From vinay at nls.ac.in Tue Aug 2 10:47:25 2005 From: vinay at nls.ac.in (Vinay Aravind) Date: Tue, 2 Aug 2005 10:47:25 +0530 (IST) Subject: [Commons-Law] Free Speech and Internet Security In-Reply-To: <20050731100007.D7B1328DD36@mail.sarai.net> References: <20050731100007.D7B1328DD36@mail.sarai.net> Message-ID: <50774.61.246.204.194.1122959845.squirrel@61.246.204.194> Cisco tries to silence researcher Joris Evers CNET News.com July 28, 2005, 08:40 BST Cisco has taken legal action to keep a researcher from further discussing a hack into its router software. The networking giant and Internet Security Systems jointly filed a request Wednesday for a temporary restraining order against Michael Lynn and the organizers of the Black Hat security conference. The motion came after Lynn showed in a presentation how attackers could take over Cisco routers — a problem that he said could bring the Internet to its knees. The filing in US District Court for the Northern District of California asks the court to prevent Lynn and Black Hat from "further disclosing proprietary information belonging to Cisco and ISS," said John Noh, a Cisco spokesman. "It is our belief that the information that Lynn presented at Black Hat this morning is information that was illegally obtained and violated our intellectual-property rights," Noh added. Lynn decompiled Cisco's software for his research and by doing so violated the company's rights, Noh said. The legal moves came Wednesday afternoon, only hours after Lynn gave the talk at the Black Hat security conference in Las Vegas. Lynn told the audience that he had quit his job as a researcher at ISS to deliver the presentation, after ISS had decided to pull the session. Notes on the vulnerability and the talk, "The Holy Grail: Cisco IOS Shellcode and Remote Execution," were removed from the conference proceedings, leaving a gap in the thick book. Lynn outlined how to run attack code on Cisco's Internetwork Operating System by exploiting a known security flaw in IOS. The software runs on Cisco routers, which make up the infrastructure of the Internet. A widespread attack could badly hurt the Internet, he said. The actual flaw he exploited for his attack was reported to Cisco and has been fixed in recent releases of IOS, experts attending Black Hat said. The ISS research team, including Lynn, on Monday decided to cancel the presentation, Chris Rouland, chief technology officer at ISS, said in an interview. "It wasn't ready yet," he said. Lynn resigned from ISS on Wednesday morning and delivered the presentation anyway, Rouland added. Lynn presented ISS research while he was no longer an employee, Rouland said. Adding to the controversy, a source close to the Black Hat organisation said that it wasn't ISS and Lynn who wanted to cancel the presentation, but Cisco. Lynn was asked to give a different talk, one on VoIP security, the source said. But ISS' Rouland said there "was never a VoIP presentation" and that Wednesday's session was supposed to be cancelled altogether. "The research is very important, and the underlying work is important, but we need to work with Cisco to determine the full impact," Rouland said. Cisco was involved in pulling the presentation, a source close to the company said. The networking giant had discussions with ISS and they mutually agreed that the research was not yet fully baked, the source said. The demonstration on Wednesday showed an attack on a directly connected router, not a remote attack over the Internet. "You could bring down your own router, but not a remote one," Rouland said. One Black Hat attendee said he was impressed with Lynn's presentation. "He got a shell really easy and showed a basic outline how to do it. A lot of folks have said this could not be done, and he sat up there and did it," said Darryl Taylor, a security researcher. Shell is a command prompt that gives control over the operating system. Noh said that Lynn's presentation did not disclose information about a new security vulnerability or new security flaws. "His research explored possible ways to expand the exploitation of existing vulnerabilities affecting routers," the Cisco spokesman said. Cisco has patched several flaws in IOS over the past year. Last year, the San Jose, California, networking giant said that part of the IOS source code had been stolen, raising fears of more security bugs being found. On Wednesday, Noh reiterated the company's usual advice that customers upgrade their software to the latest versions to mitigate vulnerabilities. Following his presentation, Lynn displayed his resume to the audience and announced he was looking for a job. Lynn was not available for comment. Representatives of the Black Hat organization said the researcher was meeting with lawyers From mayur at sarai.net Wed Aug 3 11:53:15 2005 From: mayur at sarai.net (mayur at sarai.net) Date: Wed, 3 Aug 2005 08:23:15 +0200 (CEST) Subject: [Commons-Law] The age of surveillance: a new =?iso-8859-1?q?=93dotcom_boom=94?= =?iso-8859-1?q?=3F_?= In-Reply-To: References: Message-ID: <53985.219.65.132.156.1123050195.squirrel@mail.sarai.net> The age of surveillance: a new “dotcom boom”? William Davies 2 - 8 - 2005 Will the era of digital networks and terrorism produce the worst of both worlds: a society of mass surveillance that increases insecurity? William Davies maps a new political-technological frontier. ------------------------------------------ The most important lesson that marketers and futurologists can learn about new technologies is not to extrapolate too far from the “early adopters”. Be it cars, telephones, televisions or computers, the long-term implications of new tools are never apparent at the outset, but only emerge once they have become ubiquitous across society. The car began life as a rich man’s toy, but its most profound long-term consequence was the growth of suburbs. The television was initially an object of fascination for the family to congregate around, rather than the perennial and solitary experience that it has become for many individuals. In recent years, we’ve witnessed what happens when mobile phones and internet connections shift from the margins of society to the mainstream. William Davies is a senior research fellow at the Institute for Public Policy Research (ippr), and author of a new report, Modernising with Purpose: A Manifesto for a Digital Britain. Marketers use the term “tipping-point” to describe the moment when a product makes the transition from being unusual and eye-catching, to being pervasive and invisible. One minute an item is being paraded like a trophy, of rarity and novelty value. The next it is a necessary accoutrement, without which modern living would seem impossible. The language of “early adopters” and “tipping-points” is generally used when looking at the fast-moving though ultimately frivolous world of consumer habits. But perhaps we can identify something analogous to a tipping-point that took place on a more historically significant level, around five years ago, in the eighteen months that followed the dotcom crash. Speculation about the shape and politics of the “digital age” had been rife for decades. The tipping-point in question occurred between the collapse of the Nasdaq and that of the World Trade Center, when one narrative about the function of digital networks in our society stuttered to a halt, and another one emerged. The underlying purpose of mass digitisation changed. Same technology, different story The purpose of digital networks is not something that the IT industry likes to dwell on too much. It is very often quite happy letting hype sell its products for them. But one doesn’t need to scratch beneath the surface too far to recognise that the Bill Clinton era of the “information super-highway” and stock-option millionaires was driven by a very different type of sales-pitch than the George W Bush era of iris-scanning and data retention. An economic narrative of wealth creation has been firmly replaced by a political narrative of control, yet each is rooted in the same technologies. In the wake of the London bombings of July 2005, the pessimistic question has to be asked: did that period between April 2000 and September 2001 represent a tipping-point? As moronic and greedy as the dotcom boom and its associated fripperies may have been, there was an innocence about all of that investment and innovation, as if the benefits would flow later somehow or other. But having been drawn into the digital age by the allure of its newness – just like any “early adopters” – we may now be settling down into a surveillance society where privacy is at best conditional, and contingency is monitored and dealt with. Historians may one day reflect on the bizarre coincidence by which westerners exuberantly flooded their societies with digital technology for very little reason whatsoever, just in time for it to be put to use as part of the largest international policing programme ever. This is not to say that the economic narrative for digital modernisation never stacked up at all. There are plenty of areas where businesses and public services have been made more efficient or effective, but there are also many that have fallen at the hardest hurdle of innovating the social and managerial processes through which productivity gains are made. Compared to the surveillance possibilities that this infrastructure has opened up, the business case for pervasive computing looks comparatively weak. After the first London attacks on 7 July, the British home secretary Charles Clarke defended plans to track internet and email records, saying: “the more we can survey the way in which people operate, the way in which they make their phone calls, the better your chance of identifying patterns of behaviour which are a threat.” The IT industry will be relatively unconcerned by this transition. Like the stock markets, technology companies are unlikely to do much more than shrug, and shift additional capital into biometrics and out of e-commerce. In academic departments, meanwhile, debates between Nietzscheans and Marxists, which dominated 20th century European philosophy, seem to have been won for the time being by the former. Marxists such as Giovanni Arrighi struggle desperately to explain how contemporary politics is still explicable in terms of the logic of capitalism, but common sense suggests that, à la Nietzsche, it is far easier to explain in terms of the primeval desire for control. So were we duped by the story about the “information society” and the “digital revolution”? Many companies certainly feel so, and as these digital networks become a growing battleground between extremists and internationally coordinated police forces, many citizens may be wishing we could turn the clock back. As one blogger, Lee Maguire, jokes grimly on his website: “Homepages, eh? I've always suspected there was a huge 'Big Brother' database containing everyone's private details ... and now I'm responsible for writing my own entry.” The high-tech fetish Both libertarians and capitalists – always fairly comfortable bedfellows – have been pushed to the margins of the digital age for the time being. The worry, but also in a way the hope, is that we will now charge headlong into a high-tech surveillance society. Why is this both a worry and a hope? Because it won’t work. In fact it could potentially make our security situation worse. As the American security guru, Bruce Schneier puts it: “technology will continue to alter the balance between attacker and defender, at an ever-increasing pace. And technology will generally favour the attacker, with the defender playing catch-up.” Ever more complex technology can not only produce new security threats, as the internet itself has demonstrated, but also create distractions for security services, as they become more focused on spotting patterns in complex systems, and less on human judgment. It could be that we are about to enter the equivalent of a dotcom boom in surveillance technologies. There will be no shortage of suppliers eager to join in, even if they hesitate to become too openly enthusiastic about this bubble compared to the previous one. But a boom would inevitably be followed by a crash in confidence in technology. Just as companies discovered that productivity gains depended on improving their social processes, and not on infrastructure alone, security services will have to learn the same lesson. The question is whether they will have to go through the same painful process of boom and bust to get there. The primary hope must of course be that terrorism is dealt with effectively, which will be a political feat not a technological one. In the same way that we hope we have not entered a sustained era of terror, we must also hope that surveillance, tracking and pattern-spotting does not turn out to be the long-term role of digital networks in society. If police forces and governments put their faith in IT and under-invest in social capabilities in the same way businesses did a decade ago, they will get the same nasty shock as those businesses did. But then, hopefully, another phase of the digital age might begin. From ashish at cscsban.org Fri Aug 5 17:45:06 2005 From: ashish at cscsban.org (Ashish Rajadhyaksha) Date: Fri, 5 Aug 2005 17:45:06 +0530 Subject: [Commons-Law] Announcement: Conference on 'Enculturing Law: New Agendas for Legal Pedagogy' In-Reply-To: <50378.61.246.204.194.1120710468.squirrel@61.246.204.194> References: <20050706132941.A29FD28D752@mail.sarai.net> <50378.61.246.204.194.1120710468.squirrel@61.246.204.194> Message-ID: <200508051745.07232.ashish@cscsban.org> Enculturing Law: New Agendas for Legal Pedagogy Conference Organised by the Centre for the Study of Culture & Society, Bangalore, in collaboration with Alternative Law Forum and National Law School of India University, Bangalore NLSIU Campus 11-13 August 2005 (Supported by IDPAD, New Delhi) For more details: http://www.cscsban.org Programme Schedule DAY 1 9:00 AM-9:30 AM: Inaugural 9:30 AM-11:00 AM. Keynote Session: Contemporary Challenges for Scholarship in Law Society and Culture Upendra Baxi (University of Warwick) - 'The Dominant, Residual, and the Emergent Cultures of Law: Some Voices From the Past' B.S.Chimni (National University of Juridical Sciences, Kolkota) - 'The Future of the New Law Schools: Some Critical Reflections' Eleanor Wong (National University of Singapore) - 'Pedagogical challenges for en-culturing the law classroom: Reflections on the legal writing program at NUS' 11:00 AM-11:30 AM. - Tea Break 11:30 AM - 12:30 PM- Discussion after comments from session respondent: Prof. Babu Matthew (Currently Country Director, Action Aid India, New Delhi) 12:30-1:30 p.m - Lunch Break 1.30 PM - 2.30 PM Session 2: Critical and Interdisciplinary Traditions in Anglo-American Legal Scholarship Roger Cotterrell (Queen Mary and Westfield College, London) - 'Culture, Comparison, Community - Social Studies of Law Today' W T Murphy (London School of Economics) - 'Cultures of Criticism: Reflections on contemporary legal education' 2:30 PM-3:15 PM - Discussion after comments from session respondent: Sudhir Krishnaswamy (NLS, Bangalore) 3:15 PM- 3:30 PM - Tea Break 3.30 PM - 4.30 PM Session 3: Challenges for the Comparative Study of Legal Cultures Partick Glen (McGill University, Montreal) - 'Legal Systems, Legal Traditions and Legal Education' Volkmar Gessner (International Institute for the Sociology of Law, Onati) - 'Legalization and the Varieties of Capitalism' 4:30 PM - 5:30 PM - Discussion after comments from session respondent: Arun Thiruvendagam (Doctoral Candidate, New York University), and special respondent on the day's proceedings: Prof. Peter Van Der Veer (Co-Chair, IDPAD, The Netherlands). DAY 2 10 AM - 11.30 AM: Session 1: Reworking Legal Methods I: The Women's Question in Post-Colonial Societies: Challenges for a Comparative and Cultural Study of Law Hyunah Yang, Seoul National University, Seoul - 'Reading the Recent Changes in Korean Family Law: Toward a Postcolonial Legal Feminism in Asia' Jothi Sauntharajah (National University of Singapore) - 'Toying with Tradition: Law, CEDAW and Singapore' Flavia Agnes (Advocate, High Court of Mumbai) - 'Re-visiting the Personal Law Conundrum: Reflections on the Resolution of the Womens Question in Hindu Personal Law' 11:30 AM -11:45 AM - Tea Break 11:45 a.m - 12:45 p.m - Discussion after comments from session respondent: Dr. Rajeshwari Sundar Rajan (University of Oxford, UK) 12:45-1:30 p.m Lunch Break 1.30 PM - 2.00 PM Session 2: Reworking Legal Methods II: Social and Political Histories in the Study of Law Tanika Sarkar, Delhi University, Delhi - 'Between Laws and Faith: Hindu Personal Laws in the 19th Century Public Sphere' 2:00-2:45 p.m - Discussion after comments from session respondent: Janaki Nair (Centre for the Study of Social Sciences, Kolkata) 2:45 PM -3:00 PM - Tea Break 3.00 PM - 4.30 PM Session 3: Reworking Legal Methods III: Re-Focussing Rights: Reflections on the Place of 'Rights' in a Legal Classroom Jayadeva Uyandgoda (University of Colombo) - Righting the Wrongs in the Margins: Issues in Constitution Making in a Society in the Transition from War to Peace: Sri Lanka Jonathan Klaaren (University of Witwatersrand, Johannesburg) - 'The Globalisation of Governance: New challenge for conceiving regimes of rights" Oliver Mendelsohn (La Trobe University, Victoria) - 'What is Distinctive About Indian Law and How Can that Distinctiveness be Represented in the Classroom?' 4:30 pm -5:30 pm - Discussion after comments from session respondent: Sitaramam Kakarala, CSCS, Bangalore DAY 3 9.30 AM- 11.00 AM Session 1: New challenges for the cultural scholarship of law I: Law and the Study of Cinema (Organised by ALF) Anne Barron (London School of Economics) - 'The (Legal) Properties of Film: Copyright Law and Cultural Analysis' Ashish Rajadyaksha (CSCS) - 'On the Properties of Cinema: Why Law is Important for Cultural Analysis' 11.15 AM - 1.00 PM Session 2: New Challenges for the Cultural Scholarship of Law II: Law and the Study of Media Practices and Knowledge Production (Organised by ALF) Shuddhabrata Sengupta (The Sarai Programme, Centre for the Study of Developing Societies, Delhi) - 'Cyber-culture, New Media and the Proliferation of Knowledge Production: Challenges for the Regulation of Knowledge Practices. Lawrence Liang and Namita Malhotra (ALF, Bangalore) - 'Media Practice as Legal Practice: Exploring the World of the Cinematograph Act, 1952' 1:00-2:00 p.m Lunch Break 2.00 PM - 3.00 PM Session 3: Rounding Up Exploratory discussions for future collaborations for research in Law Society and Culture, etc. For Further Details: Contact person: Mathew John, Fellow, The Law & Culture Programme Centre for the Study of Culture & Society mathew at cscsban.org) Note on the Conference: This note seeks to address some of the critical problems facing contemporary legal education, especially legal education in large parts of the global south. While the problems are likely to be numerous and varying from context to context we try to identify some range of the possibly common problems that assume salience for a study of law in its social and cultural context. Not having full access to the range of challenges facing other social and legal contexts we start with the problems that animate our own efforts to initiate this conversation on legal education. The program for Law, Society and Culture at the Centre for the Study of Culture & Society (CSCS), Bangalore was set up in 2003 in order to address what we believe is a crisis in law teaching, research and scholarship in India. We see the problem at three levels: First: it is far from controversial today to assert that contemporary India has rather modestly developed traditions of legal scholarship. The legal community as well as other allied humanities disciplines have by and large failed in building a research project in law with distinctly Indian problems and possibilities. Model centres of legal teaching and research like the Indian Law Institute and the National Law School have also largely failed to definitively determine the paths of Indian legal scholarship. Thus even at its very best (though of course with a few notable exceptions) Indian legal scholarship has not managed to travel far beyond the production commentaries that chart the movement of doctrinal legal trends across various fields. Second: Modest research traditions have meant that the legal classroom has not been able to grapple with social problems outside the vicelike grip of doctrinal legal analysis. Though experiments like the National Law School in Bangalore have met with some success in moving beyond strict doctrinal approaches, the legal lens continues to blur when it falls upon approaches outside of its disciplinary frame. Teaching and learning law has therefore continued to remain a self-referential enterprise in the interpretation of rules. As a result, legal education in India has not been successful in going beyond meeting minimal requirement of producing 'legal technicians' for a range of legal markets. Collectively these two aspects of the problem give rise to a third problem. That is, the inability of legal education in India to respond holistically and meaningfully to contemporary challenges. This problem is made especially acute today with the collapse of the developmentalist/wefare state. Without the institutional and conceptual backing of the developmentalist state the contemporary Indian university in general and legal education in particular is unsure of the concerns that it ought to be contending with and consequently the content that academic programs must now assume. Though this discussion has been framed by the Indian example we suspect that it would roughly hold true for many other countries of the global south. The problem of the ideological crisis of the welfare/developmentalist state is however a far more general problem that throws open the question of the social mandate of legal education in all contexts across the world as well. There is therefore no denying the usefulness of comparative discussions through these problems. It is in this context that we propose a seminar to dialogue some range of the issues that we identified above from an international and comparative perspective. Exploring the promise of interdisciplinary study One way in which the CSCS Law and Culture Programme has sought to respond to the problems outlined above has been by advocating a strongly interdisciplinary approach to the study of law. Drawing heavily from social, cultural, economic, historical and anthropological approaches to law, the program has been committed to exploring an approach to contemporary social issues that would be distinct from the prevalent model emphasising doctrinal analysis. While the turn towards interdisciplinary study holds promise for a holistic response to social problems the usefulness of this approach is not necessarily self-evident and thereby raises a further range of questions. Some of them include - What shifts in the contemporary political economy and mindscapes have made for the generation of contemporary interdisciplinary study in law, society and culture? What merits does this mode of studying social phenomena possess? Does this mode of addressing problems make significant advances in the manner in which these problems have conventionally been addressed? If so, how? Is the cultural turn an alibi for the impossibilities and impasses in the study of human societies? If so how might we move beyond these stumbling blocks? Though one might not necessarily be convinced about the usefulness of the interdisciplinary approach one cannot help but notice its usefulness in identifying and studying distinct sets of pointed socio-legal conversations of considerable contemporary significance. Some examples of these exchanges relevant to India would include the debates on caste, the contests over rights to the urban metropolis, the challenge of religious and ethnic violence, issues of rights, the questions raised by women's movement in India and so on. Underpinning many of these debates are the concerns that frame legal systems in most parts of the global south through the tensions of Modernity and Tradition, Coloniality and Post-Coloniality as well as Orientalism and Post Orientalism. We believe that many of these conversations tease out interesting aspects of legal problems in contemporary India especially the difficulties involved in understanding the working of law in post-colonial contexts. It is against this background that we propose a three-day seminar to discuss the manner in which these issues are configured as challenges for legal education. Further we also believe that all or many of these concerns resonate with experiences in contexts beyond India. Therefore we expect the seminar to think through some of the issues outlined above from a range of international perspectives, a task made especially urgent by the challenges of globalisation and the global crisis in determining the social mandate of law, legal systems and legal education. Organisational Details and Particulars As organizers we believe that an ambitious academic exercise such as the one outlined above one cannot but be a truly cross-cultural and cross-disciplinary exercise in order to make it both meaningful as well as enriching. Accordingly we are hopeful that a wide range of scholars from across the world will contribute to the dialogue at the seminar. The seminar is structured as a set of three panels per day on each of the three days, with two to three speakers per panel and each panel moderated by a joint respondent. The audience beyond the participants will primarily be law students and other interested social science students from Bangalore and probably a few other parts of the country. Intellectually the seminar breaks down as follows: The first day is concerned with socio-legal debates emanating from legal academy and the concerns that it will explore are: - 1. The institutional and epistemic challenges facing legal academy in the global south (through the case of India). 2. The burdens of the critical traditions in legal study ( i.e. Marxist tradition, feminist traditions, the Critical Legal Studies movement etc.) and their impact or usefulness in the study of contemporary social problems. 3. The challenge of comparative legal study given that liberal legal models are the templates that determine the contours of legal systems (jurisdictions) in most parts of the world. The second day deals with the way in which social scientist have found themselves confronted with legal problems, the manner in which they have addressed these problems and the place that such efforts must or could have on legal curricula. We hope to explore the following themes. 1. Law and the resolution of the women's question in post-colonial societies 2. The place of social and political histories in the study of law 3. The Margin of Rights: Post colonial critiques of rights discourses The third day will be put together by a collaborating organisation, Alternative Law Forum and will primarily address new forms of knowledge production outside the conventional university space and which have implications for the study of law. From srinivas at southcentre.org Fri Aug 5 21:57:00 2005 From: srinivas at southcentre.org (srinivas at southcentre.org) Date: Fri, 5 Aug 2005 18:27:00 +0200 Subject: [Commons-Law] HC-Revocation of Certificate In-Reply-To: <20050716100004.D0C7E28E323@mail.sarai.net> Message-ID: http://www.hindu.com/thehindu/holnus/009200508051957.htm HC orders revocation of certification to Tamil film 'New' Chennai, Aug. 5 (PTI): Expressing deep concern over the vulgarity in Tamil Film 'New', the Madras High Court today directed the State Film Censor Board to revoke its certification holding that it had been filmed for the purpose of "arousing sensual feelings" of its viewers, especially the young. Allowing a petition filed by an advocate, a Division Bench, comprising Justice M Karpagavinayagam and Justice S Ashok Kumar, said "we are constrained to pass an order directing the authorities to revoke the certification issued by the censor board to the film." Stating that if the court did not order revocation of the certification it would amount to allowing a 'black spot to be alive' forever in the history of Tamil film world, the Judges held "the film conveyed only one message namely vulgarity and vulgarity alone and nothing more." The Bench held that there had been utter violations of statutory provisions by the Film Director S J Surya, besides utter failure on the part of the board to consider the general principles and guidelines while certifying the film. The Judges expressed the opinion that 'the film had been pictured purposely for arousing sensual feelings of the public (by) depicting the theme, scenes, sequences and songs with child abuse, vulgarity and obscenity and dialogues giving dual meanings catering to the baser instincts of the public.' The film with A/U certification is about an eight-year-old, who drinks a potion given to him by someone and gets transformed, into a 20-year-old man during nights and marries a girl. They have a child. It was released in July last year. This film was a big hit in Tamil.The Telugu version was not a hit. The producer- director is releasing his next film soon. Will revoking the certificate after one year be of any relevance. What about the CDs, DVDs and casettes. Does the revocation apply to songs also. Does this mean that telecast of the song sequences or scenes from the film will also be affected by the order of the Court. If "arousing sensual feeling" of the viewers is taken as a criteria how many films made in India are worth screening in the first place. K.Ravi Srinivas Post Doctoral Fellow IPR Policy Research & Development Program South Centre 17-19 Chemin Du Champ d'Anier 1209 Petit Saconnex Geneva Switzerland Postal Address K.Ravi Srinivas South Centre CP 228 1211 Geneva 19 Switzerland Tel: +41 22 791 81 67 Fax: +41 22 798 85 31 email: srinivas at southcentre.org -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050805/1e2b5a6f/attachment.html From lawrence at altlawforum.org Sat Aug 6 10:10:38 2005 From: lawrence at altlawforum.org (Lawrence Liang) Date: Sat, 06 Aug 2005 10:10:38 +0530 Subject: [Commons-Law] Enculturing Law Message-ID: HI All Passing on the details of A conference that may be of interest to many. http://www.cscsban.org/html/EnculLaw.htm Lawrence Enculturing Law: New Agendas for Legal Pedagogy Conference Organised in collaboration with Alternative Law Forum and National Law School of India University, Bangalore NLSIU Campus 11-13 August 2005 (Supported by IDPAD, New Delhi) Programme Schedule DAY 1 9:00 AM-9:30 AM: Inaugural 9:30 AM-11:00 AM. Keynote Session: Contemporary Challenges for Scholarship in Law Society and Culture Upendra Baxi (University of Warwick) - 'The Dominant, Residual, and the Emergent Cultures of Law: Some Voices From the Past' B.S.Chimni (National University of Juridical Sciences, Kolkota) - 'The Future of the New Law Schools: Some Critical Reflections' Eleanor Wong (National University of Singapore) - 'Pedagogical challenges for en-culturing the law classroom: Reflections on the legal writing program at NUS' 11:00 AM-11:30 AM. - Tea Break 11:30 AM - 12:30 PM- Discussion after comments from session respondent: Prof. Babu Matthew (Currently Country Director, Action Aid India, New Delhi) 12:30-1:30 p.m - Lunch Break 1.30 PM - 2.30 PM Session 2: Critical and Interdisciplinary Traditions in Anglo-American Legal Scholarship Roger Cotterrell (Queen Mary and Westfield College, London) - 'Culture, Comparison, Community - Social Studies of Law Today' W T Murphy (London School of Economics) - 'Cultures of Criticism: Reflections on contemporary legal education' 2:30 PM-3:15 PM - Discussion after comments from session respondent: Sudhir Krishnaswamy (NLS, Bangalore) 3:15 PM- 3:30 PM - Tea Break 3.30 PM - 4.30 PM Session 3: Challenges for the Comparative Study of Legal Cultures Partick Glen (McGill University, Montreal) - 'Legal Systems, Legal Traditions and Legal Education' Volkmar Gessner (International Institute for the Sociology of Law, Onati) - 'Legalization and the Varieties of Capitalism' 4:30 PM - 5:30 PM - Discussion after comments from session respondent: Arun Thiruvendagam (Doctoral Candidate, New York University), and special respondent on the day's proceedings: Prof. Peter Van Der Veer (Co-Chair, IDPAD, The Netherlands). DAY 2 10 AM - 11.30 AM: Session 1: Reworking Legal Methods I: The Women's Question in Post-Colonial Societies: Challenges for a Comparative and Cultural Study of Law Hyunah Yang, Seoul National University, Seoul - 'Reading the Recent Changes in Korean Family Law: Toward a Postcolonial Legal Feminism in Asia' Jothi Sauntharajah (National University of Singapore) - 'Toying with Tradition: Law, CEDAW and Singapore' Flavia Agnes (Advocate, High Court of Mumbai) - 'Re-visiting the Personal Law Conundrum: Reflections on the Resolution of the Womens Question in Hindu Personal Law' 11:30 AM -11:45 AM - Tea Break 11:45 a.m - 12:45 p.m - Discussion after comments from session respondent: Dr. Rajeshwari Sundar Rajan (University of Oxford, UK) 12:45-1:30 p.m Lunch Break 1.30 PM - 2.00 PM Session 2: Reworking Legal Methods II: Social and Political Histories in the Study of Law Tanika Sarkar, Delhi University, Delhi - 'Between Laws and Faith: Hindu Personal Laws in the 19th Century Public Sphere' 2:00-2:45 p.m - Discussion after comments from session respondent: Janaki Nair (Centre for the Study of Social Sciences, Kolkata) 2:45 PM -3:00 PM - Tea Break 3.00 PM - 4.30 PM Session 3: Reworking Legal Methods III: Re-Focussing Rights: Reflections on the Place of 'Rights' in a Legal Classroom Jayadeva Uyandgoda (University of Colombo) - Righting the Wrongs in the Margins: Issues in Constitution Making in a Society in the Transition from War to Peace: Sri Lanka Jonathan Klaaren (University of Witwatersrand, Johannesburg) - 'The Globalisation of Governance: New challenge for conceiving regimes of rights" Oliver Mendelsohn (La Trobe University, Victoria) - 'What is Distinctive About Indian Law and How Can that Distinctiveness be Represented in the Classroom?' 4:30 pm -5:30 pm - Discussion after comments from session respondent: Dr. Sitaramam Kakarala, CSCS, Bangalore DAY 3 9.30 AM- 11.00 AM Session 1: New challenges for the cultural scholarship of law I: Law and the Study of Cinema (Organised by ALF) Anne Barron (London School of Economics) - 'The (Legal) Properties of Film: Copyright Law and Cultural Analysis' Ashish Rajadyaksha (CSCS) - 'On the Properties of Cinema: Why Law is Important for Cultural Analysis' 11.15 AM - 1.00 PM Session 2: New Challenges for the Cultural Scholarship of Law II: Law and the Study of Media Practices and Knowledge Production (Organised by ALF) Shuddhabrata Sengupta (The Sarai Programme, Centre for the Study of Developing Societies, Delhi) - 'Cyber-culture, New Media and the Proliferation of Knowledge Production: Challenges for the Regulation of Knowledge Practices. Lawrence Liang and Namita Malhotra (ALF, Bangalore) - 'Media Practice as Legal Practice: Exploring the World of the Cinematograph Act, 1952' 1:00-2:00 p.m Lunch Break 2.00 PM - 3.00 PM Session 3: Rounding Up Exploratory discussions for future collaborations for research in Law Society and Culture, etc. For Further Details: Contact person: Mathew John, Fellow, The Law & Culture Programme Centre for the Study of Culture & Society (mathew at cscsban.org) Note on the Conference: This note seeks to address some of the critical problems facing contemporary legal education, especially legal education in large parts of the global south. While the problems are likely to be numerous and varying from context to context we try to identify some range of the possibly common problems that assume salience for a study of law in its social and cultural context. Not having full access to the range of challenges facing other social and legal contexts we start with the problems that animate our own efforts to initiate this conversation on legal education. The program for Law, Society and Culture at the Centre for the Study of Culture & Society (CSCS), Bangalore was set up in 2003 in order to address what we believe is a crisis in law teaching, research and scholarship in India. We see the problem at three levels: First: it is far from controversial today to assert that contemporary India has rather modestly developed traditions of legal scholarship. The legal community as well as other allied humanities disciplines have by and large failed in building a research project in law with distinctly Indian problems and possibilities. Model centres of legal teaching and research like the Indian Law Institute and the National Law School have also largely failed to definitively determine the paths of Indian legal scholarship. Thus even at its very best (though of course with a few notable exceptions) Indian legal scholarship has not managed to travel far beyond the production commentaries that chart the movement of doctrinal legal trends across various fields. Second: Modest research traditions have meant that the legal classroom has not been able to grapple with social problems outside the vicelike grip of doctrinal legal analysis. Though experiments like the National Law School in Bangalore have met with some success in moving beyond strict doctrinal approaches, the legal lens continues to blur when it falls upon approaches outside of its disciplinary frame. Teaching and learning law has therefore continued to remain a self-referential enterprise in the interpretation of rules. As a result, legal education in India has not been successful in going beyond meeting minimal requirement of producing 'legal technicians' for a range of legal markets. Collectively these two aspects of the problem give rise to a third problem. That is, the inability of legal education in India to respond holistically and meaningfully to contemporary challenges. This problem is made especially acute today with the collapse of the developmentalist/wefare state. Without the institutional and conceptual backing of the developmentalist state the contemporary Indian university in general and legal education in particular is unsure of the concerns that it ought to be contending with and consequently the content that academic programs must now assume. Though this discussion has been framed by the Indian example we suspect that it would roughly hold true for many other countries of the global south. The problem of the ideological crisis of the welfare/developmentalist state is however a far more general problem that throws open the question of the social mandate of legal education in all contexts across the world as well. There is therefore no denying the usefulness of comparative discussions through these problems. It is in this context that we propose a seminar to dialogue some range of the issues that we identified above from an international and comparative perspective. Exploring the promise of interdisciplinary study One way in which the CSCS Law and Culture Programme has sought to respond to the problems outlined above has been by advocating a strongly interdisciplinary approach to the study of law. Drawing heavily from social, cultural, economic, historical and anthropological approaches to law, the program has been committed to exploring an approach to contemporary social issues that would be distinct from the prevalent model emphasising doctrinal analysis. While the turn towards interdisciplinary study holds promise for a holistic response to social problems the usefulness of this approach is not necessarily self-evident and thereby raises a further range of questions. Some of them include - What shifts in the contemporary political economy and mindscapes have made for the generation of contemporary interdisciplinary study in law, society and culture? What merits does this mode of studying social phenomena possess? Does this mode of addressing problems make significant advances in the manner in which these problems have conventionally been addressed? If so, how? Is the cultural turn an alibi for the impossibilities and impasses in the study of human societies? If so how might we move beyond these stumbling blocks? Though one might not necessarily be convinced about the usefulness of the interdisciplinary approach one cannot help but notice its usefulness in identifying and studying distinct sets of pointed socio-legal conversations of considerable contemporary significance. Some examples of these exchanges relevant to India would include the debates on caste, the contests over rights to the urban metropolis, the challenge of religious and ethnic violence, issues of rights, the questions raised by women's movement in India and so on. Underpinning many of these debates are the concerns that frame legal systems in most parts of the global south through the tensions of Modernity and Tradition, Coloniality and Post-Coloniality as well as Orientalism and Post Orientalism. We believe that many of these conversations tease out interesting aspects of legal problems in contemporary India especially the difficulties involved in understanding the working of law in post-colonial contexts. It is against this background that we propose a three-day seminar to discuss the manner in which these issues are configured as challenges for legal education. Further we also believe that all or many of these concerns resonate with experiences in contexts beyond India. Therefore we expect the seminar to think through some of the issues outlined above from a range of international perspectives, a task made especially urgent by the challenges of globalisation and the global crisis in determining the social mandate of law, legal systems and legal education. Organisational Details and Particulars As organizers we believe that an ambitious academic exercise such as the one outlined above one cannot but be a truly cross-cultural and cross-disciplinary exercise in order to make it both meaningful as well as enriching. Accordingly we are hopeful that a wide range of scholars from across the world will contribute to the dialogue at the seminar. The seminar is structured as a set of three panels per day on each of the three days, with two to three speakers per panel and each panel moderated by a joint respondent. The audience beyond the participants will primarily be law students and other interested social science students from Bangalore and probably a few other parts of the country. Intellectually seminar breaks down as follows: The first day is concerned with socio-legal debates emanating from legal academy and the concerns that it will explore are: - 1. The institutional and epistemic challenges facing legal academy in the global south (through the case of India). 2. The burdens of the critical traditions in legal study ( i.e. Marxist tradition, feminist traditions, the Critical Legal Studies movement etc.) and their impact or usefulness in the study of contemporary social problems. 3. The challenge of comparative legal study given that liberal legal models are the templates that determine the contours of legal systems (jurisdictions) in most parts of the world. The second day deals with the way in which social scientist have found themselves confronted with legal problems, the manner in which they have addressed these problems and the place that such efforts must or could have on legal curricula. We hope to explore the following themes. 1. Law and the resolution of the women's question in post-colonial societies 2. The place of social and political histories in the study of law 3. The Margin of Rights: Post colonial critiques of rights discourses The third day will be put together by a collaborating organisation, Alternative Law Forum and will primarily address new forms of knowledge production outside the conventional university space and which have implications for the study of law. Home | About CSCS | Projects | Faculty | Media Archive | Courses | Contact us From shuddha at sarai.net Fri Aug 5 19:48:16 2005 From: shuddha at sarai.net (Shuddhabrata Sengupta) Date: Fri, 05 Aug 2005 19:48:16 +0530 Subject: [Commons-Law] Media Representations of 13 December Message-ID: <42F37528.6060905@sarai.net> Dear All, please find below a longish posting (apologies for length in advance, and for cross posting on the Reader List and Commons Law) occasioned by the Supreme Court verdict on the 13th December ('Parliament Attack') case. The post tries specifically to look at the twists and turns in the media representations of the 13th December case. I look forward to criticisms, comments, discussion and reflections. regards Shuddha --------------------------------------------------------------------------------------------------- Media Trials and Courtroom Tribulations : A Battle of Images, Words and Shadows Preliminary Notes Towards an Enquiry into the Conduct of the Media with Regard to the Trial of the Accused in the '13th December : Attack on Parliament' Case - 2001 - 2005 Shuddhabrata Sengupta ---------------------------------------------------------------------------------------------------------------- "The acquital of an innocent man is not an occasion for celebration, but a cause for reflection." Syed Abdul Rehman Gilani, on his being acquitted by the Supreme Court on charges of conspiracy in the "13th December, 2001 : Attack on Parliament" Case. August, 4, 2005 ---------------------------------------------------------------------------------------------------------------- On the 4th of August, 2005 (yesterday) the Supreme Court of India gave its verdict on the 13th December, 2001 'Attack on Parliament' Case, acquitting two of the original accused, SAR Geelani, lecturer in Arabic at Zakir Husain College, Delhi and Afshan Guru (aka Navjot Sidhu) wife of one of the accused Shaukat Husain Guru, and upholding the death sentence pronounced by the Delhi High Court and the Special POTA court on Mohammad Afzal. The High Court's pronouncement of a death sentence on Shaukat Husain Guru was commuted to 10 years imprisonment. In announcing this verdict, the Supreme Court of India upheld the Delhi High Court's acquital of SAR Geelani and Afshan Guru. Geelani had been sentenced to death, and Afshan Guru awarded five years of rigorous imprisonment by the judge of the special POTA court, S.N. Dhingra on the 18th of December, 2002. The Justices P.V. Reddy and P.P. Naolekar, while acquitting SAR Geelani on the grounds that the prosecution was not able to present adequate evidence against the accused, maintained that there was still a 'needle of suspicion' against SAR Geelani, but that suspicion alone could not form the basis of a sentence in the absence of robust evidence. With the pronouncement of this verdict by the highest judicial authority of the Republic of India, a sordid chapter in the history of this republic has come to a provisional and uncertain conclusion. One hesitates to use the term 'end' because the unpredictable nature of events as they unfold, perhaps in the immediate future, perhaps due to a random discovery in the archives many decades hence, may yet deliver us another 'turn' in the unravelling of this story which might still give cause to startle us all. Or it might not, and as in what befalls many unexplained twists and turns in the script of our times. we may learn to become inured to the tug of an uncomfortable and persistent memory of things and people that went amiss. Like the 'out-takes' in footage that never quite made it into a film, about which we can say that we have a memory of being present as witnesses at the shooting, but little or no recall of ever having seen them on screen, like papers, documents, transcripts, bodies and memories that turn to dust and are scattered - the history of the attack on the Parliament of India too will in all likelihood become a hazy recollection with only the words and images of 'terrorists' and 'martyrs' and 'threat to national security' thrown up in bold relief, and with all else obscured within a labyrinth of shadows. Some people call this forgetting, others call it history. The history of the Republic of India could fill an archive of lost memories. Perhaps there needs to be, somewhere near India Gate, not far from the present 'National Archives' and the Parliament, a site earmarked for a building to house a 'National Archive of Forgetting'. A building - part Lutyens, part Le Corbusier, part Raj Rewal, part Kafka and part Borges, that in its architectural imagination would do true justice to the delicate combination of pomp, paranoia and amnesia that buttresses the foundations of the republic. While there may be widespread relief in the knowledge that SAR Geelani and Afshan Guru are now acquitted (if not unconditionally exonerated) by the judicial apparatus, the turn of events does not give anyone any cause for celebration. Neither the Delhi Police and the prosecution, who have seen their arguments fall like so many dead birds from the judicial sky. Those who have stood by Geelani and sought to defend him can breath easier, and pause at the end of the maelstorm that has occupied their sleeping and waking hours, but their is little cause to rejoice. The court has maintained that there is a 'needle of suspicion' even as it has not been able to show any evidence to substantiate this charge. We need to ask how this 'needle of suspicion' got created, and why it continues to persist, quivering in the minds of the judges even as they comb swathes of missing and faulty and forged evidence. As Geelani himself said in a press conference immediately after the pronouncement of the verdict, the "The acquital of an innocent man is not an occasion for celebration, but a cause for reflection." Why, after all did the police and concerned security agencies, and large sections of the 'independent' media have to go to such lengths to frame a man against whom they could not provide a shred of quality evidence in the special POTA court, in the High Court, and in the Supreme Court? Now that at least two of the accused can walk free, and one other can live (albeit in prison) we need to begin to ask what really happenned. Some others may have to do whatever is necessary and permissible under the law to ensure that Shaukat Husain too is able to to leave prison sooner and that Mohammad Afzal does not take the final walk to the gallows. The doubts about the circumstances that led to the attack on the Indian parliament will persist as long as the primary actors in the case do not reveal, or are not compelled to reveal, through the process of an independent and impartial inquiry the roles that they have played. A committee to demand precisely such an inquiry has indeed been constituted by a group of citizens, but as of now, no agency of the state, or civil society, and no voices of substance in the media have either endorsed or echoed their demand. If Mohammad Afzal is indeed executed, then some of the truths that he alone (barring some of his handlers and interrogators) has access to, will follow him to his grave.In the event that the spin doctors of the media continue to play the role that they have played so honorably in the duration of this entire set of trials, it is unlikely that anything approximating the truth will ever be made available to the public in India, or indeed, anywhere in the world. The gentlemen and women of the fourth estate, the shining knights of the free press and electronic media of India will once again have demonstrated their willingness to construct an elaborate machine made out of smoke and mirrors that does more to conceal than to reveal. For an alternative version of the events to eventually emerge, it is crucial that Mohammad Afzal's death sentence be challenged, and that SAR Geelani (on whose life there have been two extra-judicial attempts, once while he was in prison, and again outside his advocate Nandita Haksar's residence by an as yet unidentified assailant in February this year). Both Geelani and Afzal need to live if we are to get any closer to the truth of what happenned on the 13th of December 2001, and why Geelani was framed. It is vital to understand that the 'climate of suspicion' that has led to Afzal's conviction, and to the Supreme Court's unwarranted remark that a 'needle of suspicion' still points at Geelani are a product of more than four years of consistent information management and the production of images. Judges, like the rest of us, are as likely to be swayed by these images and processed bodies of information in the media, and we need to be sharply aware at least of the fact that the management and processing of information is a key element in the realpolitik of 'terrorism and counter-terrorism' before we jump to any conclusions about appotioning guilt and innocence. My hunch is that the criticial media literacy of the highest judiciary of the Republic of India is not so immaculate at the present as to render it immune to prejudice.The role played by the production of moving images, in film and video, in cinema and on television is particularly pertinent here, and I will attend to this in some greater detail later in this essay. As of now, barring a presidential pardon, or the unlikely re-opening of the case, Afzal will hang. One hopes, for all our sakes, that it is otherwise, and that the circumstances that led to the alleged 'terrorist' attack on the parliament of what is sometimes loosely called the 'largest democracy in the world' , to the passing of the most draconian preventive detention law by the legislature of the same 'largest democracy' - (the thankfully now repealed POTA,) and the situation of near war that lasted for more than a year between two nuclear weapons states who are also neighbours, will one day become available in the public domain. Until then, the delicate combination of secrecy and hyperbole, of understatement and exaggeration, of straight lies and half cooked truths, of skullduggery and sentimentality, will continue to taint the history of communication practices in our republic of forgotten truths and remembered illusions, where (as elsewhere), the 'media', the 'television and film industries' and the 'intelligence community' dance an elegant tango in which it sometimes becomes difficult to discern who leads who on the dance floor. This text is only a call for a sustained meditation on this condition. And an attempt, to account for and ask some questions about the overproduction of images and the aporiae within them that surround the representations of what is called 'terrorism', the events of the 13th of December,and the trials that followed. I do not pretend to give a comprehensive account of what happenned, because I do not possess the necessary critical forensic-legal apparatus by way of training, nor am I an expert media 'analyst'. I am a media practitioner, and I write this from the standpoint of someone who practices media and who observes what others practice. I do hope however, that reading this might prompt those who have the necessary legal-forensic apparatus, or who may lay claim to being expert media analysts, to ask some hard questions on the role that the media have played in this case, and with regard to the respresentation of 'terrorism and counter-terrorism' in general, and provoke some reason for introspection within the community of media practitioners. A thorough enqiry into these matters will make it necessary for us to examine a whole range of materials - charge-sheets, court records, depositions, defence and prosecution arguments, judgements as well as news reports, television news and current affairs programmes, televised enactments or dramatizations and feature length fiction films. This text is a culled from preliminary notes towards such an excercise, but even in making these notes I have become aware of the fact that the task of reflection on the media requires us to consider media materials, not as isolates, but as elements in a networked reality. Where cinema, television, newspaper reportage and even public service messages enter into elaborate interweaving feedback loops that re-inforce and sustain each other, either through direct quotation, or through narrative 'enhancements' that create a situation where each message enhances its claim to credibility by relying on the credentials of the other. Thus, when hearing a voice say authoritatively on a televised commentary accompanying a visual of a slain man's visage that the face belongs to a 'terrorist' we are implicitly being asked to invoke 'images' of terrorists faces that we may have seen in fiction film. Conversely, when a fiction film consciously evokes the aesthetic register of the rough hewn 'documentary' look and feel of news reportage when invoking terrorism, it is doing so in order to buttress its own claim to credibility. Events and processes such as the 'reading' of 13th December and its aftermath take place at the intersections of a densely networked media space, where messages, memories, events, and mediums relay and overlay each other. These realities make the task of sophisticated and sensitive readings of media, not an academic excercise but an urgent political task, that has bearings not only on the destinies of our polity but also, as in the 13th December case, on the life and death of individuals. The galling neglect, incapacity or unwilllingess, on the part of a vast majority of media scholars and critics in India to undertake this excercise, and the lax ethical standards of many media practitioners has in the final analysis to be read against what happens to us as a polity, and what happens to the lives of individuals and to those close to them. For too long we have looked at media materials - be they film, or television, or print as if they exist in isolated, hermetic universes . This mode of analysis that sees 'cinema as cinema alone' and that does not take into account the networked information world inhabited and created by viewers, readers, audiences and producers of media materials through a constant process of interactive, cross referential and self referential iteration of media objects is totally inadequate when it comes to the task of understanding the place of images, sounds, words and information that attempt to express the contemporary realities we live in. It is important to remember that on seeing the pictures of the bodies of the slain alleged 'terrorists' who entered the precincts of the Parliament building on the morning of the 13th of December, the then home minister, Lal Krishna Advani is said to have remarked that the assailants 'looked like Pakistani Terrorists'. Advani must have known what he was talking about (at least the part about their looking like 'Pakistanis' ) since he looks a lot like a Pakistani himself (as do many north Indians and migrants to India like Advani from the provinces of British India that became West Pakistan in 1947). But more importantly, he was able to assert the fact that they looked 'like...terrorists'. It is important to pause and consider how exactly we know that someone looks like 'terrorists'. The Delhi police, which has had considerable experience in handling 'terrorists' and 'terrorism' over the years, has reminded us in a series of thoughtful public service advertisements that 'terrorists' are suspicious because they stand out by virtue of their somewhat unusual appearance and behaviour (they were clothing unsuited to the weather etc) , and that simultaneously they are suspicious precisely because they blend in so easily with the general population. It is this combination of 'standing out' and 'blending in' at the same time that causes alarm. It is possible to say that one can't quite make out if a person 'stands out' if he/she 'blends in' at the same time. But to this, like Advani, we know that we can respond with certainty, because we feel we know that when we see a 'terrorist' we will be able to recognize one. After all, we have 'seen' people who convincingly embody 'terrorism' many times. We have seen them on identikit photographs pasted on to walls and street corners, we have seen their disfigured, hooded and blurred faces in newspaper and magazine photographs and television reports, and we have seen them up close, countless times in mainstream cinema. We have seen the face of the terrorist so often, and so intimately as a moving image that in a sense the terrorist actually lives in our own heads, and where we to ever come across his body, living or dead, or his image, we would be immediately in a position to cross check his features against the indelible impress of those features in our nervous system. The production of terrorism is not something that happens sui generis. The production of terrorism is almost always, in every society, also a production of images of terror. In fact the fear that terrorism induces in general terms is not so much by way of the actual impact of explosives, gun shots and incendiary or lethal materials but by way of a circulation and amplification of images and their effects. We know this from every instance of spectacular terrorism that we have witnessed in the last hundred or so years. So much so that even more or less arbitrary calendrical notations like 9/11, 12/13 or now, more recently, 7/7, become indexical images of terror. All we need to do is to see a particular alphanumeric arrangement to experience at the very least a twinge of the recognition of of the feeling that terror induces. If the production of terrorism is so interlaced with the production of images, we can also say that the production of certain images is also linked to a climate that gives credibility to the production of a certain set of seemingly self evident truths about terrorism. Sometimes to create the consequences that a terrorist incident produces it is necessary to create a strong body of images that will serve the necessary purposes in a focused way. The tried and tested tactics of infiltration into existing terror cells or political groups, or the creation of such cells were none exist, or when those that exist are too weak to perform a spectacular act of terror are well documented in the extant literature on the work and function of intelligence agencies of various states. The MI6 's murky relationships to the IRA, and later, the provisional IRA, Mossad's successful infiltration of the Palestinian Abu Nidal group, and the Italian and Belgian intelligence agencies dealings with the mafia, ex-nazis, far right militias, fascists and secret societies in setting off a chain of spectacular terrorists incidents in the 1980s (including the Bologna train station bombing of 1974 and 1980 that killed 113 people and wounded 180) that could later be attributed to 'left wing' terrorists is very well documented, as is the history of the infiltration of the 'naxalite' movement in India in the 1970s by Indian intelligence bureau and special police operatives. The picture of a shadowy dalliance between 'terrorism' and' counter-terrorism', between 'militants' and 'surrendered miltiants', between people in and out of different kinds of uniform is also beginning to emerge from the battlegrounds of Kashmir, Assam and the North East. Miltiary intelligence officers, 'special task force' personnel, intelligence bureau operatives and a host of 'free lance' professionals occasionally masquerading as 'insurgents' to give effect to 'special operations' is freely written about in magazines like 'Force' - a journal specifically catering to the professional needs and realities of 'armed forces and security personnel' in India. There is no reason to suppose that the tacticians and strategists of the 'intelligence community' that owes its fealty to the Indian state do not from time to time have to consider it necessary to 'create' or manufacture instances of terrorism, when it suits the purposes of the state to do so. This is standard practice worldwide, especially under the conditions of the 'global war against terror', and there is no reason to suppose that Indian intelligence professionals are anything but abreast of key global trends in this regard. This 'creation' of terrorism is something that generally requires a calibrated media strategy and information management such that the bodies and actions that characterize a particular operation can be 'rendered' in a manner that is convincing and useful. The overproduction of enthusiastic and detailed reports on the supposed backgrounds, past lives and actions of the primary accused in the 13th December case bear an overwhelming stamp of such a close alignment between the need to create a body of convincing 'evidence' on the part of the security and intelligence community and the media's thirst for a meaty story. Television channels and newspapers routinely projected the accused and arrested as 'terrorist masterminds and co-conspirators' without even the caveat that this was as alleged by their captors. The enthusiastic reportage of the 'arrest' of the prime accused Afzal, Shaukat Husain and Geelani, which in some instances bordered on the hysterical, particularly in the week following the 14th of December, (when Geelani was detained under POTO) is particularly noteworthy. In the stories that began to make their appearance, the swoops were a result of the brilliant investigations carried out by the police on the mobile phone records of the phones and sim cards found on the bodies of the alleged slain terrorists. Not one newspaper or television channel paused to ask why a group of terrorists going on what could clearly be a 'suicide mission' or one in which the chances of their being captured was very high, should carry identity cards, diaries detailing their actions and plans and mobile phones that could be made to yield entire directories of their contacts. No one paused to ask what can only be very reasonable questions about the veracity and provenance of these records and documents, nor were any questions raised about the absence of stringent forensic procedures and criteria pertaining to the recovery of data from these documents. Court records show that the phone records relevant to the conversations between Afshan Guru and Shaukat or to certain conversations that Geelani is said to have had that were produced by the police as evidence (after much dithering) are actually of the days 'after' they were detained. Not a single newspaper or television news programme in those days, or in the early days of the trial in the special POTA court could exhibit the necessary degree of reticence or patience required in the handling of a case as sensitive as this one. If the investigating authorities or the prosecution, or the police said that phone records said something, no one actually asked to see the phone records, or to examine the dates, let alone the content of what transpired. The fact that the death sentences handed out by the POTA court were on the basis of false, forged, or inadmissible or absent evidence was not remarked upon by any news channel. A notable exception however, which should not go unremarked is the reportage of the case in the Hindu, which, barring a stray story in the early days, was marked by balanced and faired reporting, especially the reports filed from the court by Anjali Mody and which even subjected other media reports of the case to some degree of critical scrutiny Finally, when the defence asked for the phone records to be produced and examined by independent and knowledgable witnesses, what came to light were discrepancies in translation and transcription. The fact that the translated sentence 'It becomes necessary sometimes' ('yeh kabhi kabhi zaroori hota hai'), apparently said in response to a question about 'what has happenned in Delhi' , which Geelani said referred to a domestic dispute and which the prosecution claimed was about the attack on parliament, and on which hinged the entire structure of the case against SAR Geelani was not found to be audible in the tape of the phone intercept when it was played repeatedly for the benefit of the two indpendent defence witnesses - a documentary fillmmaker, Sanjay Kak and a trade union activist, Sampath Prakash, both native Kashmiri speakers. It needs to be mentioned that while the media attention on SAR Geelani, as the 'intellectual preceptor' of the terrorists was particularly intense, it was less so with regard to Mohammad Afzal, the man whose 'confession' in detention, an instrument inadmissible in ordinary law as evidence (although permitted in POTA) escaped much by way of scrutiny. The media nailed Geelani on the basis of this confession. But the media did more. Newspapers detailed property Geelani is said to have amassed as rewards for his labours, as well as the minutiae of his contacts with a student of 'west asian' origin who must have been an 'arab terrorist'. But no newspaper or television channel ever mentioned, that Afzal identified as a former JKLF militant and fruit merchant, was in fact a 'surrendered miltiant' and that he had for seven years been harrassed by, and on occasion worked for, the 'Special Task Force' a shadowy counter-terrorism outfit that operates with impunity in Kashmir. The fact remains that in his statement to the court Afzal said unequivocally that he met one Tariq, a trusted lieutenant of the arch-terrorist 'Ghazi Baba' who is said to have motivated him to return to the ways of the 'jihad for azaadi' in an STF training camp in Dral in South Kashmir, and his wife's statement that Afzal was instructed to bring two of the men later identified as the 'slain terrorists' in the Parliament Attack to Delhi and provide them with shelter while they were in 'transit' by none other than his STF handlers, went unremarked, with one significant exception, to which we will refer later. It is interesting to speculate as to how some stories made their way into the media, and how some stories remained virtually 'out of bounds' even if they made their appearance sometimes in court documents. It is also interesting to consider whether this pattern of ommission and insertion or fabrication pointed to the collaborative authorship (between the police, the intellgience community, and the media professionals and channels/newspapers) of these media materials . It is still not clear as to where the origins of these stories lay, and why they appeared so frequently, and why they were given so much space. One thing is certain, the efficient public relations and media excercises carried out (whether through fear or favour, or simply, access) by the 'Special Cell' of the Delhi Police in order to make the journalists community simply re-produce what was fed to them in routine press briefings seems to have worked well. The operation worked particularly well with television, with several channels broadcasting 'exclusive' interviews with what seemed to be an affable and loqacious prime accused Mohammad Afzal on the 20th of December. If media professionals highlighted elements from Afzal's first 'confessions' in custody to substantiate their allegations against Geelani, they also obscured the fact that later, during the filming of the 'broadcast confession' of 18th December, Afzal explicitly denied the fact that Geelani had anything to do with the conspiracy. It was only when footage from this 'interview' was reproduced in a special Aaj Tak ('100 Days after the Attack') programme that it came to light that Afzal had actually explicitly exonerated Geelani. When SAR Geelani's defence lawyers called upon the Aaj Tak reporter who took that interview, Shams Tahir Khan as a witness, it became clear from his deposition that journalists had in fact been instructed, indeed threatened, by the much decorated Delhi Police 'Special Cell' officer and 'Encounter' specialist, ACP Rajbir Singh that airing the latter part of Afzal's 'confession' would invite dire consequences on any journalist present who chose to do so. These developments did not deter Zee News, one of the most zealous extra judicial prosecutors of the 13th december case from producing an extensive 'docu-drama' on 13th December which it aired on more than one occasion, even as the tgrial progressed including in the countdown to the final hearings in the special courts. This television programme has an interesting and chequered history. Its premiere screening too place in the august presence of the then home minister and dead Pakistani identification expert, L.K. Advani. Advani praised the film as an excellent example of investigative journalism and in fact even compared it to favourably to a subsequent Zee TV expose (on the attack on 'Akshardham' in Gujarat) saying that the former was much more meticulous and thoroughly produced. The film, which relayed and re-presented news, was itself news on the Zee News Channel, and its making was featured as a lead story on the Zee News network. The film, with a stentorian commentary by the Bollywood 'B' Movie Star Raza Murad, featured a troupe of actors, enacting the 'conspiracy'. The script of this television programme, as stated in a text insert at the begining of the programme is based on the charge-sheet of the Delhi Police in the case. What is particularly interesting are the many parallels, both in plot, mise-en-scene and narrative detail between the charge sheet, the Zee TV film and the Shahrukh Khan-Manisha Koirala starring film by Mani Ratnam - 'Dil Se'. We see the same procedures - procurement and manufacture of identity cards, the reconnaissance of the landmarks of Lutyens Delhi on winter days, the listening to hindi film music as terrorists work (on Radio in the film, downloaded from computers in the TV programme) the hint of romance, the presence of a hard line intellectual ideologue, the same locale - the alleyways of Old Delhi, around Karim's and the same method of masquerade as security 'personnel' . There is an uncanny similarity between the plots, almost as if the 'terrorists', the police investigators, and the producers of the docu-drama had seen the film together and discussed its merits in a film analysis class before going their separate ways to give form and shape to their different agendas. Or, could it be, that the police genre of literature and filmmaking, which often shapes the trajectories of alleged 'terrorist' incidents, found in 'Dil Se - 13 December' a suitable vehicle for the execution of one of their most complex plots till date? We will never know whether or not this is indeed the case, until some of the key actors in this 'film' decide to speak. But it is self evident that a private news network gaining access to the highest echelons of the home ministry in order to be able to re-enact and shoot on the grounds of the Parliament, with the extensive operational co-operational of police and security personnel points to a close embrace between the security appraratus and a media agency. And just as the justices of the Supreme Court may well have their reasons to continue to point their 'needles of suspicions', we too will have reason to begin looking for, and pointing, our needles of suspicion in the directions that they lead us. We will need to continue to ask questions as to why the events of 13 December and their aftermath needed the extent of 'spin doctoring' that we have seen? We will have to continue to ask why the prosecution's case in the 13 December case had to be argued, not only in the court, but also on air, in living rooms, between commercial breaks. There are no doubts left any more about the fact that the arguments were flimsy and untenable. That they were bad in law, and that they could not be sustained under cross examination. This is perhaps why they had to be buttressed with so much media hype, in the hope that TRP ratings would work where forensic evidence may fail. The dense tangle between film and reality in the 13 December case does not begin and end with 'Dil Se', there are two other films that bear looking at as well, (and there may well be more to come) one being '16 December', and the other 'Khaki'. The two films have two distinct approaches, and are noteworthy not because I think they influenced what I think is the 'scripting' of 13 December, but because they are mirrors through which 13 December can be read. 16 December (titled so because it happens to be the date on which India won the 1971 war against Pakistan, and so is the date when in the film, a Pakistani soldier turned terrorist wants to unleash a nuclear attack on Delhi as an act of vengeance). As can be expected, the film features a dedicated bunch of Indian intelligence operatives (including the model turned actor Milind Soman who portrays a surveillance expert, with a special fondness for mobile phones) who foil the plot and save Delhi, India and the world from Nuclear Armageddon. What is interesting about 16 December is the way in which it 'naturalizes' surveillance technologies, (CCTV cameras, satellite based video surveillance, human surveillance through street based 'agents' who happen to be an army of blind beggars with sharp ears, and mobile phone interception) to produce a seamless evidentiary narrative. Mobile phones are high technology, the capacity to tap mobile phones is still higher technology and truth flows out of higher technology. What is even more interesting is a remarkable sequence in the film when the entire intelligence apparatus connives to create a 'simulation', an image of a location in far away Afghanistan on the floor of a 'film studio' so as to hoodwink a drugged and captured 'terrorist' into talking. This tacit admission of the practice by intelligence agencies of 'staging' incidents relating to 'terrorism' as a measure necessary in order to combat terrorists is almost like a sudden revelation of the 'repressed' narrative of how intelligence agencies actually create the realities that we think they are combatting. One might recall also the climactic revelation in the Sanjay Dutt-Jackie Shroff-Hrithik Roshan starrer 'Mission Kashmir' (with its own oblique references to the enigmatic figure of 'Ghazi Baba') of how a 'video simulation' of 'terrorists in Indian army uniforms' (found during the course of a raid by Indian military personnel dressed as 'terrorists' on a 'terrorist hideout' ) blowing up a Muslim holy shrine in Srinagar in Kashmir is yet another instance of the way in which the 'production of images' is seen as key to the 'production of terror'. The deliberate confusion in the appearance of combatants in and out of uniform, of masked men who appear in the middle of the night and wreck devastating violence, in the pursuit of an 'image', who could be, 'militants' or 'soldiers' or 'both' is a reflection of the shadowy realities that have overtaken Jammu and Kashmir. Here, as we observed earlier, we know who is who, even though the 'terrorist' - 'stands out' and 'blends in' at the same time. It is as if the apparatus of illusion that is the cinema had taught many lessons to the secondary art of the moving image of statecraft, at least in its 'terror/counter-terror' avatar. Seen in the light of the extraordinary 'entente cordiale' between security and intelligence agencies and the image producing agencies of the media in India, the film '16 December' becomes an interesting if unwitting source for the making of an oblique comment on the reality of '13 December'. In a similar, though perhaps more conscious vein, the film 'Khaki' (starring Amibtabh Bacchan, Akshay Kumar, Ajay Devgun, Arshad Warsi and Aishwarya Rai) actually invoked the figure of a 'rogue security agent' acting to protect what he thinks are the interests of the nation state, by seeking to eliminate what we are at first led to believe is a 'suspected terrorist mastermind' - a Dr. Ansari, whose appearance, demeanour and dignified silence, particularly in the first half of the film, cannot but fail to bring to mind what we know of SAR Geelani. Ansari is later revealed to be someone who knows 'vital information' about the engineering of a communal riot by corrupt politicians (shades of 'Gujarat 2002 here) and his silence is an effort to protect what he knows so that he can reveal it at the most appropriate moment. Although the film follows the formula of good cops versus 'rogue' cops (not exactly 'bad' cops, but cops used by shadowy forces within the state beyond their control) it again points out the macabrely pantomimic character of 'war against terror'. What do 'Dil Se', 'Mission Kashmir', '16 December' on the one hand, and the Zee TV docu-dramas add up to? They add up to the metaphorical identikit photograph of the terrorist in our heads whom we can recognize when we look at almost anyone's face, regardless of whether they 'stand out', or 'blend in'. This is the terrorist writ large as 'everyman' so much so that Zee TV can use the footage from the 're-enacted' scenes of the 13 December film even in another programme, an 'Inside Story' special broadcast barely on 'the Al Qaeda Terror Manual' on the evening of the 24th of July, in the wake of the London bombings of the 7th of July and barely days before the final Supreme Court verdict on the 13 December case on the 4th of August. This programme, which can be seen as a sort of do-it-yourself 'how to become a terrorist even if you never thought of becoming one', with details of how to obtain and mix chemicals to make bombs, the details of poisoning drinking water systems, how to form cells and conduct communications using codes, etc (in a classic example of the 'system' actually egging people on to become the 'terrorists' that it can then frighten the rest of us with) again used the same scenes of the actors playing Geelani, Shaukat, Afzal and the five dead men. Though this time it did not name them. But anyone who had seen the earlier '13 December' film would immediately recognize once again the fictionalized SAR Geelani hectoring his cell comrades in the sequence on 'organization of terrorist cells'. Just as anyone who had seen the '13 December' film would have seen the gratuitous and grainy images of 'terrorists' training under pine trees and of a televised 'encounter' with the late and larger than life 'Ghazi Baba' caressing a strangely shaped 'Scorpion' pistol in what was marked 'file footage' Like a nightmare or a bad b movie that condemns its audience to constant re-runs, the 'images' of the Zee News-Delhi Police Special Cell Co Production collaborative genre of 'terrorism' refuses to give up its ghost. It returns to haunt our television screens, back to back with 'Crime Reporter' and a host of other sensational programmes that can only be described as a sad case of police-porn-snuff movies on late night but prime time television. It returned to our screens momentarily when Geelani was shot by an unidentified gunman in Delhi on the 9th of February, 2005. When earnest reporters, and television news anchors, across channels, for several days following the incident, instead of asking why the police were constantly shadowing Geelani, his brother, his friends, asked why his advocate had thought it wise to save his life by taking him immediately to hospital, and not wait for him to succumb to his injuries as she went through the process of filing, first and foremost, a 'proper FIR (first information report) as per procedure, with the Delhi police' The night of 4thAugust, 2005 (yesterday) was occasion for broadcasts on the final supreme court judgement on the 13 December case. These broadcasts, produced once again the latest (and perhaps last) episode in this continuing 'b' series TV show. Zee News produced yet another 'special' dovetailed into its prime time news show at 9 PM. This time it was titled - '13 December : Ek Saazish'. The news report had shown a high ranking Delhi police special cell officer Ashok Chand (in a split screen with the first ever viewing of surveillance camera footage from the Parliament on 13 December) offer an explanation of the splendid conduct of the Delhi Police in the case, after all, Afzal had been convicted as a result of the investigation. The others could not be convicted, because, as the reporter explained to the anchor in the studio, the terrorists had used high technology - mobile phones and laptops. And what this implied was that we need better and stricter laws to deal with such high tech terrorists, so that no one would be able to get away. There is some irony in the fact that the 'very high techonology' which had helped the police write their charge sheets in the first instance, was now being blamed for their inability to fix the blame on say, a Geelani, on whom, the report continued to assert, the 'needle of suspicion' stayed firm and unwavering, though somewhat unsubstantially. So, mobile phones help catch 'terrorists', mobile phones are also so high tech that they can be used by those 'terrorists' and their advocates to subvert the commendable work done by hard working police officers. Therefore bring back laws, or make new laws that can make the task of using evidence from mobile phones and other high tech devices 'easier' for the prosecution. In other words, bring back or make laws that enable phone tapping and surveillance on a generalized scale, that facilitate the faulty transcription and translation of tapped conversations, that enable the manipulation or obfuscation of phone records,and that do not have to produce the taped evidence in court in order to obtain a necessary conviction, and that enable the airing and unofficial pre-censoring of 'interviews' of the accused in detention in the media while a trial is in process, so that television network news executives can have an easier nights sleep and count their takings. In a remarkable admission, and in passing, while playing once again the 'dramatization' of Afzal's indoctrination (once again from the '13 December' film) the Zee News broadcast commentator said in passing what was to the effect - 'Afzal was a surrendered militant, he had worked off and on for the STF for seven years, and he had met Tariq in an STF camp in Dral'. Why was this piece of information which had been available in the court records, like everything else in this case, since the 21st of September, 2002, not made public knowledge either in the previous Zee News programmes, or in any programmes thereafter to inform the public. Any reasonable person would surmise that a person who has been in regular contact with intelligence operatives of the Indian state, who has been harrassed by them, who has had money extorted by them (as per his wife's statement made to a newspaper) must also be asked what relationships these operatives had to the sequence of events leading up to 13 December. If one needle of suspicion points at 'militants' and their handlers, whether local or across the border, then, clearly, another 'needle of suspicion' (which looks stronger, at least, circumstantially) also points to the activities and personnel of the shadowy agency or cluster of agencies called the 'Special Task Force'. Until these details are investigated, we cannot come to any certain conclusion about who Afzal is, what role he played, and why he has to die. Why also, were the surveillance camera footage of the vehicle seen proceeding towards the parliament building about as far as the 'Red Cross Road-Sansad Marg' roundabout not ever made public before? Was it because the channel had to 'wait' until the case was satisfactorily 'closed'. Surely any journalist or television producer would know that the vicinity of the parliament and other sensitive government buildings have been photographed on CCTV cameras for a long time. Surely an analysis of the movement of the car, as seen in this footage would be able to tell us something about how the car was approached, which barriers it crossed and how. Could it be that the white ambassador car we see in the surveillance footage had prior clearance to approach the parliament, at least till a sufficient distance, before all hell could break loose. Could it be, that those watching the white car approach, were watching, and waiting. In the end, more questions than ever, remain un-answered. About the conduct of the intelligence and security agenices, about the conduct of the media and about our gullibility as citizens to be quick to condemn, first SAR Geelani, and now Mohammad Afzal. Questions remain about the fact that news channels and papers can see it fit never to apologize either to SAR Geelani and Afshan Guru for the deliberate distortions of the truth that these organs of the media were party to, throughout the course of the trials. Not once, did Zee News or any other news channel offer an apology to any of the accused, or to the public for the emotional stress that their broadcasts may have caused, even as they continued to highlight the 'plight' of the families of the 'martyred' security and other personnel who fell in the line of duty on December 13, 2001. Even in the telecast of the 4th of August, 2005, Zee News considered it necessary to provoke the family members of one of the 'martyred' security personnel into an outburst demanding death for all the accused. It did not however deem it necessary to reflect on the fact that the families of SAR Geelani, Afshan Guru, Shaukat Husain or Mohammad Afzal too had had to suffer, first knowing that their loved ones were in prison, that they were brutally tortured, and that they had to go through the trauma of hearing that they had been awarded death sentences. Not once did any news channel ever apologize for creating and sustaining the climate of suspicion against people who were ultimately acquitted, they did not see it necessary to issue a single note of regret to their viewers for having failed to live up to their stated claims of providing free, fair, fearless and objective reportage. The events of 13 December and their aftermath, along with the sad episode of the Kargil War, are probably the nadir as far as a deviation from media ethics and professional standards are concerned for a vast swathe of the 'free and independent media' in India. In the end, the truth, or the truths (there may be many and conflicting truths) may yet turn out to be more complex and disturbing than either Zee News or the Supreme Court of India can permit themselves to imagine or ask. Zee News, or 'any other alphabet News' is not asking, at least not yet, any of those slightly difficult questions. And if the Supreme Court of India is to have its way, Afzal is going to hang some day. Some of the answers will die with him. SAR Geelani remains alive, and we hope he lives long, but as he has himself said, - let us not celebrate the acquital of the innocent, let us instead pause to reflect on where we are and how we got here. Geelani has reminded us that his fate is not special, that there are many in his generation, in Kashmir and elsewhere who have had to go through things that are as bad, or worse. And few have had his good fortune, to come out of it alive and sane. For their sake, and so that Geelani's quiet and dignified fight for justice for those still in prison, or are facing the gallows, or have 'disappeared', or have turned up with bullets in their heads, we must all continue to ask some very hard questions, for a very long time. It is possible that the mainstream media will be a weapon in the process of silencing such questions. It is also possible that professionals in the mainstream media will become more aware and sensitive to the ethical and professional demands associated with their practice, and will occasionally refuse to toe the lines dictated in smoke filled back rooms where channel executives, editors, senior correspondents and intelligence agents gather for quiet chats. We hope for the latter, the demands of justice, and freedom in South Asia will depend on such acts of refusal to 'spin' stories out of blood and smoke. August 5, 2005 ---------------------------------------------------------------------------------------------------------------- NOTES and ACKNOWLEDGEMENTS I have relied extensively on the information (court records, deposition etc) and analysis undertaken, collected and collated in 'December 13 : Terror over Democracy' by Nirmalangshu Mukherjee, 2005, published by Promilla and Co. Publishers, in association with Bibliophile South Asia, New Delhi and Chicago. I acknowledge my gratitude for the scholarly diligence and care with which Nirmalangshu Mukherjee unravels the December 13 case. I have also relied on the report of the meeting to discuss the media trial of SAR Geelani held at Sarai CSDS in. I would also like to acknowledge conversations that I have had with Nandita Haksar and Vrinda Grover while thinking about the background to the 13 December case. For more information on the 13 December Case please see the website of the All India Defence Committee for SAR Geelani Also see Nandita Haksar's article in Sarai Reader 04 Tripta Wahi's article in Sarai Reader 05 and, an earlier posting by me on the Reader List : The Worst is Always Precise, http://mail.sarai.net/pipermail/reader-list/2002-December/002080.html which has links to several newspaper reports relevant to the 13 December case The films I watched while thinking about this text were 'Dil Se' (Director : Mani Ratnam, 1998), 'Mission Kashmir' (Director : Vidhu Vinod Chopra, 2002), '16 December' (Director, Mani Shankar, 2002) , 'Khaki' ( Director : Raj Kumar Santoshi, 2003) and the Zee News Telefilm on 13 December, as well as the Zee News 'Inside Story' on the Al-Qaeda Terror Manual, broadcast on 24th July, 2005, and the News at 9 and Special Programme at 9:30 : '13 December Ek Saazish' also broadcast on Zee News on the evening of July 4, 2005. I also watched several news broadcasts on Aaj Tak, NDTV, Rashtriya Sahara and Zee News, through the course of the successive trials in the special POTA court, the Delhi High Court and the Supreme Court. Readers interested in the murky history of the invovlement of European State intelligence agencies under the ambit of 'Operation Gladio' to 'create' incidents of terrorism and sustain a 'strategy of tension' particularly in Italy are advised to refer to 'Fascism and the Establishment : Italy and the Strategy of Tension' http://struggle.ws/freeearth/fe3_italy.html. Google searches incorporating the words 'Gladio, P2, Italy, Belgium' are also likely to yield interesting results. An equally interesting though less candid account of the work of intelligence agencies in India, particularly the IB, by a former intelligence operative, can be found in 'Open Secrets: India’s Intelligence Unveiled' By Maloy Krishna Dhar, Manas Publication, Delhi, 2005 -- Shuddhabrata Sengupta (Raqs Media Collective) The Sarai Programme Centre for the Study of Developing Societies (CSDS) 29 Rajpur Road, Delhi 110054, India Phone : + 91 11 23960040 Fax : + 91 11 23943450 E Mail : shuddha at sarai.net http://www.sarai.net http://www.raqsmediacollective.net From seth.johnson at RealMeasures.dyndns.org Mon Aug 8 20:32:10 2005 From: seth.johnson at RealMeasures.dyndns.org (Seth Johnson) Date: Mon, 08 Aug 2005 11:02:10 -0400 Subject: [Commons-Law] IEEE Spectrum: A Lucid Reading of Software Patentability (Should be Required Reading on the topic) Message-ID: <42F773F2.8FC7407D@RealMeasures.dyndns.org> The reasoning in the articles below explicitly takes up the same standpoint of recognizing the ubiquity of computer coding, that we organized the Internet Commons Congress around. See: http://internationalunity.org and http://www.nyfairuse.org/icc/ These two articles clearly and definitively illustrate the ground by which we may understand and communicate what it means to represent "the right to express logic freely in code." This is the third of the three main positions around which we organized the Internet Commons Congress: 1) the right make flexible use of published information 2) the right to own a fully functional computer 3) the right to express logic freely in code These three positions reflect the present-day ubiquity of connectivity, computing and coding. The time has become ripe to take up the clear position against software patents in principle. Seth -------- Original Message -------- Subject: IEEE Spectrum: A Lucid Reading of Software Patentability (Should be Required Reading) Date: Mon, 08 Aug 2005 10:28:19 -0400 From: Seth Johnson To: C-FIT_Community at RealMeasures.dyndns.org,C-FIT_Release_Community at RealMeasures.dyndns.org,fairuse-talk at nyfairuse.org, DMCA_Discuss at lists.microshaft.org,DMCA-Activists at gnu.org, patents at aful.org,fsl-discuss at lists.alt.org, pho at onehouse.com BCC: rms at gnu.org > http://www.spectrum.ieee.org/careers/careerstemplate.jsp?ArticleId=i080205 > http://www.spectrum.ieee.org/careers/careerstemplate.jsp?ArticleId=i070305 (Text for both articles pasted below the following prefatory comments) I have said that two things would happen, now that a definitive historical register has been established in Europe, in which the EU Parliament has refused to ratify a law that would have legitimized the European Patent Office's illegitimate practice of granting software patents despite of the explicit exclusion of computer programs from patentability under the European Patent Convention of 1973: 1) Many voices who had reserved judgement or held ambivalent or noncommittal positions on the issue, would now start to come out of the wings and take a clear position against software patents based on basic principle; and 2) the pure position, the position that says it's in the nature of pure abstraction that we find the real reason for not allowing software to be patented, would be increasingly recognized (as opposed to other kinds of analysis, such as legal or economic -- just as valid to be sure -- which have been emphasized heretofore). The following two articles constitute the single most lucid, brief and precise treatment of the issue of software patentability I have seen yet. The author, Ben Klemens, presents an enormously clear exposition of the nature of the issue, covering the essential nature of the problem and explaining what the broad community of programmers have known as an almost intuitive matter all along, but what has been largely disregarded and discredited by many in the legal, legislative and government functionary exclusive rights communities. Klemens reaches the same position I have propounded: that innovative devices may encompass media that expresses code, but the pure abstract logical functions expressed in such media (of any sort), are inherently no more appropriate for patentability than pure abstraction represented in written expression would be -- indeed, software, no matter how "hard" it is, is simply a form of written expression representing pure abstraction. Seth --- > http://www.spectrum.ieee.org/careers/careerstemplate.jsp?ArticleId=i080205 New legal code Copyrights should replace software patents Second in a two-part series By Ben Klemens Last month I discussed the fundamental impossibility of distinguishing between software and pure mathematics and argued that software patents should be abolished as a result. If software is math and pure mathematics is supposed to be unpatentable, then every software patent issued exposes a legal contradiction. This month I explore the current economic consequences of having that contradiction enshrined in U.S. intellectual property law and propose that instead of software patents, we rely on another, already existing, method that can protect innovators from exploitation: copyright. One of the most common arguments from those who advocate software patents is that software is just like any other technology. Patents work great for pharmaceutical companies and integrated circuits, so why shouldn't they work for software as well? But there is a key difference between software, on the one hand, and physical technologies such as drugs and integrated circuits, on the other: the software industry is not only massive but massively decentralized. Every company with a Web page or an accounting database has people on staff writing software to support those systems--from the simplest script for automating backups to complex, custom-built systems. Only a relatively small number of firms make drugs or ICs, but the software industry, with no equipment costs to speak of, as well as the ubiquitous demand for software to oil the gears of our lives, is unlike any other business. It not only includes the usual full-time producers, such as Novell Inc. and Microsoft Corp., but also a team of people in the basement of every company in America. A study by the U.S. Department of Commerce's Bureau of Economic Advisors found that in 2002 nearly as much money was spent in the United States on software written in-house as on prepackaged software--US $72 billion and $76 billion, respectively. But what does the ubiquity of software creation have to do with patentability? The answer lies in the fact that because programmers use similar, if not identical, software and hardware tools to tackle common needs, certain ideas are independently conceived over and over again. But independent invention is not a defense against claims of patent infringement. Patents are public records, and in a centralized industry with relatively few players--such as pharmaceuticals--the assumption that all patents are common knowledge is not unreasonable. The relative handful of drug companies can each support a legal department that is abreast of drug patents. Now let's take a look at an example from the decentralized software industry. U.S. telecommunications giant SBC Communications Inc., in San Antonio, holds U.S. patents that are allegedly infringed on by a broad range of Web pages--including the Web site I threw together for the California Institute of Technology's undergraduate intellectual property class. Some businesses, such as Museum Tour, a company in Milwaukie, Ore., that sells educational toys, received letters demanding royalties for patent infringement from SBC. Applying the logic of the centralized industries, SBC's patents are public record, so the toy company could have avoided its dispute with SBC by hiring a patent attorney to do a full search of the software patent database before putting up its Web site. Part of the problem is that infringing a software patent is so easy, because so many patents have been issued in even the most basic fields of computing. For example, just record a macro to automate a repetitive task in writing an online document. Suppose your word processor saves the macro as part of the document (many do by default), and your macro bears a sufficient resemblance to one of the more than 170 000 software patents registered with the U.S. Patent and Trademark Office. Congratulations! You've just engaged in worldwide distribution of an infringing technology. If you are truly committed to avoiding liability and following the law, then you will need to hire a lawyer to do a full patent search before you click the Record Macro button, design a database form, program a function to calculate a piece of textbook math, or draw up a Web page. Does this sound absurd yet? Patents, designed for centralized industries, have been applied to the most decentralized industry imaginable, and the result is that patent law is taken only partly seriously. Ronald Mann, a scholar at the University of Texas, in Austin, interviewed venture capitalists and programmers and found them resigned about software patents. Programmers don't do patent searches on every line of code. Instead, they simply expect that a patent attorney will demand royalties if the need arises. Testimony to the U.S. Federal Trade Commission by businessmen and programmers said the same thing: to stay within the law requires such an absurd, paralyzing amount of work that nobody bothers. Conversely, one would be hard-pressed to find a pharmaceutical company that does not bother with regular patent searches. Patents offer the benefit of fostering certain types of innovation, but the law also imposes economic costs. Most notably, everyone in the industry must spend money on remaining abreast of every relevant patent. When "industry" means everyone with a computer, that's an astronomical sum. If a person or company does not spend the money to clear its macros, functions, and data structures, then it exposes itself to liability. Defending oneself against a claim of patent infringement can cost millions; it is easier to just pay a royalty so that the claimant will go away. Filing (or buying) a vaguely worded patent and sending out royalty demands has thus become a sure-fire business model. Some companies have no business other than seeking patent royalties and infringement damages. To give one example from a long list, Acacia Technologies Group, in Newport Beach, Calif., is suing nine U.S. cable TV providers, claiming a patent on the software written by these cable companies [see "The Patent Profiteers," IEEE Spectrum, June 2004]. There is no sensible means of reconciling an industry that has massive independent invention with a law that makes independent invention a liability. So what's the solution? How can we protect programmers and companies that invest in developing innovative new software from being ripped off--without tying the entire software industry up in red tape? The answer is copyright. Copyrighting is very different from patenting. First, there is no paperwork. If you write an equation on the back of an envelope, then you hold the copyright to it, and there is no need for lengthy negotiations with the Library of Congress, as well as no need to put your work in the public record. But if somebody finds your envelope and plagiarizes the equation, then they are guilty of infringement, and you may attempt to prosecute them accordingly. But as opposed to the case with patenting, independent invention is a valid defense against claims of copyright infringement. That is, if someone on the other side of the country should write down the same equation independently, then that person has done nothing wrong legally. Under a copyright regime, where independent invention is a valid defense, provided you have not reviewed and copied code from a copyright holder, you are free to write all the code you can dream up independently. Because it doesn't offer a patent's monopoly protection, a copyright is, in some ways, weaker protection than a patent, but is there any evidence that innovation would be harmed without patent protection? Before the In re Alappat ruling by the U.S. Court of Appeals Federal Circuit in July 1994, software was effectively protected only by copyright; yet it would be difficult to claim that before 1994 the IT industry was short on innovation. Copyright still provides protection from the sort of shady dealings that fair laws should prevent. If competitors find a way to copy code out of one program and paste it into one of their own, or if pirates mass-produce copies of an installation CD, or if a disgruntled employee take the company's code base to a competitor, then those people could still be prosecuted under a copyright regime. There are many considerations to molding copyright laws to fit software best, but in an industry with literally millions of independent inventors, a copyright is much less likely to stifle innovation than a patent or to impose the cost of hiring a standing army of lawyers. ABOUT THE AUTHOR BEN KLEMENS has a Ph.D. in social sciences from California Institute of Technology, in Pasadena. He is currently a guest scholar at The Brookings Institution, Washington, D.C. His book Math You Can't Use: Patents, Copyright, and Software is to be published by the Brookings Institution Press. --- > http://www.spectrum.ieee.org/careers/careerstemplate.jsp?ArticleId=i070305 Software Patents Don't Compute No clear boundary between math and software exists First of two articles on software patents By Ben Klemens In 1997 the U.S. Patent and Trademark Office granted Amazon.com a patent for "one-click shopping"—a system that lets customers make purchases without having to go through an online checkout. The patent started a fierce debate in both the business and the technical press. Critics felt the Amazon.com patent was the poster child for everything that was wrong with software patents, charging that such patents allowed obvious applications of existing technology to be wrapped up in intellectual property monopolies. The Amazon.com patent is no fluke. Consider the following recently issued patents: * Method and system for solving linear systems (U.S. Patent No. 6078938). * Cosine algorithm for relatively small angles (No. 6434582). * Method of efficient gradient computation (No. 5886908). * Methods and systems for computing singular value decompositions of matrices and low rank approximations of matrices (No. 6807536). The arcane details of these patents are not relevant. What is relevant is that these patents are for purely mathematical algorithms, and for centuries prior to the 1990s, mathematics was not patentable. So how did these patents come to be granted? By U.S. law, scientific principles may not be patented. Electromagnetism, the theory of relativity, and a menagerie of quantum particles were all discovered after the inception of the U.S. Patent and Trademark Office, now based in Alexandria, Va. Yet none of these discoveries could have received patents, because until the early 1990s it was universally agreed that mathematical algorithms were in the category of scientific principles that could not be owned by an individual. What has changed is that mathematics has become increasingly reliant on machines. Abstract algorithms that involve inverting large matrices or calculating hundreds of coefficients in a sequence are routine today and of only limited use without physical computers to execute them. Conversely, devices such as video drivers, network interface cards, and robot arms depend on algorithms for their operation. Because of the machine-intensiveness of modern mathematics and the math-intensiveness of modern machines, the line between mathematical algorithms and machinery is increasingly blurred. This blurring is a problem, because without a clear line delimiting what is patentable and what is not, creative entrepreneurs will eventually be able to claim sole ownership of abstract mathematical discoveries. But how do we draw a line that would ensure that mathematical algorithms are not patentable while innovative machines are? THE EASIEST LINE TO DRAW would be simply to say that if an invention is physical, then it should be patentable, and if it is abstract, then it should not be. But what do we do with inventions that involve both the physical and the abstract? For example, the case of Diamond v. Diehr involved a rubber-curing machine that relied on a significant amount of software to control the machine's timing. The U.S. Supreme Court ruled in 1981 that the patent was for industrial equipment, not an abstract algorithm, and thus the overall patent—software plus machine—was valid. But the court left a key question hanging: how much physical invention is necessary before the overall device is patentable? If all of the inventiveness is in the algorithm, which is then applied in a trivial manner to a simple machine, is the overall patent okay? In a long series of rulings, culminating in 1994 with In re Alappat and In re Lowry, the U.S. Court of Appeals for the Federal Circuit ruled that an uninventive physical component added to an inventive abstract component makes the whole patentable. In other words, "a new algorithm to calculate Fourier transforms" is not patentable, but "a stock PC on which is programmed a new algorithm to calculate Fourier transforms" has enough of a physical component to be patentable. Further, the court ruled that since a computer is so integral to a computational algorithm, patent examiners are obliged to assume that one exists. If an application is for "a pure computational algorithm," then the examiner must read it as if the words "a computer on which is programmed" had been prepended to the description of the algorithm. This is the bottom of the slippery slope: there is no longer any meaningful barrier to the patenting of abstract algorithms. The use of any inventive mathematical algorithm that requires more calculation than can be reasonably done by hand is now patentable. ANOTHER APPROACH MIGHT BE to distinguish between the pure mathematical algorithm, which should not be patentable, and its application to real-world problems, which should be. For example, the case of Gottschalk v. Benson concerned the patentability of a program to convert between binary-coded decimal and plain old binary. Evidently, this was too close to unapplied pure math; the Supreme Court struck down the patent in 1972, because "the patent would wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself." In contrast, State Street Bank and Trust Co. v. Signature Financial Group Inc. was a suit over alleged infringement of State Street's patented system for doing the bookkeeping for a suite of mutual funds. The system did not push around physical objects, but the Court of Appeals for the Federal Circuit ruled that the share prices and other numbers it derived still have a real, tangible effect and may therefore be considered to be a valid subject for a patent. So this attempt to distinguish the patentable from the unpatentable is too unreliable. TO FIND OUT WHY all these distinctions fail, we turn to one of the founders of computer science, Alan Turing. In 1936, Turing described a theoretical computer that is effectively equivalent to every computer in existence today. His design included an infinitely long tape and read/write head, which did different things depending on the data on the tape and the machine's state. Because different states cause the machine to do different things, his contraption is often called a state machine. A modern PC is equivalent to Turing's tape and head—a physical device that can store data and execute various operations. The programs that instruct the computer's operation generate the states that dictate how it will operate: they make up the impermanent information that guides the computer, but they do not change its fundamental design or composition. Because almost all modern programming languages encompass the ability to turn a computer into a state machine, they are all, at a deep level, equivalent—a program written in one such language can be directly translated to any other language, such as from Perl to C++ or from Microsoft Visual Basic to Lisp. So all software is essentially made of the same stuff. In 1936, Alonzo Church proved that that stuff is mathematics. Church created lambda calculus, a formal means of writing mathematical expressions and also a tool that can be used to program a state machine. That is, any program written in a language such as C is a trivial translation of a set of purely mathematical lambda-calculus expressions. So where is the line drawn between software and mathematical expression? Based on Church's and Turing's work, there is none. Any legal attempt to force a wedge between pure math and software will fail because the two are one and the same. A patent on a program is a patent on a mathematical expression, regardless of whether it is expressed in C, Lisp, or lambda calculus. BUT WHILE DEMOLISHING the distinction between software and math, Turing and Church's work offers a natural division between patentable machinery and unpatentable mathematics—exactly what we have been looking for. Let the devices that implement state machines—physical objects such as computers—be patentable, and the states to which they are set—information such as programs and data—remain unpatentable. The distinction meets the goal of ensuring that pure mathematics is not patentable while letting those who design faster and better computing devices patent their inventions. The distinction is clear, and it offers no slippery slope down which the courts could slide. An innovative field-programmable gate array (FPGA) is a state machine and so would fall on the patentable side of this fence, while code loaded onto the FPGA would be an unpatentable state to which the state machine has been set. A Java machine constructed on an application-specific integrated circuit (ASIC) would be a state machine, but a Java machine existing only in software running on a general-purpose central processing unit would be a state. A robot arm would be a state machine, but its device driver would be a state. The courts failed to review the mathematics literature and as a result made several vain attempts to reinvent the wheel. Software and lambda calculus are in the same equivalence class, which means any law that allows software to be patentable allows the patenting of the evaluation of certain mathematical expressions. But, fundamentally, if we are to disallow the patenting of pure scientific and mathematical discoveries to foster basic research and innovation, the only way to do so is to disallow the patenting of the states to which state machines may be set—that is, to abolish software patents. Editor's Note: This is the first of two articles on software patents. This article focuses on how the U.S. patent system attempts to draw a dividing line between patentable machines and unpatentable mathematics—and why the system is failing. Next month's article will discuss the economic and legal impact of software patents and a proposed solution. ABOUT THE AUTHOR Ben Klemens has a Ph.D. in social sciences from California State Polytechnic University, in San Luis Obispo. He is currently a guest scholar at The Brookings Institution, Washington, D.C. His book Math You Can't Use: Patents, Copyright, and Software is to be published by the Brookings Institution Press. -- RIAA is the RISK! Our NET is P2P! http://www.nyfairuse.org/action/ftc DRM is Theft! We are the Stakeholders! New Yorkers for Fair Use http://www.nyfairuse.org [CC] Counter-copyright: http://realmeasures.dyndns.org/cc I reserve no rights restricting copying, modification or distribution of this incidentally recorded communication. Original authorship should be attributed reasonably, but only so far as such an expectation might hold for usual practice in ordinary social discourse to which one holds no claim of exclusive rights. From thaths at gmail.com Tue Aug 9 15:41:14 2005 From: thaths at gmail.com (Thaths) Date: Tue, 9 Aug 2005 15:41:14 +0530 Subject: [Commons-Law] IEEE Spectrum: A Lucid Reading of Software Patentability (Should be Required Reading on the topic) In-Reply-To: <42F773F2.8FC7407D@RealMeasures.dyndns.org> References: <42F773F2.8FC7407D@RealMeasures.dyndns.org> Message-ID: <1bc234630508090311612fba64@mail.gmail.com> On 8/8/05, Seth Johnson wrote: > -------- Original Message -------- > Subject: IEEE Spectrum: A Lucid Reading of Software Patentability > (Should be Required Reading) > Date: Mon, 08 Aug 2005 10:28:19 -0400 > From: Seth Johnson > To: > C-FIT_Community at RealMeasures.dyndns.org,C-FIT_Release_Community at RealMeasures.dyndns.org,fairuse-talk at nyfairuse.org, > DMCA_Discuss at lists.microshaft.org,DMCA-Activists at gnu.org, > patents at aful.org,fsl-discuss at lists.alt.org, pho at onehouse.com > BCC: rms at gnu.org > > > > http://www.spectrum.ieee.org/careers/careerstemplate.jsp?ArticleId=i080205 > > http://www.spectrum.ieee.org/careers/careerstemplate.jsp?ArticleId=i070305 But aren't copyrights worse than patents in some ways. Patents last for some 14(+14) years. Copyrgihts seem to be headed towards lasting in perpetuity. Thaths -- "This is everybody's fault but mine!" -- Homer J. Simpson From tahir.amin at btopenworld.com Wed Aug 10 12:55:45 2005 From: tahir.amin at btopenworld.com (TAHIR AMIN) Date: Wed, 10 Aug 2005 08:25:45 +0100 (BST) Subject: [Commons-Law] Generic Drugs and their approval - IP Frontline.com Message-ID: <20050810072545.28880.qmail@web86104.mail.ukl.yahoo.com> An easy to digest summary of the getting generic drugs on the market, with useful case studies describing problems involved. Tahir Generic Drugs and Their Approval - Part I of II Thursday, July 21, 2005 by: Dr. Parikshit Bansal and Dr. Anand Sharma Introduction As the world moves closer to the concept of a 'global village' by reduction and elimination of tradebarriers, new challenges crop up. A case in point is the market for Generic Drugs (Drugs which are free from patent protection or not covered under patents). After facing a lot of protests and opposition on the homefront, India eventually signed the TRIPS (Trade Related Intellectual Property Rights) agreement under GATT (General Agreement on Tariffs and Trade). Fears of increase in drug prices were brushed away as 'Myths and Misconceptions'. It was felt that since 95% of the drugs being marketed in India were generics, introduction of a new IPR regime would not affect prices. Rather it was felt that the benefits were more-Indian Companies could license out new technologies and also tap global markets for their products. Indian Pharmaceutical companies enjoyed two 'homegrown' advantages viz. much cheaper manufacturing facilities and world-class medicinal chemistry skills, honed by years of reverse engineering. However, what is the reality? Can Indian companies really tap overseas markets, for new discoveries or generics? Are generics also under some form of Intellectual Property Protection? A clear understanding of the protective mechanisms for generics is the key to successful exploitation of overseas markets. The Hatch-Waxman Act (Also known as the Drug Price Competition and Patent Term Restoration Act) "The Hatch-Waxman Act is an act dealing with the approval of generic drugs and associated conditions for getting their approval from the Food and Drug Administration (FDA), market exclusivity, rights of exclusivity, patent term extension and Orange Book Listing." The act was enacted in the USA in 1984. It was necessitated by the following observations: Absence of Generic drug manufacturing: Sometime in the year 1962 it was observed in the USA that out of the 150 off patent drugs in the market, there were no generic drugs! Owing to cumbersome procedures involved, manufacturers were simply not interested to take up manufacture of these, even though these were cheaper. Cumbersome regulatory procedures: Many companies did not go in for manufacture of generic drugs because of the impractical and non-scientific manner in which the regulatory authorities viewed the approval process and insisted upon proving the obvious. Patients were denied the option of cheaper drugs: Owing to the cumbersome procedures involved, drug companies did not want to waste time and money on clinical trials of generic drugs, insisted upon by regulatory authorities. The Hatch-Waxman Act addressed these issues and proposed many reforms, including the mechanism for approval of generic drugs, which had to be initiated as Abbreviated New Drug Application (ANDA), for the purpose of market approval. Thus, the act aims at promoting generics without putting them through the tough and long approval process involving clinical trials etc. so that the burden on patients can be reduced. The underlying objective of the Act is that in the absence of Generic drugs, it is difficult to check the profiteering motive of the patent owner of a drug, who may put patients to ransom! However, at the same time it also takes care of the interest of the patent owner and provides relief for undue lengthy process. It is important to note that the Act does not consider making or using a patented invention an act of infringement, if it is used only for development and submission of information under a Federal Law which regulates the manufacture, use or sale of drugs. Hence, there is no restriction on when R&D on a generic drug should start. General Provisions of the Act 1. Maintaining list of patents which would be infringed: Each holder of an approved new drug application (NDA) must list pertinent patents it believes would be infringed if a generic drug were marketed before expiration of these patents. The FDA maintains a list of such patents in its publication, Approved Drug Products with Therapeutic Equivalence Evaluations (commonly known as Orange Book). 2. Only Bioavailability studies and not clinical trials needed for approval: FDA can only ask for bioavailability studies in respect of an ANDA and not for clinical trials etc. (For bioavailability FDA uses the + 20% test i.e. the amount of active ingredient in the blood serum over a period of time has to come within + 20% of that which is observed with the patented drug) 3. Para I, II, III and IV certifications: While filing an ANDA, a generic firm must certify any one of the following: i. Patent information on the drug has not been filed (in the orange book) ii. Patent has already expired iii. Date on which patent will expire, and that the generic drug will not go to the market until that date passes iv. Patent is invalid and will not be infringed by the manufacture, use or sale of the generic drug The above certifications are also called paragraph I, II, III and IV certifications. In case of certification I and II, approval for manufacture can be granted immediately. In case of III, approval for ANDA can be made effective from the date of patent expiration. In case of IV, it is mandatory for the manufacturer to notify the original patent holder, who can take upto 45 days to bring an infringement suit against the manufacturer, if he feels his IPRs are being violated. However, if no such action is taken within the stipulated period, certification of the ANDA applicant will be accepted by the FDA. If an infringement action is brought in time, FDA must suspend approval of the ANDA until the date of court's decision. If the court decision goes in favour of the patent owner, FDA will suspend the approval till expiry of the patent. FDA does not wait indefinitely - the maximum time available for coming to a decision is 30 months (2.5 years) after the expiry of 45 days. The first generic applicant to file paragraph IV certification is awarded a 180 days (6 months) market exclusivity period by the FDA. The six month exclusivity period will start at the earliest of the two dates- the date of commencement of commercial marketing of the generics or the day a court decides that the patent which is the subject matter of para IV certification, is invalid or not infringed. 4. Data exclusivity period for NMEs: New molecular entities approved by the FDA will enjoy data exclusivity for a period of 5 years from the date of approval of the NM by the FDA. A generic version cannot be approved during these five years. 5. Data exclusivity period for supplements: Supplements requiring clinical trials will enjoy 3 year data exclusivity period. 6. Extension of the original patent term: Original patent term can be extended by a maximum of five years, if undue delays take place during the regulatory process (FDA approval). Recent Changes to the Hatch-Waxman Act Under the Medicare Prescription Drug and Modernization Act of 2003, some changes have been made in the existing Hatch-Waxman Act. These are as follows: 1. Non-extension of the 30-month period: As per modified rules, only one 30 month stay will be permitted in case of those patents listed in the Orange Book, when an ANDA is filed under paragraph IV certification. Modifications to the 30 month stay are allowed based on district court judgements. Patent holders included new patents in the Orange Book after receiving notification regarding para IV certification and thus extended the 30 month period. 2. Time limit for informing patent owner: The company filing ANDA under para IV must submit full and complete information over and above what is necessary under current law and must notify the patent owner within 20 days. 3. Provision for allowing declaratory judgement: If patent owner does not file infringement proceeding within 45 days of notification issued by ANDA applicant, the applicant may request for a declaratory judgement and thus avoid being sued. If sued, applicant may file a counter claim requiring patent owner to make changes in the orange book listings. This favours the patent holder, because he does not have to pay any damages for not modifying the Orange Book listing in time and there is apparently no time limit for making such modifications. 4. Benefit of exclusivity for several ANDAs filed on same day allowed: It is now possible for many generic companies to qualify for the 180 day market exclusivity if several ANDAs are filed on the same day. Implications of the Act for manufacturers of generic drugs Monopoly extension beyond patent term: Under the Hatch-Waxman Act, the government has a system of patent term 'restorations' under which monopoly of the original patentee can be extended for a maximum period of 5 years in addition to the initial patent term. In the European Union also there exists a system of supplementary protection. Reward for pediatric trials: As of 1997, the US allows a six month exclusivity period as a reward for studying the drugs in children. Also, US allows as a reward 6 months exclusivity period to the first generic manufacturer to file a successful para IV certification alleging that a patent is invalid or not infringed. Thus, as far as the export of generics is concerned, it faces important IPR hurdles today in the markets of EU and the US. Generic Drugs and Their Approval - Part II of II Monday, July 25, 2005 by: Dr. Parikshit Bansal and Dr. Anand Sharma How IPRs are used by patent holders to block entry of generic drug makers Though generics offer cheaper alternatives to existing, branded drugs, it is not a cakewalk for the pharma companies. It is true that the generics market is largely risk free, but the generics segment not only faces IP related challenges but market challenges too. Paragraph IV filings are generally accompanied by intense litigation against big pharma companies. Also, there is intense competition from the market. Challenging patents and associated legal costs can be quite high. Sometimes litigations can run into US $15-18 million to be successful. 1. Use of legislative provisions and loopholes to apply for patent extension. As of now, 5 year period is already allowed to condone for delay in approval. 2. Suing generic manufacturers for patent infringement Being aware that their drug cannot come off patent when there is ongoing patent litigation, the original property right holder files suits against generic manufacturing claiming infringement on one or more layers of patents subsequently filed on various, and often insignificant elements of the drug. To date such cases are going on in the US for Claritin, Cardizem, Buspar and Prozac. Under the Uruguay round restoration act (URRA) the US provided an extension of three years as gratis. This way Zentac of Glaxo gained an additional nineteen months of protection. Claritin got an extra 22 months of exclusivity. Claritin was able to extend its patent life further by six months for an estimated $ 3 million pediatric trial, but for the company (Schering-plough) the gain made through this alone was $ 1 billion. Estimates exist that through these and other legal tricks total gains for Claritin have been of the order of extra four and half years of patent life which is going to give additional $13 billion to Schering-plough. 3. Merging with direct competitors to retain monopolies Rather than allow generic drug makers to enter the market resulting in fall in prices and loss of profits, companies prefer to merge with competitors to maintain monopolies and thus profits. 4. Recombining drugs in different ways to claim new patents Simply by recombining drugs or using other 'tricks' sometimes companies are able to get patents, which block the entry of generic drug makers. Similar trick was used by Europe's biggest drug maker, GlaxoSmithKline for its biggest selling asthma drug Seretide also called ADVAIR having global sales of US $2.2 billion. Patent granted to GSK's was challenged by the generic drug makers on grounds of obviousness. The case was fought in the London High Court. The main grounds on which the patent rested was whether an inventive step was involved in combining two older drugs, Flovent and Serevant to make Advair. Justice Pumfray of the London High Court ruled that the combination was entirely obvious and cancelled the patent. The victory for generic drug makers meant that they could launch cheaper versions of the inhaled asthma treatment as early as October, 2005. Recombining drugs in slightly different ways to secure new patents is a real cause of concern for a country like India where the local industry has capabilities to provide competition to global pharmaceutical industry. According to the Report of the National Institute of Healthcare and Medicines (NIHCM), between 1989 and 2000 incrementally modified drugs (IMDs) constitute 54 % of all drugs patented and approved of by the FDA in the USA. Other Case Studies and Examples 1. Benefits of ANDA filing to get six months exclusivity In August 2001, Dr.Reddy's lab (DRL) won a 180- day exclusivity for Fluoxetine which netted the company $70 million in six months. When Ciprofloxacin went generic, 10 players including DRL launched their version of the drug on day one. This was UNPRECEDENTED and prices collapsed by 95%. Same day filings meant that those 10 companies only and not anyone else had exclusivity rights for 6 months. 2. Innovators Vs Generic Drug Makers Case 1 Pfizer vs Dr.Reddy's Labs (DRL) In Feb, 1986 Pfizer was granted a patent on a class of compounds that treats heart disease and hypertension. The patent covered the molecule amlodipine, including two of its salts - amlodipine besylate and amlodipine maleate. In 1987, Pfizer filed another application for amlodipine besylate salt specifically, as studies conducted showed it was superior in treating hypertension, and marketed it as Norvasc. As the patent's expiry date approached (25th Feb, 2006), Pfizer went ahead and filed a Patent Term Extension (PTE) under the Hatch-Waxman extension rules. Meanwhile, in 2002 DRL tried to get approval for manufacture of AmVaz under the generics category in view of the significant returns estimated at $200 million over a three year period. DRL filed an abbreviated new drug application (ANDA) for same under USFDAs 505(b) 2, seeking marketing approval after it was found the PTE by Pfizer was only for amlodipine besylate. On 31st October, 2002 USFDA granted approval to DRL to go ahead. However, Pfizer sued DRL for patent infringement, insisting that PTE covered the entire scope of amlodipine. Pfizer lost the case in a New Jersey district court in Dec.2002 but won the same in a higher court in Feb.2004, thus putting an end to DRL attempts to tap a lucrative market in the generics segment. The IPR issues in this case touch several facets: 1. Extension of IPP: Even after expiry of patents, IP protection can be extended to compensate for the loss to the innovator during the approval process. Presently, this extension period is restricted to five years. Pfizer was able to get IP protection for its drug amlodipine besylate (Norvasc) even after expiry of the patent. 2. Broad nature of IP coverage: The basic patent coverage is quite broad and a generic drug maker may find it tough to manufacture even the generic versions after expiry of the patent term. DRL was not granted permission to manufacture amlodipine besylate (AmVaz) even though the Drug had not been covered under the PTE. DRL followed necessary legal procedures and even won in a lower court, but ultimately did not get permission. 3. IPR issues extend to generics also: DRL simply wanted to make a drug whose patent term had expired and which the original patent company had not marketed at all. Still it was unable to get permission. 4. Ethical issues - A pharmaceutical giant, Pfizer is already actively making profits on one version of the drug. It has not undertaken production of the other version, even after 20 years. When it seeks extension, it does so for only the version it has marketed (Norvasc). Yet when another company in the US wants to manufacture the version which has neither been marketed nor applied for under patent extension (AmVaz), Pfizer puts in all out effort to block the same. It loses once. Does not give up. Fights in a higher court and wins the case. Is it ethically correct on part of the company? What in your opinion are the points in favour of Pfizer? After all it did win the case in a higher court. Case 2 Pfizer vs Ranbaxy Labs In Jan, 1983, Pfizer was granted a patent for its anti-fungal drug Diflucan. When Ranbaxy initiated the process for launch of a generic version of the drug, it was sued by Pfizer on grounds of patent infringement. Pfizer also sought PTE for six months for a pediatric version of the drug. The infringement suit against Ranbaxy was terminated on Jan 29, 2003 when the original term of the patent came to an end. However, Pfizer was granted an extension of six months till July, 29, 2003 during which Ranbaxy could not launch the generic version. PS: Diflucan which treats fungal infections, had sales of US $ 1.2 BILLION in 2003. Case 3 Aventis SA and Albany Molecular Research vs DRL and others Five companies which sought to market generic versions of Allegra antiallergy pill were sued by the parent company for infringement of its patents which expire in 2013. Dr.Reddy's Labs (India), Barr Pharmaceuticals, Mylan Pharmaceuticals, Impax Laboratories of US and Israel's Teva Pharmaceuticals were all sued by Aventis SA, France's biggest Drug Maker and partner Albany Molecular Research. Production of generics halted. Case 4 GlaxoSmithKline vs Cipla Ltd., IVAX (USA) and two other generic firms The case pertained to GlaxoSmithKline. Patent granted to GSK's biggest selling asthma drug Seretide also called ADVAIR having global sales of US $2.2 billion was challenged by the generic drug makers on grounds of obviousness. The case was fought in the London High Court. The main grounds on which the patent rested was whether an inventive step was involved in combining two older drugs, Flovent and Serevant to make Advair. Justice Pumfray of the London High Court ruled that the combination was entirely obvious and cancelled the patent. The victory for generic drug makers meant that they could launch cheaper versions of the inhaled asthma treatment as early as October, 2005. Case 5 UCB vs DRL Dr. Reddy's Labs has been sued by Belgian Pharma major, UCB for patent infringement. DRL had filed ANDA with the USFDA for Levetiracetam tablets (250, 500 and 750 mg). Levetiracetam is the generic version of UCBs Keppra TM, for which patent rights are held by UCB. It is used for the treatment of epilepsy. The brand has annual sales of US$ 234 billion. 3. Compulsory Licensing of Patented Drugs Case 1: Compulsory License granted to Cipla for anti-retroviral (HIV-AIDS) formulations Cipla became the first company in the world to benefit from the issuance of compulsory license (CL) for import of drugs issued after 30th August, 2003 WTO decision to allow flexibilities in the patent laws to deal with health emergencies. The CL was issued by the Malaysian Govt. to a national firm, Syarikat Megah Pharma Vaccines, to import specified anti-retroviral patented drugs in different doses from CIPLA. These drugs are Didanosine and Zidorudine. The patent for the first drug is held by Bristol Myer Squibb and the other drug is held by GSK. The drugs have to be supplied to government hospitals in Malaysia for a period of two years. Case 2: Issue of Compulsory License (CL) by Kenyan Govt. for manufacture of anti-pneumonia drug The Kenyan Govt. has initiated a process to issue a compulsory license to procure antibiotic AZITHROMYCIN, a new generation drug for which Pfizer Incorporation holds patent rights. Indian drug companies who manufacture and market the drug include Wockhardt, Alembic and FDC. The license issued by the Kenyan Govt. would expect the CL holder to produce azithromycin formulations in quanties that are enough to treat over two million cases of pneumonia in the Sub-Saharan Africa. Market of the drug which is marketed by Pfizer under the brand name ZITHROMAX is close to US$ 1 BILLION. Some definitions of Generic Drugs on the Web A prescription drug, which is chemically equivalent to a brand-name product, dispensed under its generic chemical name. http://benefitsu.stanford.edu/glossary/glossary.html A prescription drug that has the same active-ingredient formula as a brand-name drug. A generic drug is known only by its formula name and its formula is available to any pharmaceutical company. Generic drugs are rated by the Food and Drug Administration (FDA) to be as safe and as effective as brand name drugs and are typically less costly because advertising costs are not included. Copies of innovative products sold by multiple manufacturers once any limited market exclusivity period has expired. www.canadapharma.org/Patient_Pathways/Glossary_Terms Less expensive drugs, but of the same therapeutic value. Generic medicines appear on the market when the protection of original leading medicines, assured by a patent, is expired. Important site for information on Orange Book www.fda.gov/cder/ob/default.htm --------------------------------- Does your mail provider give you FREE antivirus protection? Get Yahoo! Mail --------------------------------- To help you stay safe and secure online, we've developed the all new Yahoo! Security Centre. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050810/223424b3/attachment.html From lawrence at altlawforum.org Tue Aug 16 19:37:45 2005 From: lawrence at altlawforum.org (Lawrence Liang) Date: Tue, 16 Aug 2005 19:37:45 +0530 Subject: [Commons-Law] Book discussion: Because i have a voice: queer politics in India In-Reply-To: <20050816114348.74636.qmail@web8504.mail.in.yahoo.com> Message-ID: Hi all For those in bangalore Lawrence ------ Forwarded Message From: Arvind Narrain Reply-To: Date: Tue, 16 Aug 2005 12:43:47 +0100 (BST) To: Subject: [gsc-nls] Book discussion: Becuase i have a voice: queer politics in India Swabhava Trust invites you to the Bangalore release of the book Because I Have a Voice: Queer Politics in India Arvind Narrain and Gautam Bhan (editors) 300pp. Paperback. Price: Rs 295. Yoda Press. New Delhi. At Centre for Education and Documentation (CED) 7, 8th Main, III Phase, Domlur II Stage, Bangalore – 560 071 On Wednesday, 17 August 2005. 5.30pm onwards Programme Schedule. At CED, Bangalore. On 17 August 2005 5.30 pm : Coffee/Tea/ Refreshments 6.00 pm : Excerpts from "Because I have a voice" Arvind Narrain and Gautam Bhan 6.15 pm : Responses to the book Lata Mani Dr Shekhar Seshadri, NIMHANS Lawrence Liang, ALF 7.15 pm : Responses from Bangalore's queer community Followed by discussions. Note on the event: Edited by Arvind Narrain and Gautam Bhan, and published by Yoda Press, New Delhi, "Because I have a Voice: Queer Politics in India" is an anthology that brings together a variety of writing from and about the gay, lesbian, bisexual, hijra, transgender and other queer communities from India. The book contains conceptual works on thinking around sexuality as well as personal narratives from different queer and transgender activists. Nandita Das and Dr Saleem Kidwai in New Delhi officially released the book at an event hosted by the Oxford Bookstore in July 2005. The publicity and response to the book has been extremely supportive. The release in Bangalore on August 17 hopes to engage the audience in an interactive discussion with different commentators, both from academia and from Bangalore's queer communities. The event will have different speakers respond to the book followed by discussions. Please join us at the event and inform anyone who may be interested in participating in this event. Yoda Press, New Delhi, 2005 "The essays in this volume are a celebration, a defiant political resistance, and introspective reflection and a conceptual space. They talk of the past, present and future of queer lives, and share stories of pain, joy, struggle and victory in equal measure. They are the voice of a community that refuses to be silenced. This unique anthology will be of great interest to students and scholars of gender studies, sexuality studies, and sociology, NGOs and voluntary organizations working with issues of sexuality and AIDS, as well as every informed lay reader who believes in difference rather than uniformity." Swabhava Trust Swabhava Trust is a Bangalore-based non-governmental organisation. Our mission is to provide lesbian, gay, bisexual, transgender and other queer communities access to support services like counselling, support groups, health referrals and others. We work with issues around sexuality, sexual health and HIV/AIDS. Contact us on: 080-2223 0959 or swabhava_trust at ... ____________________________________________________ Send a rakhi to your brother, buy gifts and win attractive prizes. Log on to http://in.promos.yahoo.com/rakhi/index.html ------------------------ Yahoo! Groups Sponsor --------------------~--> Fair play? Video games influencing politics. Click and talk back!. --------------------------------------------------------------------~-> Yahoo! Groups Links <*> To visit your group on the web, go to: http://groups.yahoo.com/group/gsc-nls/ <*> To unsubscribe from this group, send an email to: gsc-nls-unsubscribe at yahoogroups.com <*> Your use of Yahoo! Groups is subject to: http://docs.yahoo.com/info/terms/ ------ End of Forwarded Message From lawrence at altlawforum.org Thu Aug 18 10:03:27 2005 From: lawrence at altlawforum.org (Lawrence Liang) Date: Thu, 18 Aug 2005 10:03:27 +0530 Subject: [Commons-Law] Lecture on Copyright and Musical Works In-Reply-To: <5.1.1.6.0.20050817134557.00ad4e30@209.182.55.202> Message-ID: CENTRE FOR THE STUDY OF CULTURE & SOCIETY No. 466 9th Cross Madhavan Park 1st Block Jayanagar Bangalore 560 011 invites you to the A Lecture by Anne Barron (London School of Economics and Political Science) Who will speak on: 'Copyright Law and Musical Works' DATE: Thurday, 18th August 2005 TIME: 4.30 p.m. Venue : CSCS ------ End of Forwarded Message -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050818/9a573ebf/attachment.html From tahir.amin at btopenworld.com Thu Aug 18 12:08:10 2005 From: tahir.amin at btopenworld.com (TAHIR AMIN) Date: Thu, 18 Aug 2005 07:38:10 +0100 (BST) Subject: [Commons-Law] Islam and IP - Ulema Edict on IPR Could Be Misleading Message-ID: <20050818063810.268.qmail@web86110.mail.ukl.yahoo.com> A fascinating and insightful article into how the concept of IPR fits with in with Islam, or not as it may seem. Tahir Ulema Edict on IPR Could Be Misleading Monday, August 15, 2005 by: Mohamad Mova Al 'Afghani One important matter contained within fatwas (edicts) recently issued Indonesian Ulemas Council (MUI) is the judgment that Intellectual Property (IP) violations are haram. This conclusion means that utilizing IP without a right is a violation of God's prescribed law and thus a sinful thing to do for a Muslim. MUI's argument is that Islamic law protects the rights and property of individuals and that Intellectual Property is also a form of property that is protected under Islamic law. This is exactly the point at which MUI's argument could be mistaken. Prior to issuing such an edict, the MUI should have investigated whether the concept of Intellectual Property is in fact a sui generis (unique, peculiar) Islamic concept. This is done by finding justifications in primary sources of Islamic law, which are the Koranic verses and hadith. It is certain that the MUI will find abundant verses and hadith stating that an individual's property must be protected. However, it is quite certain that they will hardly find any verses or hadith that states that knowledge or ideas are protected under Islamic law. What they will surely find in those sources is that all knowledge belongs to God and that knowledge seeking and knowledge sharing is an obligation for all Muslims. Under old Islamic customs there was a system of knowledge acknowledgement known as ijaza(certificate). If a person is to teach, quote or reproduce a certain knowledge, then he or she must obtain an ijaza from the author. This system of a chain of authority is designed to ensure authenticity in the passing of knowledge from one person to another, and also as a form of respect for authors. Certainly, this kind of system was not created for financial benefit but rather for the sanctity of science. It only protects the moral right of an author to a certain degree. The knowledge itself belongs to God, not to any individual. The ijaza system certainly is not a form of copyright. Copyright was a response to Gutenberg's printing revolution of the European Middle Ages. Conditions at that time required legal protection for authors, as book copying became easier due to the printing press. Prior to the invention of the printing machine, no economic right for authorship was ever granted specifically by any body of law. Authors were only granted the moral right for having created books. After copyright, the concept that intellectual products could be proprietarized expanded into patent, which occurred during the industrial revolution. Since then, the concept of property has extended into intellectual products that consequently entail legal protection as normally granted to tangible property. By looking at the history of copyright and patent, it is conclusive that Intellectual Property is a concept developed in the West. It is thus not a sui generis Islamic legal concept. Whether or not an idea expression can be proprietarized under Islamic law is still not certain. What the MUI has done through its fatwa is to make an analogy with the protection of tangible property available in Islam and further extending and applying it to intangible property. In relation to whether IP protection serves our society's best interests, the answer is quite clear. IP protection, whether copyright or patent, has sparked much abuse. The emerging trend today is aimed towards limiting IP protection, as removing it entirely would not be possible for the time being. International moves through the draft Access to Knowledge Treaty purport to reduce and limit the length of IP protection. "Copyleft" licenses are meant to get around ordinary copyright licenses in disseminating intellectual products. It would be in the interests of Islamic society to limit the concept of Intellectual Property, if not completely abolish it in the future. The World Intellectual Property Organization (WIPO) is currently putting together a "development agenda" that will shift its emphasis from "protection" to "knowledge access". Extensive IP protection is only in the interests of big corporations and advanced nations. The language that the MUI used in its edict is also ambiguous as it determines the haram nature of a conduct if it "violates" a regulation. A violation of IP rights is determined by a verdict of a tribunal. The MUI is silent in relation to which law and which tribunal can judge violation to be haram. IP protection in each country is different. Does the MUI refer to international law, Arabic law or Indonesian law? If the MUI refers to Indonesian positive law, there are plenty of things under our law that are harmful to the transfer and promotion of knowledge. The copyright law for example, requires that relinquishment of rights needs to be conducted in a traditional written form. Moreover, the existing copyright law does not support transfer of knowledge. DVD/CD replication in libraries for archival purposes could be deemed as an infringement of copyright. The law also does not specifically allow teachers to copy their class materials for students. The MUI should not link the concept of haram with violations of positive law. Aligning religious law with positive law will have severe consequences. Positive law is very dynamic, it may change from time to time. If the concept of haram is attached to positive law, then the state of haram may also change from time to time. To summarize, the MUI's fatwa that supports IP could be misleading and is counter productive for the following reasons. First, "Intellectual Property" is a not a sui generis Islamic legal concept. Second, Islamic values favor the promotion, transfer and dissemination of knowledge, as compared to treating it as property. Third, it is not in the best interests of Islamic society to extensively support IP protection. And fourth, aligning religious law with positive law will reduce the transcendentality of religious values, making it vulnerable to political abuse. The MUI's fatwas are not binding, both in terms of religious or positive law. However, they have great psychological influence as the majority of Indonesian Sunni Muslims will tend to adhere to it. Muslim society is currently being left out in terms of knowledge and scientific development. What Islamic legal scholars must do in responding to this situation is to revolutionize Islamic law so as to enlighten and liberate Muslim society from its dark ages, by limiting and reducing protection granted under the concept of Intellectual Property. If the MUI does not wish to revolutionize Islamic law, then it should at least refrain from addressing the Intellectual Property issue. Importing a capitalistic legal concept and stamping God's word on it will not bring any benefits to society. Wallahu'alam. The writer (movanet at yahoo.com) is a lawyer and a lecturer. --------------------------------- To help you stay safe and secure online, we've developed the all new Yahoo! Security Centre. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050818/92b8f327/attachment.html From lawrence at altlawforum.org Thu Aug 18 12:30:06 2005 From: lawrence at altlawforum.org (Lawrence Liang) Date: Thu, 18 Aug 2005 12:30:06 +0530 Subject: [Commons-Law] Lecture on Copyright and Musical Works In-Reply-To: Message-ID: Hi All Just to clarify that the time is at 4 and not 4:30 as stated in the announcement lawrence On 8/18/05 10:03 AM, "Lawrence Liang" wrote: > > > CENTRE FOR THE STUDY OF CULTURE & SOCIETY > No. 466 9th Cross Madhavan Park 1st Block > Jayanagar Bangalore 560 011 > > invites you to the > > > A Lecture by > > > Anne Barron > (London School of Economics and Political Science) > > > > Who will speak on: > > > 'Copyright Law and Musical Works' > > > > > DATE: > > Thurday, 18th August 2005 > > > > TIME: 4.30 p.m. > > > > Venue : CSCS > > > > > > > > ------ End of Forwarded Message > > > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050818/c8a1ddf4/attachment.html From seth.johnson at RealMeasures.dyndns.org Thu Aug 18 22:27:28 2005 From: seth.johnson at RealMeasures.dyndns.org (Seth Johnson) Date: Thu, 18 Aug 2005 12:57:28 -0400 Subject: [Commons-Law] JPO Commissioner In Bribery/Slush Fund Scandal Message-ID: <4304BDF8.D8D4B52@RealMeasures.dyndns.org> -------- Original Message -------- Subject: JPO Commissioner named in bribery/slush fund scandal Date: Thu, 18 Aug 2005 11:14:53 -0400 From: Alan To: epo at mlist.austria.eu.net, PIUG-L at derwent.co.uk The August 4 issue of the Asahi Shimbun reports that JPO Commissioner Ogawa has been named in a growing METI slush fund scandal relating to contracts for external studies and reports. The article reports that Ogawa received 715,000 yen from the slush fund in November 1996. Ogawa checked into a local hospital immediately after the slush fund scandal broke. ---------------------------------------------------------------------- This message was distributed by the EPO mailing list. Information on how to leave this mailinglist can be found at: http://www.european-patent-office.org/mail.htm ---------------------------------------------------------------------- From lawrence at altlawforum.org Fri Aug 19 09:23:23 2005 From: lawrence at altlawforum.org (Lawrence Liang) Date: Fri, 19 Aug 2005 09:23:23 +0530 Subject: [Commons-Law] Joseph Stiglitz: Intellectual property rights and wrongs] In-Reply-To: <1308.80.195.231.164.1124363658.squirrel@QuestMail.FutureQuest.net> Message-ID: Intellectual-property rights and wrongs byy Joseph E. Stiglitz Daily Times (Pakistan) August 17, 2005 http://www.dailytimes.com.pk/default.asp?page=story_16-8-2005_pg5_12 Last October, the General Assembly of the World Intellectual Property Org-anization (WIPO) decided to consider what a development-oriented intellectual property regime might look like. The move was little noticed, but, in some ways, it was as important as the World Trade Organization¹s decision that the current round of trade negotiations be devoted to development. Both decisions acknowledge that the current rules of the international economic game reflect the interests of the advanced industrial countries ­ especially of their big corporations ­ more than the interests of the developing world. Without intellectual property protection, incentives to engage in certain types of creative endeavors would be weakened. But there are high costs associated with intellectual property. Ideas are the most important input into research, and if intellectual property slows down the ability to use others¹ ideas, then scientific and technological progress will suffer. In fact, many of the most important ideas ­ for example, the mathematics that underlies the modern computer or the theories behind atomic energy or lasers ­ are not protected by intellectual property. Academics spend considerable energy freely disseminating their research findings. I am pleased when someone uses my ideas on asymmetric information ­ though I do appreciate them giving me some credit. The growth of the ³open source² movement on the Internet shows that not just the most basic ideas, but even products of enormous immediate commercial value can be produced without intellectual property protection. By contrast, an intellectual property regime rewards innovators by creating a temporary monopoly power, allowing them to charge far higher prices than they could if there were competition. In the process, ideas are disseminated and used less than they would be otherwise. The economic rationale for intellectual property is that faster innovation offsets the enormous costs of such inefficiencies. But it has become increasingly clear that excessively strong or badly formulated intellectual property rights may actually impede innovation ­ and not just by increasing the price of research. Monopolists may have much less incentive to innovate than they would if they had to compete. Modern research has shown that the great economist Joseph Schumpeter was wrong in thinking that competition in innovation leads to a succession of firms. In fact, a monopolist, once established, may be hard to dislodge, as Microsoft has so amply demonstrated. Indeed, once established, a monopoly can use its market power to squelch competitors, as Microsoft so amply demonstrated in the case of the Netscape Web browser. Such abuses of market power discourage innovation. Moreover, so-called ³patent thickets² ­ the fear that some advance will tread on pre-existing patents, of which the innovator may not even be aware ­ may also discourage innovation. After the pioneering work of the Wright brothers and the Curtis brothers, overlapping patent claims thwarted the development of the airplane, until the United States government finally forced a patent pool as World War I loomed. Today, many in the computer industry worry that such a patent thicket may impede software development. The creation of any product requires many ideas, and sorting out their relative contribution to the outcome ­ let alone which ones are really new ­ can be nearly impossible. Consider a drug based on traditional knowledge, say, of an herb well known for its medicinal properties. How important is the contribution of the American firm that isolates the active ingredient? Pharmaceutical companies argue that they should be entitled to a full patent, paying nothing to the developing country from which the traditional knowledge was taken, even though the country preserves the biodiversity without which the drug would never have come to market. Not surprisingly, developing countries see things differently. Society has always recognized that other values may trump intellectual property. The need to prevent excessive monopoly power has led anti-trust authorities to require compulsory licensing (as the US government did with the telephone company AT&T). When America faced an anthrax threat in the wake of the September 11, 2001, terrorist attacks, officials issued a compulsory license for Cipro, the best-known antidote. Unfortunately, the trade negotiators who framed the intellectual-property agreement of the Uruguay trade round of the early 1990¹s (TRIP¹s) were either unaware of all of this, or more likely, uninterested. I served on the Clinton administration¹s Council of Economic Advisors at the time, and it was clear that there was more interest in pleasing the pharmaceutical and entertainment industries than in ensuring an intellectual-property regime that was good for science, let alone for developing countries. I suspect that most of those who signed the agreement did not fully understand what they were doing. If they had, would they have willingly condemned thousands of AIDS sufferers to death because they might no longer be able to get affordable generic drugs? Had the question been posed in this way to parliaments around the world, I believe that TRIP¹s would have been soundly rejected. Intellectual property is important, but the appropriate intellectual-property regime for a developing country is different from that for an advanced industrial country. The TRIP¹s scheme failed to recognize this. In fact, intellectual property should never have been included in a trade agreement in the first place, at least partly because its regulation is demonstrably beyond the competency of trade negotiators. Besides, an international organization already exists to protect intellectual property. Hopefully, in WIPO¹s reconsideration of intellectual property regimes, the voices of the developing world will be heard more clearly than it was in the WTO negotiations; hopefully, WIPO will succeed in outlining what a pro-developing intellectual property regime implies; and hopefully, WTO will listen: the aim of trade liberalization is to boost development, not hinder it. dt - ps (Joseph E. Stiglitz, a Nobel laureate in economics, is Professor of Economics at Columbia University and was Chairman of the Council of Economic Advisers to President Clinton and Chief Economist and Senior Vice President at the World Bank. His most recent book is The Roaring Nineties: A New History of the World¹s Most Prosperous Decade.) -- Michelle Childs -Head of European Affairs Consumer Project on Technology in London 24, Highbury Crescent, London, N5 1RX,UK. Tel:+44(0)207 226 6663 ex 252. Mob:+44(0)790 386 4642. Fax: +44(0)207 354 0607 http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 _______________________________________________ Ip-health mailing list Ip-health at lists.essential.org http://lists.essential.org/mailman/listinfo/ip-health ------ End of Forwarded Message From anivar.aravind at gmail.com Fri Aug 19 18:43:08 2005 From: anivar.aravind at gmail.com (Anivar Aravind) Date: Fri, 19 Aug 2005 18:43:08 +0530 Subject: [Commons-Law] Fwd: Suggestions to the Draft Patent Practice and Procedure In-Reply-To: References: Message-ID: <35f96d4705081906135a13084a@mail.gmail.com> ---------- Forwarded message ---------- From: Ramanraj K Date: 15-Aug-2005 20:14 Subject: Suggestions to the Draft Patent Practice and Procedure To: fsf-friends at gnu.org.in, in-parl at ffii.org Friends, The Patent Office, India, has published the DRAFT MANUAL OF PATENT PRACTICE & PROCEDURE (2005) at http://www.patentoffice.nic.in/ipr/patent/manual-2052005.pdf calling for submission of suggestions and to point to errors in the Draft Manual. The following is a draft list of suggestions we may send to the Patent Office in this regard. We have to send in the representation before 17th August, 2005, and so please feel free to comment, and send in points that may have been missed, asap. Thanks, Ramanraj. [1] Computer programs are not patentable: ======================================== Under Article 10 of the TRIPs Treaty, Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971). Accordingly, the Copyright Act, has substanital provisions dealing with the protection of computer programs as literary works, and the Patents Act, 1970, has explicitly excluded computer programs from the scope of patentability under Section 3 dealing with "Inventions not Patentable". All conclusions, findings, practices and procedures proposed in the Draft Manual of Patent Practice and Procedure [herein after referred to as Draft Manual] as if computer programs may be dealt with as inventions "in combination of hardware" are ultra vires the Patents Act, 1970, and against our International obligations under the TRIPs Treaty, and therefore need to be corrected and rectified to avoid serious ramifications in the software industry and our relationship with other law abiding nations. Suggestion: Please make it very clear in the Draft Manual that computer programs are not patentable. [2] Annexure II:EXAMINATION GUIDELINES FOR PATENTABILITY OF COMPUTER- RELATED INVENTIONS and all portions incidental thereto in the Draft Manual At page 156 of the Draft Manual, at the end of Annexure II, the following conclusion is found: 9.CONCLUSION The statute excludes from patentability the software per se. The inventions relating to the application of the computer program or software is held patentable under the Indian Patent Act, 1970 when claimed in combination of hardware and software components of a computer which provides a "technical advancement " over the prior art. It is necessary for the applicant to describe the "technical contribution" to the prior art when the invention involves software. The technical problem, which needs to be solved by the invention, should be sufficiently described as to how the hardware is controlled by the software to overcome the previously described problem. The "technical character" of the invention should be brought out clearly in the claims. The above conclusion is wrong for the following reasons: (1) Computer programs are excluded from patentability, under the Patents Act, 1970 in accordance with the TRIPs Treaty, as already discussed herein above under the heading "[1] Computer programs are not patentable". (2) The Draft Manual has placed reliance upon decisions of the US Supreme Court, which have not taken into consideration the provisions of the TRIPs Treaty, particularly with regard to computer programs. The US Supreme Court has not discussed the legal implications or the national obligations of the US Government in the light of the TRIPs Treaty, and those judgements cannot lend any support or reasons to conclude that computer programs are patentable. At best, the US judgements only help to conclude that the US has not kept up its international obligations under the TRIPs Treaty, and India, or other nations that trade with the US may raise this issue at the WTO to compel the US to conform to the TRIPs Treaty. (3) All computer programs effectively work only in combination with hardware. Computer programs, by their very nature, may be easily re-written without modifying hardware, to enhance usability. It is unscientific to assume that some computer programs can work without hardware, and some work in combination with hardware, and as though they deserve a special treatment not in accordance with the Patents Act, 1970. The illustrations included in the Draft make arbitrary distinctions between computer programs without any rational basis: 3(K) a mathematical or business method or a computer program perse or algorithms. computer program product is claimed as "A computer program product in computer readable medium", "A computer-readable storage medium having a program recorded thereon", etc. In such cases the claims are treated as relating to software perse, irrespective of the medium of its storage and are not held patentable. Examples in respect of other categories of subject matter are Scheme or method of bookkeeping. Business method in the field of accounting. Method of tax collection. A contents display method for displaying contents on a screen, A method for controlling an information processing apparatus, for communicating via the Internet with an external apparatus, A method for transmitting data across an open communication channel on a wireless device that selectively opens and closes a communication channel to a wireless network, and each wireless device including a computer platform and including a plurality of device resources that selectively utilizes a communication channel to communicate with other devices across the network All the above methods though utilise computer programs for its operation, are not computer programs as such and hence allowable On the other hand, A method of executing a computer program, in which at least part of the copy of the program available for execution is analysed to determine whether or not any change has been made thereto, and in the event that a change is detected, a further copy of the program is retrieved and caused to be executed instead of the first copy, A method for generating a new computer program using a software development tool, These are the programs solely intellectual in its context and hence not allowable. The Guidelines for examination of Computer-related inventions are given in Annexure 2 <\quote> "A scheme or method of bookkeeping" is a mere business method clearly not patentable. "Method of tax collection" is not at all patentable, because tax collection methods are a sovereign function of the state, and no individual could claim any monopoly against the State in exercise of sovereign functions. In any event, they fall within the category of "business methods" excluded from the scope of patentability. All the remaining illustrations, that include any claims over any computer program, algorithm, mathematical or business method are not patentable, as all computer programs could work only in combination with hardware, and more specifically, any computer program could be reduced into an algorithm. Both computer programs and algorithms are claims falling within the scope of Section 3 and therefore could not be treated as patentable inventions. (4) Under Section 3 of the Patents Act, mathematical or business methods, algorithms, a presentation of information, a mere scheme or rule or method of performing mental act or method of playing game are all not patentable. Any useful computer program could be reduced into an algorithm, and when Section 3 is read as a whole, it is abundantly clear that computer programs are not inventions and are not patentable. (5) Under Article 51 of the Constitution of India, the State shall "foster respect for international law and treaty obligations in the dealings of organised people with one another", and the Draft Manual ought not to dilute and water down well intended provisions in the Patents Act, to invite shame and ignomity to our country in the international arena. Suggestion: Scrap Annexure II and the incidental references to it from the Draft Manual. Computer related inventions may be treated and processed like any other claim that may not fall within the scope of Chapter II of the Patents Act, 1970. Conclusion: ========== India has contributed significantly to the science of computation, and has a responsibility to take the lead in the right direction. Number system originated from India, and many fundamental insights into computing have been achieved only because of the freedom and high standards ingrained in our traditions, that abjure trading or monopolisation of knowledge. India has been the clearest voice against monopolisation and has advocated for the greatest freedom in trading practices, in the light of our own history, before the WTO and other International organisations. The TRIPs Treaty itself is a great compromise against our own highest national aspirations and deepest desires, and the least the Patent Office may do is, therefore frame practices and procedures, within the scope and ambit of the Patent Act, 1970. For all the above reasons, we request the Patent Office to make changes in the light of the above suggestions, and to publish a fresh draft seeking fresh suggestions, before publishing and enforcing the practice the Draft Manual. _______________________________________________ In-parl maillist subscribe via http://aktiv.ffii.org/ fine-tune via http://lists.ffii.org/mailman/listinfo/in-parl From shekhar at crit.org.in Mon Aug 22 15:56:22 2005 From: shekhar at crit.org.in (Shekhar Krishnan) Date: Mon, 22 Aug 2005 15:56:22 +0530 Subject: [Commons-Law] Open Access to Maps and Public Geo-Data Message-ID: Dear All: :: apologies for cross-posting :: In the wake of the massive floods since 26 July in Mumbai and Maharashtra, a crisis of civic infrastructure and public health has emerged in the city and state, in which the right of citizens to information about their environments is of crucial public importance. Very few citizens of India enjoy open access to maps, satellite imagery, and other geographic information. Collected and brokered by national mapping and space imaging agencies, this geo-data is an essential for understanding civic issues such as planning, housing, infrastructure. Open access to this information can provide a platform for public action, reducing costs and promoting innovation by facilitating citizens' engagement with their local environments and authorities. The Open Knowledge Foundation is hosting a forum at http://okfn.org/ geo/manifesto.php about Open Access to State-Collected Geo-Spatial Data. * All government-collected maps, geographic information and spatial data are public property, and should be open; that is, available for free distribution and re-use under a share-alike license. * Online mapping projects creating freely re-usable geo-data should offer a compatible open license. * Common, standard formats for describing and exchanging geo-data should be adopted internationally. * Ultimately, all state-collected information should be freely available in the public domain, in a structured machine-readable format and in an open standard. Please read the manifesto and, if you agree with the statements it contains, sign up to support it at http://okfn.org/geo/ manifesto.php#signup For more information on the changing policies on maps and geo-data in India, see the 19 May 2005 release of the Press Information Bureau of the Government of India on http://pib.nic.in/release/release.asp? relid=9388 _____ CRIT (Collective Research Initiatives Trust) B-43, Shravasti Goregaon-Malad Link Road Malad (West), Mumbai 400064 India http://www.crit.org.in http://www.freemap.in http://www.mappinghacks.com From shivamvij at gmail.com Mon Aug 22 15:58:56 2005 From: shivamvij at gmail.com (shivam) Date: Mon, 22 Aug 2005 15:58:56 +0530 Subject: [Commons-Law] 'Case for classification of dailies based on content' Message-ID: Case for classification of dailies based on content New Delhi, (PTI) http://www.deccanherald.com/deccanherald/aug182005/update1238432005818.asp Supreme Court today issued notices to the Centre, Press Council of India, the news agencies and major dailies on a PIL seeking classification of newspapers on the basis of their content to denote whether these were fit to be read universally or by adults only. Should newspapers be classified on the basis of sexually explicit material contained in them similar to censor board categorising films for viewers? The PIL raising this question was today taken up for hearing by the Supreme Court. A Bench comprising Chief Justice R C Lahoti, Justice G P Mathur and Justice P K Balasubramanyan issued notices to the Centre, Press Council of India, news agencies - PTI and UNI, and leading dailies 'Times of India' and 'Hindustan Times'. The PIL filed by one Ajay Goswami stated that with the advent of commercialism and the competition among newspapers to increase their circulation, "numerous attempts are being made to cater to purient interest of the public at large". "The newspapers are publishing titillating material in the form of SMS jokes, articles on pronography, sex education (which at times is more pornography than education), comments on porn magazines or movies in addition to semi-nude photographs," the petitioner said and pleaded that there was an urgent need to protect the minors from their bad influence. While supporting the the right to freedom of speech and expression enjoyed by the media, the petitioner said there was an urgent need to frame rules and regulations to shield minors from these pornographic literature circulated by newspapers. "The Union of India and the Press Council of India have failed to frame any rules and regulations on this aspect," it said and sought a direction for framing of appropriate Rules and Regulations in this regard. The PIL also requested the apex Court to direct the Centre to constitute an expert Committee to look into the problem of unwanted exposure of sexually explicit material to the minor through the media and lay down rules and regulations for the same. It said that it was the duty of the Government to protect the minors from such exposure to unwanted material circulated through media as it was a signatory to the United Nations Convention on the Rights of the Child, 1989 and Universal Declaration of Human Rights. Both the charters had got a pledge from the countries to protect the vulnerable minors from abuse, exploitation and harmful effects of "such experssion" by media, the PIL said. "The compelling interest is to protect the physical and psychological well-being of minors from the influence of literature, which is not obscene from the adult point of view," the PIL stated. It said though the Press Council of India came into existence 27 years ago, it had not even thought of framing rules and regulations for improving the standards of newspapers and news agencies. "The PCI has laid down from time to time principles and ethics to be observed by the journalists, which are directive in nature, incomplete and even otherwise do not deal with the issue of protecting minors," it said. -- We are protean. We can become anything. www.shivamvij.com (Blog) | mail at shivamvij.com (Email & MSN) From srilankalawcollege_mootsociety at yahoo.co.in Sat Aug 20 12:26:27 2005 From: srilankalawcollege_mootsociety at yahoo.co.in (moot society srilanka law college) Date: Sat, 20 Aug 2005 07:56:27 +0100 (BST) Subject: [Commons-Law] Raj Anand Intellectual Property Law Moot Court Competition Message-ID: <20050820065627.85922.qmail@web8605.mail.in.yahoo.com> The Sri Lanka Law College Moot team is interested in participating at the above International Mooting Competition. I shall be grateful if you would inform me of the details regarding the competition particularly the method of registering for the competition and the registration fee. An early reply will be greatly appreciated. Yours faithfully, Shehan de Silva Moot -coordinator --------------------------------- Check out Yahoo! India Rakhi Special for Rakhi shopping, contests and lots more. http://in.promos.yahoo.com/rakhi/index.html -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050820/11434368/attachment.html From announcer at crit.org.in Mon Aug 22 13:54:33 2005 From: announcer at crit.org.in (CRIT Announcer) Date: Mon, 22 Aug 2005 13:54:33 +0530 Subject: [Commons-Law] Open Access to Maps and Public Geo-Data Message-ID: <6F5FDF8B-9032-447A-B9F4-364FADE42829@crit.org.in> Dear All: In the wake of the massive floods since 26 July in Mumbai and Maharashtra, a crisis of civic infrastructure and public health has emerged in the city and state, in which the right of citizens to information about their environments is of crucial public importance. Very few citizens of India enjoy open access to maps, satellite imagery, and other geographic information. Collected and brokered by national mapping and space imaging agencies, this geo-data is an essential for understanding civic issues such as planning, housing, infrastructure. Open access to this information can provide a platform for public action, reducing costs and promoting innovation by facilitating citizens' engagement with their local environments and authorities. The Open Knowledge Foundation is hosting a forum at http://okfn.org/ geo/manifesto.php about Open Access to State-Collected Geo-Spatial Data. * All government-collected maps, geographic information and spatial data are public property, and should be open; that is, available for free distribution and re-use under a share-alike license. * Online mapping projects creating freely re-usable geo-data should offer a compatible open license. * Common, standard formats for describing and exchanging geo-data should be adopted internationally. * Ultimately, all state-collected information should be freely available in the public domain, in a structured machine-readable format and in an open standard. Please read the manifesto and, if you agree with the statements it contains, sign up to support it at http://okfn.org/geo/ manifesto.php#signup For more information on the changing policies on maps and geo-data in India, see the 19 May 2005 release of the Press Information Bureau of the Government of India on http://pib.nic.in/release/release.asp? relid=9388 _____ http://www.crit.org.in http://www.freemap.in http://www.mappinghacks.com _____ CRIT (Collective Research Initiatives Trust) Announcements List announcer at crit.org.in http://lists.crit.org.in/mailman/listinfo/announcer From thehindu at web1.hinduonnet.com Fri Aug 26 04:45:56 2005 From: thehindu at web1.hinduonnet.com (thehindu at web1.hinduonnet.com) Date: Fri, 26 Aug 2005 04:45:56 +0530 Subject: [Commons-Law] Article from The Hindu: Sent to you by Vasuman Message-ID: <200508252315.j7PNFuOD031561@web1.hinduonnet.com> ============================================================= This article has been sent to you by Vasuman ( vasumank at yahoo.com ) ============================================================= Source: ECONOMIC PERSPECTIVES Status quo on software patents C.P. CHANDRASEKHAR The European Parliament decisively rejects the idea of a common framework for software patenting but the debate preceding the vote clarified the case against the provision of such a patent. EARLY in July, the European Union's Parliament rejected in an overwhelming 648-14 vote a bill proposing a common framework for patenting of software across its 25 member-countries. Given the vote, the E.U. stays with the status quo in which software patenting is still possible, though there are as many software patenting regimes in place as there are members. This near unanimity in favour of the status quo was unusual, especially because the debate on software patenting that preceded the vote was contentious, to say the least. In fact, the long debate has helped clarify the case, (mostly) against and (less) for the provision of patent protection for software. It began when, backed by big technology companies, the Commission of the European Communities prepared in 2002 a proposal for a directive of the European Parliament and of the council on the patentability of computer-related innovations. A "computer-implemented invention", which is a rather convoluted term for software, is defined as any invention the performance of which involves the use of a computer, computer network or other programmable apparatus, and which has one or more prima facie novel features that are realised wholly or partly by means of a computer programme. A computer-implemented invention is patentable on the condition that it is susceptible of industrial application, is new and non-obvious, and makes a technical contribution. A "technical contribution" in turn is defined, quite ambiguously, as a contribution to the state of t! he art in a technical field which is not obvious to a person skilled in the art. The ambiguity surrounding the definition of what is patentable is thus obvious. The Commission's case was straightforward. Software makes a significant contribution to gross domestic product (GDP) and employment in the Union and that contribution is expected to rise rapidly over the coming years if members are provided appropriate opportunities. Patent protection, which offers an inventor a protected right to exploit the invention without fear of competitive replication for a specified period of time, has proved its usefulness as an incentive to innovators to invest the necessary time and capital on new innovations. And the growing use of software patents in the United States could put large technology firms in Europe at a disadvantage. Hence, there was need to harmonise, and thereby, strengthen the software protection regime in Europe. However, the Commission's immediate ambition was presented as being more limited. It suggested that the prevailing regime relating to software protection in the E.U. was ambiguous for two reasons. First, though under Article 52(2) of the European Patent Convention (EPC), programmes for computers "as such" are not inventions and are, therefore, excluded from patentability, a large number of patents for computer-implemented inventions had been granted by the European Patent Office (EPO) and by national patent offices. The EPO alone is reported to have granted more than 30,000 software patents. Secondly, even when statutory provisions setting out the conditions for granting such patents were similar, there were substantial differences in the implementation of these provisions as reflected in the case law of the Boards of Appeal of the European Patent Office and the courts of member-states. In order to deal with these ambiguities, the proposed legislation sought to codify with the help of European case law the circumstances in which software can be considered as being more than a computer programme "as such". This was expected to provide information as to the nature of software innovations that can be patented and increase the volume of patenting. A second important objective of the directive was to harmonise the patent regime across the Union, so as to reduce the ambiguities resulting from the differences in case law. The E.U.'s effort to expand the software patenting regime was a major step forward given the fact that software patents were till recently not the norm and given the controversy which still surrounds the provision of patents for software. In fact, it was only in 1981 that the U.S. Supreme Court ruled that software was patentable, at least when it functioned or operated to control an industrial process. However, for long after that, software was essentially considered to be non-patentable, since many computer programmes performed a range of more "intangible" functions such as word processing, accounting and graphics generation. Protection for such software was available only under the copyright convention. However, there is a substantial degree of difference in the extent of protection afforded by copyrights and patents. Copyright traditionally protects only the "expression" of an idea, whereas a patent protects the idea itself. Thus, in the case of software, copyright protection extends only up to the original software code, which cannot be replicated or altered. But if an alternative code can be deployed to achieve the same end result, copyright is not violated. As a result, courts have interpreted the extent of copyright protection for software by closely examining the details of a computer programme rather than the overall characteristics of the end product. A classic instance of this was when Borland International included in its accounting software Quattro a set of Lotus 1-2-3 type menu commands, which allowed customers to switch easily from the latter to the former. Customers had the option of using Quattro's own menu commands or a virtually identical copy of the entire 1-2-3 menu tree. However, Borland did not copy any of Lotus' underlying computer code that delivered the functions performed by the spreadsheet. However, Lotus, as expected, chose to go to court on grounds of copyright infringement. After a four-year battle in the courts the Supreme Court upheld a decision by the First U.S. Circuit Court of Appeals denying copyright protection for the menu commands in the Lotus 1-2-3 electronic spreadsheet programme. The First Circuit Court had assessed Lotus' menu tree to be a "method of operation" that was expressly excluded from copyright protection since the relevant clause states: "[I]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle or discovery, regardless of the form in which it is described, explained, illustrated or embodied in such work." What is more the court declared: "The computer programme is a means for causing something to happen; it has a mechanical utility, an instrumental role, in accomplishing the world's work. Granting protection, in other words, can have some of the consequences of patent protection in limiting other people's ability to pe! rform a task in the most efficient manner.... It is no accident that patent protection has preconditions that copyright protection does not - notably, the requirements of novelty and non-obviousness - and that patents are granted for a shorter period than copyrights." In sum, if software had to be protected in the manner in which Lotus and others felt it should be, then a patent, rather than copyright, was the appropriate route. Since a patent can protect an idea or concept, the patent claim can be written to cover the so-called novel combination of elements or steps making up the patented system or process. This would make it difficult or impossible to write another computer programme that would offer a similar system or process without infringing the patent. IT was in the context of such judgements that a virtual movement to ensure patent protection for software began in the U.S. The result has been a flood of patent applications for software, resulting in the grant of what has been identified as "clearly invalid patents" for inventions that are either not new or where there is no significant inventive step. That tendency has not slowed. According to Randall Stross, a Silicon Valley analyst who recently wrote on the subject in The New York Times, around a year back, Bill Gates announced Microsoft's decision to raise the number of patent applications it submitted annually to 3,000 from 2,000. This amounts to identifying close to 60 novel and non-obvious patentable ideas every week. Not surprisingly, the subjects of Microsoft's applications were indeed flimsy. Stross is convinced that the 3,955 patents that Microsoft has already been issued should be struck down and the 3,368 patent applications it has pending should be summarily rejected. His view is shared by software major Oracle, which had, in an officially declared policy, opposed the patenting of software as it was inappropriate for industries in which innovations occur rapidly, can be made without a substantial capital investment and tend to be creative combinations of previously known techniques. In its view, patent protection was devised for engineering and mechanical technologies that are characterised by large "building block" inventions that can revolutionise a given mechanical process. On the other hand, "software, especially a complex programme, seldom includes substantial leaps in technology, but rather consists of adept combinations of many ideas". There are also a number of practical problems in implementing a software patent regime. As Oracle put it: "Software patent examinations are hindered by the limited capability of searching prior art, by the turnover rate among examiners in the Patent and Trademark Office, and by the confusion surrounding novelty and innovation in the software arena. The problem is exacerbated by varying international patent laws, which both raise the cost and confuse the issue of patent protection." What is more, filings of patent applications tend to be expensive, especially because of the large sums to be paid out in the form of lawyers' fees. Further, patents for incremental innovation, which is typical of the software industry, entail the economic costs of identifying the patent holders and negotiating the necessary licences. Small firms, therefore, would be unwilling to apply for patents, even though many new software ideas emanate in them. Hence, patents for computer-implemented inventions might strengthen the market positions of the big players and result in the monopolisation of an industry that technologically tends to be more competitive in structure. The net result would be a setback for innovation. Based on such arguments, the advocates of open source software joined the debate on the E.U. software directive. The controversies that ensued generated the fear among the big software companies that they would lose even the protection they currently receive through the EPC and national patent legislation. So while small firms and the open source software movement wanted the E.U. bill rejected and used as an occasion to question the appropriateness of software patenting, the big firms wanted the bill dropped to prevent its use as the basis for a reversal of the existing level of software protection. In the event, the bill was rejected in a vote which Josep Borrell, president of the E.U. Parliament, described as the most decisive majority vote in the history of the chamber. This near-unanimity was surprising. Before the vote, there was no commonality of purpose, but differences on the direction software patenting should take ensured convergence around a negative verdict. Mean! while, the software patenting regime in the E.U. continues as before despite the arguments advanced to show that the practice, like the E.U. directive, must go. Copyright: 1995 - 2005 The Hindu Republication or redissemination of the contents of this screen are expressly prohibited without the consent of The Hindu From sunil at mahiti.org Fri Aug 26 15:14:34 2005 From: sunil at mahiti.org (Sunil Abraham) Date: Fri, 26 Aug 2005 15:14:34 +0530 Subject: [Commons-Law] CALL FOR APPLICATIONS - Fellowships on Open Information Policy Message-ID: <20050826094434.A4D2316CD8C@server.mahiti.org> The International Policy Fellowship Program (IPF) of the Open Society Institute has issued its annual call for fellowship proposals. Open Information Policy is one of the program's focal areas this year. Here are details concerning this area, taken from the IPF website at www.soros.org/initiatives/ipf : "Advanced by the internet, alternatives to long-standing intellectual property regimes have created an environment to re-assess the relationship between democracy, open society and new information technologies. The promise of open source technology with respect to civil society and the incalculable leaps in information production by means of open content and weblogs present a new platform for civic participation. Whether and in what form such promises can be realized lies at the basis of the research questions below. * Weblogs & Civic Discourse. How does the rapid expansion of weblogs alter news production and civic discourse? Can it counter ever-increasing concentration of ownership in the traditional mass media? How do traditional notions of editorial standards and journalistic professionalism apply to this new medium? Is the 'blogosphere' an enhancement of the public sphere, or does it threaten its disintegration? * Open Content & Sustainability. Open Access publishing is revolutionizing scientific publishing. New alternative licensing systems like Creative Commons support decentralized information production, by making it easier for creators to share and permit re-use and modification of their work, while retaining certain rights. What are the business models that are developing around these commons-based models of sharing freely online? These cases are by and large un-documented and seem to contrast starkly with well-established economic and legal norms that rest on notions of scarcity, exclusivity and controlled access. * Open Content & Standards. Wikipedia, a freely available encyclopedia, is a visible and widely cited example of collaborative, distributed knowledge production enabled by the Internet. Such models seem to have great promise for more equitable access to knowledge; yet they also run the risk of dispensing with editorial standards. How can quality standards emerge in a distributed environment? Are they robust enough to be relied upon? * Open Source: Ownership and Control of Communications Technology. Communications technology (both hardware and software, and the standards on which most communications networks are based) is a key part of today's infrastructure for civil society engagement. How do the different models of ownership and control of the knowledge underlying this infrastructure (expressed in technology standards and software, either open or proprietary) affect access and participation by civil society, in particular, civil society in developing countries? * Intellectual Property & Access to Knowledge: The case of Free Trade Agreements. Intellectual property laws are a powerful instrument for controlling access to knowledge, and in some cases to restrict free speech. New standards shaped by rich-country interests are now being globalized and imposed on poorer countries. In recent years, bilateral Free Trade Agreements have become an important part of this process. How do those free trade agreements undermine the rule of law and basic principles of democratic lawmaking in countries around the world that are signing these agreements?" *________________________________________________________________________* *CALL FOR PROPOSALS* *INTERNATIONAL POLICY FELLOWSHIPS, 2006-2007* *All applications must be submitted online by September 20, 2005 from_ __www.soros.org/initiatives/ipf_ * *________________________________________________________________________* The International Policy Fellowships (IPF) program is calling for applications for 2006-2007 fellowships. Launched in 1998 and affiliated with the Open Society Institute and the Center for Policy Studies (CPS) of the Central European University in Budapest, these fellowships support analytical policy research in pursuance of open society goals such as the rule of law, democratic elections, diverse and vigorous civil societies, and respect for minorities. Each year the IPF program invites research proposals that address critical issues in the development of open societies. Successful applicants will demonstrate originality, sound project design and the strong likelihood that their project may lead to significant impact on policy. The IPF program seeks to enhance the quality of policy research in the countries where the Soros Network operates, throughout Central and Eastern Europe, the former Soviet Union, and Mongolia, as well as Africa, South and Southeast Asia, and the Middle East. It places strong emphasis on independent research that is both rigorous and appreciative of practical implications. Analysis and evaluation of existing policy contexts should be based on explicit criteria and fellows should be able to communicate their ideas and findings in a variety of professional and public settings. *Applicants are encouraged to submit individual, practical and policy-oriented research proposals in the following subject areas. The product of each fellowship will be a detailed analysis of a major issue to be published in English and translated into other languages:* *2006-7 Fellowship Issue Areas: General Framework: New Frontiers of Democratic Politics* * *The Challenge of Wider Europe* * *Open Society Promotion in Predominantly Muslim Societies* * *Combating Open Society Threats* * *Combating the Resource Curse * * *Roma Exclusion * * *Open Information Policy * *Main Terms of the International Policy Fellowship Award* * Fellows receive supervision and support from a senior policy analyst * Fellows are invited to Budapest in April 2006 for initial orientation to the program * Optional specialized policy research and advocacy training courses in Budapest * Monthly stipends commensurate with local salaries * Budget for reasonable research, communications, travel, publication and advocacy costs * Discretionary funding for conference participation *How to Apply* Applicants should carefully complete the online application form found at www.soros.org/initiatives/ipf, which includes a project summary, research proposal (maximum 4 pages), and a resume/CV including a list of publications. Applicants may also include a letter of reference from an affiliated organization and a writing sample on the chosen topic. Those who have no possibility to access the Internet should send an e-mail to fellows at osi.hu to discuss alternate application solutions. Applications sent by mail, fax or e-mail will not be considered unless given prior approval from IPF staff. Applications must be submitted online by* September 20, 2005*. IPF does not consider late applications. From sunil at mahiti.org Fri Aug 26 18:13:11 2005 From: sunil at mahiti.org (Sunil Abraham) Date: Fri, 26 Aug 2005 18:13:11 +0530 Subject: [Commons-Law] IOSN Microgrant: Fijian Spell Checker for Open Office Message-ID: <20050826124311.621B416C088@server.mahiti.org> Greetings from the University of the South Pacific here in Suva, Fiji Islands! Some of the faculty members and students here have finished a project under an IOSN microgrant to develop a spelling dictionary for the Fijian language. Information from the proposal and the dictionary itself (which has been submitted to OpenOffice) can be found at the following link. http://www.iosn.net/Members/blanke_w/index_html/ Cheers Bill Blanke www.usp.ac.fj From afish at uci.edu Sat Aug 27 11:42:32 2005 From: afish at uci.edu (afish at uci.edu) Date: Fri, 26 Aug 2005 23:12:32 -0700 (PDT) Subject: [Commons-Law] Talk at ALF on Commodification of Yoga, 30-8-05 Message-ID: <2736.59.92.147.122.1125123152.squirrel@webmail.uci.edu> Alternative Law Forum No 4 Ground Floor 3rd Cross, 8th Main Vasanthnagar Bangalore -560052 invites you to A Discussion on the Global Commodification of Yoga: The Management of an Emerging Market through the Franchise Form and Intellectual Property Claims by Allison Fish (ALF intern/doctoral student) of the Department of Anthropology at the University of California, Irvine DATE: Tuesday, 30th August 2005 TIME: 6.00 p.m. Venue : ALF Please find attached the following two documents that are related to the subject of the discussion: 1. Paper presentation for the Stanford conference on the Anthropology of the State: The State of Anthropology 2. Grant Proposal for dissertation research (research to be conducted 2006) Abstract for discussion: The practice of yoga outside of India and for commercial exchange (transnational yoga) is a multi-billion dollar industry that has been the site of increasing formal and informal regulatory activities by state institutions, private individuals, and interest groups. The primary questions that these regulations are meant to resolve include: (1) What is yoga and its practice?, (2) What is its proprietary nature, and (3) Who has the right to manage the expression of yoga and teach a practice? By researching the intersection of yoga, capitalism, globalization, and the law this project expects to answer the question of who owns what a yogi teaches and how this relationship between people and practices contributes to new forms. Academically, this project will contribute to several different areas of socio-legal and anthropological literature. These areas include; (1) The relationship between authorship, ownership, and legal control, (2) The study of organizational form and self-regulating tendencies in markets, (3) The ethical and intercultural implications of the litigation of intellectual property law, and (4) The control of the global marketplace through formal and informal means. Additionally, this project will study law-in-action in a debate that has yet to be finally resolved and affects a multi-billion dollar industry. Such a study can contribute to an understanding of how modern intellectual and cultural property laws, which have been subject to significant change over the last two decades, unfold and socially develop. By examining the ways in which different groups attempt to answer, for themselves and others, the questions “Who owns what a yogi teaches?” and “Why is the determination of ownership important?” this project hopes to gain an understanding of how and why in this specific modern moment control of and power over new forms of “property” are exercised and justified. -------------- next part -------------- A non-text attachment was scrubbed... Name: nsf grant ps and pd 2.doc Type: application/msword Size: 116224 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20050826/46e91d66/attachment.doc -------------- next part -------------- A non-text attachment was scrubbed... Name: Yoga_finalv_stanford_Fish.doc Type: application/msword Size: 43520 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20050826/46e91d66/attachment-0001.doc From lawrence at altlawforum.org Tue Aug 30 12:40:36 2005 From: lawrence at altlawforum.org (Lawrence Liang) Date: Tue, 30 Aug 2005 12:40:36 +0530 Subject: [Commons-Law] Call for Proposals - Fellowships on Open Information Policy In-Reply-To: <430EFB25.4020309@osieurope.org> Message-ID: ------ Forwarded Message From: Vera Franz Date: Fri, 26 Aug 2005 12:21:09 +0100 To: Subject: [Cc-icommons] Call for Proposals - Fellowships on Open Information Policy ***Please distribute widely*** CALL FOR PROPOSALS - FELLOWSHIPS ON OPEN INFORMATION POLICY by the OPEN SOCIETY INSTITUTE Deadline for applications: September 20, 2005 Eligible are candidates from Central and Eastern Europe, the former Soviet Union, and Mongolia, as well as Africa, South and Southeast Asia, and the Middle East The International Policy Fellowship Program (IPF) of the Open Society Institute has issued its annual call for fellowship proposals. Open Information Policy is one of the program's focal areas this year. Here are details concerning this area, taken from the IPF website at : Advanced by the internet, alternatives to long-standing intellectual property regimes have created an environment to re-assess the relationship between democracy, open society and new information technologies. The promise of open source technology with respect to civil society and the incalculable leaps in information production by means of open content and weblogs present a new platform for civic participation. Whether and in what form such promises can be realized lies at the basis of the research questions below. ** Weblogs & Civic Discourse. How does the rapid expansion of weblogs alter news production and civic discourse? Can it counter ever-increasing concentration of ownership in the traditional mass media? How do traditional notions of editorial standards and journalistic professionalism apply to this new medium? Is the 'blogosphere' an enhancement of the public sphere, or does it threaten its disintegration? ** Open Content & Sustainability. Open Access publishing is revolutionizing scientific publishing. New alternative licensing systems like Creative Commons support decentralized information production, by making it easier for creators to share and permit re-use and modification of their work, while retaining certain rights. What are the business models that are developing around these commons-based models of sharing freely online? These cases are by and large un-documented and seem to contrast starkly with well-established economic and legal norms that rest on notions of scarcity, exclusivity and controlled access. ** Open Content & Standards. Wikipedia, a freely available encyclopedia, is a visible and widely cited example of collaborative, distributed knowledge production enabled by the Internet. Such models seem to have great promise for more equitable access to knowledge; yet they also run the risk of dispensing with editorial standards. How can quality standards emerge in a distributed environment? Are they robust enough to be relied upon? ** Open Source: Ownership and Control of Communications Technology. Communications technology (both hardware and software, and the standards on which most communications networks are based) is a key part of today's infrastructure for civil society engagement. How do the different models of ownership and control of the knowledge underlying this infrastructure (expressed in technology standards and software, either open or proprietary) affect access and participation by civil society, in particular, civil society in developing countries? ** Intellectual Property & Access to Knowledge: The case of Free Trade Agreements. Intellectual property laws are a powerful instrument for controlling access to knowledge, and in some cases to restrict free speech. New standards shaped by rich-country interests are now being globalized and imposed on poorer countries. In recent years, bilateral Free Trade Agreements have become an important part of this process. How do those free trade agreements undermine the rule of law and basic principles of democratic lawmaking in countries around the world that are signing these agreements? *________________________________________________________________________* *CALL FOR PROPOSALS* *INTERNATIONAL POLICY FELLOWSHIPS, 2006-2007* *All applications must be submitted online by September 20, 2005 from_ __www.soros.org/initiatives/ipf_ * *________________________________________________________________________* The International Policy Fellowships (IPF) program is calling for applications for 2006-2007 fellowships. Launched in 1998 and affiliated with the Open Society Institute and the Center for Policy Studies (CPS) of the Central European University in Budapest, these fellowships support analytical policy research in pursuance of open society goals such as the rule of law, democratic elections, diverse and vigorous civil societies, and respect for minorities. Each year the IPF program invites research proposals that address critical issues in the development of open societies. Successful applicants will demonstrate originality, sound project design and the strong likelihood that their project may lead to significant impact on policy. The IPF program seeks to enhance the quality of policy research in the countries where the Soros Network operates, throughout Central and Eastern Europe, the former Soviet Union, and Mongolia, as well as Africa, South and Southeast Asia, and the Middle East. It places strong emphasis on independent research that is both rigorous and appreciative of practical implications. Analysis and evaluation of existing policy contexts should be based on explicit criteria and fellows should be able to communicate their ideas and findings in a variety of professional and public settings. *Applicants are encouraged to submit individual, practical and policy-oriented research proposals in the following subject areas. The product of each fellowship will be a detailed analysis of a major issue to be published in English and translated into other languages:* *2006-7 Fellowship Issue Areas: General Framework: New Frontiers of Democratic Politics* * *The Challenge of Wider Europe* * *Open Society Promotion in Predominantly Muslim Societies* * *Combating Open Society Threats* * *Combating the Resource Curse * * *Roma Exclusion * * *Open Information Policy * *Main Terms of the International Policy Fellowship Award* * Fellows receive supervision and support from a senior policy analyst * Fellows are invited to Budapest in April 2006 for initial orientation to the program * Optional specialized policy research and advocacy training courses in Budapest * Monthly stipends commensurate with local salaries * Budget for reasonable research, communications, travel, publication and advocacy costs * Discretionary funding for conference participation *How to Apply* Applicants should carefully complete the online application form found at www.soros.org/initiatives/ipf, which includes a project summary, research proposal (maximum 4 pages), and a resume/CV including a list of publications. Applicants may also include a letter of reference from an affiliated organization and a writing sample on the chosen topic. Those who have no possibility to access the Internet should send an e-mail to fellows at osi.hu to discuss alternate application solutions. Applications sent by mail, fax or e-mail will not be considered unless given prior approval from IPF staff. Applications must be submitted online by* September 20, 2005*. IPF does not consider late applications. -- Vera Franz Program Manager Information Program Open Society Foundation Cambridge House 100, Cambridge Grove London, W6 OLE phone +44 20 7031 0219 fax +44 20 7031 0201 _______________________________________________ Cc-icommons mailing list Cc-icommons at lists.ibiblio.org http://lists.ibiblio.org/mailman/listinfo/cc-icommons ------ End of Forwarded Message