the Linux Professional Institute, Canada, will be held in November in Vietnam. 20 Linux trainees from North, Central and South regions of Vietnam will be trained and certified as qualified Linux system administrators. The proctors come from six South-East Asian countries and will be able to administer affordable paper tests for Linux skills certification. Internationally recognized certification in conjunction with open content training materials and certified personnel for certification will FOSS adoption in developing countries. There are plans to translate the open content Linux system administration training materials to other languages. IOSN also supports the development of a localisation toolkit in collaboration with Centre for Advanced Computing [CDAC], India. This practical toolkit will enable developers and translators build GNU/Linux distributions and FOSS applications in the language of their choice. ------------------------------------------------------------------------- Grant Scheme ------------------------------------------------------------------------- IOSN manages a micro-grant programme in collaboration with the University of South Pacific. USD 1000 will be provided to 40 FOSS practitioners over the next two years to work on projects relevant to the development sector. Applications for the first round of grants have been received; the selection committee will announce the grantees shortly. ------------------------------------------------------------------------- FOSS and Knowledge Management ------------------------------------------------------------------------- Management implies that resources are finite. Finite resources like human resources and financial resources diminish when consumed or shared. Knowledge however multiplies when shared. New knowledge builds on existing knowledge. In 1675, Isaac Newton wrote "If I have seen further it is by standing on the shoulders of giants". Therefore, we are talking about knowledge production not knowledge management. In other words, the FOSS philosophy, the mechanism of copy-left and open licenses, enables accelerated knowledge production. In addition, FOSS provides a framework to protect and grow the creative commons. A vibrant creative commons and public domain is critical for innovation and enterprise in the public and private sector. A researcher developing a cure for HIV/AIDS or a FOSS practitioner developing a micro-credit software should not be forced to find their way through a minefield of patent and copyright litigation. ------------------------------------------------------------------------- FOSS and Development Practise ------------------------------------------------------------------------- It goes against the development ethos, if consultants produce knowledge under proprietary licenses – wherein its use is controlled by either the contracting body or the consultant. As this knowledge, whose production costs have already been paid for, will be resold to poor people from other countries and projects. Whilst this might be good for development consultants, this makes no sense for the developing world. If, on the other hand, this knowledge were freely licensed to the public, then the global community would benefit from using, studying, modifying, and sharing it. IOSN believes that this small systemic change in the licensing of knowledge produced by the development sector will have a far-reaching impact. It will stretch the development dollar and will improve the efficacy of the sector as a whole. It would also spark global collaboration around this body of shared knowledge. ------------------------------------------------------------------------- Case Study: Knowledge Management at IOSN Portal ------------------------------------------------------------------------- IOSN has opted to use Plone3 as its content-cum-community management system. With a community of more than 1000 members, this becomes a knowledge production and management system. Plone has support for localisation and has been translated into 36 languages. It is highly standards compliant and renders well across several different browsers and devices. It adheres to international standards for access by the disabled. It also has powerful content types, interactive modules and work-flows that can be modified to suit different modes of knowledge production. ------------------------------------------------------------------------- Enabling Copyright Framework ------------------------------------------------------------------------- IOSN uses four types of licenses to enable a knowledge producing community. For software projects, IOSN recommends GNU GPL or BSD style licenses. “Creative Commons Attribution” or “Creative Commons Attribution-Share Alike” licenses are recommended for documentation projects. This choice of licenses allows the authors and developers to decide whether the users can create derivative works under non-free licenses. This is in line with the inclusive moniker FOSS (that is Free and Open Source Software), which represents the interests of both camps. When the IOSN end-user training manual was released under the Creative Commons Attribution license, there was a great deal of positive feedback from the FOSS community worldwide. Volunteer translators have offered to work on the German, Dutch, Filipino, French, Italian, Portuguese, Spanish, and Tamil versions of the manual. ------------------------------------------------------------------------- Open Standards and Formats ------------------------------------------------------------------------- The IOSN portal is Dublin Core Compliant. The Dublin Core is a set of standards for the use of the Resource Description Framework (RDF) dialect of XML, to describe library meta-data or any web page. This standard consists of 16 optional meta-data elements, any of which may be repeated or omitted4. By complying with this standard, the IOSN portal easily inter-operates with many other products and services. It is important that we build knowledge management systems that comply with Open Standards and Formats. It is not sufficient to comply with previously closed standards and formats that are even now being made available by single proprietary vendors as a means to capture market share. One must adopt open standards and formats that have been designed by consortia having adequate representation from industry, academia, and the user community. Only then will there be an abundance of FOSS tools that could be used to produce or consume data in these formats accurately. In the absence of these tools, the public is coerced into purchasing or pirating proprietary software to interact with the knowledge management system. This is especially tragic if this knowledge has been created using public funds. Therefore, public bodies, especially government and development agencies, must be wary of ending up as marketing agents for proprietary software vendors. ------------------------------------------------------------------------- Collaborative Authoring ------------------------------------------------------------------------- The lone inventor or innovator is a myth. Especially in the Asia-Pacific, intellectual and creative pursuits are group activities. Often these groups are not democratic, but merit based hierarchies. We have a similar system of managers and members maintaining and updating Blogs and Wikis on the IOSN portal. These are perfect tools for collaborative authoring and are perfect for capturing of tacit knowledge. Blogs allow for log or diary style entries, threaded discussions around each entry, and rating of comments. The Wiki allows for tracking document history, allowing for comparison of different versions and also for undoing a particular user's changes. One of the popular blog sites Livejournal has more than 4 million registered users and Wikipedia has more than 300000 articles that has had more than 60 million page views. FOSS technologies and licenses are used to power both these projects. ------------------------------------------------------------------------- Collaborative Publishing ------------------------------------------------------------------------- The IOSN portal automatically updates the section pages using RSS feeds from relevant external news sites and also blogs of Linux User Groups. For example, if one goes to the Education sub-section, one will notice that we feature a feed from School Forge. Similarly, our feed is featured on Planet MYOSS, the community site of the Malaysian Open Source Community. This could be understood as peer-to-peer publishing or collaborative publishing. Collaborative publishing is both highly scalable and cost effective at the same time. For example, in September 2004, the IOSN portal was slash-dotted twice in one week. Once the community noticed the large traffic on the portal, they started volunteering to mirror our end-user training material. Soon we had six mirrors in Germany, Switzerland, Australia, Italy, Mexico, and United States. Other volunteers uploaded the files on E-Donkey - a peer-to-peer network. Collaborative publishing ensures the independence of knowledge. Often States and corporations undermine free speech and fearless knowledge by capturing and controlling public media spaces. However, FOSS projects like Free Net, allow for digitally signed anonymous collaborative publishing. It would be impossible to build an equivalent proprietary tool as the community is afraid that a single vendor would be able to expose their anonymity. Technical reasons aside, there is a fundamental philosophical reason why the Free Net project opposes copyright and is thus an indirect endorsement of FOSS. The FAQ on the Free Net project site states that “the core problem with copyright is that enforcement requires monitoring of communications, and you cannot be guaranteed free speech if someone is monitoring everything you say. You cannot guarantee freedom of speech and enforce copyright law”. In other words, you could say that FOSS ensures freedom of speech, information sharing, and knowledge production on the Internet. Sunil Abraham, and Khairil Yusof International Open Source Network (IOSN) UNDP Asia-Pacific Development Information Programme (APDIP) ------------------------------------------------------------------------- http://www.unescap.org/icstd/events/EGM_KM.asp http://www.unescap.org/icstd/documents/SC_ICST/Prov_Agenda.pdf http://www.unescap.org/icstd/applications/OSS/Participants.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. Mobile: +91 80 36701931 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 From sudhir at circuit.sarai.net Tue Oct 12 16:00:40 2004 From: sudhir at circuit.sarai.net (sudhir at circuit.sarai.net) Date: Tue, 12 Oct 2004 12:30:40 +0200 (CEST) Subject: [Commons-Law] Call for Editors - deadline extension Message-ID: <3805.163.1.43.132.1097577040.squirrel@163.1.43.132> Dear all Apologies for cross-posting as this is likely to be of interest to many on these lists. Best Sudhir RECRUITMENT: DEADLINE EXTENSION The International Journal of Communications Law and Policy (IJCLP) is expanding its activities and is looking to recruit three new editors, with immediate effect. The ideal candidate is an academic scholar with a strong background in(network) economics, political science, computer science, communications and information management studies, or cultural theory, having an interest in communications law. All things being equal, preference will be given to candidates from jurisdictions not yet represented on the IJCLP board. Successful candidates will become part of an international team and network of young scholars in communications law and Internet studies. The editorial board’s main task is the on-line publication of semi-annual issues on international communications law, and the organization of writing competitions in conjunction with international conferences on related topics. Applications should be sent to Simone Bonetti & Boris Rotenberg. These shouldinclude a brief resume or CV, and a 500 word cover letter explaining the applicant’s suitability for this appointment. The deadline for sending in applications is now 1 pm EST on 14th October 2004. For more information on IJCLP, please visit our site (www.ijclp.org), or contact Simone Bonetti (simo.bonetti at tiscali.it) & Boris Rotenberg (boris_rotenberg at yahoo.it). --------------------------------- From sudhir at circuit.sarai.net Thu Oct 14 13:01:19 2004 From: sudhir at circuit.sarai.net (sudhir at circuit.sarai.net) Date: Thu, 14 Oct 2004 09:31:19 +0200 (CEST) Subject: [Commons-Law] DFID on access to Drugs Message-ID: <3139.163.1.43.132.1097739079.squirrel@163.1.43.132> Today the UK Department for International Development released a series of papers on Access to Medicines and a number of issues that are regularly addressed on this and other lists: intellectual property, technology transfer, domestic production, pricing, ARVs in resource-poor settings. The papers can all be found at the DFID website here: http://www.dfidhealthrc.org/shared/know_the/publications.html The ip-health list and the e-drug list are each going to post the executive summaries of each paper one by one, inviting comments from our subscribers. The first paper is "Processes and issues for improving access to medicines: willingness and ability to utilise TRIPS flexibilities in non-producing countries," by Brook Baker. It was written to address the following questions: "TRIPS, the Doha Declaration, and the Aug. 30 Decision enable countries with public health needs and with insufficient capacity to manufacture a needed medicine to import lower-cost products from other countries. Although "non-producing" countries have multiple flexibilities for sourcing medicines, what are the advantages and disadvantages of each? What legislative and policy measures must importing countries and exporting countries take to make these flexibilities more useable? What dangers must developing countries avoid in on-going trade negotiations? And what can and should donors do to expedite access to medicines? This paper addresses varied ways by which a non-producing country may lawfully utilise TRIPS flexibilities, and looks at the internal and external forces which negatively affect non-producing countries’ ability and willingness to use TRIPS-compliant flexibilities." Full text: http://www.dfidhealthrc.org/shared/publications/Issues_papers/ATM/Baker.pdf ------------------------ KEY MESSAGES: • Globalised patent rights permit pharmaceutical companies to exclude lower-cost generic competitors and thus to set profit-maximising, monopoly prices. • Expanded protection for drug registration data, e.g., data exclusivity, also delays generic entry thereby reducing price competition. • The higher prices resulting from patents and data protection decrease access to medicines for poor consumers in developing countries. • There is a looming crisis in accessing generic medicines in 2005 when leading generic producers, like India, must observe stricter patent protections for newer medicines. • Accordingly, developing countries have an interest in using all lawful means to avoid patent and registration data barriers. • Non-producing countries, countries with limited or inefficient capacity in their pharmaceutical sector for particular products, have a special interest in securing lawful sources of imports from foreign generic producers. • Although a variety of options exists for accessing cheaper generic medicines of assured quality, e.g., parallel importation, compulsory licenses and the new WTO production-for-export system, there are many remaining barriers to access that must be addressed. ----------------------- EXECUTIVE SUMMARY: The burden of disease in developing countries is staggering, and that burden is exacerbated by inadequate access to skilled medical care and to medicines routinely used to treat and cure illness in richer countries. There are many explanations for this lack of access – widespread poverty, weak health systems and governmental neglect, both in developing and developed countries – but an additional, first-order explanation lies in the labyrinth structures of the international intellectual property regime including (1) the patenting and pricing of medicines [1] and (2) data exclusivity and marketing exclusivity rules that delay registration and sale of generic medicines.[2] In starkest terms, the current, expansive system of internationalised intellectual property rights (IPRs) means that research-based drug companies can obtain patents that grant them exclusive territorial rights to market innovative pharmaceutical processes and products almost everywhere in the world. [4] In turn, these globalised patent rights permit pharmaceutical companies to exclude low-cost generic competitors and to set profit-maximising, monopoly prices. In addition to having expanded their patent rights internationally, research-based companies are gaining increased protection for data submitted to drug regulators for purposes of establishing the safety, efficacy and quality of their medicines. In particular, an expanded right of “data exclusivity” threatens to preclude registration of generic medicines even when patent rights are bypassed through lawful means. This is because the follow-on producer and drug regulators cannot use the earlier registrant’s data (or the fact of prior registration) to establish the safety and efficacy of the follow-on product even if it is proven bioequivalent. Although this intertwined system of intellectual property protections for patents, data and their associated high prices is often defended as providing resources and incentives for research and development for the next generation of life-saving medicines, there is little doubt that higher prices affect access to existing (and future) medicines that are often unaffordable to developing countries and their impoverished residents. Drug companies’ intellectual property rights affect all developing countries, but their impact is most pernicious in non-producing countries (NPCs) – countries that lack sufficient and efficient capacity to manufacture particular medicines locally and which must rely on foreign sources of supply even when they lawfully grant exceptions to patent rights on a specific medicine. This negative impact on the ability to import medicines reaches new heights in 2005, when all non-least-developed country WTO Member States will be obligated to grant patents on pharmaceutical products. Thus, important generic suppliers, like India, which have lawfully reverse-engineered and produced generic medicines of assured quality,[5] will no longer be able to produce and export post-1994/1995 patented medicines.[6] Accordingly, important sources of supply of low-cost, newer medicines for non-producing countries will be seriously constrained. Despite the challenge arising in 2005, non-producing countries with inefficient or insufficient capacity in their pharmaceutical sectors have a variety of options for sourcing medicines from abroad. Some sourcing options, like those permitting export from and import to countries where a particular medicine is not patented, those permitting parallel-importation of patented medicines that have previously been sold in another country and those permitting varying quantities of medicines to be produced pursuant compulsory licenses and thereafter to be exported, were authorised in the original TRIPS Agreement and clarified further in the 2001 Doha Declaration on the TRIPS Agreement and Public Health. However, since most compulsory licenses are subject to the requirement that drugs be supplied predominantly for the domestic market (except competition-based compulsory licenses granted according to Article 31(k)), compulsory licensing of newer medicines for export to non-producing countries will face a bottleneck condition in 2005. This bottleneck was addressed in the recent WTO Paragraph 6 Decision of 30 August 2003 (Paragraph 6 Decision), which produced a cumbersome, but potentially important mechanism for allowing trade in low-cost generic medicines. This paper addresses varied ways by which a non-producing country may lawfully utilise TRIPS flexibilities, primarily by importing. However, it also briefly discusses means for promoting local production through pharmaceutical capacity building and through both compulsory and voluntary licensing. To aid decision-makers in understanding and evaluating the opportunities and constraints of each alternative, the paper briefly describes their respective advantages and disadvantages in terms of developing countries’ sustainable access to more affordable medicines, highlighting differing legal interpretations, political realities and pragmatic administrative and economic constraints.[7] Attached, as an Appendix, is a series of flowcharts summarising the analytical decisions least-developed countries (LDCs) and other non-producing countries must make as they assess options for importing lower cost generic medicines of assured quality in light of TRIPS flexibilities, depending on the patent status of the medicines in both the importing and exporting country. Non-producing countries’ ability and willingness to use TRIPS-compliant flexibilities is negatively affected by a number of internal and external forces. • The first major barrier is informational – confusion about the existing range of options for accessing cheaper generic medicines and uncertainty about patent status of particular medicines both in the importing non-producing country and in potential exporting countries. • A second internal barrier is non-producing countries’ limited technical capacity and willingness to amend their domestic laws to allow flexibility for procuring medicines and their constrained ability to amass and support the regulatory expertise necessary to administer those newly enacted flexibilities. • The third barrier is external and concerns export capacity, namely the small number of no-patent and no-product-patent countries capable of exporting medicines of assured quality, the closing window for major generic producers like India as of 2005, and the uncertainty that producer countries will be willing and able to authorise and then process a large number of compulsory licenses for unlimited export under a competition-based compulsory license, nonpredominant- quantity exports under an ordinary Article 31(b) compulsory license or quantity-specified exports under a Paragraph 6 Decision compulsory license. • The fourth barrier is also external and overtly political – it consists of the continuing efforts of developed countries, acting at the behest of their researchbased pharmaceutical industries, to interpret TRIPS flexibilities narrowly and to use trade and diplomatic pressure to deter non-producing countries from using the flexibilities that exist. This pressure is augmented by threats from industry about the impact of vigorous compulsory licensing schemes and eased drug registration for follow-on products on the future availability of patented medicines and on foreign investment both in the pharmaceutical sector and elsewhere. Even more problematic than trade/diplomatic pressure and investment threats is developed countries’ pursuit of bilateral and regional free trade agreements that bargain away developing countries’ flexibilities to bypass patents and that raise new barriers to access to medicines particularly with respect to registration requirements. Despite these barriers to utilising existing flexibilities for accessing medicines, in its more reform-based section, the paper analyses some in-country and regional intellectual property policy options for non-producing countries that might increase access to medicines, including: • Eliminating the import/export patent-information thicket; • Enacting TRIPS-compliant patent law reform in each country; • Coordinating domestic compulsory licensing schemes, voluntary licensing regulations and competition policy; • Easing issuance of competition-based compulsory licenses; • Avoiding market segmentation between private and public sector health care and encouraging integration of drug procurement; • Cooperating regionally to develop pro-health intellectual property and trade policy, to investigate joint compulsory licensing applications and to promote regional trade in generic medicines, especially within trading groups with 50% LDCs; • Cooperating regionally to negotiate high-quality voluntary licenses that facilitate entry of multiple competitors, assure access to registration data, grant permission for cross-licensing of fixed-dose combination medicines and promote technology transfer; • Cooperating regionally on drug registration to ensure marketing of drugs of assured quality, with preferential and expedited registration of medicines prequalified by the WHO and regional cooperation in post-marketing quality assurance; • Creating regional mechanisms for pooled procurement; • Investing in regional productive capacity and development of indigenous expertise with a special commitment to research and development for neglected diseases; • Creating demand for access to medicines by supporting the Global Fund, the WHO 3-by-5 Plan and other global health initiatives, and by supporting the involvement of affected communities and NGO activists in IPR policy debates. The paper concludes with options for policy-makers in the United Kingdom to adopt additional measures designed to aid non-producing countries’ access to medicines, including: • providing high-level technical assistance to non-producing countries and regions, • promoting an Article 30 exception for production for export, • encouraging the development of a competitive, high-quality generic industry, • encouraging widespread licensing and technology transfer to developing countries for production of essential medicines, and • considering life-saving medicines to be international public goods and requiring more research into neglected diseases and affordable access to medical innovations. _______________________________________________ From lawrence at altlawforum.org Thu Oct 14 17:31:31 2004 From: lawrence at altlawforum.org (Lawrence Liang) Date: Thu, 14 Oct 2004 17:31:31 +0530 Subject: [Commons-Law] FW: [Reader-list] 'Copyright laws must strike a balance': Arjun In-Reply-To: Message-ID: Hi all Sorry for cross posting lawrence ------ Forwarded Message From: Shivam Reply-To: Shivam Date: Thu, 14 Oct 2004 04:59:56 -0700 To: Subject: [Reader-list] 'Copyright laws must strike a balance': Arjun Copyright laws must strike a balance: Arjun [India News]: New Delhi, Oct. 13: http://www.newkerala.com/news-daily/news/features.php?action=fullnews&id=363 78 Human Resource Development Minister, Arjun Singh has called for evolving a regime of intellectual property rights which strikes a balance between private incentives for innovators and the public interests by maximizing access to intellectual products. Inaugurating the Asia-Pacific Symposium on Emerging Issues of Copyright Protection in the Digital Environment here today, he said that the advent of digital technology has created a new world order by tearing asunder national boundaries in cyber space. He said that while the new technology helps in wide dissemination of content on the one hand, it also facilitates piracy. The Minister said that the country was somewhat groping in dark about ten years ago when digital technology and its products made a mark in the world. He expressed satisfaction that India has one of the most modern copyright laws in the world today to protect the interests of innovators, according to a press release. The three day conference has been organised by the Ministry of Human Resources Development in collaboration with the Geneva based World Intellectual Property Organisation (WIPO) and Delhi University. Over 40 participants from about 20 Asia-Pacific countries are attending the Symposium. The participants will be sharing their national experiences as also to deliberate on changes that should be brought about to protect intellectual property rights.(ANI). _________________________________________ reader-list: an open discussion list on media and the city. Critiques & Collaborations To subscribe: send an email to reader-list-request at sarai.net with subscribe in the subject header. List archive: ------ End of Forwarded Message From sunil at mahiti.org Fri Oct 15 21:24:40 2004 From: sunil at mahiti.org (Sunil Abraham) Date: Fri, 15 Oct 2004 15:54:40 +0000 Subject: [Commons-Law] a nice friday scare Message-ID: <1097855680.681.189.camel@box> -----Forwarded Message----- From: dieter at apdip.net To: sunil at apdip.net Subject: a nice friday scare Date: Fri, 15 Oct 2004 14:54:16 +0800 I just had a look at the international sections in the full report. Super scary. http://www.usdoj.gov/opa/pr/2004/October/04_ag_693.htm 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. Mobile: +91 80 36701931 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 From aidslaw at bom5.vsnl.net.in Sat Oct 16 14:52:13 2004 From: aidslaw at bom5.vsnl.net.in (lawyers) Date: Sat, 16 Oct 2004 14:52:13 +0530 Subject: [Commons-Law] Letter to NHRC ( India) on Patent Amendment Message-ID: <01a701c4b361$9f3b9be0$7eb8fea9@cableinternet> Please find a letter to the National Human Rights Commission ( India) on patent amenmdment bill. 11th October To Justice A S Anand The Chairperson National Human Rights Commission ( NHRC) Sardar Patel Bhavan, Sansad Marg New Delhi 110001 Sub: (Third Amendment to Patents Act 2004) Dear Justice Anand I am writing this letter on behalf of Affordable Medicines and Treatment Campaign (AMTC). The 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. The campaign was initiated in 2001 with the following mission statement: The right to life and health is a fundamental right guaranteed to every person living in India and is non-negotiable. This campaign aims to demand and create 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. This campaign shall be democratic and participatory. It will seek the mobilization of communities and civil society to make state, national and international agencies and industry accountable for securing health for all. AMTC attempts to encourage action on a wide spectrum of issues relating to the right to treatment. These include WTO negotiations relating to the TRIPS agreement (TRIPS), the impending amendment to Patents Act 1970, law and regulation of drug pricing, national and state level governmental policies relating to health including vertical disease programmes, health needs of the population, transparency and accountability in the pharmaceutical sector, treatment literacy and health care infrastructure etc. As you are aware the Government of India has initiated to amend the Patents Act 1970 to introduce product patent protection to drug, medicine or food. A Patent Amendment Bill (Bill) was introduced to this effect in the 13th Lok Sabha in December 2003. The Bill lapsed due to the dissolution of Lok Sabha. In the last week of August 2004 the Cabinet has decided to refer the Bill to a Group of Ministers (GOM) to study the implications of contentious issues in the Bill. The GOM consists of Minister of Defense, Minister of Health, Minister of Human Resources Development and Minister of Commerce and Industry. We have learned from news reports that provisions of the referred Bill are identical to the lapsed Bill. This is a matter of concern because the Bill in its present form seriously compromises the accessibility and availability of medicines, two important components of right to health. Introduction of product patent protection for medicines and agro-chemicals is part of India's obligation under (TRIPS). TRIPS obligates member countries to provide a universal minimum standard of protection for various types intellectual property rights viz. trade mark, copyrights, geographical indications, patents, industrial designs, plant varieties, topography of integrated circuits and trade secrets. India has amended the Patents Act in 1999 and 2002 to comply with the obligations of TRIPS. The only pending obligation with regard to TRIPS is the introduction of product patents to medicines and agro-chemicals. India is to carry out this obligation by, before 1st January 2005. As you know, the Patents Act 1970 does not provide product patent protection for medicines and food. The Patents Act 1970 was enacted to scrap the Patents Act 1911, which provided product patent protection for medicines and food. The Patents Act 1970 provides only process patent protection to medicines and food. Process patent does not prevent others from making the product per se but prevents others from using the patented process as well as using, offering for sale, selling or importing the product obtained from the patented process. On the other hand, product patent prohibits others from making, using, offering for sale, selling or importing the patented product. As a result the product patent gives a monopoly to the patent owner for the production of patented article during the term of the patent (20 years). Therefore product patent protection for medicines and agro-chemicals creates monopoly and eliminates competition in the pharmaceutical market. Drug companies often abuse the patent monopoly and fix exorbitant prices for the patented medicines. The introduction of product patent thus reduces accessibility and affordability of drugs. The impact of product patent on the accessibility and availability of drugs are well documented. The most striking incident is the impact of product patent on access to HIV/AIDS drugs. Till 2000, antiretroviral (ARV) drugs were not accessible to the vast majority of people living with HIV/AIDS (PLHA) all over the world because of the high price. Multinational drug companies priced ARV drugs between US$12-13,000 annually per person. The price started falling in 2000 when manufacturers from India introduced generic versions of ARV drugs. Now these generic drugs are given as low as US$ 140 annually per person to certain international organisations like the Clinton Foundation. This is possible because of the absence of a product patent regime in India. Further, the absence of product patent protection has also facilitated the introduction of fixed dose combination (FDC) of ARV drugs. A three-in-one cocktail pill introduced by the generic manufacturers substituted two pills for six pills per day. Thus the FDCs increased the accessibility as well as availability of ARV drugs. The introduction of FDCs became possible only because of the absence of product patent protection in India. The introduction of a product patent regime would prevent generic companies in India from repeating this miracle. The impact of monopoly on access to medicines is already felt in India. The Controller of Patents has granted an Exclusive Marketing Right (EMR) to Novartis AG, for the drug called Gleevec used for the treatment of patients suffering from Chronic Myeloid Leukaemia (CML), a life threatening form of cancer. EMR is granted as a transitional arrangement before providing product patent protection. Gleevec is sold by Novartis AG at Rs. 1,20,000 per month.. The generic version of the drug was otherwise available to CML patients at Rs 9,000-12,000 per month. The EMR, if enforced will result in the withdrawal of generic version of Gleevec from the market. Consequently, the overwhelming majority of patients that suffer from CML every year in India will be denied access to this life saving drug. Both the industry and the civil society have approached the Supreme Court of India to challenge the decision of granting EMR on Gleevec. Thus it shows that introduction of product patent in India will reduce the accessibility and availability of medicines. Therefore, we feel that utmost care is required to introduce the product patent regime. Certain flexibility available under the TRIPS should be used to its full extent to safeguard accessibility and availability of drugs and medicines. The Bill however, fails to make use of this flexibility at its optimum level. Main criticisms against the bill are as follows. a.. Firstly, the Bill proposes to extend the scope of patentability beyond the TRIPS requirements by amending Section 3 (d) to allow patent protection for new use of known drugs. Patent for new use would help pharmaceutical companies to extend the monopoly over the drug even after the expiry of original patent. There is no obligation under TRIPS to provide patent protection to new use of known drugs. Earlier, the Mashelkar Committee recommended to limit the patent protection only to new chemical molecules. a.. Secondly, the Bill proposes to do away with the pre-grant opposition procedure. Currently, there are approximately 6,000 applications pending in the mailbox. In the absence of pre-grant opposition, these 6,000 applications would escape much needed public scrutiny. Public scrutiny is crucial in light of the fact that less than 500 drugs have been granted marketing approvals in India between 1995-2004. a.. Thirdly, the Bill has not properly incorporated the "August 30th Decision", which permits the grant of compulsory licence for export purposes. The Bill proposes to permit compulsory licensing for export purpose if there is a compulsory license in the importing country having no or insufficient manufacturing capacity in the pharmaceutical sector. This ignores the fact that Least Developing Countries (LDCs) need not provide product patent till 2016. In the absence of patent protection, issuance of compulsory license is impossible. In that event, the Indian drug companies would not be able to export to LDCs. a.. Lastly, the Bill fails to revamp the compulsory licensing mechanism. Even though the Chapter on compulsory licenses in the Patents Act 1970 states the need for protecting the public interest, the same spirit is not reflected in the substantial provisions. Cumbersome procedures without any time line for the final disposal of application makes the compulsory license mechanism an impractical option to curb abuse of patent monopoly. India as a party to the International Covenant on Economic Social and Cultural Rights (ICESCR) has an international obligation to protect peoples' right to health. According to Article 12 of ICESCR "The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health". As you know, accessibility to and availability of drugs are recognized as important components of right to health. The introduction of product patent in the current form will further reduce the access to drugs. The Supreme Court of India recognized the enforceability of right to health within the scope of Article 21 of the Indian Constitution (Vincent Panikurlangara v Union of India 1987 (2) SCC 165). Further, Article 15(1)(b) of the ICESCR recognises "right of everyone to enjoy the benefits of scientific progress and its applications". The Supreme Court often interpreted fundamental rights in consonance with international treaties. Hence, the implementation of product patent should not result in the denial of rights guaranteed under the Constitution of India and the ICESCR. According to Section 2 (d) & (f) of Protection of Human Rights Act, 1993 rights under the ICESCR are the rights that the National Human Rights Commission (NHRC) has to protect. We therefore request your urgent intervention to safeguard peoples' right to health guaranteed under the Constitution of India and ICESCR by using the mandate under Section 12 (d), (f) and (j) of the Protection of Human Rights Act, 1993. In the context, we request NHRC. a.. To seek information from the Government of India regarding the steps which are already taken or under consideration to safeguard the right to health under the product patent regime. a.. To study and recommend to the Government of India on the steps to be taken to ensure the enjoyment of benefits of scientific progress and its application, an obligation under Article 15(1) (b) of ICESCR. a.. To study and recommend to the Government of India on the options available within the TRIPS Agreement to safeguard right to health. a.. To hold a national level consultation with concerned individuals and groups on the implications of intellectual property rights on peoples' right to health. With warm regards For AMTC Anand Grover Project Director,Lawyers collective HIV/AIDS Unit CC 1.. Justice Y. Bhaskar Rao , Member, NHRC 2.. Mr. R.S. Kalha, Member, NHRC 3.. Mr. P.C.Sharma, Member, NHRC 4.. Mr. Tarlochan Singh, Member, NHRC -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041016/2357abb4/attachment.html From songcraft at yahoo.com Sat Oct 16 18:53:11 2004 From: songcraft at yahoo.com (Anthony McCann) Date: Sat, 16 Oct 2004 06:23:11 -0700 (PDT) Subject: [Commons-Law] Enclosure within and without the commons In-Reply-To: <344C03D08AA8904D96A8D41F22849C54046564@ffidn-nt2> Message-ID: <20041016132311.46151.qmail@web41302.mail.yahoo.com> Hello, Just a note to let you know of a theoretical position paper which I have just posted as a .pdf file on my website at http://www.beyondthecommons.com. It is entitled "Understanding Enclosure Without and Within the Commons", and was presented at the 2004 conference of the International Association for the Study of Common Property in Oaxaca, Mexico. A copy of it has also been submitted to the Digital Library of the Commons at Indiana University. Abstract: Over the last number of years I have been focusing on the expansion of intellectual property discourses and practices among those who involve themselves in Irish traditional music. In particular, my theoretical focus has turned to the analysis of expansionary social dynamics that involve the accelerative commodification of everyday life. In this paper I address some of the ways in which my attempts to use resource management models of common property theory left me unable to explain many of the aspects of the social situations and social dynamics that I encountered. I also explain how it is that I have turned from models of �the commons� to a model of �enclosure� in a bid to come to less partial and more adequate analyses of expansion and commodification, and to more reflective and reflexive understandings of whatever �the commons� is taken to mean. A brief overview of a new theory of commodification is presented, and through this it is suggested that many of the social situations that we characterize as environments of common property may also be characterized as environments of enclosure, thus providing us with far greater explanatory power than the limiting models of resource management. It is further suggested that an emphasis on common property and the commons may be seriously misleading, and that we would be better served focusing on the relational implications of expansion and commodification, that is, enclosure (without the commons). As ever, comments welcome. All the best, Anthony McCann -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041016/875d1e8b/attachment.html From nithyareddy at gmail.com Sun Oct 17 14:31:00 2004 From: nithyareddy at gmail.com (nithya reddy) Date: Sun, 17 Oct 2004 14:31:00 +0530 Subject: [Commons-Law] final paper Message-ID: <7639bdc00410170201107753cf@mail.gmail.com> Dear all , I am attaching my final paper titled "Geographical Indications for Pochampally: the narrative of an intervention " for the sarai/alf fellowship. Looking forward to any responses regarding the issue /specific case study . regards , nitya From lawrence at altlawforum.org Mon Oct 18 09:41:25 2004 From: lawrence at altlawforum.org (Lawrence Liang) Date: Mon, 18 Oct 2004 09:41:25 +0530 Subject: [Commons-Law] Letter from AMTC to NHRC-India Message-ID: Hi all Posting the letter sent by AMTC to the NHRC about the Patents Third Amendment Bill, especially with reference to HIV drugs Lawrence Please find a letter to the National Human Rights Commission ( India) on patent amenmdment bill. 11th October To Justice A S Anand The Chairperson National Human Rights Commission ( NHRC) Sardar Patel Bhavan, Sansad Marg New Delhi 110001 Sub: (Third Amendment to Patents Act 2004) Dear Justice Anand I am writing this letter on behalf of Affordable Medicines and Treatment Campaign (AMTC). The 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. The campaign was initiated in 2001 with the following mission statement: The right to life and health is a fundamental right guaranteed to every person living in India and is non-negotiable. This campaign aims to demand and create 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. This campaign shall be democratic and participatory. It will seek the mobilization of communities and civil society to make state, national and international agencies and industry accountable for securing health for all. AMTC attempts to encourage action on a wide spectrum of issues relating to the right to treatment. These include WTO negotiations relating to the TRIPS agreement (TRIPS), the impending amendment to Patents Act 1970, law and regulation of drug pricing, national and state level governmental policies relating to health including vertical disease programmes, health needs of the population, transparency and accountability in the pharmaceutical sector, treatment literacy and health care infrastructure etc. As you are aware the Government of India has initiated to amend the Patents Act 1970 to introduce product patent protection to drug, medicine or food. A Patent Amendment Bill (Bill) was introduced to this effect in the 13th Lok Sabha in December 2003. The Bill lapsed due to the dissolution of Lok Sabha. In the last week of August 2004 the Cabinet has decided to refer the Bill to a Group of Ministers (GOM) to study the implications of contentious issues in the Bill. The GOM consists of Minister of Defense, Minister of Health, Minister of Human Resources Development and Minister of Commerce and Industry. We have learned from news reports that provisions of the referred Bill are identical to the lapsed Bill. This is a matter of concern because the Bill in its present form seriously compromises the accessibility and availability of medicines, two important components of right to health. Introduction of product patent protection for medicines and agro- chemicals is part of India's obligation under (TRIPS). TRIPS obligates member countries to provide a universal minimum standard of protection for various types intellectual property rights viz. trade mark, copyrights, geographical indications, patents, industrial designs, plant varieties, topography of integrated circuits and trade secrets. India has amended the Patents Act in 1999 and 2002 to comply with the obligations of TRIPS. The only pending obligation with regard to TRIPS is the introduction of product patents to medicines and agro-chemicals. India is to carry out this obligation by, before 1st January 2005. As you know, the Patents Act 1970 does not provide product patent protection for medicines and food. The Patents Act 1970 was enacted to scrap the Patents Act 1911, which provided product patent protection for medicines and food. The Patents Act 1970 provides only process patent protection to medicines and food. Process patent does not prevent others from making the product per se but prevents others from using the patented process as well as using, offering for sale, selling or importing the product obtained from the patented process. On the other hand, product patent prohibits others from making, using, offering for sale, selling or importing the patented product. As a result the product patent gives a monopoly to the patent owner for the production of patented article during the term of the patent (20 years). Therefore product patent protection for medicines and agro-chemicals creates monopoly and eliminates competition in the pharmaceutical market. Drug companies often abuse the patent monopoly and fix exorbitant prices for the patented medicines. The introduction of product patent thus reduces accessibility and affordability of drugs. The impact of product patent on the accessibility and availability of drugs are well documented. The most striking incident is the impact of product patent on access to HIV/AIDS drugs. Till 2000, antiretroviral (ARV) drugs were not accessible to the vast majority of people living with HIV/AIDS (PLHA) all over the world because of the high price. Multinational drug companies priced ARV drugs between US$12-13,000 annually per person. The price started falling in 2000 when manufacturers from India introduced generic versions of ARV drugs. Now these generic drugs are given as low as US$ 140 annually per person to certain international organisations like the Clinton Foundation. This is possible because of the absence of a product patent regime in India. Further, the absence of product patent protection has also facilitated the introduction of fixed dose combination (FDC) of ARV drugs. A three-in-one cocktail pill introduced by the generic manufacturers substituted two pills for six pills per day. Thus the FDCs increased the accessibility as well as availability of ARV drugs. The introduction of FDCs became possible only because of the absence of product patent protection in India. The introduction of a product patent regime would prevent generic companies in India from repeating this miracle. The impact of monopoly on access to medicines is already felt in India. The Controller of Patents has granted an Exclusive Marketing Right (EMR) to Novartis AG, for the drug called Gleevec used for the treatment of patients suffering from Chronic Myeloid Leukaemia (CML), a life threatening form of cancer. EMR is granted as a transitional arrangement before providing product patent protection. Gleevec is sold by Novartis AG at Rs. 1,20,000 per month.. The generic version of the drug was otherwise available to CML patients at Rs 9,000- 12,000 per month. The EMR, if enforced will result in the withdrawal of generic version of Gleevec from the market. Consequently, the overwhelming majority of patients that suffer from CML every year in India will be denied access to this life saving drug. Both the industry and the civil society have approached the Supreme Court of India to challenge the decision of granting EMR on Gleevec. Thus it shows that introduction of product patent in India will reduce the accessibility and availability of medicines. Therefore, we feel that utmost care is required to introduce the product patent regime. Certain flexibility available under the TRIPS should be used to its full extent to safeguard accessibility and availability of drugs and medicines. The Bill however, fails to make use of this flexibility at its optimum level. Main criticisms against the bill are as follows. Firstly, the Bill proposes to extend the scope of patentability beyond the TRIPS requirements by amending Section 3 (d) to allow patent protection for new use of known drugs. Patent for new use would help pharmaceutical companies to extend the monopoly over the drug even after the expiry of original patent. There is no obligation under TRIPS to provide patent protection to new use of known drugs. Earlier, the Mashelkar Committee recommended to limit the patent protection only to new chemical molecules. Secondly, the Bill proposes to do away with the pre-grant opposition procedure. Currently, there are approximately 6,000 applications pending in the mailbox. In the absence of pre-grant opposition, these 6,000 applications would escape much needed public scrutiny. Public scrutiny is crucial in light of the fact that less than 500 drugs have been granted marketing approvals in India between 1995-2004. Thirdly, the Bill has not properly incorporated the "August 30th Decision", which permits the grant of compulsory licence for export purposes. The Bill proposes to permit compulsory licensing for export purpose if there is a compulsory license in the importing country having no or insufficient manufacturing capacity in the pharmaceutical sector. This ignores the fact that Least Developing Countries (LDCs) need not provide product patent till 2016. In the absence of patent protection, issuance of compulsory license is impossible. In that event, the Indian drug companies would not be able to export to LDCs. Lastly, the Bill fails to revamp the compulsory licensing mechanism. Even though the Chapter on compulsory licenses in the Patents Act 1970 states the need for protecting the public interest, the same spirit is not reflected in the substantial provisions. Cumbersome procedures without any time line for the final disposal of application makes the compulsory license mechanism an impractical option to curb abuse of patent monopoly. India as a party to the International Covenant on Economic Social and Cultural Rights (ICESCR) has an international obligation to protect peoples' right to health. According to Article 12 of ICESCR "The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health". As you know, accessibility to and availability of drugs are recognized as important components of right to health. The introduction of product patent in the current form will further reduce the access to drugs. The Supreme Court of India recognized the enforceability of right to health within the scope of Article 21 of the Indian Constitution (Vincent Panikurlangara v Union of India 1987 (2) SCC 165). Further, Article 15(1)(b) of the ICESCR recognises "right of everyone to enjoy the benefits of scientific progress and its applications". The Supreme Court often interpreted fundamental rights in consonance with international treaties. Hence, the implementation of product patent should not result in the denial of rights guaranteed under the Constitution of India and the ICESCR. According to Section 2 (d) & (f) of Protection of Human Rights Act, 1993 rights under the ICESCR are the rights that the National Human Rights Commission (NHRC) has to protect. We therefore request your urgent intervention to safeguard peoples' right to health guaranteed under the Constitution of India and ICESCR by using the mandate under Section 12 (d), (f) and (j) of the Protection of Human Rights Act, 1993. In the context, we request NHRC. To seek information from the Government of India regarding the steps which are already taken or under consideration to safeguard the right to health under the product patent regime. To study and recommend to the Government of India on the steps to be taken to ensure the enjoyment of benefits of scientific progress and its application, an obligation under Article 15(1) (b) of ICESCR. To study and recommend to the Government of India on the options available within the TRIPS Agreement to safeguard right to health. To hold a national level consultation with concerned individuals and groups on the implications of intellectual property rights on peoples' right to health. With warm regards For AMTC Anand Grover Project Director,Lawyers collective HIV/AIDS Unit CC Justice Y. Bhaskar Rao , Member, NHRC Mr. R.S. Kalha, Member, NHRC Mr. P.C.Sharma, Member, NHRC Mr. Tarlochan Singh, Member, NHRC From nithyareddy at gmail.com Sun Oct 17 14:34:01 2004 From: nithyareddy at gmail.com (nithya reddy) Date: Sun, 17 Oct 2004 14:34:01 +0530 Subject: [Commons-Law] final paper Message-ID: <7639bdc0041017020478680e54@mail.gmail.com> sorry .....forgot to attach it . -------------- next part -------------- A non-text attachment was scrubbed... Name: GI for Pochampally.DEFANGED-32697 Type: application/defanged-32697 Size: 172544 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20041017/12a05361/attachment.bin From sudhir75 at hotmail.com Mon Oct 18 13:01:45 2004 From: sudhir75 at hotmail.com (sudhir krishnaswamy) Date: Mon, 18 Oct 2004 07:31:45 +0000 Subject: [Commons-Law] Letter from AMTC to NHRC-India Message-ID: Slightly confused - Is this the same letter posted on the list a couple of days ago by Lawyers Collective or a different one? Sudhir _________________________________________________________________ Seized by wanderlust? Have the best vacation ever. http://www.msn.co.in/Travel/ Team up with MSN Travel! From voices2 at vsnl.net Mon Oct 18 14:24:40 2004 From: voices2 at vsnl.net (Sanya Nathan) Date: Mon, 18 Oct 2004 14:24:40 +0530 Subject: [Commons-Law] (no subject) Message-ID: <00af01c4b4f0$1af79380$28c809c0@sanya> Hi This email id has been transferred to me and I'd like the members of this group to know that I'm not a member of Commons Law. Thanks Sanya -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041018/8e7cbcee/attachment.html From rajlakshmi_nesargi at yahoo.com Tue Oct 19 16:39:48 2004 From: rajlakshmi_nesargi at yahoo.com (Rajlakshmi Nesargi) Date: Tue, 19 Oct 2004 04:09:48 -0700 (PDT) Subject: [Commons-Law] changing nature of (C) law in the new technological age Message-ID: <20041019110948.74310.qmail@web51604.mail.yahoo.com> another piece of news article.... BBC NEWS Monday, 18 October, 2004, 11:58 GMT 12:58 UK The fight for your right to share Dot.life - where technology meets life, every Monday By Mark Ward BBC News Online technology correspondent Electron microscope image of chromosomes, PA The Human Genome project shows the value of public information Ask the average man in the street what Wipo means to them and most will look at you blankly. But if truth be told the World Intellectual Property Organisation has a profound influence on the lives of anyone who watches TV, listens to the radio, uses the net or owns a portable music player - pretty much all of us. The treaties and agreements that Wipo agrees set the broad agenda for protection of intellectual property rights for the whole world. Consumers feel the bite of these laws when they find they can't play a CD on their computer, copy downloaded music easily between different devices or make a video copy of a DVD so their kids do not wreck the expensive original. The controversial Digital Millennium Copyright Act was the US putting in to effect recommendations made by Wipo in the late 1990s. The DMCA was the law that the record companies initially used to pursue people swapping music online. Big change But now something remarkable has happened. Instead of just giving owners of intellectual property bigger sticks to enforce their rights, Wipo has agreed to embrace new ways of working. During the Wipo's recent General Assembly it voted to incorporate ways to develop and promote creativity into its basic goals. Now Wipo is more about opening up access to intellectual property, if it's appropriate, not just keeping people out. Lots of pills and tablets, BBC Rows over generic drugs paved the way for the Wipo change And it could not have happened without the net. The net has demonstrated how positive a force greater access to information can be, says James Love, director of the Consumer Project on Technology that was instrumental in making Wipo adopt this approach. The net's open source movement, which revolves around Linux, and its collaborative encyclopaedia, the Wikipedia, also shows how well alternative creative systems can work when rights and access are almost unlimited. What also helped to convince Wipo to widen its remit came from wrangles in the World Health Organisation and the World Trade Organisation over medicines. These rows resulted in declarations that gave developing nations the right to make or import generic copies of drugs when tackling serious problems of public health. This signalled that a company's ownership of its intellectual property did not over-ride all other rights and that there could be good reasons for diluting these protections - particularly if it were done for socially beneficial ends. Public goods Initiatives such as the Human Genome Project, which aims to create a public database of genetic information, have also shown that there is a need for public archives and that great benefits can flow from them. Alongside this, says Mr Love, went a couple of years of intense lobbying that involved submitting proposals about CP Tech's aims, organising conferences, seminars and the like to educate Wipo delegates about alternatives. The net helped here too, he said. "What the internet does, which is quite remarkable, is that it speeds the transmission of ideas up so fast that something that would have taken years to put together now takes about 9 months," he says. CDs and disks, Eyewire Copyright owners want to put limits on what you can do "This has established that we have a constituency all over the planet." But this does not mean a free-for-all in which all copyright is extinguished and the world is handed over to the pirates. "We are not taking a position that copyright cannot protect their legitimate interests." The question is where those legitimate rights to protection should stop and whether other methods are better to inspire creativity and innovation. Many observers of intellectual property laws say that many are not being used to stop piracy but are more tools to consolidate monopolies and markets. It goes far beyond just technology too. For many in the developing world, denying access to intellectual property can be a matter of life and death when what's in question is the recipe for a drug. But the latest victory, says Mr Love, is not the end of the fight. "It's the beginning of something," he says. "It's not like it is a brand new agency." Just how much Wipo has changed will become apparent in November when the organisation debates the controversial Broadcast Treaty. This would give broadcasters sweeping powers to restrict what viewers could do with the programmes they watch. If enacted in its full form, it could mean people could no longer tape shows from the TV without permission or copy CDs. "That's going to be a real test for us," he says. ===== "You must be the change you wish to see in the world. First they ignore you, then they laugh at you, then they fight you, then you win"-Mahatma Gandhi __________________________________ Do you Yahoo!? Read only the mail you want - Yahoo! Mail SpamGuard. http://promotions.yahoo.com/new_mail From shamnadbasheer at yahoo.co.in Tue Oct 19 17:12:59 2004 From: shamnadbasheer at yahoo.co.in (Shamnad Basheer) Date: Tue, 19 Oct 2004 12:42:59 +0100 (BST) Subject: [Commons-Law] changing nature of (C) law in the new technological age In-Reply-To: <20041019110948.74310.qmail@web51604.mail.yahoo.com> Message-ID: <20041019114259.52935.qmail@web8404.mail.in.yahoo.com> Great news indeed that the WIPO GA voted in favour of including 'devt' issues as well. May not however be that welcome a news by those that feel that this in a way legitimises WIPO to look into development issues. If the TK experience is anything to go by (particularly the initial emphasis to 'document' by WIPO), one has reason to be suspicious of WIPO's involvement with any 'developing country' issue. The fact that the GA resolution went unopposed by the US and EU again gives some cause for concern (perhaps they see enormous benefits in legitimising WIPO to look into development issues). Only time will tell whether this change in WIPO focus will translate well for developing countries.' ps: I havent heard much about India's role in this resolution-but apparently India supported this quite strongly at the GA (was told this by a QUNO rep who was at an access to medicines workshop in Italy recently-where, incidentally, Jamie Love happened to be present as well...am not sure whether he seriously thinks this GA resolution to be an unqualified victory) --- Rajlakshmi Nesargi wrote: > another piece of news article.... > > BBC NEWS > Monday, 18 October, 2004, 11:58 GMT 12:58 UK > > The fight for your right to share > Dot.life - where technology meets life, every Monday > By Mark Ward > BBC News Online technology correspondent > > Electron microscope image of chromosomes, PA > The Human Genome project shows the value of public > information > Ask the average man in the street what Wipo means to > them and most will look at you blankly. > > But if truth be told the World Intellectual Property > Organisation has a profound influence on the lives > of > anyone who watches TV, listens to the radio, uses > the > net or owns a portable music player - pretty much > all > of us. > > The treaties and agreements that Wipo agrees set the > broad agenda for protection of intellectual property > rights for the whole world. > > Consumers feel the bite of these laws when they find > they can't play a CD on their computer, copy > downloaded music easily between different devices or > make a video copy of a DVD so their kids do not > wreck > the expensive original. > > The controversial Digital Millennium Copyright Act > was > the US putting in to effect recommendations made by > Wipo in the late 1990s. > > The DMCA was the law that the record companies > initially used to pursue people swapping music > online. > > Big change > > But now something remarkable has happened. > > Instead of just giving owners of intellectual > property > bigger sticks to enforce their rights, Wipo has > agreed > to embrace new ways of working. > > During the Wipo's recent General Assembly it voted > to > incorporate ways to develop and promote creativity > into its basic goals. Now Wipo is more about opening > up access to intellectual property, if it's > appropriate, not just keeping people out. > > Lots of pills and tablets, BBC > Rows over generic drugs paved the way for the Wipo > change > And it could not have happened without the net. > > The net has demonstrated how positive a force > greater > access to information can be, says James Love, > director of the Consumer Project on Technology that > was instrumental in making Wipo adopt this approach. > > The net's open source movement, which revolves > around > Linux, and its collaborative encyclopaedia, the > Wikipedia, also shows how well alternative creative > systems can work when rights and access are almost > unlimited. > > What also helped to convince Wipo to widen its remit > came from wrangles in the World Health Organisation > and the World Trade Organisation over medicines. > > These rows resulted in declarations that gave > developing nations the right to make or import > generic > copies of drugs when tackling serious problems of > public health. > > This signalled that a company's ownership of its > intellectual property did not over-ride all other > rights and that there could be good reasons for > diluting these protections - particularly if it were > done for socially beneficial ends. > > Public goods > > Initiatives such as the Human Genome Project, which > aims to create a public database of genetic > information, have also shown that there is a need > for > public archives and that great benefits can flow > from > them. > > Alongside this, says Mr Love, went a couple of years > of intense lobbying that involved submitting > proposals > about CP Tech's aims, organising conferences, > seminars > and the like to educate Wipo delegates about > alternatives. > > The net helped here too, he said. > > "What the internet does, which is quite remarkable, > is > that it speeds the transmission of ideas up so fast > that something that would have taken years to put > together now takes about 9 months," he says. > > CDs and disks, Eyewire > Copyright owners want to put limits on what you can > do > "This has established that we have a constituency > all > over the planet." > > But this does not mean a free-for-all in which all > copyright is extinguished and the world is handed > over > to the pirates. "We are not taking a position that > copyright cannot protect their legitimate > interests." > > The question is where those legitimate rights to > protection should stop and whether other methods are > better to inspire creativity and innovation. > > Many observers of intellectual property laws say > that > many are not being used to stop piracy but are more > tools to consolidate monopolies and markets. > > It goes far beyond just technology too. For many in > the developing world, denying access to intellectual > property can be a matter of life and death when > what's > in question is the recipe for a drug. > > But the latest victory, says Mr Love, is not the end > of the fight. > > "It's the beginning of something," he says. "It's > not > like it is a brand new agency." > > Just how much Wipo has changed will become apparent > in > November when the organisation debates the > controversial Broadcast Treaty. > > This would give broadcasters sweeping powers to > restrict what viewers could do with the programmes > they watch. > > If enacted in its full form, it could mean people > could no longer tape shows from the TV without > permission or copy CDs. > > "That's going to be a real test for us," he says. > > ===== > "You must be the change you wish to see in the > world. First they ignore you, then they laugh at > you, then they fight you, then you win"-Mahatma > Gandhi > > > > __________________________________ > Do you Yahoo!? > Read only the mail you want - Yahoo! Mail SpamGuard. > http://promotions.yahoo.com/new_mail > _______________________________________________ > 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 shamnadbasheer at yahoo.co.in Wed Oct 20 23:37:06 2004 From: shamnadbasheer at yahoo.co.in (Shamnad Basheer) Date: Wed, 20 Oct 2004 19:07:06 +0100 (BST) Subject: [Commons-Law] Re: Intellectual Property Seminar Series - Tuesday 26th october Message-ID: <20041020180706.97873.qmail@web8408.mail.in.yahoo.com> For those of you in this part of the world, this will surely be worth your while. Regards-Shamnad > From: Gillian Brook > To: law-postgrads at maillist.ox.ac.uk ; > law-faculty at maillist.ox.ac.uk ; sbs mba students ; > sbs faculty ; Tom Hockaday ; Tanya Aplin ; Steve > Anderman ; Stephen Brett ; sibongile.pefile at mihr.org > Sent: Wednesday, October 20, 2004 2:45 PM > Subject: [LPg] Intellectual Property Seminar Series > - Tuesday 26th october > > > The second talk in this term's Intellectual Property > Seminar Series organised by the Oxford Intellectual > Property Research Centre will take place on TUESDAY: > > > > SPEAKER: Dev Gangjee, Research Associate, Oxford > Intellectual Property Research Centre, & St > Catherine's College. > SUBJECT: "The Name Blame Game (or Why are > Geographical Indications so Controversial?)" > > DATE: Tuesday 26th October 2004. > > VENUE: The Latner Room, St Peter's College, Oxford. > > TIME: 17.15 -18.00 followed by questions and > discussion. > > AUDIENCE: All are welcome. > > REFRESHMENTS: Light refreshments will be provided > after the talk. > > > > > > > > Gillian Brook, Assistant to Prof. David Vaver. > IP Centre, St Peter's College, Oxford, OX1 2DL > Tel: 01865 278952 Fax: 01865 278959 > gillian.brook at st-peters.ox.ac.uk > ________________________________________________________________________ Yahoo! India Matrimony: Find your life partner online Go to: http://yahoo.shaadi.com/india-matrimony From nithyareddy at gmail.com Tue Oct 19 19:17:40 2004 From: nithyareddy at gmail.com (nithya reddy) Date: Tue, 19 Oct 2004 19:17:40 +0530 Subject: [Commons-Law] GI and Pochampally Message-ID: <7639bdc004101906471c9da81c@mail.gmail.com> sorry......problem attaching the paper. -------------- next part -------------- A non-text attachment was scrubbed... Name: GI and Pochampally.rtf Type: text/richtext Size: 217048 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20041019/41a2aa14/attachment.rtx From aidslaw at bom5.vsnl.net.in Thu Oct 21 18:48:53 2004 From: aidslaw at bom5.vsnl.net.in (lawyers) Date: Thu, 21 Oct 2004 18:48:53 +0530 Subject: [Commons-Law] Alert: Send protests to the PM of India on Patent Amendment Message-ID: <009f01c4b770$8326e140$7eb8fea9@cableinternet> Dear All As you all know that Affordable Medicines and Treatment Campaign (AMTC) is monitoring the Patent Amendment process in India. However, we are observing very disappointing developments as far as public interest safeguards in the same are concerned. As you are aware, Government of India has initiated a process of amending the Patents Act to introduce product patent regime. The draft Bill for the amendment is currently pending before the Group of Ministers (GoM). The GoM refused to invite public comments on this issue. Provisions of the Bill go much beyond the TRIPS (TRIPS+) requirements and compromise accessibility and availability of drugs in the future. The main issues of concern in the Bill are : a.. It proposes to extend the scope of patentability much beyond the TRIPS requirements by amending Section 3(d) of the Patents Act to provide patents to new use of even known medicines. There is no obligation under TRIPS to provide a patent for either new use or new dosage of known medicines. 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. b.. The Bill proposes to do away with the pre-grant opposition procedure. Pre-grant opposition is an important mechanism for civil society to oppose frivolous patents. Currently there are approximately 6000 applications pending in the mailbox protection. In the absence of pre-grant opposition, these 6000 applications would escape public scrutiny. Public scrutiny is crucial in light of the fact that less than 500 drugs have been granted marketing approvals in India between 1995-2004 indicating that the rest are trivial applications. Hence, pre-grant opposition is absolutely essential for blocking trivial patents. c.. The Bill has not properly incorporated the August 30th 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. The Bill proposes to permit compulsory licensing to a country with no or insufficient manufacturing capacity in the pharmaceutical sector if there is a corresponding patent in the importing country. This ignores the fact that in many instances, there may not be any patent protection in the importing country because the deadline for Least Developing Countries (LDCs) to comply with TRIPS is 2016. In this case, the Indian drug companies would not be able to export to LDCs in the absence of a compulsory licence granted by the LDC. a.. Lastly, the compulsory licence regime within the present Patents Act contains cumbersome procedures without any time line for the final disposal of the application. This renders the compulsory licence system ineffective to curb abuse of patents because procedural requirements take away the deterrent element of the compulsory license mechanism. The Government is planning to issue an ordinance to amend the Patent Act to avoid debate. The Ordinance route of amendment will present a fait accompli and simply postpone discussions on the Bill in Parliament and will scuttle the democratic spirit of law making. We therefore request you all to send an e-mail to the Prime Minister of India seeking his intervention on the issue. Email ID: manmohan at sansad.nic.in . If you wish, you may use the following text. Please pass on this message to others. For AMTC Anand Grover Dear Mr. Prime Minister, We are writing this letter to bring to your notice certain concerns regarding the Patents Act amendment process and the content of the amendment. The Common Minimum Programme of UPA government promised "to take all steps to ensure availability of life savings drugs at reasonable prices". However, the news reports on amendment of Patents Act shows that the UPA government is moving to an exactly opposite direction. We are afraid that the Patent (Amendment) Bill in its present form seriously compromises accessibility and availability of medicines, one of the primary components of Right to Health. The draft Bill, not only fails to use the flexibility available within the TRIPS Agreement (TRIPS) but also goes beyond TRIPS . In other words, the draft Bill proposes patent protection more than what is required under TRIPS. We feel that draft Bill provisions would give monopoly rights to pharmaceutical companies at the cost of accessibility and availability of drugs under the product patent regime. Hence, we seek your urgent intervention to safeguard accessibility and availability of drugs. We urge you to make use of the flexibility available under TRIPS to the optimum level. Further, Group of Ministers' decision to not invite public comments make the whole process secretive in nature and compromises transparency for such process. There are also news reports about government's intention to bring an ordinance for amending the Patent Act instead tabling a Bill. People and their representatives have a right to be heard on the issues that affect their life. Therefore, we demand that the Government should not choose the ordinance route to amend Patents Act and the same to be introduced in the parliament for deliberations. We strongly demand, 1. No patents for known chemical molecules 2. Retain pre-grant opposition 3. No other TRIPS+ provisions 4. No Ordinance on Patent Amendment Thanking you. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041021/3c79a189/attachment.html From lawrence at altlawforum.org Fri Oct 22 10:04:47 2004 From: lawrence at altlawforum.org (lawrence at altlawforum.org) Date: Fri, 22 Oct 2004 00:34:47 -0400 Subject: [Commons-Law] Garcia Marquez Has Last Laugh on Book Pirates Message-ID: <212860-220041052243447852@M2W097.mail2web.com> Garcia Marquez Has Last Laugh on Book Pirates Wed Oct 20, 5:55 PM ET Entertainment - Reuters Celebrity/Gossip By Alistair Bell MEXICO CITY (Reuters) - Latin American literary giant Gabriel Garcia Marquez has won the last laugh on copyright pirates by changing the ending of his latest book, the Nobel laureate's first novel in 10 years. Reuters Photo The launch of the Spanish-language version of the book, "Memories of My Melancholy Whores," was brought forward a week to Wednesday because bootleg copies have begun appearing on the streets of his native Colombia. But the pirate copies are not the same as the final version of the 109-page book, which tells of a 90-year-old Colombian man in the 1950s who dwells on his memories of former loves. "Check the pirate version that is coming out in Colombia compared to the legal version being launched today. All I'm saying is that Gabriel Garcia Marquez changed the last chapter," editor Braulio Peralta told journalists in Mexico. Colombian police seized thousands of cheap bootleg versions of the book published before the Nobel laureate made his final touches, Peralta said. The 77-year-old author of "One Hundred Years of Solitude" and "Love in the Time of Cholera" appears to have stolen a march on the book pirates unintentionally. He changed the last chapter for artistic reasons, Peralta said. "There were some atmospheric feelings (in the chapter) that needed or required certain words to be exchanged for others," Peralta, of publishers Random House Mondadori, said at the book's Mexican launch. FAKE GOODS World trade officials say the sale in fake goods, from books and music to automotive parts and pharmaceuticals, is worth as much as 7 percent of legitimate global trade, or $600 billion a year. Garcia Marquez, a long-time resident of Mexico, made the "magic realism" style of Latin American fiction famous and won the Nobel Prize for literature in 1982. The English-language version of his latest book has yet to be published. The author has suffered from lymph cancer in recent years and makes few public appearances. His much-acclaimed autobiography "Living To Tell The Tale" was published last year. A million copies of his latest book have been printed for the Spanish-speaking world, where he is arguably the No. 1 cultural icon. His editor said Garcia Marquez's latest work defied his serious illness. "It's a song to life. I think we all know what Garcia Marquez has gone through in the past few years," Peralta said. "We are all worried for his health." The writer plans another short novel soon, entitled "We'll See Each Other In August," Peralta said, -------------------------------------------------------------------- mail2web - Check your email from the web at http://mail2web.com/ . From tahir.amin at btopenworld.com Sat Oct 23 14:11:51 2004 From: tahir.amin at btopenworld.com (TAHIR AMIN) Date: Sat, 23 Oct 2004 09:41:51 +0100 (BST) Subject: [Commons-Law] World Food Day: Iraqi farmers aren't celebrating Message-ID: <20041023084151.42126.qmail@web86102.mail.ukl.yahoo.com> New from GRAIN 15 October 2004 World Food Day: Iraqi farmers aren't celebrating NEWS RELEASE For immediate release http://www.grain.org/nfg/?id=253 When the Food and Agriculture Organisation (FAO) celebrates biodiversity on World Food Day on October 16, Iraqi farmers will be mourning its loss. A new report [1] by GRAIN and Focus on the Global South has found that new legislation in Iraq has been carefully put in place by the US that prevents farmers from saving their seeds and effectively hands over the seed market to transnational corporations. This is a disastrous turn of events for Iraqi farmers, biodiversity and the country's food security. While political sovereignty remains an illusion, food sovereignty for the Iraqi people has been made near impossible by these new regulations. "The US has been imposing patents on life around the world through trade deals. In this case, they invaded the country first, then imposed their patents. This is both immoral and unacceptable", said Shalini Bhutani, one of the report's authors. The new law in question [2] heralds the entry into Iraqi law of patents on life forms - this first one affecting plants and seeds. This law fits in neatly into the US vision of Iraqi agriculture in the future - that of an industrial agricultural system dependent on large corporations providing inputs and seeds. In 2002, FAO estimated that 97 percent of Iraqi farmers used saved seed from their own stocks from last year's harvest or purchased from local markets. When the new law - on plant variety protection (PVP) - is put into effect, seed saving will be illegal and the market will only offer proprietary "PVP-protected" planting material "invented" by transnational agribusiness corporations. The new law totally ignores all the contributions Iraqi farmers have made to development of important crops like wheat, barley, date and pulses. Its consequences are the loss of farmers' freedoms and a grave threat to food sovereignty in Iraq. In this way, the US has declared a new war against the Iraqi farmer. "If the FAO is celebrating 'Biodiversity for Food Security' this year, it needs to demonstrate some real commitment", says Henk Hobbelink of GRAIN, pointing out that the FAO has recently been cosying up with industry and offering support for genetic engineering [3]. "Most importantly, the FAO must recognise that biodiversity-rich farming and industry-led agriculture are worlds apart, and that industrial agriculture is one of the leading causes of the catastrophic decline in agricultural biodiversity that we have witnessed in recent decades. The FAO cannot hope to embrace biodiversity while holding industry's hand", he added. FOR MORE INFORMATION, CONTACT: >From GRAIN Shalini Bhutani in India [Tel: +91 11 243 15 168 (work) or +91 98 104 33 076 (cell)] or Alexis Vaughan in United Kingdom [Tel: +44 79 74 39 34 87 (mobile)] >From Focus on the Global South Herbert Docena in Philippines [Tel:+63 2 972 382 3804] NOTES [1] Visit http://www.grain.org/articles/?id=6. GRAIN and Focus' report is entitled "Iraq's new patent law: a declaration of war against farmers". Against the grain is a series of short opinion pieces on recent trends and developments in the issues that GRAIN works on. This one has been produced collaboratively with Focus on the Global South. [2] Patent, Industrial Design, Undisclosed Information, Integrated Circuits and Plant Variety Law of 2004, CPA Order No. 81, 26 April 2004, http://www.iraqcoalition.org/regulations/20040426_CPAORD_81_Patents _Law.pdf [3] GRAIN, "FAO declares war on farmers, not hunger", New from Grain, 16 June 2004, http://www.grain.org/front/?id=24 ___________________________________________________________ALL-NEW Yahoo! Messenger - all new features - even more fun! http://uk.messenger.yahoo.com From rajlakshmi_nesargi at yahoo.com Mon Oct 25 08:41:32 2004 From: rajlakshmi_nesargi at yahoo.com (Rajlakshmi Nesargi) Date: Sun, 24 Oct 2004 20:11:32 -0700 (PDT) Subject: [Commons-Law] strategies-world of music comp Message-ID: <20041025031132.92446.qmail@web51610.mail.yahoo.com> another piece of news.... Spitzer targets music giants Subpoenas issued to EMI, Universal Music, Sony BMG Music Entertainment and Warner Music Stephanie Kirchgaessner & David Wells / New York October 25, 2004 The recording industry, already battered by a surge in recent years of illegal music piracy, increased competition and heavy regulatory scrutiny, is facing a new and potentially costly examination into its practices by Eliot Spitzer, the New York attorney-general. Spitzer, whose investigations into conflicts on Wall Street and, most recently, bid rigging in the insurance industry, has had devastating effects on the companies involved, has issued subpoenas to the music industry�s four biggest groups: EMI, Universal Music, Sony BMG Music Entertainment, and Warner Music, according to a person familiar with the probe. Britain�s EMI, the third-largest record company, on Friday said that �along with other companies in the music and broadcast industries� it had received a request from Spitzer for information regarding practices in connection with the promotion of records on New York state radio stations. �We are co-operating fully with this inquiry, which is at a preliminary stage,� the company said. Spitzer�s probe is understood to be centred on what one industry expert called the �second oldest� profession � music companies paying so-called �independent� promoters to urge radio groups to play its songs � or �pay-to-play�. The music companies are prohibited by federal regulations to pay radio groups directly to play their tracks without disclosing that the payment has been made. EMI said it had a �long-standing, strict, written policy� prohibiting unlawful radio promotion � a policy that was reaffirmed internally this year � and it did not believe the probe would have any �material financial impact�. A different music group said it was too early to tell whether the investigation would lead to new, costly regulations or a settlement by the music industry. News of the investigation, which was first reported by the New York Times on Friday, did not come as a surprise to many industry observers following an earlier probe into the industry by Spitzer. In 2002, a group of leading record companies and retailers agreed to pay $143 million to settle price-fixing charges filed against them by the attorneys-general of 43 states. Sony BMG, Universal and Warner Music declined to comment. Clear Channel, the largest US radio station chain, said it did not receive a subpoena by Spitzer�s office. A spokesman for Infinity, the radio group owned by Viacom, said he was �not aware of one ===== "You must be the change you wish to see in the world. First they ignore you, then they laugh at you, then they fight you, then you win"-Mahatma Gandhi _______________________________ Do you Yahoo!? Declare Yourself - Register online to vote today! http://vote.yahoo.com From rajlakshmi_nesargi at yahoo.com Tue Oct 26 18:34:39 2004 From: rajlakshmi_nesargi at yahoo.com (Rajlakshmi Nesargi) Date: Tue, 26 Oct 2004 06:04:39 -0700 (PDT) Subject: [Commons-Law] warrangal video librarians raise voice regarding pirated stuff... Message-ID: <20041026130439.92115.qmail@web51610.mail.yahoo.com> another piece of interesting news..... SOUTHERN NEWS - ANDHRA PRADESH October 26, 2004 Video libraries to fight piracy head on Tuesday October 26 2004 08:28 IST HYDERABAD: After being at the receiving end for weeks, the video libraries in the city have raised their voice and come forward to tackle the menace of video piracy that has been worrying the Telugu film industry. In a sense, the ball is now in Tollywood�s court. Ever since �Prince� Mahesh Babu raided a video library in Warangal three months ago and roughed up the shop owner on charges of circulating pirated CDs of his movies, tensions prevailed between film industry and video shop owners, with both slapping criminal cases on each other. If industrywallahs allege that video libraries are causing a dent in their business, the shop owners say they are not the culprits. If the film fraternity books-cases under the copyrights Act against shop owners, the latter level charges of unauthorised raids on their premises. Video shops maintain that they have nothing to do with piracy of films. ��The origin of pirated CDs is at some centralised level. We get pirated copies, some of which further get copied at the customer level,�� sources in the association said. Breaking the ice, the Andhra Pradesh Video Library Owners� Association, which claims to have a membership of over 10,000 video shops, sent feelers to the AP film chamber of commerce that it is willing to end not only the hostility but also the piracy menace. Accepting it, the chamber sent a letter on October 13 inviting the association representatives for talks on the issue. The association office bearers who met this week decided to call on the chamber leaders later this week, to work out a formula to end piracy. Briefing mediapersons here today, video library owners association president A Narsing Rao and general secretary A Kiran Kumar said that they had some suggestions to deal with piracy. ��Make us available new movies that have completed 100 days,�� said Kiran Kumar. ��Also give us rights over all flop movies and consider our requirement while giving rights to satellite channels,�� he added. The video shop owners are ready to pay licence fee (Rs 500 to Rs 600) to the State Government for making their business legal. ��Currently, there is no legal framework to shield ourselves from the so-called raids, not only by authorised representatives of film producers but also by fans and others,�� he said. Whenever someone raids the shops, the owners were forced to bribe them. The association representatives are also planning to take out a rally and submit a memorandum to the Chief Minister and Home Minister. ��If they regulate the procedure, the government can get additional revenue,�� said Kiran Kumar. __________________________________________________ Do You Yahoo!? Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com From lawrence at altlawforum.org Wed Oct 27 16:00:08 2004 From: lawrence at altlawforum.org (lawrence at altlawforum.org) Date: Wed, 27 Oct 2004 06:30:08 -0400 Subject: [Commons-Law] more statistics Message-ID: <10450-220041032710308947@M2W037.mail2web.com> India tops in pay TV piracy in Asia Reuters Hong Kong, October 26 Asia's pay TV industry is expected to lose $970 million to piracy in 2004, with India's fragmented system of grey market operators accounting for more than half the total, according to a Cable and Satellite Broadcasting Association of Asia (CASBAA) survey released on Tuesday. The 2004 figure compares with $874 million in lost revenue last year, the first year CASBAA conducted its survey. But while the figure is up 11 per cent year-on-year, the rise is more indicative of better measurement methods and less of an actual increase, said CLSA's media and entertainment investment banking head, Simon Dewhurst. "The message is ... we're getting better at detecting where this piracy problem is," Dewhurst said at a media briefing to discuss the study. "Across the region, (losses due to pay TV piracy) are quite static. It's getting better in some markets, worse in others." Within the region, India accounted for 58 per cent of total revenue leakage, or $565 million worth. The lion's share of that is a direct result of the country's highly fragmented industry, where many major operators are unable to monitor the activities of smaller companies that control much of the so-called "last mile" access to homes. Pay TV piracy comes in many forms, but often involves the illegal installation of decoders and set-top boxes to receive cable or satellite service, or the sale of service by companies that obtained signals illegally. Thailand was the second worst, with $141 million in lost revenue, followed by Taiwan ($114 million lost), the Philippines ($70.4 million lost) and Vietnam ($26.4 million lost). Those markets are characterised by better-known problems, such as signal theft from local cable or satellite operators. Dewhurst said the situation is improving in India as the market consolidates, while it is getting worse in Vietnam, the Philippines and Thailand. "Market by market, the situation is slightly different," he said, adding that piracy will cost local governments $152 million in lost tax revenues this year. Dewhurst said that pay TV piracy in Asia, while a problem, is still relatively small compared with the estimated $14 billion in revenues that regional operators collect each year. "Piracy is a direct attack on a Government's ability to be able to argue they have a robust approach to intellectual property protection in the market. The pay TV industry is not facing a crisis as far as piracy is concerned." Some of the region's biggest pay TV providers include Singapore's StarHub , Hong Kong's I-Cable Communications , Malaysia's Astro and News Corp's Star Group, which has a major presence in India. The magnitude of the pay TV theft is roughly comparable in dollar terms to movie piracy, which is also a major problem in many Asian markets. Pirated movies cost the world's major studios an estimated $718 million last year, according to the Motion Picture Association. Within that figure, China was the biggest culprit accounting for about a quarter of the losses. -------------------------------------------------------------------- mail2web - Check your email from the web at http://mail2web.com/ . From azmul_haque at lawyer.com Wed Oct 27 16:08:51 2004 From: azmul_haque at lawyer.com (Azmul Haque) Date: Wed, 27 Oct 2004 05:38:51 -0500 Subject: [Commons-Law] Re: Case relating to Ringtones Message-ID: <20041027103851.8642F1CE305@ws1-6.us4.outblaze.com> An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041027/4124da78/attachment.html From sunil at mahiti.org Sun Oct 31 16:53:15 2004 From: sunil at mahiti.org (Sunil Abraham) Date: Sun, 31 Oct 2004 11:23:15 +0000 Subject: [Commons-Law] Did You Say "Intellectual Property"? It's a Seductive Mirage Message-ID: <1099221794.1286.2161.camel@box> Did You Say "Intellectual Property"? It's a Seductive Mirage -- by Richard Stallman It has become fashionable to describe copyright, patents, and trademarks as "intellectual property". This fashion did not arise by accident--the term systematically distorts and confuses these issues, and was promoted by those who gain from this. Anyone wishing to think clearly about any of these laws would do well to reject the term. One effect of the term is a bias that is not hard to see: it suggests thinking about copyright, patents and trademarks by analogy with property rights for physical objects. (This analogy is at odds with the legal philosophies of copyright law, of patent law, and of trademark law, but only specialists know that.) These laws are in fact not much like physical property law, but use of this term leads legislators to change them to be more so. Since that is the change desired by the companies that exercise copyright, patent and trademark powers, these companies have worked to make the term fashionable. According to Professor Mark Lemley, now of the Stanford Law School, the widespread use of the term "intellectual property" is a fad that followed the 1967 founding of the World "Intellectual Property" Organization, and only became really common in the past few years. (WIPO is formally a UN organization, but in fact it represents the interests of the holders of copyrights, patents and trademarks.) Those who would prefer to judge these issues on their merits should reject a biased term for them. Many have asked me to propose some other name for the category--or proposed alternatives themselves. Suggestions include IMPs, for Imposed Monopoly Privileges, and GOLEMs, for Government-Originated Legally Enforced Monopolies. Some speak of "exclusive rights regimes", but this means referring to restrictions as rights, which is doublethink too. But it is a mistake to replace "intellectual property" with any other term. A different name could eliminate the bias, but won't address the term's deeper problem: overgeneralization. There is no such unified thing as "intellectual property". It is a mirage, which appears to have a coherent existence only because the term suggests it does. The term "intellectual property" operates as a catch-all to lump together disparate laws. Non-lawyers who hear the term "intellectual property" applied to these various laws tend to assume they are instances of a common principle, and that they function similarly. Nothing could be further from the case. These laws originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues. Copyright law was designed to promote authorship and art, and covers the details of a work of authorship or art. Patent law was intended to encourage publication of ideas, at the price of finite monopolies over these ideas--a price that may be worth paying in some fields and not in others. Trademark law was not intended to promote any business activity, but simply to enable buyers to know what they are buying; however, legislators under the influence of "intellectual property" have turned it into a scheme that provides incentives for advertising (without asking the public if we want more advertising). Since these laws developed independently, they are different in every detail as well as in their basic purposes and methods. Thus, if you learn some fact about copyright law, you had best assume that patent law is different. You'll rarely go wrong that way! Laymen are not alone in getting confused by this term. I regularly find that experts on patent law, copyright law, and trademark law, even law professors who teach these subjects, have been lured by the seductiveness of the term "intellectual property" into general statements that conflict with the facts they know. The term distracts them from using their own knowledge. People often say "intellectual property" when they really mean some other category, larger or smaller than "intellectual property". For instance, rich countries impose laws on poor countries to squeeze money out of them. These laws often fit the category of "intellectual property"--so people who question the fairness of these laws often use that label, even though it does not really fit. That can lead to incorrect statements and unclear thinking. For this subject I recommend using a term such as "legislative colonization" that focuses on the central aspect of the subject, rather than the term "intellectual property". For other subjects, the term that describes the subject would be different. The term "intellectual property" also leads to simplistic thinking. It leads people to focus on the meager commonality in form of these disparate laws, which is that they create special powers that can be bought and sold, and ignore their substance--the specific restrictions each of them places on the public, and the consequences that result. At such a broad scale, people can't even see the specific public policy issues raised by copyright law, or the different issues raised by patent law, or any of the others. These issues arise from the specifics, precisely what the term "intellectual property" encourages people to ignore. For instance, one issue relating to copyright law is whether music sharing should be allowed. Patent law has nothing to do with this. But patent law raises the issue of whether poor countries should be allowed to produce life-saving drugs and sell them cheaply to save lives. Copyright law has nothing to do with that. Neither of these issues is just an economic issue, and anyone looking at them in the shallow economic perspectives of overgeneralization can't grasp them. Thus, any opinion about "the issue of intellectual property" is almost surely foolish. If you think it is one issue, you will tend to consider only opinions that treat all these laws the same. Whichever one you pick, it won't make any sense. If you want to think clearly about the issues raised by patents, or copyrights, or trademarks, or even learn what these laws say, the first step is to forget the idea of lumping them together, and treat them as separate topics. If you want to write articles that inform the public and encourage clear thinking, treat each of these laws separately; don't suggest generalizing about them. And when when it comes to reforming WIPO, among other things let's call for changing its name. Copyright 2004 Richard Stallman Verbatim copying and distribution of this entire article are permitted worldwide without royalty in any medium provided this notice is preserved. 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. Mobile: +91 80 36701931 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 From patrice at xs4all.nl Sun Oct 31 14:02:13 2004 From: patrice at xs4all.nl (Patrice Riemens) Date: Sun, 31 Oct 2004 09:32:13 +0100 Subject: [Commons-Law] Did You Say "Intellectual Property"? It's a Seductive Mirage In-Reply-To: <1099221794.1286.2161.camel@box> References: <1099221794.1286.2161.camel@box> Message-ID: <20041031083213.GD91718@xs4all.nl> Good that RMS fires a clear and massive broadside against the 'IP' misnommer. For years now I have been purosefully putting the term between brackets myself. I do not agree, however, that you should not call IP by any other name, since the monster needs to be tagged. For that I have always been an advocate of Ronald Coase's term "proprietary knowledge" to describe those intangibles firms (or other 'rights'holder) claim ownership on (based on whatever merit) and want to 'protect' and control. But there seem to be many difficulties with that term, and quite some opposition to it was raised when I broached it on nettime a few years ago (stupid and stubborn as I am, I can't remeber the argument). I wonder what people on this list think... cheers, patrizio & Diiiinoooos! From songcraft at yahoo.com Sun Oct 31 14:15:12 2004 From: songcraft at yahoo.com (Anthony McCann) Date: Sun, 31 Oct 2004 01:45:12 -0700 (PDT) Subject: [Commons-Law] Did You Say "Intellectual Property"? It's a Seductive Mirage In-Reply-To: <20041031083213.GD91718@xs4all.nl> Message-ID: <20041031084512.42912.qmail@web41315.mail.yahoo.com> I think it's really important to identify *discourses* of intellectual property while being careful not to be complicit with the same ... All the best, Anthony McC -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20041031/d174501f/attachment.html From sunil at mahiti.org Sun Oct 31 22:41:06 2004 From: sunil at mahiti.org (Sunil Abraham) Date: Sun, 31 Oct 2004 17:11:06 +0000 Subject: [Commons-Law] Did You Say "Intellectual Property"? It's a Seductive Mirage In-Reply-To: <20041031084512.42912.qmail@web41315.mail.yahoo.com> References: <20041031084512.42912.qmail@web41315.mail.yahoo.com> Message-ID: <1099242665.1280.2742.camel@box> Dear Patrice and Antony, Stallman will be speaking on "Intellectual Property" and Patents tomorrow at Singapore. I am trying to arrange for a video recording which will later be uploaded to www.iosn.net in ogg theora format. Thanks, Sunil http://www.iosn.net/country/singapore/events/rms-singapore-2004/ ------------------------------------------------------------------------ Richard M. Stallman on the Free Software Movement and Patents ------------------------------------------------------------------------ The Free Software movement highlights the issues regarding patents and the generalization and use of the term Intellectual Property Rights. For countries that are entering into global agreements such as WIPO, it is now crucial to assess the implications and impacts of international patent practises and policies, and to examine and assess the arguments introduced by the Free Software movement. UNDP-APDIP International Open Source Network in collaboration with the School of Information Systems, Singapore Management University cordially invites you to attend an open session featuring Richard M. Stallman, founder of the Free Software movement. Topic Free Software Movement and Patents Date Monday, 1st November 2004 Time 4:00pm Venue Singapore Management University, SMU Auditorium, Bukit Timah Campus, 469 Bukit Timah Road, Singapore 259756 Registration On-line registration is required as there are limited seats available. Please register as early as possible and take note that registration closes on 28 October 2004. Click here to register. If you have any queries, please write to SISseminar at smu.edu.sg. Agenda Open Session Time: 4:00pm - 5:30pm * Welcome Address * Shum Kam Hong, Practice Associate Professor, School of Information Systems, Singapore Management University * Sunil Abraham, Manager, International Open Source Network * Talk by Richard M. Stallman * Discussant * Harish Pillay, Business Development Manager,Red Hat Asia Pacific * Arvind Verma, Consultant, Enabler Technologies, Technology Office, Infocomm Development Authority of Singapore (IDA) * Question and Answer Session * Tea Break 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. Mobile: +91 80 36701931 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 From hardie at euskalnet.net Sun Oct 31 14:55:56 2004 From: hardie at euskalnet.net (martin hardie) Date: Sun, 31 Oct 2004 10:25:56 +0100 Subject: [Commons-Law] Did You Say "Intellectual Property"? It's a Seductive Mirage In-Reply-To: <1099242665.1280.2742.camel@box> References: <20041031084512.42912.qmail@web41315.mail.yahoo.com> <1099242665.1280.2742.camel@box> Message-ID: <200410311025.57019.hardie@euskalnet.net> I think you have to call the group or class of laws or legal logics what they are - intellectual property. But that does not mean in our search for another way of doing things we cant look for a new language and form of value. Stallman I fear separates copyright and e.g. trade marks in such a way that only promotes the "information" or "immaterial" economy - owning copyrights are not as importnat as hey once were but being able to package market and own a brand -as a service for example or as a particular package; i importnat in terms of global capital. Reports I have recieved from Stallman's recent tour of Australia have been universally negative - arrogant, self/yankee centred ... sexist, with us or agianst us blah blah blah etc etc ho hum Martin of On Sunday 31 October 2004 18:11, Sunil Abraham wrote: > Dear Patrice and Antony, > > Stallman will be speaking on "Intellectual Property" and Patents > tomorrow at Singapore. I am trying to arrange for a video recording > which will later be uploaded to www.iosn.net in ogg theora format. > > Thanks, > > Sunil > > http://www.iosn.net/country/singapore/events/rms-singapore-2004/ > ------------------------------------------------------------------------ > Richard M. Stallman on the Free Software Movement and Patents > ------------------------------------------------------------------------ > The Free Software movement highlights the issues regarding patents and > the generalization and use of the term Intellectual Property Rights. For > countries that are entering into global agreements such as WIPO, it is > now crucial to assess the implications and impacts of international > patent practises and policies, and to examine and assess the arguments > introduced by the Free Software movement. > > UNDP-APDIP International Open Source Network in collaboration with the > School of Information Systems, Singapore Management University cordially > invites you to attend an open session featuring Richard M. Stallman, > founder of the Free Software movement. > > Topic > Free Software Movement and Patents > Date > Monday, 1st November 2004 > Time > 4:00pm > Venue > Singapore Management University, SMU Auditorium, Bukit Timah > Campus, 469 Bukit Timah Road, Singapore 259756 > Registration > On-line registration is required as there are limited seats > available. Please register as early as possible and take note > that registration closes on 28 October 2004. Click here to > register. > If you have any queries, please write to SISseminar at smu.edu.sg. > > Agenda > Open Session > > Time: 4:00pm - 5:30pm > > * Welcome Address > * Shum Kam Hong, Practice Associate Professor, School of > Information Systems, Singapore Management University > * Sunil Abraham, Manager, International Open Source > Network > * Talk by Richard M. Stallman > * Discussant > * Harish Pillay, Business Development Manager,Red Hat Asia > Pacific > * Arvind Verma, Consultant, Enabler Technologies, > Technology Office, Infocomm Development Authority of > Singapore (IDA) > * Question and Answer Session > * Tea Break > > Thanks, > > ಸುನೀಲ್ -- :::::::::::::::::: http://auskadi.tk + 34 665757391 + 34 944668670 :::::::::::::::::: From sudhir at circuit.sarai.net Sun Oct 31 23:28:35 2004 From: sudhir at circuit.sarai.net (sudhir at circuit.sarai.net) Date: Sun, 31 Oct 2004 18:58:35 +0100 (CET) Subject: [Commons-Law] Candid confessions of an IP don! Message-ID: <3222.163.1.43.132.1099245515.squirrel@163.1.43.132> Dear all This article was published in an earlier issue of Legal Affairs. Lessig's analysis of the Eldred case, particularly the oral arguments, is one of the most self reflective and insightful account of the nature of legal practise that I've read in some time. How I Lost the Big One When Eric Eldred's crusade to save the public domain reached the Supreme Court, it needed the help of a lawyer, not a scholar. By Lawrence Lessig http://legalaffairs.org/issues/March-April-2004/story_lessig_marapr04.html IT IS OVER A YEAR LATER AS I WRITE THESE WORDS. It is still astonishingly hard. If you know anything at all about this story, you know that we lost the appeal. And if you know something more than just the minimum, you probably think there was no way this case could have been won. After our defeat, I received literally thousands of missives by well-wishers and supporters, thanking me for my work on behalf of this noble but doomed cause. And none from this pile was more significant to me than the e-mail from my client, Eric Eldred. But my client and these friends were wrong. This case could have been won. It should have been won. And no matter how hard I try to retell this story to myself, I can't help believing that my own mistake lost it. ERIC ELDRED, A RETIRED COMPUTER PROGRAMMER in New Hampshire, was frustrated that his daughters didn't seem to like Nathaniel Hawthorne. And in 1995, he decided to do something about it: put Hawthorne on the web. An electronic version with links to pictures and explanatory text, Eldred thought, would make this 19th-century work come alive. It didn't work—at least for his daughters. They didn't find Hawthorne any more interesting than before. But Eldred's experiment gave birth to a hobby, and his hobby begat a cause. Eldred went on to build a library of public-domain works by scanning these works and making them available for free. Eldred's library was not simply a copy of certain public-domain works. Just as Disney turned the Grimms' fairy tales into films more accessible to a 20th-century audience, Eldred put the works of Hawthorne, and many others, in a form more accessible—technically accessible—today. Like Disney, Eldred was free to produce new versions of works whose copyright had lapsed. Hawthorne's Scarlet Letter had passed into the public domain in 1907. In 1998, Robert Frost's poetry collection New Hampshire was slated to pass into the public domain. Eldred wanted to post that collection in his free public library. But Congress got in the way. For the 11th time in four decades, Congress extended the terms of existing copyrights—this time by 20 years. Eldred would not be free to add any works published since 1923 to his collection until 2019. Under the new law, no copyrighted work would pass into the public domain until that year (and not even then, if Congress extended the term again). By contrast, in the same period, more than one million patents will pass into the public domain. This was the Sonny Bono Copyright Term Extension Act, or CTEA, enacted in memory of the congressman and former musician. According to his widow, Mary Bono, Sonny Bono believed that "copyrights should be forever." Eldred decided to fight this law. He first resolved to fight it through civil disobedience. In a series of interviews, Eldred announced that he would publish as planned, the CTEA notwithstanding. But because of a second law passed in 1998, the No Electronic Theft Act, his act of publishing would make Eldred a felon—whether or not anyone complained. This was a dangerous strategy for a retired programmer to undertake. It was here that I became involved in Eldred's battle. I am a constitutional scholar whose first passion is constitutional interpretation. And though constitutional law courses never focus upon the progress clause of the Constitution, it had always struck me as different in an important way. Every other clause granting power to Congress simply says Congress has the power to do something—for example, to regulate "commerce among the several states" or "declare War." But in the progress clause, the "something" is something quite specific—to "promote . . . Progress"—through means that are also specific—by "securing" "exclusive Rights" (i.e., copyrights) "for limited Times." In my view, our constitutional system placed such a limit on copyright as a way to ensure that copyright holders do not too heavily influence the development and distribution of our culture. Yet, as Eldred discovered, copyrights have not expired, and will not expire, so long as Congress is free to be bought to extend them again. And while it is the valuable copyrights—Mickey Mouse and "Rhapsody in Blue"—that are responsible for terms being extended, the real harm done to society is not that Mickey Mouse remains Disney's. Forget Mickey Mouse. Forget Robert Frost. Forget all the works from the 1920s and 1930s that still have commercial value. The real harm is to the works that are not famous, not commercially exploited, and no longer available as a result. Of all the creative work produced by humans anywhere, a tiny fraction has continuing commercial value. For that tiny fraction, the copyright is a crucially important legal device. But even for that tiny fraction, the actual time during which the creative work has a commercial life is extremely short. Most books go out of print within one year. The same is true of music and film. Commercial culture is sharklike. It must keep moving. And when a creative work falls out of favor with the commercial distributors, the commercial life ends. Copyrights in this context do no good. Yet for most of our history, they also did little harm. When a work ended its commercial life, there was no copyright-related use that would be inhibited by an exclusive right. When a book went out of print, you could not buy it from a publisher. But you could still buy it from a used bookstore, and when a used bookstore sells it, at least in the United States, there is no need to pay the copyright owner anything. Thus, the ordinary use of a book after its commercial life ended was a use that was independent of copyright law. The same was effectively true of film. Because the costs of restoring a film—the real economic costs, not the attorneys' fees—were so high, it was never at all feasible to preserve or restore film. Digital technologies have changed that. It is now possible to preserve and offer access to all sorts of knowledge. Digital technologies give new life to copyrighted material after it passes out of its commercial life. And now copyright law does get in the way. Every step of producing this digital archive of our culture infringes on the exclusive right of copyright. To digitize a book is to copy it. To do that requires permission of the copyright owner. The same holds for music, film, and every other artifact of our culture protected by copyright. The effort to make these things available to history, or to researchers, or to those who just want to explore is now inhibited by a set of rules that were written for a radically different context. CONSTITUTIONAL LAW IS NOT OBLIVIOUS of the obvious. Or, at least, it does not need to be. In my view, a pragmatic court committed to interpreting and applying our framers' Constitution would see that if Congress has the power to perpetually extend existing terms, then the constitutional requirement that terms be limited has lost its force. It was also my judgment that this Supreme Court would not allow Congress to extend existing terms. As anyone close to the Supreme Court's work knows, this court has increasingly restricted the power of Congress when, in its view, Congress overstepped the powers granted to it by the Constitution. The most notable example of this was the court's 1995 United States v. Lopez ruling, which struck down a federal law that banned the possession of guns near schools. Since 1937, the Supreme Court had interpreted Congress's granted powers very broadly; so, while the Constitution grants Congress the power to regulate only "commerce among the several states" (aka "interstate commerce"), the court had interpreted that power to include the power to regulate any activity that merely affected interstate commerce. As the economy grew, this standard increasingly meant that there was no limit to Congress's power to regulate, since just about every activity, when considered on a national scale, affects interstate commerce. A Constitution designed to limit Congress's power was instead interpreted to impose no limit. Under Chief Justice William Rehnquist's command, the court changed that in Lopez. The government had argued that possessing guns near schools affected interstate commerce. Guns near schools increase crime, crime lowers property values, and so on. In the oral argument, the chief justice asked the government whether there was any activity that would not affect interstate commerce under the reasoning the government advanced. The government said there was not; if Congress says an activity affects interstate commerce, then that activity affects interstate commerce. The Supreme Court, the government argued, shouldn't second-guess Congress. "We pause to consider the implications of the government's arguments," the chief justice wrote. If anything Congress says is interstate commerce must therefore be considered interstate commerce, then there would be no limit to Congress's power. The decision in Lopez was reaffirmed five years later in United States v. Morrison. If a principle were at work here, then it should apply to the progress clause as much as the commerce clause. And if it is applied to the progress clause, the principle should yield the conclusion that Congress can't claim the power to extend an existing term on a theory that puts no effective limit on its power. If, that is, the principle announced in Lopez was a genuine principle. Many believed the decision in Lopez represented politics—a political preference for states' rights, gun ownership rights, and so on. But I rejected that view of the Supreme Court's decision. Shortly after the decision, I wrote an article demonstrating the "fidelity" of such an interpretation to the Constitution. The idea that the Supreme Court decides cases based upon justices' political preferences struck me as extraordinarily boring. I was not going to devote my life to teaching constitutional law if these nine justices were going to be petty politicians. In January 1999, we filed a lawsuit on Eldred's behalf in federal district court in Washington, D.C., asking the court to declare the Sonny Bono Copyright Term Extension Act unconstitutional. We made two central claims: that extending existing terms violated the Constitution's "limited Times" requirement and that extending terms by another 20 years violated the First Amendment. The district court dismissed our claims without even hearing an argument. A panel of the Court of Appeals for the D.C. Circuit also dismissed our claims, though after hearing an extensive argument. But that decision at least had a dissent, by one of the most conservative judges on that court, Judge David Sentelle, who said the CTEA violated the requirement that copyrights be for "limited Times" only. We asked the Court of Appeals for the D.C. Circuit as a whole to hear the case, but the court rejected our request to hear the case en banc. This time, Judge Sentelle was joined by the most liberal member of the D.C. Circuit, Judge David Tatel. The most conservative and the most liberal judges on the D.C. Circuit each believed Congress had overstepped its bounds. It was here that most expected Eldred v. Ashcroft to die, for the Supreme Court rarely reviews any decision by a court of appeals. And it practically never reviews a decision that upholds a statute when no other court has yet reviewed the statute. But in February 2002, the Supreme Court surprised the world by granting our petition to review the D.C. Circuit opinion. Argument was set for October of 2002. The summer would be spent writing briefs and preparing for argument. THE MISTAKE WAS MADE EARLY, though it became obvious only at the very end. Our case had been supported from the very beginning by an extraordinary lawyer, Geoffrey Stewart, and by the law firm he had moved to, Jones, Day, Reavis & Pogue. There were three key lawyers on the case from Jones Day. Stewart was the first; then, Dan Bromberg and Don Ayer became quite involved. Bromberg and Ayer had a common view about how this case would be won: We would only win, they repeatedly told me, if we could make the issue seem "important" to the Supreme Court. It had to seem as if dramatic harm were being done to free speech and free culture; otherwise, the justices would never vote against "the most powerful media companies in the world." I hate this view of the law. Of course I thought the Sonny Bono Act was a dramatic harm to free speech and free culture. But I was not persuaded that we had to sell our case like soap. In any event, I thought, the court must already see the danger and the harm caused by this sort of law. Why else would the justices have granted review? I was, however, convinced that the court would not hear our arguments if it thought these were just the arguments of a group of lefty loons. I made sure that the briefs on our side were about as diverse as it gets, including both the economist Milton Friedman and Hal Roach Studios, which said the Sonny Bono Copyright Term Extension Act will, if left standing, destroy a whole generation of American film that is no longer commercially viable to sell. The same effort at balance was reflected in the legal team we gathered to write our own briefs. When the case got to the Supreme Court, we added three lawyers to the Jones Day team: Alan Morrison of Public Citizen, a Washington group that had made constitutional history with a series of victories in the Supreme Court on individual rights; my colleague and dean at Stanford Law School, Kathleen Sullivan, who is an experienced advocate before the court, and who had advised us early on about a First Amendment strategy; and, finally, former solicitor general Charles Fried. Fried was a special victory for us. Every other recent solicitor general was hired by the other side to defend Congress's power to give media companies the special favor of extended copyright terms. Fried was the only one who turned down that lucrative assignment to stand up for something he believed in. He had been Ronald Reagan's chief lawyer in the Supreme Court. He had helped craft the line of cases that limited Congress's power deriving from the commerce clause. And while he had argued many positions in the Supreme Court that I disagreed with, his joining the cause was a vote of confidence in our argument. The government, in defending the statute, had its collection of friends as well. Significantly, however, none of these "friends" included historians or economists. The briefs on the other side of the case were written exclusively by major media companies, congressmen, and copyright holders. The media companies were not surprising. They had the most to gain from the law. The congressmen were not surprising either—they were defending their power and, indirectly, the gravy train of contributions that such power brought them. And of course it was not surprising that the copyright holders would defend the idea that they should continue to have the right to control who did what with the content that they had long controlled. Those who represented the estate of Dr. Seuss (Theodore Geisel) argued that it was better to leave control of his work in the hands of his estate than to allow it to fall into the public domain, where people could use it to "glorify drugs or to create pornography." The Gershwin estate had a similar rationale for its "protection" of the work of George Gershwin. His estate refuses, for example, to license Porgy and Bess to anyone who does not use African-Americans in the cast. That's its view of how this part of American culture should be controlled, and it wanted this law to help it maintain that control. This point is rarely made, but it has far-reaching implications, and it was a key theme of our brief. When Congress decides to extend the term of existing copyrights, it is making a choice about which speakers it will favor. Not only would upholding the CTEA mean that there was no limit to the power of Congress to extend copyrights and further concentrate the market; it would also mean that there was no effective limit to Congress's power to play favorites, through copyright, with who has the right to speak. Between February and October, I did little besides prepare for this case. Early on, as I said, I set the strategy. The Supreme Court was divided into two important camps. One camp we called "the conservatives." The other we called "the rest." In the first group we placed Chief Justice Rehnquist and Associate Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas. These five had been the most consistent in limiting Congress's power. They were the five who had supported the Lopez/Morrison line of decisions, which said that an enumerated power—the only kind of power Congress has—must be interpreted in a way that makes it limited. The rest were the four justices who had strongly opposed limits on Congress's power. These four—Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer—had repeatedly argued that the Constitution gives Congress broad discretion to decide how best to implement its powers. In case after case, these justices had argued that the Supreme Court should defer to the legislative branch. Though I had personally agreed with these four justices' votes in most cases, they were also the votes that we were least likely to get in this one. The least likely of all was Ginsburg's. In addition to her general view about deference to Congress (except where issues of gender are involved), she had been particularly deferential in the context of intellectual property protections. She and her daughter (an excellent and well-known intellectual property scholar) were cut from the same intellectual property cloth. We expected she would agree with the writings of her daughter: that Congress had the power in this context to do as it wished, even if what Congress wished made little sense. Close behind Ginsburg were two justices whom we also viewed as unlikely allies, though possible surprises. Souter strongly favored deference to Congress, as did Breyer. But both were also very sensitive to free speech concerns. And we believed retrospective extensions raised important free speech issues. The only vote we could be confident about was Stevens's. History will record Stevens as one of the greatest judges on this Court. His votes are consistently eclectic, which just means that no simple ideology explains where he will stand. But he had consistently argued for limits in the context of intellectual property. We were fairly confident that he would recognize limits here. ORAL ARGUMENT WAS SCHEDULED for the first week in October. I arrived in D.C. two weeks before the argument and was repeatedly "mooted" by lawyers who had volunteered to help in the case. To win, I was convinced that I had to keep the court focused on the idea that just as with the Lopez case, under the government's argument here, Congress would always have unlimited power to extend existing terms of copyright. I found ways to take every question back to this central idea. In the moot before the lawyers at Jones Day, Don Ayer was skeptical. Don had served in the Reagan Justice Department with Solicitor General Charles Fried and had argued many cases before the Supreme Court. "I'm just afraid that unless they really see the harm, they won't be willing to upset this practice that the government says has been a consistent practice for 200 years. You have to make them see the harm—passionately get them to see the harm. For if they don't see that, then we haven't any chance of winning," he said. He may have argued many cases before this court, I thought, but he didn't understand its soul. As a clerk for Justice Scalia, I had seen the justices do the right thing, not because of politics but because it was right. As a law professor, I had spent my life teaching my students that this court does the right thing, not because of politics but because it is right. The night before the argument, a line of people began to form in front of the Supreme Court. The case had become a focus of the press and of the movement to free culture. Hundreds stood in line for the chance to see the proceedings. Scores spent the night on the steps of the court so that they would be assured a seat. Not everyone has to wait in line. People who know the justices can ask for seats they control. (I asked Justice Scalia's chambers for seats for my parents, for example.) Members of the Supreme Court Bar can get a seat in a special section reserved for them. And senators and congressmen have a special place where they get to sit, too. Finally, of course, the press has a gallery, as do clerks working for the justices. As we entered that morning, there was no place that was not taken. This was an argument about intellectual property law, yet the halls were filled. As I walked in to take my seat, I saw my parents sitting on the left. As I sat down at the table, I saw Jack Valenti, the chairman of the Motion Picture Association of America, sitting in the special section ordinarily reserved for family of the justices. When the chief justice called me to begin my argument, I began where I intended to stay: on the question of the limits on Congress's power. This was a case about enumerated powers, I said, and whether those enumerated powers had any limit. O'Connor stopped me within one minute of my opening. The history was bothering her: Congress has extended the term so often through the years, and if you are right, don't we run the risk of upsetting previous extensions of time? I mean, this seems to be a practice that began with the very first act. She was quite willing to concede "that this flies directly in the face of what the framers had in mind." But my response again and again was to emphasize limits on Congress's power: Well, if it flies in the face of what the framers had in mind, then the question is, Is there a way of interpreting their words that gives effect to what they had in mind? And the answer is yes. There were two points in this argument when I should have seen where the court was going. The first was a question by Kennedy, who observed, Well, I suppose implicit in the argument that the '76 act, too, should have been declared void, and that we might leave it alone because of the disruption, is that for all these years the act has impeded progress in science and the useful arts. I just don't see any empirical evidence for that. Here follows my clear mistake. Like a professor correcting a student, I answered, Justice, we are not making an empirical claim at all. Nothing in our copyright clause claim hangs upon the empirical assertion about impeding progress. Our only argument is, this is a structural limit necessary to assure that what would be an effectively perpetual term not be permitted under the copyright laws. That was a correct answer, but it wasn't the right answer. The right answer was to say that there was an obvious and profound harm. Any number of briefs had been written about it. Kennedy wanted to hear it. And here was where Don Ayer's advice should have mattered. This was a softball; my answer was a swing and a miss. The second came from the chief, for whom the whole case had been crafted. For the chief justice had crafted the Lopez ruling, and we hoped that he would see this case as its second cousin. It was clear a second into his question that he wasn't at all sympathetic. To him, we were a bunch of anarchists: Well, but you want more than that. You want the right to copy verbatim other people's books, don't you? I responded as follows: We want the right to copy verbatim works that should be in the public domain and would be in the public domain but for a statute that cannot be justified under ordinary First Amendment analysis or under a proper reading of the limits built into the copyright clause. Things went better for us when the government gave its argument; for now the court picked up on the core of our claim. Scalia made this comment to Solicitor General Theodore Olson: You say that the functional equivalent of an unlimited time would be a violation [of the Constitution], but that's precisely the argument that's being made by petitioners here, that a limited time which is extendable is the functional equivalent of an unlimited time. When Olson was finished, it was my turn to give a closing rebuttal. Olson's flailing had revived my anger. But my anger still was directed to the academic, not the practical. The government was arguing as if this were the first case ever to consider limits on Congress's copyright and patent clause power. Ever the professor and not the advocate, I closed my argument by pointing out the long history of the court's imposing limits on Congress's power in the name of the copyright and patent clause; the very first case striking a law of Congress as exceeding a specific enumerated power was based upon the copyright and patent clause. All true. But it wasn't going to move the justices over to my side. As I left the court that day, there were a hundred points I wished I could remake. There were a hundred questions I wished I had answered differently. But one way of thinking about this case left me optimistic. The government had been asked over and over again, What is the limit? Over and over again, it had answered there was no limit. The solicitor general had made my argument for me; in those rare moments when I let myself believe that we may have prevailed, it was because I felt this court—in particular, the conservatives—would feel itself constrained by the principles that they had established in cases like Lopez and Morrison. The morning of January 15, 2003, I was five minutes late to the office and missed the 7 a.m. call from the Supreme Court clerk. Listening to the message, I could tell in an instant that she had bad news to report. The Supreme Court had affirmed the decision of the court of appeals. Seven justices had voted in the majority. There were two dissents. A few seconds later, the opinions arrived by e-mail. I took the phone off the hook, posted an announcement of the ruling on our blog, and sat down to see where I had been wrong in my reasoning. My reasoning. Here was a case that pitted all the money in the world against reasoning. And here was the last naïve law professor, scouring the pages, looking for reasoning. I first scoured the majority opinion, written by Ginsburg, looking for how the court would distinguish the principle in this case from the principle in Lopez. The reasoning was nowhere to be found. The case was not even cited. The core argument of our case did not even appear in the court's opinion. I couldn't quite believe what I was reading. I had said that there was no way this court could reconcile limited powers with the commerce clause and unlimited powers with the progress clause. It had never even occurred to me that they could reconcile the two by not addressing the argument at all. Ginsburg simply ignored the enumerated powers argument. Consistent with her view that Congress's power was not limited generally, she had found Congress's power not limited here. Her opinion was perfectly reasonable—for her, and for Souter. Neither believes in Lopez. But what about the silent five? By what right did they get to select the part of the Constitution they would enforce? We were back to the argument that I said I hated at the start: I had failed to convince them that the issue here was important, and I had failed to recognize that however much I might hate a system in which the court gets to pick the constitutional values that it will respect, that is the system we have. Breyer and Stevens wrote very strong dissents. Stevens's reasoning was internal to the law: He argued that the tradition of intellectual property law did not support this unjustified extension of terms. He based his argument on a parallel analysis of the law of patents. (So had we.) But the rest of the court discounted the parallel—without explaining how the very same words in the progress clause could come to mean totally different things depending upon whether the words were about patents or copyrights. The court was content to let Stevens's charge go unanswered. Breyer's opinion, perhaps the best opinion he has ever written, did not focus on the Constitution. He argued that the term of copyrights has become so long as to be effectively unlimited. We had said that under the current term, a copyright gave an author 99.8 percent of the value of a perpetual term. Breyer said we were wrong, that the actual number was 99.9997 percent of a perpetual term. Either way, the point was clear: If the Constitution said a term had to be "limited," and the existing term was so long as to be effectively unlimited, then the extension is unconstitutional. These two justices understood all the arguments we had made. But because neither believed in the Lopez case, neither was willing to push it as a reason to reject this extension. The case was decided without anyone having addressed the central argument that we had carried from Judge David Sentelle. It was Hamlet without the prince. DEFEAT BRINGS DEPRESSION. They say it is a sign of health when depression gives way to anger. My anger came quickly, but it didn't cure the depression. It was at first anger with the five conservatives. It would have been one thing for them to have explained why the principle of Lopez didn't apply in this case. That wouldn't have been a very convincing argument, I don't believe, having read it made by others, and having tried to make it myself. But it at least would have been an act of integrity. These justices in particular have repeatedly said that the proper mode of interpreting the Constitution is "originalism"—starting by understanding the framers' text, interpreted in the original context, in light of the original structure of the Constitution. That method had produced Lopez and many other "originalist" rulings. Where was their "originalism" now? My anger with the conservatives quickly yielded to anger with myself. For I had let a view of the law that I liked interfere with my view of the law as it is. Most lawyers and law professors have little patience for idealism about courts in general and this Supreme Court in particular. Most have a much more pragmatic view. As I read back over the transcript from that argument in October, I can see a hundred places where the answers could have taken the conversation in different directions, where the truth about the harm that this unchecked power will cause could have been made clear to this court. Kennedy in good faith wanted to be shown. I, idiotically, corrected his question. Souter in good faith wanted to be shown the First Amendment harms. I, like a math teacher, reframed the question to make the logical point. I had shown them how they could strike down this law of Congress if they wanted to. There were a hundred places where I could have helped them want to, yet my stubbornness, my refusal to give in, stopped me. I have stood before hundreds of audiences trying to persuade; I have used passion in that effort to persuade; but I refused to stand before this audience and try to persuade with the passion I had used elsewhere. It was not the basis on which a court should decide the issue. Would it have been different if I had argued it differently? Would it have been different if Don Ayer had argued it? Or Charles Fried? Or Kathleen Sullivan? The image that will always stick in my head comes from an editorial that ran in The New York Times. While the reaction to the Sonny Bono Act itself was almost unanimously negative, the reaction to the court's decision was mixed. The press coverage that attacked the decision did so because it left standing a silly and harmful law. That "grand experiment" that we call "the public domain" is over, the paper said. When I can make light of it, I think, "Honey, I shrunk the Constitution." But I can rarely make light of it. We had in our Constitution a commitment to free culture. In the case that I fathered, the Supreme Court effectively renounced that commitment. A better lawyer would have made them see differently.